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HomeMy WebLinkAbout2014-3633.Hyland.21-03-08 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2014-3633; 2014-3634; 2014-3635; 2014-3636; 2015-0585; 2015-0952; 2015-0953; 2015-0954; 2015-1502; 2015-1972; 2016-2768 UNION# 2014-0368-0195; 2014-0368-0196; 2014-0368-0197; 2014-0368-0198; 2015-0368-0204; 2015-0368-0229; 2015-0368-0230; 2015-0368-0231; 2015-0368-0313; 2015-0368-0336; 2017-0368-0017 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Hyland) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION David Wright Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel HEARING Oct. 24, 2017, March 15, June 21, 2018; Feb. 7, March 18, 20, Oct.16, 17, 22, 23, 29, Nov. 5, 2019; and March 12, 2020 - 2 - Decision [1] I have eleven grievances before me filed on behalf of Mr. B. Hyland, a Correctional Officer (“CO”) employed at the Central East Correctional Centre (“CECC”). These grievances were filed in 2014, 2015 and 2017 and they form the basis for the claims made by the Union in this case. The Union alleges that the Employer contravened an agreement between the parties made in 2014 relating to the assignment of General Duty Officer (“GDO”) duties to Mr. Hyland (“the GDO Agreement”). The Union also alleges that the Employer failed to properly accommodate Mr. Hyland primarily in two respects. Firstly, and this position is factually related to the allegation that the Employer contravened the GDO Agreement, the Union claims that the Employer assigned Mr. Hyland fewer and a limited range of duties in comparison to other GDOs and that it often assigned him duties that were inconsistent with his restrictions and limitations. Secondly, the Union claims that the Employer did not effectively enforce its smoking policy thereby detrimentally impacting Mr. Hyland’s work environment. In essence, the grievances before me raise two central issues. One is whether the Employer failed to reasonably accommodate Mr. Hyland because of its failure to enforce the smoking policy. The second is whether the Employer’s assignment of duties to Mr. Hyland was inconsistent with its obligations under the GDO Agreement and with its duty to accommodate him, having regard to his disability. The parties agreed that the relevant period of time for reviewing these issues is the 4½ years commencing on June 2, 2014, and ending on December 10, 2018. Apart from seeking certain directions, the primary remedy sought by the Union is damages for breach of the GDO Agreement and human rights damages for the Employer’s failure to properly accommodate Mr. Hyland. The Union advised that it was not pursuing compensation for Mr. Hyland’s monetary losses in that it was not seeking top-up for certain payments that did not fully replace his lost income during the relevant period. In requesting dismissal of the grievances, the Employer took the position that it did not contravene the GDO Agreement and that it did not fail to properly accommodate Mr. Hyland in any respect over the 4½ years under review. [2] The witnesses for the Union were Mr. Hyland, CO G. Cooney, CO M. - 3 - Canning, CO R. Gilchrist, the Local Union Vice-President, and CO C. Butsch, the Local Union President. The witnesses for the Employer were Deputy Superintendent (“DS”) of Administration J. Merriam, who had been trained for the General Duty Manager (“GDM”) position, had worked twelve GDM shifts and had responsibility for the General Duty Office when he had previously been an acting DS of Operations, Acting DS of Operations M. Fraser, who was a GDM from 2015 to 2018, and a GDO from 2011 to 2014, and Ms. J. Hutton, Human Resources Advisor with the Ontario Provincial Police, who at the relevant time was a Staff Services Manager at the CECC. In determining the facts, I have considered the testimony of the witnesses, the documentary evidence and the submissions of counsel relating thereto. [3] This is not the first instance where I have been asked to address accommodation disputes involving Mr. Hyland. The GSB has previously released a number of decisions in which I addressed similar issues that were raised by grievances filed by Mr. Hyland. These grievances covered different periods of time and Mr. Hyland’s employment at various institutions. The last three substantive decisions I decided concerned Mr. Hyland’s employment at the CECC. These decisions were referred to by counsel in this proceeding because they provide a useful context for examining the issues in the instant case and because they covered periods of time which just proceeded the period of time now under review. The most recent decision of the three explains the circumstances that gave rise to the GDO Agreement. Before I describe the factual context giving rise to the grievances in the instant case, it will be helpful to review these three decisions in some detail. [4] The decision dated January 15, 2014, dealt with whether the Employer properly accommodated Mr. Hyland from the time he arrived at the CECC in September of 2009 until July 14, 2011. The hearing of the many issues in that case required twenty-nine hearing days and resulted in a lengthy decision. I set out Mr. Hyland’s disability and his arbitration history in the opening paragraph of that decision as follows: [1] Mr. B. Hyland has been employed as a Correctional Officer (“CO”) for over twenty-five years, starting at the Toronto Jail in 1986. Following a secondment at the Toronto East Detention Centre (“TEDC”) for about a year, he succeeded in a job competition that brought his home position to the TEDC in February 1995. Following - 4 - decisions of the GSB, Mr. Hyland moved to the Brookside Youth Centre (“Brookside”) in August 2004 and then to the Central East Correctional Centre (“CECC”) in September 2009, where he is currently employed. During his tenure at each of these institutions Mr. Hyland filed numerous grievances claiming, among other things, that the Employer had discriminated against him because of its failure to reasonably accommodate him. Mr. Hyland has asthma and a particular sensitivity to cigarette smoke. Exposure to cigarette smoke causes symptoms that often result in absences from work for varying periods of time. In separate decisions, with the first released on May 13, 2002, I found that the Employer had failed to properly accommodate Mr. Hyland while he was employed at the TEDC, at the Toronto Jail and at Brookside… [5] The specific issues that were before me in that case are described at paragraph 3 of the decision. [3] In its claim that the Employer failed to reasonably accommodate Mr. Hyland, the Union focused on a few specific matters. These are the decision of the Employer to deny Mr. Hyland access to the secure part of the institution during his first three months at the CECC, the assignment of Mr. Hyland to the Upper Hallway post and then to the Unit 12 Sub-Control post, the Employer’s handling of what can be described as the A&D incident, which the Union asserts caused Mr. Hyland’s absence from the workplace from September 13, 2010 until March 28, 2011, and the Employer’s failure to adequately police and enforce the smoking policy. Although Mr. Hyland referenced other issues during his testimony, it was only the specific matters that I have just identified which shaped the Union’s claim for relief. In addition to requesting certain declarations, the Union seeks an order directing the parties to find a proper placement for Mr. Hyland within the Ontario Public Service and that Mr. Hyland remain on full pay without the requirement to report to work at the CECC until a proper placement is found. Alternatively, it requests that I direct the Employer to assign Mr. Hyland to A&D at the CECC, with the appropriate modifications made to the A&D schedule to accommodate his restrictions. In the further alternative, the Union requests that I direct the parties to find a reasonable post for Mr. Hyland at the CECC. The Union also seeks a direction that the Employer fully compensate Mr. Hyland for losses he incurred from September 13, 2010 to March 28, 2011, arising from the Employer’s failure to properly accommodate him. I was asked to remit any other compensation issues to the parties. The Union also requests that I award Mr. Hyland $50,000.00 in general damages and $25,000.00 in damages for mental anguish, both claims arising from the Employer’s failure to reasonably accommodate Mr. Hyland. [6] In paragraph 6 of the decision, I described some of Mr. Hyland’s previous efforts to secure a smoke free work environment and a reasonable accommodation. [6] The context for the examination of Mr. Hyland’s experiences at the CECC and an understanding of the positions of the parties can be extracted from elements of the previous accommodation decisions involving Mr. Hyland. Even after the Ministry adopted a no smoking policy in 2000, Mr. Hyland continued to encounter cigarette smoke and to observe evidence of smoking at his place of work. He complained about exposures to cigarette smoke to management. He complained when he observed management or staff smoking at the workplace in contravention of the smoking policy. He also complained when he observed evidence of smoking, usually consisting of - 5 - cigarette butts, in areas where smoking is prohibited, both within the institution and on the property. He consistently complained that management did not take appropriate steps to monitor and enforce the smoking policy. A recurring dispute between the parties in the earlier proceedings is whether management took reasonable steps to enforce the smoking policy. Mr. Hyland complained verbally, in emails, with grievances and in Occurrence Reports about contraventions of the smoking policy. He filed WSIB claims and on occasion made WDHP complaints. In an effort over many years to obtain what he believes is a reasonable accommodation, Mr. Hyland has become quite frustrated with the Employer. He claims that his efforts to secure a proper accommodation, the Employer’s failure to enforce the smoking policy and its failure to properly accommodate him have caused him and his family considerable stress. Mr. Hyland often perceives Employer conduct as a reprisal for his efforts to enforce his right to obtain a proper accommodation. [7] Mr. Hyland arrived at the CECC by means of a lateral transfer. His request for such a transfer was initially denied and he grieved that decision. In a decision dated September 8, 2009, I determined that the Employer’s decision to deny his transfer request was discriminatory since the denial was related to his disability and I directed the Employer to transfer Mr. Hyland to the CECC. Mr. Hyland’s transfer request was subsequently approved and he was scheduled to report to the CECC in September of 2009. Returning to the decision dated January 15, 2014, I set out a description of the CECC, its smoking policy and Mr. Hyland’s initial placement at the institution in the following paragraphs: [9] The CECC opened in February 2003. It is a large maximum-security facility located at Lindsay, Ontario. The thirteen self-sufficient units are under one roof, connected by hallways. Offenders are housed in pods. The CECC can house approximately 1200 inmates and has 600 employees. Central control is located at the centre of the facility and operates on a 24 hour, 7 days a week basis. A control module is located in each unit and operates on the same basis. Employees can have lunch and take breaks in the Staff Servery. Separated by a glass wall and a doorway, an outdoor courtyard is adjacent to and visible from the Staff Servery. The main entrance into the CECC is at the front of the administration building facing the parking lot. At the request of the parties, I took a view of the CECC on June 30, 2011. [10] The CECC’s smoking policy, which essentially mirrors the Ministry’s smoking policy, is contained in section 2.8 of the Standing Orders. The introduction in section 2.8 notes that the Ontario Government Policy on Smoke Free Workplaces is “based on well-documented evidence relating to the health hazards of tobacco smoke and an awareness of the employer’s responsibility to provide safe and healthy workplaces…” Section 2.8 provides that smoking is prohibited in buildings, yards, courtyards, out buildings and Ministry vehicles. Employees are not permitted to smoke or possess tobacco products in the facility or while supervising inmates. Managers and Supervisors are responsible for ensuring compliance with the policy. The policy provides that “At present the only designated smoking area is located to either side of the front parking lot, adjacent to the benches situated on the north and south side - 6 - of the administration building.” The administration building has an extended section where the front entrance doors are located. The distance on either side of the front entrance to the edge of the administrative building is 57 feet. The front entrance to the permitted smoking areas is 197 feet to the south picnic tables and 184 feet to the north picnic tables. The distance to the smoking shelter located on the south side is 163 feet from the entrance. The smoking shelter was installed a few months after Mr. Hyland arrived at the CECC. The smoking policy provides that appropriate signage will be posted in various areas including the entrance to the administration building, the lobby and the Staff Servery. [11] Although Mr. Hyland attended at the CECC on September 21, 2009, further to the Superintendent’s instruction, he did not start to work until September 28 because of a request to provide a medical note confirming his health status. In a medical note dated September 23, 2009, Mr. Hyland’s family physician, Dr. Bolger, advised that Mr. Hyland could return to work on September 28, 2009 and that “He should be restricted to a smoke free environment and restricted hours to straight day shifts ending no later than 5:00 pm Monday through Friday.” After a period of orientation and job shadowing, Mr. Hyland was assigned the Upper Hallway post and he was directed not to enter the secure part of the CECC… [8] I then began to address the issues that were identified by the Union as set out previously. For about the first four months of his employment at the CECC, the Employer had decided to place Mr. Hyland at the Upper Hallway post and to deny him access to the secure part of the institution. After a few months, the Superintendent did give Mr. Hyland access to the secure part of the facility. In addressing the Employer’s decision to initially deny Mr. Hyland access to the secure part of the institution, I wrote as follows: [16] I agree with the Union’s position that the Employer’s decision to deny Mr. Hyland access to the secure part of the CECC, by itself, amounts to discriminatory treatment on the basis of disability. Excluding Mr. Hyland from the secure section of the institution was too restrictive and was not necessary to achieve the objective of a smoke free environment. There was no justification to treat Mr. Hyland differently from other COs in these circumstances. The effect of this treatment was to single out Mr. Hyland and to isolate him from other COs. It is unfortunate that Mr. Hyland experienced this discriminatory treatment at the start of his tenure at the CECC. The Employer’s decision to deny his request for a lateral transfer caused him to believe that he was not wanted at the CECC. Denying him access to the secure part of the CECC served to confirm this belief. [9] Following the assignment to the Upper Hallway post, Mr. Hyland was assigned to the Unit 12 Sub-Control. Even though Mr. Hyland had no exposures to cigarette smoke while working at these posts, the Union had argued that these assignments did not satisfy the Employer’s obligation to provide Mr. Hyland with a - 7 - reasonable accommodation. I described the differing views of the parties on what constitutes a reasonable accommodation as follows: [18] … The parties agree that it is for the Employer to ultimately decide what job to assign to an accommodated employee, after taking into account the employee’s medical restrictions and after consulting the employee and the Union. They differ however on what factors the Employer should take into account when selecting a post as part of its duty to find a reasonable accommodation. Employer counsel argued that the Employer satisfies its duty to accommodate by simply assigning a disabled employee a post that meets the employee’s restrictions. Counsel submitted that both the Upper Hallway post and the Unit 12 Sub-Control post met Mr. Hyland’s restrictions and that they therefore provided him with a reasonable accommodation. The Union took the position that it is not that simple and that the Employer’s obligations go further, within the limits of undue hardship. Union counsel argued that the duty to accommodate requires the Employer to place a disabled employee in an available post that meets the employee’s restrictions and that would permit the employee to more fully utilize CO skills and to perform a broader range of duties. Counsel submitted that the Employer failed in this regard when it assigned Mr. Hyland to the Upper Hallway and Unit 12 Sub-Control posts. [10] I decided the dispute over Mr. Hyland’s placement as follows: [19] … Given the importance of work to an employee and the basis in human rights legislation for the obligation to accommodate a disabled employee to the point of undue hardship, I agree with the Union that the obligation on an employer to accommodate is not satisfied by simply placing an employee in a job that meets his or her restrictions if there are alternative jobs available that would permit the disabled employee to utilize his or her skills to a greater degree and perform a broader range of duties. [20] The CECC is a large institution with a variety of posts. There is a process in place that provides a CO with the opportunity to change posts. When a disabled employee has the opportunity to change his or her post, it would be improper to deny the employee a change if the post sought meets the employee’s restrictions and is otherwise available. It would be discriminatory to deny the disabled employee a right that is available to other COs, even when the disabled employee’s existing post meets his or her restrictions. If there were more than one post that meets an employee’s restrictions, it would be improper to assign the employee to the least desirable post when another would permit the employee to utilize more skills and to perform a broader range of CO duties, thereby providing the employee with a more satisfactory work experience. Again, it would be discriminatory to deprive a disabled employee a right that other employees enjoy when it comes to selecting a post, everything else being equal. The assignment of an employee to the less desirable alternative risks a finding that the assignment was not a reasonable accommodation in the circumstances. This does not mean that the disabled employee is entitled to a preferred post or a particular post even if that post can be assigned without undue hardship. What it does mean is that assigning a post to a disabled employee after only taking into account the employee’s restrictions may not satisfy an employer’s obligation to reasonably accommodate an employee if there are alternative posts that are less restrictive. - 8 - [21] The Employer is faced with balancing a number of factors when deciding where to place Mr. Hyland. A post may have a low risk of exposure to smoke, but may be very restrictive while another post may provide for a broader range of duties, but may have an increased risk of exposure to smoke. If the risk of exposure to smoke is minimal in assessing alternative posts, it may be difficult in most instances at the CECC to differentiate one post from another when considering which one offers a broader range of duties. On an issue of this sort the Employer is entitled to a fair degree of deference. Apart from the argument advanced by the Employer on the placement issue, I note that Superintendent Polya testified that management at the CECC does attempt to place a disabled employee in a post that is less restrictive in order to permit the employee to work throughout the CECC. This is essentially the approach I have indicated is necessary to satisfy the Employer’s obligation to reasonably accommodate a disabled employee. The question here is whether the Employer utilized this approach in its placement of Mr. Hyland. [22] In my view, the assignment of Mr. Hyland to the Upper Hallway post is tainted because it was made in concert with the decision to deny him access to the secure part of the CECC. It was a discriminatory assignment because that relatively undesirable post was selected without considering whether there were other available posts that would have been a better match on the basis of the considerations outlined above. The Employer limited its search to only the X-ray, A&D Sally Port and Upper Hallway posts, even though there were posts within the secure area that were similar in providing a smoke free environment. [23] Mr. Hyland’s assignment to the Unit 12 Sub-Control post in April 2010 is a different matter. This post was in the secure part of the CECC, met his restrictions well and is a more typical CO post when compared to the Upper Hallway post. Although, as Mr. Polya acknowledged, there are a number of posts at the CECC that could meet Mr. Hyland’s restriction of a smoke free environment, the evidence is not clear as to whether there were other options available, let alone less restrictive options, when the assignment to the Unit 12 Sub-Control post was made. Mr. Hyland was at that post for only a few months before he was given the opportunity to express an interest in certain vacancies and was then notified that his request to move to a post at A&D had been accepted. For these reasons, I am not prepared to conclude that the assignment to the Unit 12 Sub-Control post amounts to a failure by the Employer to reasonably accommodate Mr. Hyland. [11] The final matter of relevance to address at this time from the January 15, 2014 decision is the Union’s claim that the Employer failed to police and enforce the smoking policy. The following paragraphs refer to the evidence on that issue and my conclusions: [29] … The evidence establishes that the CECC is far from being a smoke free institution. As is the case with other correctional institutions, the best efforts of management at the CECC have not prevented inmates from bringing in contraband, including cigarettes. Some of the Managers and Ms. Yule testified that the presence of cigarette smoke is almost a daily occurrence in the inmate living units. The extensive searches of inmates as they enter the facility and the penalties they can receive for possessing contraband do not deter inmates from contravening the no smoking rule. - 9 - Without detailing all of management’s strategies to deal with this problem, I have no hesitation in finding that the Employer has made reasonable efforts to prevent inmates from violating the smoking policy. The significant problem of cigarette smoke in the inmate living units cannot be attributed to a failure on the part of the Employer to make extensive efforts to tackle this problem. The placement of Mr. Hyland in or perhaps even near inmate living units would not meet his restriction of a smoke free environment. Any effort by the Employer to place Mr. Hyland in an inmate living unit would violate its duty to provide him with a safe and healthy workplace. [30] The presence of smoking at the CECC is not confined to inmate living units. Staff smoking at the workplace in contravention of the smoking policy also appears to be a regular occurrence. Mr. Goden recognized the seriousness of staff smoking in contravention of the Smoke-Free Ontario Act and the smoking policy and he made it one of his priorities to end this practice. The Employer addressed the problem with extensive signage around the facility, memos to staff and managers to remind them of the policy, making the subject a regular agenda item for the Health and Safety Committee, by constructing a smoking shelter near the south bench and with temporary provision of an additional smoking location outside between pods 3 and 4 to address a particular smoking issue in pod 3. Memos to staff from Mr. Goden dated July 23, 2009, and December 22, 2009, convey the extent of the problem and identify a number of areas at the facility where violations of the smoking policy regularly occurred, such as the yards, the Servery courtyard, the A&D Sally Port, the duty desk, staff washrooms and the G Wing areas. Mr. Goden acknowledged in the first memo that “management has collectively failed to do all it can to ensure that CECC is in compliance with the Smoke Free Ontario Act.” He indicated that managers must be more accountable than other staff and that an aggressive campaign must be initiated. Mr. Goden indicated in the December 22, 2009 memo to staff that members of the Health and Safety Committee advised him “of their concern that management continues to ignore the policing of smoking in the institution.” The memos and other efforts by management appear to have had very little impact on staff smoking in violation of the smoking policy. [31] Mr. Hyland witnessed staff smoking and evidence of smoking in areas prohibited by the smoking policy. On occasion he witnessed staff members smoking in the presence of a manager. He would bring these violations of the smoking policy to the attention of management. There were also occasions when Mr. Hyland was exposed to cigarette smoke that resulted in him missing time from work. On September 28, 2009, his first day of work at the CECC, he was exposed to cigarette smoke as he entered at the front entrance and as he left, exiting the front entrance. He missed some days as a result of these exposures. Most of his exposures occurred near the front entrance and a few occurred in the Staff Servery. One of his exposures at the Staff Servery occurred when there was a manager at that location. Apparently, the manager did not notice anyone smoking in the Servery courtyard. Mr. Hyland found it stressful when his absences caused by exposures were used to move him up to higher levels in the Attendance Management Program, given that attaining the highest level could lead to discharge. Mr. Hyland also became increasing frustrated with what appeared to him to be a failure by management to enforce the smoking policy. He believed that the Employer condoned violations of the smoking policy when he observed managers taking no action when they were with an employee smoking in contravention of the smoking policy. [32] Mr. Goden realized that the Servery courtyard was a problem area for smoking. He encouraged Mr. Hyland to avoid this area, and for the most part Mr. Hyland took his advice. Because the Staff Servery presented a continuing smoking problem, Mr. Goden - 10 - walked through it once a day and asked a General Duty Officer to check it out twice a day. During the view I took of the CECC on June 30, 2011, there was some evidence of smoking in certain areas of the facility where smoking is prohibited. When we arrived at the Staff Servery, Mr. Hyland entered first, but then quickly exited, saying that he could not stay because someone was smoking in the courtyard. It was later determined that the person smoking in the courtyard is an employee of the Canada Border Services. One other interesting event related to the tour was an email dated the previous day from the Maintenance Manager to his staff requesting that they ensure the House Keeping Staff clean the Staff Severy and the courtyard to remove signs of smoking before the start of the tour. The Union characterized this email as part of the Employer’s effort to cover up the problem and suggested that it bordered on contempt of the GSB. The only significance of the email for me is that it further confirmed that there continued to be a significant and well- known smoking problem in the area of the Staff Servery. [33] I recognize that management at the CECC faces challenges in enforcing the smoking policy. COs in the control modules control access to every area of the facility, including the access of managers. COs contravening the smoking policy can be easily warned when a manager is approaching. Catching staff actually smoking inside the CECC is likely a rare occurrence and simply observing evidence of smoking is not considered sufficient to initiate discipline. COs are reluctant to report staff who are contravening the smoking policy out of a fear that they will be labeled a “rat”. Staff adhering to the code of silence helps to ensure that the smoking problem will be a challenge for a long time, even for a management team committed to addressing the problem. [34] There have been instances where management have observed staff smoking or have been given a name of a staff member who contravened the smoking policy. As noted previously, Mr. Hyland reported three managers who at various times were near the front entrance with a staff member who was smoking. Investigations of these incidents resulted in the Managers being counseled, nothing more. In August 2009, Mr. Goden provided a letter of counsel to two managers who were smoking in the Servery courtyard. It appears that the CO smoking with the managers was not confronted about his contravention of the smoking policy. This incident occurred not long after Mr. Goden’s memo dated July 23, 2009, in which he indicated that managers had to be more accountable and that a more aggressive campaign to deal with the smoking problem would be initiated. Also in August of 2009, Mr. Goden caught two COs smoking in the Vehicle Sally Port. They each received a letter of counsel. In May 2010, Mr. Goden caught a Records Clerk and a CO smoking in the Servery courtyard. The CO, who was remorseful and embarrassed, did not receive a letter. The Records Clerk, who was not remorseful and deflected responsibility, received a letter of counsel. In defense of the Record Clerk, the Union representative pointed out at the allegation meeting that smoking in that area was an accepted practice. [35] In my view, management’s efforts to address the staff smoking problem were deficient in two respects. The first is in its failure to adequately monitor smoking activity in the two areas where Mr. Hyland had exposures. Unlike other areas of the CECC, management has unrestricted access to the Staff Servery and the front entrance. Mr. Goden’s efforts to provide extra monitoring by management in these areas were inadequate given the extent to which staff used these locations for smoking. More frequent monitoring by managers would have likely had a greater impact in deterring staff from contravening the smoking policy at these locations. Assuming funding is available, the Employer’s plan to install cameras to cover these areas would likely contribute to the elimination of smoking in these areas. Besides extra monitoring at the Staff Servery and its - 11 - courtyard, the Employer did not consider closing the courtyard for some time or denying access to persons who were caught smoking there. Such efforts by the Employer would have been reasonable attempts to control smoking at those locations and an indication to staff that management was serious about addressing contraventions of the smoking policy. [36] The other area where the Employer was deficient was in its enforcement of the smoking policy. As I have noted in other decisions involving Mr. Hyland, a smoking policy will be of little value unless it is enforced. A failure to reasonably enforce the policy will constitute a failure to reasonably accommodate an employee in Mr. Hyland’s position. Management recognizes that the problem of staff smoking in prohibited areas of the facility is significant and it advised staff in memos that it will be aggressive in dealing with the problem. One way of sending a message to employees and managers and to deter staff from smoking in contravention of the smoking policy is with meaningful discipline. The evidence in this proceeding did not disclose one instance where management issued discipline to a staff member found contravening the smoking policy. In another context, the approach Mr. Goden took with those he found contravening the smoking policy may be acceptable and even enlightened. But in the context of the smoking problem at the CECC, his approach amounts to a failure to reasonably enforce the smoking policy. To simply counsel managers who contravene the smoking policy or who fail to enforce the policy represents anything but an aggressive approach. Counseling employees who ignore repeated warnings not to smoke in areas like the Servery courtyard and the front entrance does not send he appropriate message to the staff at the CECC. This does not mean that serious discipline is required for first offenders. However, some discipline in warranted in the context of a progressive disciplinary approach. It may not be a coincidence that Mr. Hyland has had exposures at locations where staff have been observed by management violating the smoking policy, but were not disciplined. The Employer’s failure in these circumstances to discipline staff for violating the smoking policy and in particular its failure to discipline managers who ignore their responsibility to set an example and enforce the policy amount to a failure to reasonably accommodate Mr. Hyland. [12] I therefore found in that decision that the Employer had failed to reasonably to accommodate Mr. Hyland in a number of respects. I declined to find in favour of most of the unique placement requests made by the Union. What I did on the placement issue was to simply make the following direction: “…I direct the Employer to renew efforts, in consultation with the Union and Mr. Hyland, to find an appropriate placement for Mr. Hyland in accordance with its duty to accommodate him to the point of undue hardship.” I did award Mr. Hyland general damages and damages for mental anguish for the Employer’s failure to reasonably accommodate him. [13] The next decision addressed another claim of discriminatory treatment against Mr. Hyland for the period from July 15, 2011 to January 15, 2014. Based on the particulars filed by the Union, the parties agreed to make submissions on the Union’s renewed request that I direct the parties to find a position for Mr. Hyland in the OPS - 12 - outside of the Ministry, or alternatively, outside of the CECC. The particulars provided that Mr. Hyland continued to suffer from exposures to cigarette smoke, that the Employer did not effectively enforce the smoking policy and that the Employer unreasonably limited Mr. Hyland’s duties as a CO. In a decision dated April 7, 2014, I determined that the circumstances set out in the Union’s particulars for the relevant period did not warrant the remedies the Union had requested, for the following reasons: [9] In my view, it is significant that the number of exposures to cigarette smoke Mr. Hyland has experienced at the CECC has been declining to the point where exposures are becoming less problematic. Also of significance is that the Employer is able to assign Mr. Hyland to a post which has a smoke free environment. This has not always been the case when Mr. Hyland has been employed at other correctional facilities. Although the Union takes the view that the Employer is still not adequately enforcing the smoking policy, there is some indication that there has been some improvement in this area. The closing of the Servery courtyard for a time and the imposition of discipline for some employees who contravened the policy is a step in the right direction. The attention the smoking issue now has at the Joint Health and Safety Committee, the concerns raised by other employees about violations of the smoking policy and the recent focus of the Union and the Employer to address accommodation issues suggest a greater likelihood that Mr. Hyland’s accommodation issues at the CECC can be resolved. [10] As Union counsel noted, the matter of exposure to cigarette smoke is no longer the main focus of the Employer’s failure to accommodate Mr. Hyland. I am not convinced that the other accommodation issues facing Mr. Hyland cannot be remedied while he remains employed at the CECC. In other words, even in the circumstances portrayed by the particulars, I am not prepared to conclude that the Employer cannot properly accommodate Mr. Hyland at the CECC. The situation at the CECC is not like the one Mr. Hyland faced at the Toronto East Detention Centre when I directed the Employer to find a position in a different correctional facility. Such a direction was issued only after a finding that the management team at that institution had failed to properly accommodate Mr. Hyland and it subsequently became evident that the Employer was not able to comply with the direction to properly accommodate him by providing him with a smoke free environment. [11] The decision dated January 15, 2014, is the first occasion when the management team at the CECC was found wanting in its efforts to accommodate Mr. Hyland. On the basis of certain findings set out in paragraph 37 of that decision, I directed the Employer to find an appropriate placement for Mr. Hyland at the CECC in accordance with its duty to accommodate him to the point of undue hardship. I also awarded Mr. Hyland $18,000.00 in general damages and $12,000.00 in damages for mental anguish for the Employer’s failure to reasonably accommodate him. The particulars relied upon by the Union as a basis for the remedial request at issue here deal with circumstances that occurred prior to the release of the decision dated January 15, 2014. Hopefully, both parties will benefit from the analysis in the decision regarding the accommodation of Mr. Hyland. The Employer going forward will be in a better position to properly address his particular need for accommodation. Apart from other reasons for refusing the Union’s remedial request, I am of the view that the Employer should have the opportunity to address the accommodation of Mr. Hyland having had - 13 - the benefit of the conclusions and the reasons in the decision dated January 15, 2014. There is already some basis for concluding that the decision has had a positive impact on how the Employer will now approach the accommodation of Mr. Hyland. [14] Subsequent to the decision dated January 15, 2014, the parties were unable to agree on a suitable placement for Mr. Hyland at the CECC. In a decision dated May 26, 2014, I addressed the question of whether Mr. Hyland’s first choice, the Videoconferencing post, was an appropriate placement. The employees who worked at that post were scheduled to work after 5:00 p.m. and to work on Saturday and Sunday, every second weekend. At the relevant time Mr. Hyland was restricted from working past 5:00 p.m. and on weekends. After hearing submissions from counsel, I decided that “altering the hours of work of the Videoconferencing position as suggested by the Union to accommodate Mr. Hyland’s hours of work restrictions would constitute undue hardship for the Employer in the circumstances.” Mr. Hyland’s second choice was the GDO position. Counsel advised me at the hearing on May 21, 2014, that the parties had agreed on how the GDO position would be modified to accommodate Mr. Hyland’s restrictions. In light of this development, I directed the Employer to place Mr. Hyland in the GDO position as modified by the agreement of the parties. This led the parties to complete the GDO Agreement. I will set out the terms of the GDO Agreement later when I describe the facts relevant to the work assignment issue. [15] A review of the January 15, 2014 decision serves to illustrate that the claims that are being made in the instant case are similar to the claims that have been made over many years by the Union on behalf of Mr. Hyland. The Union succeeded in the past in establishing that the Employer had not provided Mr. Hyland with a reasonable accommodation, either because it did not provide him a smoke free work environment by failing to effectively enforce its smoking policy and/or because it was too restrictive in assigning him work as a disabled employee compared to how it generally assigned work to other COs. The Union was also successful in securing a significant award of general damages and damages for mental anguish for Mr. Hyland. [16] I turn now to the evidentiary context for the issues in the instant case. Mr. Hyland was on a paid leave of absence from April 10, 2014 to June 1, 2014, and he - 14 - returned to work at the CECC as a GDO on June 2, 2014. He returned to work as an accommodated employee with the same restrictions that were highlighted in previous decisions. He primarily requires a smoke free work environment due to asthma and a sensitivity to cigarette smoke. His work schedule consisted of 10-hour shifts, Monday to Thursday, from 7:00 a.m. to 5:00 p.m. As noted previously, the relevant time period under review is the 4½ years (or 54 months) starting from when Mr. Hyland returned to the workplace. In reality, the number of months under review is less than 54 months because Mr. Hyland was absent due to illness for a number of months on three separate occasions. He was absent from November 10, 2016, to June 4, 2017, from August 16, 2017, to January 21, 2018, and from July 11, 2018, to December 9, 2018. In addition to the three lengthy absences, Mr. Hyland also took a number of sick days during the period of time under review. [17] Mr. Hyland was the main witness for the Union. He testified about matters relevant to the main issues in chronological order by referring to the various days of the week when he was at work. He relied on contemporaneous notations that he had made in either a log or calendar. I will summarize the relevant evidence on each of the central issues, starting with the issue of smoking at the workplace and the Union’s claim that the Employer had failed to effectively enforce the smoking policy. [18] The first comment Mr. Hyland made during his testimony on the smoking issue was when he came to the date of August 20, 2014. On that day he noticed cigarette butts in the search bay area at Trilcor and reported it. The manager who took his report prepared an Occurrence Report (“OR”) on the incident. Mr. Hyland indicated that this was not the first time he had noticed cigarette butts in an area where smoking was prohibited since he had returned to work. He testified that he had discovered cigarette butts in such locations as the A&D area, the intermittent hallway, in washrooms, at the Servery courtyard and at the A&D Sally Port. He also noted that cigarette butts were present all the time near the front entrance to the CECC. This was a non-smoking area where visitors, staff and managers had regularly smoked in the past. - 15 - [19] When asked about evidence of smoking during the summer of 2015, Mr. Hyland indicated that nothing had really changed and that he continued to observe evidence of smoking in those areas of the institution that he had previously mentioned. He did not record these observations in the log or his calendar for this period of time. [20] Mr. Hyland next referred to the smoking issue when he came to a notation in the log for May 4, 2016. His notation for that day was that he “left early due to second hand smoke. Report submitted.” He testified that the problem of second hand smoke occurred in the washroom in the Videoconferencing area and in the Servery courtyard, two places where it was common for people to smoke. Mr. Hyland did not specifically indicate that he was exposed to the second hand smoke, but he did leave work three hours early on that day. Assuming he was exposed to cigarette smoke on May 4, the fact that he returned to work on the following day with no indication that he had received medical attention suggests that it could not have been a significant exposure. [21] Mr. Hyland made a note in the log for May 31, 2016, indicating that there continued to be cigarette butts within the institution and around the front entrance door. He testified that the evidence of smoking was not as regular as it used to be. He specified that he had observed evidence of smoking at least a couple of times a month in non-smoking areas, but that such evidence at the front door entrance was present every day. [22] Mr. Hyland also testified about observing signs of smoking, typically in the form of cigarette butts, within the CECC on August 10, November 7 and 10, 2016, June 5 and 18, 2017, and on May 8 and June 11, 2018. He filed ORs with respect to the last two incidents in which he first complained about cigarette butts in the Servery courtyard on May 8 and then the failure of the Employer to take action on his earlier complaint in an OR he filed June 11, 2018. Mr. Hyland acknowledged during cross-examination that he did not actually observe anyone smoking contrary to the smoking policy during the period of time under review. - 16 - [23] Three other witnesses testified about the smoking issue. Consistent with the indication from Mr. Hyland that he had observed less evidence of smoking within the CECC from about mid-2016, these witnesses testified that their observations about smoking likely occurred prior to mid-2016. Mr. Butsch testified that he had observed managers smoking inside the CECC. He named four managers and he identified the locations where they were smoking as the Servery courtyard and an outdoor yard attached to a unit. He indicated that he had observed managers going to the “beach” area, an outside location with a picnic table on the south side of the facility, and stated that he understood they were going to that location to smoke. Although he could not recall the last time he had observed a manager smoking contrary to the smoking policy, Mr. Butsch estimated that his observations of managers smoking took place in 2014, 2015 and sometime in 2016. He indicated that “things started to change” in 2017, 2018 and 2019. From the context of his answers, I took it that what he meant is that he did not have any further sightings of managers smoking in non-smoking areas. Mr. Merriam, a senior manager, was asked during examination-in-chief if he had observed anyone smoking at the CECC outside of designated smoking areas. He indicated that he had observed individuals smoking in such areas, but not for a few years. When asked if he was aware of discipline being imposed for smoking, he replied that he was aware that a CO had received a one- day suspension, that another CO had received a reprimand and he believed there were others who had been disciplined, but he could not recall. During cross-examination, Mr. Merriam acknowledged that he had observed COs and managers smoking in non-smoking areas in the past. He indicated that he has reported COs for violating the smoking policy, but not always. In a case where he did not report the CO or did not direct the CO to prepare an OR, he had simply pulled the CO aside and told the CO to comply with the smoking policy. Mr. Merriam also indicated that he did not do anything when he observed a manager smoking in contravention of the smoking policy. Mr. Fraser, a GDM for most of the period of time under review, was also asked during his examination-in-chief if he had ever observed anyone smoking outside of the designated smoking areas. He indicated that he had witnessed such contraventions of the smoking policy, but not within the last eighteen months, although he appeared to be uncertain about this estimate. He explained that he had not witnessed violations of smoking policy more recently because of the efforts - 17 - of Superintendents to enforce the rules regarding smoking. During cross-examination, Mr. Fraser stated that he did not write a report when he observed a manager smoking in contravention of the smoking policy and that he was not aware of a manager being disciplined for such conduct. Mr. Fraser could not recall if any staff member had been disciplined for smoking in a non-smoking area since the Superintendent assumed his position in early 2018. Mr. Fraser testified that Superintendent Joliceur put out several memos about smoking and put a stop to contraventions of the smoking policy by holding everyone accountable. [24] I turn now to the evidentiary context relevant to the work assignment issue. To reiterate, the Union claims that the Employer assigned few duties and a limited range of duties to Mr. Hyland during the period of time under review and thereby contravened both its duty to reasonably accommodate Mr. Hyland and the GDO Agreement. The parties finalized the GDO Agreement in June of 2014, not long after the release of the January 15, 2014 decision in which the placement of Mr. Hyland was one of the central issues. The terms of the GDO Agreement are as follows: The parties have reached the following agreements with respect to the issue of whether the GDO post is appropriate for Mr. Hyland and meets his accommodation requirements: 1. Mr. Hyland’s hours of work restrictions can be accommodated within the existing schedule and compliment of GDO’s without the need for additional coverage through overtime or use of fixed term employees. 2. With the agreed accommodations and modifications to the post, as outlined below, Mr. Hyland can perform a sufficient range of GDO duties such that he can be productively and effectively utilized in the GDO post. 3. Mr. Hyland will be assigned to escort inmates to and from living units, but is not required to go beyond the slider door at the entrance to the unit in the course of such escorts. This will be accomplished by Mr. Hyland going to the slider door and radioing the unit sub-control to have the door opened. When Mr. Hyland is picking up an inmate, a unit officer will escort the inmate to the unit end of the hallway and observe the inmate as the inmate walks down the hallway to Mr. Hyland at the slider. When Mr. Hyland is delivering an inmate, he will wait at the slider while a unit officer waits for the inmate at the unit end of the hallway. Mr. Hyland will not be required to escort an inmate to a living unit where a smoke alarm is active or has been active recently. Mr. Hyland will also not be assigned to escort an inmate who cannot be safely left to walk down the unit hallway on - 18 - his/her own and thereby requires Mr. Hyland to walk past the first slider, unless circumstances in the unit are such that a unit officer can meet Mr. Hyland at the slider entrance and escort the inmate from that point. 4. Among the duties that M. Hyland may be assigned are supervising inmates in the Chapel and in Recreation, kitchen (during medication rounds) as well as escorting professionals, vending machine staff, process servers in a manner consistent with paragraph three. He may also be assigned to search the kitchen, Trilcor or other non-inmate living units and escort and/or search worker inmates in a manner consistent with paragraph three. It is understood that this is not an exhaustive list of duties and Mr. Hyland may be assigned other duties. 5. Mr. Hyland will not be assigned to medical parade due to the location in which that occurs. 6...Mr. Hyland may be assigned, as a GDO, to the unit 12 sub-control, the radio room or central control (subject to training), but while he is in the GDO position, will not be assigned to any of these posts exclusively or in a manner disproportionate to other GDO’s being assigned other assignments. [25] To appreciate the features of the GDO Agreement and the Union’s claim on the work assignment issue, it is necessary to review the general operation of the CECC and the role the GDOs perform within the institution. As noted in the January 15, 2014 decision, the CECC is a large maximum-security facility that employs a large number of correctional staff. The inmates are housed in separate living units that are supervised by COs assigned to each unit. A single GDM on a shift is responsible for managing the entire institution. One important aspect of their job is the assignment of work to COs based on operational requirements. The Employer regularly schedules five GDMs and another ten persons are trained to perform this role and fill in when necessary. A GDM is scheduled on the day shift from 5:00 a.m. to 5 p.m. and there are approximately 100 COs scheduled to work the day shifts. Mr. Merriam and Mr. Fraser described in detail what generally takes place on a day shift at the CECC. For our purposes, what they described in effect is the movement of inmates and visitors within the institution and on the grounds of the facility who are often engaged in regular programs. For example, worker inmates are removed from their living unit early in the morning and taken to the kitchen. These worker inmates are eventually returned to their unit after being strip searched. This same process occurs for the lunch and dinner hours. And then there is the process where breakfast, lunch and dinner meals are - 19 - taken on carts to the living units and the carts removed at the completion of the meal period. Other worker inmates are taken to work at the warehouse, at Trilcor or on the grounds and are subsequently returned to their living unit after being strip searched. Inmates scheduled to attend Court are taken to the Admitting & Discharge area, driven to Court and back later in the day, and then returned to their living units after being strip searched. Inmates are taken from their living units to attend Videoconferencing Court in the morning and returned once their Court appearance is completed. Inmates can be moved to and from the Chapel in the morning and the afternoon. In addition to the movement of inmates, professional visitors, such as lawyers, and other visitors can be present at the CECC during certain times of the day. Persons who keep the vending machines filled and the “hygiene lady” are also examples of persons who could be moving within the institution on any given day. As one would expect, the inmates moving within and outside of the CECC and other persons moving within the CECC in the above examples are not moving around on their own. It is correctional staff that provide the necessary escort and supervision of persons who are engaged in these activities. [26] In managing a particular shift, the GDM oversees the movement of inmates and others throughout the course of a shift. A GDM is very busy on the day shift in ensuring that the operation is fully staffed and runs efficiently. The demands on the GDM make the job quite stressful. To accomplish the efficient running of a shift, the GDM relies on the GDOs. There are about 7 or 8 GDOs on the day shift and, as the name suggests, the GDOs are engaged in performing general duties that primarily involve the escort and supervision of inmates and others throughout the institution. The daily roster for the day shift will show that two GDOs are regularly assigned to the kitchen to escort and supervise worker inmates. Two GDOs are assigned to the Chapel to escort inmates to and from the Chapel and to supervise them while inmates remain at that location. For the most part, the remaining GDOs on the day shift are floaters who typically wait in the Servery for the GDM to assign them duties over the radio. For example, the GDM could assign a GDO the task of escorting a professional visitor over the main channel of the radio or assign a GDO the task of escorting the person responsible for loading the vending machines located in the Servery. A GDO could be - 20 - assigned to a post to replace a CO who is absent or on a break. Although a GDO can be busy at times, it appears that the job is more laid back than others, with a fair amount of downtime. GDOs are usually senior COs who appreciate a moderate pace and the fact that they do not work at a fixed location. It is not uncommon for a GDO to volunteer to perform duties and to assist other GDOs and COs who might be busy at certain times. [27] As noted previously, one of the purposes of the GDO Agreement is to set out modifications to the GDO position to accommodate Mr. Hyland. The modifications to the position are based on a recognition that Mr. Hyland cannot enter certain areas of the CECC where he would have a greater risk of exposure to cigarette smoke. For example, Mr. Hyland cannot work in living units due to the prevalence of cigarette smoke in these areas. The GDO Agreement specifically provides in paragraph 3 therefore that Mr. Hyland can escort inmates to and from the living units, but not past the first slider. Paragraph 5 provides that Mr. Hyland will not be assigned to the medical parade, given its location. Although not specifically referred to in the GDO Agreement, there are other locations at the institution where Mr. Hyland cannot work. For example, he cannot be assigned driving duties or duties that would require him to enter the Vehicle Sally Port and he cannot be assigned the immigration runner task because this duty would require entry into a living unit. The assignments that Mr. Hyland cannot perform due his restrictions are set out in HPRO and are updated if necessary every six months when Mr. Hyland is usually asked to provide an updated medical to support his accommodation. Mr. Merriam and Mr. Fraser were both aware that Mr. Hyland could not go past the first slider and that it would be necessary for the unit staff to be available so that Mr. Hyland could begin or complete his escort of an inmate. They both testified that this could slow down or delay the movement of an inmate from or back to a living unit if unit staff were not available to hand off or to receive an inmate. Mr. Merriam indicated that these issues would not arise if a GDO was able to enter a living unit. [28] Paragraph 2 of the GDO Agreement provides that the parties agree that “Mr. Hyland can perform a sufficient range of GDO duties such that he can be productively and effectively utilized in the GDO post.” Paragraph 4 lists some of the - 21 - GDO duties that can be assigned to Mr. Hyland, such as supervising inmates in the Chapel and kitchen, escorting professional visitors, performing searches of certain locations and escorting or searching worker inmates. Paragraph 6 provides that Mr. Hyland may be assigned to the Unit 12 Sub-Control, the Radio Room or Central Control (subject to training), but not “exclusively or in a manner disproportionate to other GDO’s being assigned other assignments.” [29] Of course, Mr. Hyland is not the only CO at the CECC in need of an accommodation. It was estimated that approximately 20-25% of the CO workforce at any given time is on an accommodation. GDMs who assign duties to GDOs have access to the information in HPRO which contains the limitations and restrictions of every accommodated employee. Mr. Merriam and Mr. Fraser testified that a GDM would generally be familiar with the restrictions of an accommodated CO, particularly in the case of someone who has had the same restrictions for a long time. However, they indicated that because the GDM job was so busy, a GDM on occasion could assign a CO a task that was inconsistent with the CO’s restrictions. Mr. Merriam estimated that this would occur once a week on average and Mr. Fraser estimated that a mistaken assignment might occur once a month when he was a GDM. There is no list posted in the General Duty Office setting out the restrictions of a CO on an accommodation in order to protect the privacy interest of the CO. Mr. Merriam and Mr. Fraser indicated that there would be no time to refer to HPRO before making an assignment. Once the GDM had been advised by a CO that the GDM had assigned a task covered by the CO’s restrictions, the GDM would assign the task to another CO over the radio, either after checking HPRO or checking later to confirm whether an error had been made. [30] As noted previously, Mr. Hyland testified about his assignments by referring to notations that he had made in a log or calendar in chronological order for virtually every day that he was at work during the period of time under review. The vast majority of Mr. Hyland’s testimony was devoted to describing the assignments that he had received from the Employer as a GDO. The common theme that ran through Mr. Hyland’s testimony that can be described as follows. Mr. Hyland indicated that there were certain regular GDO duties that he performed for the most part on a daily basis. - 22 - Without referring to all of the tasks that he described as static duties, they essentially involved escorting worker inmates on a fairly set schedule throughout the day. For example, there were kitchen related duties in the morning and at the switch over at lunch. There was the escort of inmates who worked outside and others who worked in the warehouse or at Trilcor. The escort of inmate workers included a strip search before they were returned to their unit. Mr. Hyland indicated that he would be involved with the distribution of medication to inmate workers in the kitchen and warehouse. He testified that the performance of these static GDO duties did not take very long and that unless he was assigned other duties he would spend the majority of his work day in the Servery waiting for assignments. He testified that he was often assigned no duties apart from the static duties and that on these occasions he would simply note “no assignments” in the log or calendar. He would make a note if he was assigned a non- static task, specifying what the task was. While waiting for assignments, he observed that other GDOs received assignments over the radio that he could have performed and that the number of these assignments far exceeded the assignments he had received. In other words, he determined from his observations that he was being treated differently from other GDOs in that he spent a lot of his work day without assignments when other GDOs were assigned more and a broader range of duties that he could have performed. There were a number of duties that he was never or rarely asked to perform. In order to keep busy Mr. Hyland did volunteer to assist other COs at times, such as the Video Conferencing Officer and COs working in the kitchen. [31] Another feature of the common theme of Mr. Hyland’s testimony is that he was often assigned duties that he could not do given his restrictions. He would be assigned a task over the radio and then he would have to go to the General Duty Office to advise the GDM of the improper assignment. The task that he had just refused would then typically be assigned to another GDO over the radio. He believed that the process of often having to refuse an improper assignment singled him out to the workforce as a disabled employee on an accommodation, thereby disclosing a matter that should have remained private. - 23 - [32] The final element of the common theme was Mr. Hyland’s contention that this situation had a detrimental impact on his mental health. Mr. Hyland testified that he believed that this treatment by the Employer contravened the GDO Agreement and was discriminatory as previously determined in previous GSB decisions. After years of trying to obtain a proper accommodation, he became more frustrated and depressed at his work situation with the result that took more sick days and went off work for lengthy periods of time on WSIB. [33] Mr. Hyland attended work on a fairly regular basis during three distinct periods of time. I will refer to certain parts of his testimony relating to each of these periods. The longest and probably the most significant period of time that he was at work was the 29 months from June 2, 2014, to November 9, 2016. This period of time preceded his first lengthy absence that commenced on November 10, 2016. [34] Mr. Hyland testified that when he started working as a GDO he was advised that he would be assigned steady duties throughout the work day. Mr. Fraser indicated that there was a line for Mr. Hyland on the daily roster and that he was “an overage.” Mr. Hyland did not have a regular GDO assignment, such as in the kitchen, and his GDO status therefore can be described as that of a floater. Not long into the 29 month period, Mr. Hyland became increasingly concerned about the number of times he was assigned to work in the Unit 12 Sub-Control. As I referenced in a previous decision, he objected to working at that post for any length of time because it is isolated from the rest of the institution and he believed that his placement there was a part of the discriminatory treatment he had received from the Employer. As noted previously, paragraph 6 of the GDO Agreement specifically deals with the assignment of work to this post. The number of times he was assigned to that post increased in the months from September to the end of 2014. He was assigned there 11 times in January of 2015, 7 times in February and 9 times in March of 2015. On some of these occasions he simply relieved for the lunch period, but in many instances he was assigned to the post for the entire day. He testified that other GDOs were rarely assigned to the Unit 12 Sub-Control. When he complained about the frequency of his being assigned to this post, the response he typically received was that this was an assignment that was not - 24 - contrary to his restrictions. Mr. Merriam confirmed that Mr. Hyland was assigned to that post because it was a fit that met his restrictions. Mr. Hyland testified that the pattern of his being assigned frequently to the Unit 12 Sub-Control changed after March of 2015. He attributed this to the fact that he had some stage two grievance meetings around that time and he assumed that the Employer began to appreciate his complaints in relation to paragraph 6 of the GDO Agreement. [35] Apart from being assigned to the Unit 12 Sub-Control and the static duties, Mr. Hyland had few or no assignments for the 29 month period of time. Beginning in August 2014, he began to make notations about not being called for tasks that he was able to perform, in contrast to his GDO colleagues who received more and a broader range of assignments. In many instances in October of 2014, he noted that he relieved in the Unit 12 Sub-Control and then had no assignments for the rest of the day or that he sat all day. His evidence disclosed a pattern of receiving a limited number of assignments at times, but more often than not he received no additional assignments while other GDOs were kept busier with the kind of tasks that he could perform. For example, he noted on August 25, 2015, that there were continually no assignments and that others were given work that he could do. On November 13, 2015, he noted that it was very busy that day, but not for him because he had no assignments and he had to volunteer to relieve others. Mr. Hyland noted that he had no assignments for the majority of his work days in 2016 and that otherwise his assignments were limited. On occasion his only duty beyond the static duties would be to escort the vending machine person to the Servery or to escort a lawyer for a professional visit. He did fill in some time by volunteering to assist the Videoconferencing Officer or by performing searches in the kitchen. On a rare occasion Mr. Hyland would make a notation that he was very busy on a particular work day. He indicated that he made these notations because these instances occurred very infrequently. [36] Mr. Hyland filed some grievances dated November 3, 2014, because he was frustrated over the Employer’s failure to accommodate him properly. In these grievances he complained about the violation of a previous agreement, which I take to be a reference to the GDO Agreement, and about harassment in that he was being - 25 - treated differently from his peers with respect to work assignments. On November 5, 2014, he attended an Attendance Support and Management Program (“ASMP”) meeting to discuss his lost time due to sickness. Ms. Hutton attended this meeting on behalf of the Employer. Mr. Hyland explained his sick day absences by indicating that his accommodation was not working for him and that he was experiencing a stressful work situation. He referred specifically to the disproportionate number of assignments he was receiving to the Unit 12 Sub-Control, that he was not getting other assignments and that he was often assigned work that he was restricted from doing. Mr. Hyland testified that one of Ms. Hutton’s responses was that she would remind the GDMs to check HPRO. Mr. Hyland testified there was no change to his assignments after he related his concerns at this meeting. Ms. Hutton was not asked about the meeting when she was called to testify about another matter. [37] Beginning in September of 2015, Mr. Hyland began to work Friday and Saturday shifts on overtime. He wanted to extend his hours with the hope that he could secure a better placement or receive a broader range of GDO assignments. His family doctor permitted him to try the longer work week and asked him to monitor the situation. Mr. Hyland testified that working the extra days did not prove to be successful in securing more assignments. Indeed, on a Saturday shift, he received fewer assignments when compared to the number of assignments he received during his Monday to Thursday shifts. [38] Mr. Hyland received a letter dated October 5, 2016, directing him to attend a level 4 ASMP interview on October 27, 2016, to address recent absences. It was around this time that he sought medical assistance through the Employee Assistance Program (“EAP”). Through this program he attended at least six meetings with a counsellor who had experience helping COs and first responders. The counsellor suggested that Mr. Hyland obtain further medical assistance because he thought that he may have Posttraumatic Stress Disorder (“PTSD”). Mr. Hyland was referred by the EAP counsellor to Dr. J. Walsh, a Registered Clinical Psychologist. - 26 - [39] Mr. Hyland attended the ASMP meeting on October 27, 2016, which was conducted by Superintendent Johnston. Mr. Hyland explained his employment history and the reason for his absences. Superintendent Johnston appeared to be sympathetic with Mr. Hyland’s situation. The ASMP issues were put off for another six months. Mr. Hyland testified that Superintendent Johnston told him that the Employer had not done a good job dealing with the issue of smoking and some of the other issues Mr. Hyland experienced at work. Mr. Johnston advised him that he would meet with the senior management and the Local Union to come up with a plan to deal with the smoking issue. [40] Mr. Hyland initiated a WSIB claim on October 24, 2016, due to PTSD. He later discovered that that claim had not been submitted by the Employer. He was off work on November 1 and 2, 2016, and noted the missed days were WSIB absences. He commenced his first lengthy absence when he went off work on November 10, 2016. By this time Mr. Hyland was likely under the care of Dr. Walsh. Dr. Walsh had diagnosed Mr. Hyland as having PTSD, primarily as a result of stress from issues in his work environment. Mr. Hyland submitted another WSIB claim due to PTSD. This claim was approved. [41] Mr. Hyland did not return to work from being off on WSIB until June 5, 2017. The Collective Agreement provides that an employee on WSIB will receive full pay without the use of credits for three months. Beyond the three months, an employee has the option to remain on the active payroll and receive their regular pay, using earned credits to top up the WSIB benefit of 85%. The other option is to be removed from the active payroll and receive 85% of your net pay directly from the WSIB. At some point with each option, the employee may have to elect how to treat his or her employment benefits and pension. Mr. Hyland received a standard letter dated January 28, 2017, from Ms. Hutton setting out his two options once the three month period ended on February 17, 2017. Mr. Hyland came to the institution to clarify his options and the impact on his benefits which were particularly important to him. He met with Ms. Hutton and someone from the Local Union. Mr. Hyland ultimately chose the option which virtually every CO selects, namely he elected to stay on the active payroll after three - 27 - months on WSIB, using his earned credits for top up. However, he testified that he was misled by Ms. Hutton because she told him that he would have to pay the full contributions for benefits and pension after six months were over. Although his comment about six months is not entirely clear, I take it Mr. Hyland believes he was told that after he was removed from active payroll because he would run out of earned credits, he would be responsible for the contributions for both benefits and pension. He subsequently learned that the Employer was obliged to pay for his benefits under either option while he was on WSIB, contrary to the explanation provided by Ms. Hutton. Mr. Hyland indicated that he may have not returned to work in June of 2017, but for being misled by Ms. Hutton. In her testimony in late October of 2019, Ms. Hutton testified that she could not recall providing Mr. Hyland with incorrect information, but that she could not dispute Mr. Hyland’s version of their conversation because she could not specifically recall the conversation. Ms. Hutton indicated that during her time as Staff Services Manager at the CECC she would have dealt with over 100 employees who had received the standard letter Mr. Hyland had received and that she was unaware that anyone else had complained about being misled by her on these issues. [42] Mr. Hyland testified that he returned to work because of economic hardship, in part again because he was misled by Ms. Hutton about paying for benefits. He indicated that Dr. Walsh supported his return to work, but that she was not sure his return would be successful because he was returning to the work environment which contributed to his PTSD. Her concerns appear to have been warranted because Mr. Hyland went off work again on August 16, 2017, after a return to work of only 2½ months. Mr. Hyland testified that there had not been any changes to the way he was utilized during this 2½ month period. For most of his work days in June 2017, the majority of his notations in the log were for no assignments. He indicated that the reason he stopped making entries in the log after June of 2017 was because it was depressing to continually make negative entries. [43] Mr. Hyland returned to work at the CECC on January 22, 2018, after a 5-month absence. His claim for further WSIB benefits for this absence based on PTSD was allowed. He returned with the approval of Dr. Walsh, but she again was concerned - 28 - that the work environment might aggravate his PTSD. Mr. Hyland testified that he returned to work because to stay off on WSIB would result in economic hardship since he understood that he would soon run out of credits. Mr. Hyland did not indicate in this instance that there were any benefit issues that compelled him to return to work. [44] Mr. Hyland’s third period at work during the relevant time frame was from January 22, 2018, until July 10, 2018. In reviewing these 5½ months, Mr. Hyland confirmed that there had not been any changes in the way he was utilized by the Employer. When referring to the month of April of 2018, Mr. Hyland indicated that he regularly was not being assigned duties and that there were many days when he had no assignments. He confirmed again that he observed that other GDOs on the day shift received more assignments of the sort of work that he could do while he waited in the Servery. There were many days in June and July 2018 when he noted no assignments. For July 10, 2018, he made the following notation: “GDO - No assignment. This is poison.” He testified that he believed that the Employer’s actions in not assigning him work beyond the static duties amounted to a reprisal. He also indicated that other GDOs did not like him because it appeared to them that he was not pulling his weight. Mr. Hyland testified that this contributed to his anxiety and depression. [45] Mr. Hyland went off work again on July 11, 2018, and did not return until December 10, 2018. He indicated that the cause of this absence was PTSD. However, on this occasion, his WSIB claim was not approved and he was still waiting for his appeal to be determined. [46] Prior to December 10, 2018, Mr. Hyland attended a meeting at the CECC to discuss his return to work. Those present at the meeting included Mr. Akineolave, Staff Services Manager, Mr. Gilchrist for the Union and Mr. Hyland’s WSIB Specialist. A discussion of Mr. Hyland’s assignments took place because of his continuing interest in having meaningful work. The WSIB Specialist asked why the Employer had not provided Mr. Hyland with a broader range of duties. This led to the suggestion that Mr. Hyland work one day during the week in the Radio Room and the rest of the week at his GDO position. Although everyone present appeared to think that this idea was - 29 - acceptable, Mr. Hyland indicated that the Employer decided not to follow through with such a plan with no reason provided. The issue of Mr. Hyland being assigned duties inconsistent with his restrictions was also discussed. Mr. Akineolave, who was new to his position, suggested that a way to help the GDMs in assigning Mr. Hyland duties would be to post a list in the General Duty Office setting out what duties Mr. Hyland could do and what he could not do. This suggestion was discarded once the Union objected to the idea because the posting of such a list would detrimentally affect Mr. Hyland’s privacy. Mr. Hyland indicated that there was no real plan developed to address his concerns about his work assignments prior to his return to work. [47] Near the end of his examination-in-chief Mr. Hyland provided some examples of the kind of duties which the Employer failed to assign to him on a regular basis. He mentioned the Radio Room and Central Control which are specifically referred to in paragraph 6 of the GDO Agreement. He required training to work at these posts and the Employer did not provide him with the necessary training. He also noted that he was assigned to the Chapel, to the kitchen and Videoconferencing (Courts) on a very infrequent basis. Mr. Hyland indicated again that he would have been able to perform these duties when the need arose, but that the Employer primarily assigned them to other GDOs. [48] COs Cooney, Butsch and Canning testified from their perspective about the assignment of duties to Mr. Hyland. Mr. Cooney testified that Mr. Hyland spent more time in the Servery and that he was not called as often for assignments when compared to the other GDOs. He indicated that Mr. Hyland had the time to volunteer to assist him with Videoconferencing. Mr. Hyland would assist by presenting the inmate to the Court and Mr. Cooney would run the inmates back and forth to the living units. Mr. Butsch indicated that he observed other GDOs leaving the Servery and spending more time on assignments while Mr. Hyland often waited in the Servery for longer periods of time and received fewer assignments. From his work as a GDO, Mr. Canning testified that Mr. Hyland consistently received fewer assignments on average than other GDOs and that he therefore spent more time in the Servery than other GDOs. He also indicated that other COs would question him about why Mr. Hyland was not assigned to perform - 30 - certain duties. Mr. Canning indicated that Mr. Hyland would volunteer to help him at times when Mr. Canning was assigned to the kitchen. He testified that Mr. Hyland would strip search the inmate before the inmate was returned to living unit and that he, Mr. Canning, would take the inmate into the unit while Mr. Hyland waited for him in the hallway. [49] Over the course of the relevant period of time, there were approximately 30 instances when Mr. Hyland was assigned a task that was covered by his restrictions set out in HPRO. He refused to perform these assignments except on two occasions when he elected to perform the requested task. Most of the duties he refused were reassigned to another GDO over the radio. Some examples of the improper assignments are as follows. On November 19, 2014, he was asked to drive and later was ordered to unit 9 on a task that would require him to enter the living unit. These instances of an incorrect assignment on the same day came not long after the November 5, 2014 meeting with Ms. Hutton in which she told him that she would remind the GDMs to check HPRO when assigning Mr. Hyland work. On April 14, 2015, Mr. Hyland was wrongly assigned to the Vehicle Sally Port. He was only at work for about an hour on that day before he left due to sickness. Before leaving, he discussed the assignment with Ms. Hutton and she undertook to look into the matter. Mr. Hyland was off sick on April 15 and 16, 2015. There was no follow-up on the complaint that he had made to Ms. Hutton when he did return to work on April 20, 2015. On April 21, 2015, Mr. Hyland was asked again to go to the Vehicle Sally Port by a different GDM. After Mr. Hyland declined the assignment and explained why he did so, the GDM told Mr. Hyland that he did not know that he could not go to that location. On April 28 and 30, 2015, Mr. Hyland was again asked to go to the Vehicle Sally Port by different GDMs. Mr. Hyland testified that during a meeting with Ms. Hutton when he complained about being assigned to the Vehicle Sally Port, she agreed that this should not happen and stated that the GDMs were lazy and were not looking at HPRO. On September 8, 2015, Mr. Hyland noted in the log that he was called on the radio to go to the Vehicle Sally Port and that immediately after he had phoned the GDM to say that he could not go to that location, someone else was given the same assignment over the radio, making him look bad. On October 13, 2015, Mr. Hyland attended a grievance meeting over an - 31 - improper assignment and his taking sick time. He filed the grievance when the GDM assigned him to drive a van to a dealership. He did complete this assignment before filing the grievance. Mr. Hyland testified that when he advised the GDM that he should not have been assigned this task, the GDM said he was sorry and in front of other people said “I thought you were only afraid of inmates.” Mr. Hyland testified that it was incidents like this that added to his frustration and resulted in him taking sick days. He indicated that on the one hand he was given a limited number of assignments and at the same time he was often assigned tasks that were inconsistent with his accommodation. He also stated that the threat of discipline was always there for taking time off work, yet it was the Employer’s actions in assigning him work that caused him to take sick days. On May 23, 2016, Mr. Hyland was asked over the radio to work in the X-ray area which is an area where he cannot work. On the same day he was asked to do newspapers, a task that would require him to enter living units. On June 27, 2017, he was asked over the radio to escort the hygiene person and had to go to the General Duty Office to explain that he could not go into living units. Mr. Hyland testified that he was again centered out when the GDM assigned someone else to perform this task over the radio. A similar process occurred on August 10, 2017, when he was asked and declined an assignment over the radio that would have taken him into living unit 2. There were other similar incidents when he returned to work starting in January of 2018. [50] During the period of time under review, Mr. Hyland took over 80 sick days. He was asked for the first time about the cause for his absences for sickness when he testified about his work assignments in October of 2014. He explained that he was required to take most of the sick days because of the general treatment he had received at work. He indicated that he was disappointed that the Employer was ignoring the January 15, 2014 decision and the GDO Agreement, especially after he had gone through a lengthy arbitration process. He made specific reference to the disproportionate Unit 12 Sub-Control assignments that he had received. He testified that the way he was assigned work was stressful, frustrating, caused him to be depressed and resulted in him taking sick days. He also indicated that he found it stressful that the Employer relied on these sick days for determining his level in the ASMP. Mr. Hyland complained about the Employer discriminating against him with - 32 - respect to his sick time in one of his grievances dated November 3, 2014. When Mr. Hyland was asked why he took sick days when his testimony covered later periods of time, he responded similarly. Near the end of his examination-in-chief, Mr. Hyland testified that there were no factors outside of the workplace that caused him to be off work on sick days or on WSIB absences. With a couple of exceptions, he indicated that these absences were the result of stress, anxiety, depression and PTSD which were caused by his treatment from the Employer. [51] At the conclusion of the Union’s evidence, Union counsel filed four medical reports prepared by Dr. Walsh. Three were prepared on various dates in 2017, with the last one dated January 1, 2018. These very detailed reports were filed on consent. I find it unnecessary reproduce the details contained in the medical reports. Suffice it to say that Dr. Walsh diagnosed Mr. Hyland with PTSD and indicated that his psychological and emotional state resulted from issues with his work environment. Dr. Walsh did support Mr. Hyland’s return to work as described previously even though she had some doubt as to whether he could return to work successfully. She recognized that Mr. Hyland would also experience stress due to financial pressures if he remained off work so she “guardedly” supported his return to the CECC. [52] The final submissions of counsel on the central issues in dispute can be summarized as follows. The primary position of the Union is that the Employer assigned a limited range of GDO duties to Mr. Hyland and often assigned him no duties, when other GDOs were assigned a broader range of tasks and were given less down time, and that this was the case when taking into account Mr. Hyland’s restrictions. Union counsel argued, for example, that the evidence clearly established that Mr. Hyland was assigned to the Unit 12 Sub-Control on a disproportionate basis when compared to other GDOs. Counsel noted that Mr. Hyland often volunteered to assist other COs just so he could remain productive. Counsel argued that the numerous occasions when Mr. Hyland was assigned tasks that were covered by his restrictions had the effect of singling him out as an accommodated employee and had a detrimental impact his mental health. Union counsel submitted that the Employer contravened the GDO Agreement when it did not assign Mr. Hyland more and a broader range of duties - 33 - so that he could be productively and efficiently utilized in the GDO position. Union counsel also argued that the Employer’s assignment of limited duties to Mr. Hyland also constituted a failure to reasonably accommodate him based on disability in contravention of the Collective Agreement and the Ontario Human Rights Code. [53] Union counsel also argued that the Employer had failed in its duty to reasonably accommodate Mr. Hyland with respect to its handling of the smoking issue. He submitted that, although the situation had improved, there continued to be smoking in various areas of the CECC during the period of time under consideration as demonstrated by the evidence of smoking observed by Mr. Hyland. Counsel submitted that the Employer continued to fail in its obligation to adequately enforce the smoking policy. In this regard, the Union referred in particular to the evidence of managers and others smoking at the CECC with impunity. [54] Union counsel submitted that the assignment of limited duties to Mr. Hyland by the Employer was demeaning, had the effect of putting him on display and singling him out with the result that he was the subject of negative comments from GDOs. Counsel argued that the failure of the Employer to properly accommodate Mr. Hyland, both in the way it assigned him work and by not providing him with a smoke free workplace, resulted in him missing a lot of time from work due to stress, anxiety, depression and PTSD. Counsel also argued that the fact that Ms. Hutton misled Mr. Hyland on the question of benefit contributions caused him to return to work when he should have remained off work, thereby increasing his level of anxiety and depression. In addition to seeking a direction that the Employer comply with the GDO Agreement and a direction to properly accommodate Mr. Hyland by assigning him a broader range of GDO duties that are consistent with his restrictions, Union counsel submitted that an award of damages is appropriate and necessary in the circumstances of this case. Counsel requested that I order the Employer to pay damages to Mr. Hyland as follows: $5,000.00 in damages for breach of the GDO Agreement; $36,000.00 in general damages; and, $24,000.00 in damages for mental distress. The Union argued that this level of damages, although higher than the amount previously awarded, was warranted - 34 - in the face of the Employer’s contravention of the GDO Agreement and its persistent failure to reasonably accommodate Mr. Hyland. [55] During closing argument, Union counsel relied on the following decisions: OPSEU (Hyland) v. Ontario (Ministry of Community Safety and Correctional Services), 2014 CanLII 30091 (ON GSB Petryshen); OPSEU (Hyland) v. Ontario (Ministry of Community Safety and Correctional Services), 2014 CanLII 8297 (ON GSB Petryshen); OPSEU (Young) v. Ontario (Ministry of the Attorney General), 2004 CanLII 55317 (ON GSB Abramsky); OPSEU (Magee) v. Ontario (Ministry of Natural Resources), 2010 CanLII 38778 (ON GSB Dissanayake); OPSEU (Hookimaw) and Ministry of Government and Consumer Services (2018), GSB No. 2018-1213 (Devins); and, OPSEU (Neniska) and Ministry of the Solicitor General (2020), GSB No. 2017-0787 (Petryshen). [56] Employer counsel argued that Mr. Hyland was assigned GDO and other duties based on operational needs and his restrictions. Counsel noted that the GDO position was not a busy job and that it was made slower for Mr. Hyland because of his restrictions. Counsel submitted that it is clear from Mr. Hyland’s testimony that he preferred to perform other GDO duties. He argued however that Mr. Hyland is not entitled to his preferences in duties as long as the Employer has provided him with a reasonable accommodation. Counsel submitted that there is no evidence to support the assertion that the Employer had failed to provide Mr. Hyland with a reasonable accommodation. Counsel conceded that there were some occasions when a GDM assigned a task to Mr. Hyland that was in conflict with his restrictions. However, he submitted that these were innocent mistakes made by a GDM who worked in a busy and stressful job and who could not be expected to recall the specific restrictions for each accommodated employee all the time. It was also noted that there were effectively no consequences for these mistakes because, in most instances, the assignment was withdrawn once Mr. Hyland indicated that he could not be assigned a particular task. Counsel argued that, assuming Ms. Hutton misled Mr. Hyland on the issue of benefits, the Union has not established that the Employer should be liable for what clearly constituted no more than an innocent representation that was unlikely to - 35 - have been determinative on the question of when Mr. Hyland would return to work. Counsel submitted that there was no evidence to establish that the Employer contravened the GDO Agreement or that its general assignment of work to Mr. Hyland amounted to a failure to reasonably accommodate him. [57] Employer counsel also argued that the Employer had made reasonable efforts to provide Mr. Hyland with a smoke free workplace. Although there continued to be evidence of smoking in the workplace, he noted that Mr. Hyland’s risk of exposure to cigarette smoke had been considerably reduced and that his exposure to cigarette smoke was virtually eliminated during the period of time under review. Counsel noted that Mr. Hyland did not observe anyone smoking at the CECC contrary to the smoking policy during the relevant period of time. Employer counsel also submitted that the Employer had adequately enforced the smoking policy by disciplining some persons who had contravened the smoking policy. Counsel therefore submitted that there is no basis for concluding that the Employer had failed to reasonably accommodate Mr. Hyland with respect to the smoking issue. Employer counsel reiterated the Employer’s request that Mr. Hyland’s grievances be dismissed. [58] During his final submissions, Employer counsel relied on the following decisions: OPSEU (Hyland) and Ministry of Community Safety and Correctional Services (2014), GSB No. 2011-1071 (Petryshen); OPSEU (Hart-Day) and Ministry of Community Safety and Correctional Services (2014), GSB Nos. 2007-1117 et al. (Dissanayake); Re City of Ottawa and CUPE, Local 503 (2018), L.A.C. (4th) 109 (Stephens); Pasimanik v. Central Epicure Food Products, 2009 HRTO 1727; OPSEU (Myciak et al.) and Ministry of Community Safety and Correctional Services (2015), GSB No. 2010-2318 (Briggs); OPSEU (Manna et al.) Ministry of Community Safety and Correctional Services (2018), GSB No. 2017-0662 (Gee); Noble v. York University, 2010 HRTO 878; and, Ontario Human Rights Commission and Kate Jones and Amway of Canada and Art Knott, 2001 CANLII 26217 (ON HRT). [59] I will first deal with the issue of whether the Employer failed to reasonably accommodate Mr. Hyland because it did not effectively enforce the smoking policy. The - 36 - evidence on the smoking issue is that there continues to be evidence of smoking at the CECC, primarily in the form of cigarette butts and it appears that there had been a reduction in this type of evidence in 2017 and 2018. The evidence of smoking demonstrates that staff members continue to smoke cigarettes in designated non- smoking areas contrary to the Ministry’s and the CECC’s smoking policy. It also demonstrates that staff members continue to possess tobacco products at the facility which itself is a violation of the smoking policy. The issue of the possession of tobacco products and the Employer’s enforcement of this aspect of the smoking policy has not been the focus in this case or in previous cases. I have not heard, for example, that the Employer has considered confiscating tobacco products from a staff member who is caught smoking or is otherwise observed to be in procession of tobacco products contrary to the smoking policy. The evidence on the enforcement of the policy for staff caught smoking is that one employee received a one-day suspension, another employee was reprimanded, some employees may have been counseled and the vague suggestion that there may have been some other COs who were disciplined. Having found to be delinquent in the past for its enforcement of the smoking policy and knowing that it would again have to demonstrate a serious effort to enforce the policy in response to the Union’s allegations, the evidence from the Employer on the enforcement issue was somewhat underwhelming. And then there is the evidence that managers were observed smoking in violation of the smoking policy and that senior managers did not report or discipline managers or some COs who were smoking in areas where smoking is prohibited. It is likely that these events took place before 2017 since there is some evidence to suggest Superintendents after 2016 did a better job in dealing with the smoking issue. There is also the unchallenged testimony of Mr. Hyland to the effect that Superintendent Johnston admitted at the October 2016 ASMP meeting that the Employer had not done a good job in addressing the smoking issue and other matters concerning Mr. Hyland. [60] There are however circumstances that differentiate the instant case from previous cases involving Mr. Hyland. During the period of time covered in this case, Mr. Hyland did not observe anyone smoking in violation of the smoking policy. He did not have to endure situations where he would report his observations of persons smoking - 37 - contrary to the smoking policy and then discover that the Employer had failed to respond appropriately. More significantly, Mr. Hyland experienced only one possible exposure to cigarette smoke when he was at work during the 4½ years being reviewed. I say one possible exposure because Mr. Hyland’s notation for the May 4, 2016 incident was that he left work because of cigarette smoke, but he did not testify that he had an exposure that made him ill, although he did leave work early on that day. The central feature of Mr. Hyland’s accommodation is that he be provided with a smoke free work environment. Irrespective of how the Employer performed in enforcing the smoking policy, the risk of Mr. Hyland being exposed to cigarette smoke appears to have been considerably reduced and with virtually no exposures to cigarette smoke his actual work environment had improved considerably. The issue of whether the Employer effectively enforced the smoking policy only became relevant in previous decisions when Mr. Hyland’s health and safety was affected by exposures to cigarette smoke. Even a determination in this case that the Employer’s efforts in enforcing the smoking policy were still not adequate, it is more difficult in my view to conclude that the Employer did not reasonably accommodate Mr. Hyland when his risk of exposure to cigarette smoke has been considerably reduced and when he had virtually no exposures to cigarette smoke that compromised his physical health. [61] As I previously noted, the only remedy the Union is requesting is damages and the majority of the evidence in this case concerned the work assignment issue. It was noted during the Union’s submissions that the smoking issue was not the central element of the Union’s case. My assessment of the evidence is that Mr. Hyland attributed the deterioration of his mental health primarily if not entirely to the Employer’s failure to assign him a sufficient and a broad range of duties. As well, the Union’s submissions on remedy focused on the impact of Mr. Hyland’s assignments on his mental health. These features of this case, in addition to the fact that Mr. Hyland experienced virtually no exposures to cigarette smoke and no related physical harm, lead me to agree with the Employer that an award of damages is not warranted with respect to the smoking issue. I therefore find it unnecessary to decide the unique question on the facts of this case of whether the Employer had failed to reasonably accommodate Mr. Hyland because of a failure to effectively enforce the smoking policy. - 38 - I simply reiterate that a failure by the Employer in the future to reasonably enforce the smoking policy could result, depending on the facts, in a finding that the Employer had failed in its duty to reasonably accommodate Mr. Hyland or others in his situation. [62] I will now turn to address the issues that arose as a part of the Union’s case regarding the Employer’s assignment of work to Mr. Hyland. I will comment first on two subsidiary issues, namely Mr. Hyland’s contention that he was misled by the Employer on the question of benefit contributions and whether the assignment of tasks that were covered by his restrictions amounts to a failure to accommodate Mr. Hyland. [63] The substance of Mr. Hyland’s complaint with respect to Ms. Hutton is that she told him that after 6 months of being off work on WSIB that he would be solely responsible for benefit contributions and that he later discovered that this was incorrect. Mr. Hyland indicated that he had returned to work against his doctor’s advice because of financial pressures and that he may have stayed off work if he had not been misled on the question of benefit contributions. Ms. Hutton was not in a position to dispute Mr. Hyland’s version of their discussion simply because she could not recall the discussion. The Union submitted that by misleading Mr. Hyland on the issue of benefit contributions, the Employer created further anxiety for him and that this is relevant to a proper consideration of the quantum of damages. [64] Assuming his recollection of their conversation is accurate, what is clear is that Ms. Hutton did not intentionally mislead Mr. Hyland. From Mr. Hyland’s own description of their conversation, Ms. Hutton did not appear to know the answer to his question and she had to spend some time coming up with an answer. From these circumstances it appears that Mr. Hyland should have appreciated that taking Ms. Hutton’s advice may have been somewhat risky. It also appears that Mr. Hyland raised the benefits issue in the presence of the Union, but there is no indication that the Union raised an objection to Ms. Hutton’s response. More importantly, Mr. Hyland indicated that he may not have returned to work if he had not been misled by Ms. Hutton, but he did not testify that he definitely would have remained off work if he had not been misled. I appreciate that benefits are important to Mr. Hyland and that making all of the - 39 - contributions to maintain his benefits would have been a financial burden. However, once his credits ran out, Mr. Hyland would be faced with challenging financial circumstances in any event since his income would be reduced. I expect that Mr. Hyland would have elected to return to work once his credits ran out irrespective of what Ms. Hutton had told him about benefits. After all, he testified that it was his impending loss of credits alone that created the financial pressure on him to return to work after his second absence on WSIB. I am not satisfied therefore that what Ms. Hutton innocently told Mr. Hyland about benefits was a determining factor in his decision to return to work. And, in any event, I am not convinced that an innocent misrepresentation made by Ms. Hutton and the effect it may have had on Mr. Hyland’s decision to return to work provides the Union with an additional basis to support its claim for damages. [65] There is no dispute on the evidence that there have been a number of instances when Mr. Hyland was assigned a task that was covered by his restrictions set out in HPRO. Mr. Hyland’s primary restriction is that he cannot perform work in certain locations at the CECC, such as living units. The evidence is clear that Mr. Hyland has not been required to perform any task inconsistent with his accommodation. It was entirely his choice when he elected on two occasions to perform a requested task inconsistent with his accommodation. This is not a case then where Mr. Hyland has been ordered to perform a duty that was covered by his restrictions. The mistaken assignment requests offered to Mr. Hyland by various GDMs were innocent mistakes and not efforts to harass or single out Mr. Hyland. Mistakes of this sort by busy GDMs were also made in the assignment of duties to other accommodated COs, not just Mr. Hyland. Like any other kind of mistakes, these assignment requests should not have been made, but is not particularly surprising that mistakes like this would occur in a large institution like the CECC. [66] Contrary to the Employer’s position that a mistaken assignment request had no legal consequences for Mr. Hyland, the Union submitted that Mr. Hyland was prejudiced by the number of requests to perform duties contrary to his restrictions. Mr. Hyland certainly believes that the process of his refusing an assignment and the reassignment of a task over the main channel of the radio singled him out as an - 40 - accommodated employee. It is likely that Mr. Hyland is not singled out as much as he thinks he is by the reassignment process given that the reassignment of a task to another GDO over the radio could be for reasons other than that the initial request was inconsistent with a CO’s restrictions. Even if the process of reassigning a task over the radio does single him out to some degree, it is being done indirectly as a result of innocent errors that are difficult to prevent. The fact is that Mr. Hyland is singled at the CECC by the mere fact that he cannot work in certain locations. Any GDO or CO on the day shift would probably notice that Mr. Hyland does not work in certain locations, such as living units and the Vehicle Sally Port. Surely Mr. Canning is not the only staff member who knows that Mr. Hyland cannot go past the first slider and the reason why he cannot enter living units. It is likely the case that the mistaken assignments do little to further single out Mr. Hyland when considered in light of the reality of where he can work at the CECC. I appreciate that the Union indicated that the mistaken assignment requests were also not a central element of the Union’s case. In my view, the fact that Mr. Hyland is mistakenly asked to perform duties covered by his restrictions, by itself, does not amount to a failure by the Employer to accommodate him. I agree with the Employer that the mistaken assignment requests do not give rise to legal consequences for which damages would be appropriate. [67] I turn now to deal with the Union’s primary position on the work assignment issue, the facts of which are not in dispute. Mr. Hyland was not assigned a broad range of GDO duties while at work during the relevant 4½ year period under review. This was in contrast to the work assignments distributed to other GDOs. Apart from the static duties he performed, Mr. Hyland often sat in the Servery waiting for assignments while other GDOs were given more and a broader range of duties of the sort that Mr. Hyland could have performed. Many of the duties that are specifically referred to in the GDO Agreement were not assigned to him at all, such as Central Control and the Radio Room, because he had not been provided with the necessary training. Other duties, like those relating to the Chapel and Videoconferencing, were assigned to him on an infrequent basis. Similar to other GDOs or COs, Mr. Hyland did volunteer to assist other COs in the performance of their work. However, even though he made efforts to - 41 - be productive by assisting others, Mr. Hyland often spent a lot of his time at work waiting for assignments in contrast the experience of other GDOs. [68] The reliable evidence about his work assignments came primarily from Mr. Hyland himself. Some of the Union witnesses did corroborate Mr. Hyland’s testimony to a certain degree, but they could not possibly provide a complete picture of his work experience since they had their own work to perform and they would not have been in a position to compare Mr. Hyland’s assignments with the assignments given to other GDOs. In noting that there was no dispute on the facts relevant to the main work assignment issues, I had in mind the following considerations. The Employer did not challenge the key elements of Mr. Hyland’s testimony. For example, it did not assert that Mr. Hyland had in fact been assigned a broad range of duties or that he had been treated no differently than other GDOs with respect to the kind of work assignments Mr. Hyland could perform, given his restrictions. The Employer did not suggest that Mr. Hyland spent approximately the same amount of time in the Servery as did other GDOs waiting for assignments. [69] As I noted previously, the parties agreed in June of 2014 that Mr. Hyland could be reasonably accommodated by placing him in a GDO position with modifications. The GDO Agreement came soon after the release of the January 15, 2014 decision in which the Union had successfully demonstrated that the Employer had discriminated against Mr. Hyland and had not reasonably accommodated him with respect to certain work assignments. The agreement came after I had indicated in the January 15, 2014 decision that “…the obligation to accommodate is not satisfied by simply placing an employee in a job that meets his or her restrictions if there are alternative jobs available that would permit the disabled employee to utilize his or her skills to a greater degree and perform a broader range of duties” and also that “…it would be discriminatory to deprive a disabled employee a right that others employees enjoy when it comes to selecting a post, everything else being equal.” It was in the context of these comments that the parties concluded the GDO Agreement. - 42 - [70] One of the modifications to the GDO position reflected in paragraph 3 of the GDO Agreement is that Mr. Hyland will not be required to go beyond the first slider when escorting inmates to and from living units. Even with this modification and others, the parties agreed in paragraph 2 that “…Mr. Hyland can perform a sufficient range of GDO duties such that he can be productively and effectively utilized in the GDO post.” When reviewing the GDO Agreement as a whole and the context within which the parties agreed to its terms, I am satisfied that paragraph 2 not only recognized that Mr. Hyland can be productively and effectively used as a GDO, but creates an obligation on the Employer to productively and effectively utilize Mr. Hyland as a GDO. The facts of this case clearly show that Mr. Hyland had not been utilized productively and effectively as a GDO. He was utilized less productively and effectively than other GDOs with respect to the work that Mr. Hyland could perform. It appears that the obligation to productively and effectively utilize Mr. Hyland had not been communicated to the GDMs that assigned work to Mr. Hyland. I appreciate that a GDM is responsible for the efficient running of the day shift and that a GDM is in a demanding job. I also appreciate that the modification of not going past the first slider can slow down the process of escorting inmates. One cannot help but deduce from these considerations that GDMs may have been reluctant to assign Mr. Hyland certain tasks that could have detrimentally affected the efficiency of the overall operation, even though the parties had agreed that not going past the first slider was a reasonable modification for Mr. Hyland. [71] Paragraph 6 of the GDO Agreement essentially provides that Mr. Hyland may be assigned to the Unit 12 Sub-Control, but not on a disproportionate basis when compared to other GDOs. The Employer did not dispute this interpretation. The evidence establishes that Mr. Hyland was assigned to the Unit 12 Sub-Control from the latter part of 2014 until March of 2015, considerably more often than other GDOs were assigned to that post. The Employer did not challenge Mr. Hyland’s evidence that other GDOs were rarely assigned to work at that post. It is quite clear therefore that the Employer had assigned Mr. Hyland to the Unit 12 Sub-Control post on a basis contrary to paragraph 6 of the GDO Agreement. - 43 - [72] I therefore find that the Employer did contravene the GDO Agreement by failing to utilize Mr. Hyland productively and effectively as a GDO and for assigning him on a disproportionate basis to the Unit 12 Sub-Control for the last four months of 2014 and for the first three months of 2015. [73] As set out previously, the Employer’s response to the Union’s contention that the Employer did not reasonably accommodate Mr. Hyland by not providing him with a broader range of assignments was two-fold. It submitted that Mr. Hyland was assigned duties that he could perform given his restrictions and operational requirements. This is essentially the same submission that the Employer had made on the issue of the placement of Mr. Hyland in certain posts that was addressed in the January 15, 2014 decision. The Employer also argued that Mr. Hyland was simply unhappy with his assigned GDO duties, even though he had been reasonably accommodated, and that what he really wanted is the right to be assigned duties that he preferred. [74] Given the circumstances of this case, I am of the view that these Employer submissions cannot be accepted. I agree with Union counsel that the principles I referred to in the January 15, 2014 decision about assigning work to a disabled employee are applicable in this case, even though the previous decision dealt with the assignment of a post and this one deals with the assignment of duties in a job. Again, depending on the circumstances, it is not enough for an employer to simply say that it had assigned a disabled employee duties that the employee could perform when the employer could have assigned the employee more and a broader range of duties that would have provided the disabled employee with a more satisfactory work experience. This is particularly the case when non-disabled employees in the same job are assigned more and a broader range of duties. I also agree that the question of whether Mr. Hyland is entitled to his preference of duties rather than simply a reasonable accommodation is not relevant in this case. Mr. Hyland has not taken the general position that he preferred to be assigned certain duties, but not others. His complaint is simply that he was not being assigned enough work and a broader range of duties and that in this respect he was being treated differently than other GDOs. - 44 - [75] In my view, the Employer did not provide Mr. Hyland with a reasonable accommodation during the 4½ years under review. By providing him with fewer and a limited range of assignments when compared to the work assigned to other GDOs that Mr. Hyland could have performed, I find that the Employer discriminated against Mr. Hyland on the basis of disability. [76] Turning to the question of remedy, I have reviewed the decisions that deal with the issue of damages for the breach of a labour relations agreement. The essential principles in these decisions are that an agreement of the parties must be respected and that a failure to comply with an agreement will have consequences that may include an order for damages. In requesting that I direct the Employer to pay $5,000.00 in damages to Mr. Hyland for its contravention of the GDO Agreement, Union counsel acknowledged that the amount requested may be higher than the norm, but submitted that the request was justified in this case because the contravention at issue continued for many years and involved a significant human rights issue. I agree with the Union that an order for damages is appropriate in this case. In determining what quantum of damages is appropriate, I have considered a number of factors which include that the GDO Agreement deals with the accommodation of a disabled employee, the impact of the contravention on Mr. Hyland and the fact that Mr. Hyland’s general complaint about the Employer’s failure to comply with the GDO Agreement went unheeded for a number a number of years. I note that Mr. Hyland’s specific complaint about being disproportionately assigned to the Unit 12 Sub-Control was eventually addressed by the Employer after the issue had persisted for about six months. Even in light of these considerations, I find that the quantum of damages requested by the Union is excessive in the circumstances. Accordingly, I hereby declare that the Employer contravened the GDO Agreement as outlined in this decision; I direct the Employer to comply with the GDO Agreement when assigning work to Mr. Hyland; and, I direct the Employer to pay $3,000.00 in damages to Mr. Hyland for its contravention of the GDO Agreement, by no later than sixty days from the date of this decision. [77] In support of the Union’s request for general damages and damages for mental anguish, Union counsel referred me to the January 15, 2014 decision and the - 45 - comments I made and the cases I relied on therein. I addressed the Union’s request for damages in that case as follows: [43] I turn finally to the Union’s request for human rights type of damages. There is no dispute that I have the power to award general damages to compensate Mr. Hyland for the loss of his right to be free from discrimination and for the injury to his dignity, feelings and self-respect. I also have the authority to award damages for mental anguish. Having regard to the Employer’s discriminatory treatment of Mr. Hyland by its failure to reasonably accommodate him, I find that an award of general damages and an award of damages for mental anguish are warranted. [44] In seeking $50,000.00 in general damages and $25,000.00 in damages for mental anguish, Union counsel relied on the particular nature of the discrimination in this case, the long history of discriminatory treatment Mr. Hyland has experienced from the Employer and the impact this discriminatory treatment has had on Mr. Hyland. Counsel submitted that significant quantum of damages was required to send the appropriate message to the Employer. I agree with Employer counsel’s submission that sending a message is not an appropriate factor to consider when determining the quantum of damages. I agree with the following comment by the HRTO in Koroll v. Automodular, supra, at paragraph 122: …The purpose of monetary compensation is to compensate the person whose rights have been infringed, not to punish the respondent. In my view, ordering the employer to pay the applicant monetary compensation in an amount aimed at deterring it from future breaches of the Code would not be in keeping with the remedial focus of the Code. [45] Employer counsel submitted that no damages should be awarded in the circumstances of this case, but that if I concluded that damages were appropriate, the quantum in this case should be at the lower end of the scale. Counsel referred at some length to Re City of Ottawa and Civic Institute of Professional Personnel, supra, and the analysis of the issue of quantum contained therein. He argued that this analysis illustrated that the quantum of damages sought by the Union is extremely excessive. [46] In Sanford v. Koop, supra, the HRTO set out the factors to consider when determining the quantum of general damages, as well as the relevant considerations for assessing damages for mental anguish. The factors identified for assessing the appropriate quantum of general damages are as follows: . Humiliation experienced by the complainant. . Hurt feelings experienced by the complainant. . A complainant’s loss of self-respect. . A complainant’s loss of dignity. . A complainant’s loss of self-esteem. . A complainant’s loss of confidence. . The experience of victimization . Vulnerability of the complainant. . The seriousness, frequency and duration of the offensive treatment. The considerations for assessing mental anguish damages are listed as follows: . The immediate impact of the discrimination and/or harassment on the - 46 - complainant’s emotional and/or physical health – e.g. distress during employment, episodes of crying, sleeplessness, fearfulness, inability to pursue or resume regular activities. . The ongoing impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health, i.e. impact on personal and professional life, lack of trust in employment relationships. . Vulnerability of the complainant e.g. age. . Objections to the offensive conduct. . Knowledge on the part of the respondent that the conduct was not only unwelcome but viewed as harassment or discrimination. . Anxiety caused by the conduct. . Frequency and intensity of the conduct. [47] In assessing the appropriate quantum of damages, I have considered the above factors in relation to the Employer’s discriminatory conduct during the period under review in this proceeding and its impact on Mr. Hyland. I did not consider the discriminatory treatment Mr. Hyland experienced prior to his moving to the CECC because then I would be awarding an amount of damages in part for the Employer’s conduct in earlier proceedings for which this type of remedy was not requested. The earlier discriminatory treatment however does provide a context for considering the events that occurred at the CECC and is relevant to understanding the impact of those events on Mr. Hyland. [48] The Employer’s decision to deny Mr. Hyland access to the secure part of CECC, its decision to revoke his assignment to A&D without considering any modification to the A&D schedule to accommodate him and its failure to reasonably police and enforce the smoking policy, and the impact of these matters on Mr. Hyland, bring many of the factors and considerations referenced in Sanford v. Koop, supra, into play. Mr. Hyland experienced humiliation, hurt feelings, a loss of dignity and victimization. The A&D incident had a direct and significant impact on his emotional health. The Employer’s failure to enforce the smoking policy and the impact of this on his accommodation has caused Mr. Hyland a significant amount of stress and anxiety during his time at the CECC. Even so, I agree with counsel for the Employer’s submission that the amount of damages sought by the Union is excessive in the circumstances. Having regard to the relevant factors, I award $18,000.00 in general damages and $12,000.00 in damages for mental anguish for the Employer’s failure to reasonably accommodate Mr. Hyland. [78] In essence, the Union took the position that the factors that led me to award damages in the January 15, 2014 decision are present in the instant case and that they justify another damages award. Union counsel submitted that the Employer did not get the message from the previous award of damages and that the doubling of the quantum for each head of damages would be appropriate to send the Employer the message that it is obliged to reasonably accommodate Mr. Hyland when assigning him work. Counsel emphasized that the Employer’s failure to properly accommodate Mr. Hyland came after lengthy litigation and an Award which provided the Employer with a clear guideline on its obligations with respect to assigning Mr. Hyland work. Counsel submitted again that - 47 - the instant case represented a significant contravention of an important human right that occurred over many years. Counsel also argued that the undisputed significant impact on Mr. Hyland’s mental health because of his treatment at the CECC warranted the granting of the quantum of damages requested by the Union. [79] It is worth noting that the evidence relevant to this remedial issue was not in dispute. Referring to most of the sick days he took and the longer WSIB absences, Mr. Hyland testified that his absences due to illness were the result of his treatment at work, primarily related to the lack of work assignments. Dr. Walsh’s reports were entered on consent and her conclusions about Mr. Hyland’s mental state were not challenged by the Employer. The evidence disclosed that Mr. Hyland’s depression, anxiety and PTSD arose from his treatment by the Employer at the CECC and not from any factors unrelated to his experiences at work. [80] I agree with the Union that the Employer’s discriminatory treatment of Mr. Hyland on the basis of disability and its failure to reasonably accommodate him with respect to work assignments entitles Mr. Hyland to damages. I reiterate my comments in the January 15, 2014 decision that the purpose of damages is not to send a message to the Employer or to punish the Employer for its breach of the Collective Agreement and the Ontario Human Rights Code. In making an assessment of the quantum for general damages and for damages for mental anguish, I have considered the relevant factors and considerations outlined above from the Sanford v. Koop decision. Many of those factors and considerations are particularly relevant for assessing the quantum of damages in this case. Mr. Hyland was singled out by spending more time in the Servery than other GDOs and his limited and narrow range of assignments resulted in some of his colleagues forming the perception Mr. Hyland was not pulling his weight. The evidence disclosed that Mr. Hyland experienced humiliation and victimization, a loss of dignity and a loss of self-esteem. The Employer’s improper treatment of Mr. Hyland was serious, frequent and lasted for the entire time that he was at work during the relevant 4½ years. Mr. Hyland made objections to the way he was being accommodated and his limited assignments, but to no avail. The Employer was aware that Mr. Hyland considered the limited and narrow assignments he had received from - 48 - the Employer to amount to harassing and discriminatory treatment. Most importantly, the Employer’s treatment of Mr. Hyland resulted in significant psychological damage in the form of depression, anxiety and PTSD. As of the last day of his testimony, Mr. Hyland indicated that he continues to receive treatment from Dr. Walsh for PTSD. [81] In addition to the above factors and considerations, I note that the Union’s request for damages was not based only on the limited and narrow assignments Mr. Hyland had received when compared to the assignments received by other GDOs. Its request for damages was also based on its view that Ms. Hutton had misled Mr. Hyland on the subject of benefit contributions, the mistaken assignments made by GDMs and the failure of the Employer to effectively enforce the smoking policy. However, as I decided previously, I would not award damages based on those matters. Therefore, in my view, the quantum of damages requested by the Union is excessive having regard to the relevant considerations. I do not accept that the doubling of the quantum of damages awarded in the January 15, 2014 decision is an appropriate approach in the instant case. The approach I have adopted is to focus on the relevant factors and considerations for assessing the quantum of damages and to make the appropriate assessment having regard to the particular issues and facts of this case, which are obviously different from those that determined the result in the January 15, 2014 decision. Accordingly, I hereby declare that the Employer failed in its duty to reasonably accommodate Mr. Hyland with respect to his work assignments; I direct the Employer to reasonably accommodate Mr. Hyland with respect to his work assignments consistent with its obligations under the Collective Agreement and the Ontario Human Rights Code; and, having regard to the relevant factors and considerations noted above, I direct the Employer to pay $25,000.00 in general damages to Mr. Hyland and $20,000.00 in damages for mental anguish. [82] For the foregoing reasons, Mr. Hyland’s grievances alleging a failure to accommodate him based on his lack of assignments are allowed. The declarations and directions to remedy the Employer’s failure to reasonably accommodate Mr. Hyland and - 49 - to remedy its the contravention of the GDO Agreement are set out above. I will remain seized of this matter to deal with any issues concerning the implementation of this decision. Dated at Toronto, Ontario this 8th day of March, 2021. “Ken Petryshen” Ken Petryshen, Arbitrator