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HomeMy WebLinkAboutBaine 23-04-18IN THE MATTER OF AN ARBITRATION Pursuant to the Labour Relations Act, R.S. 1995 BETWEEN: OTTAWA CATHOLIC SCHOOL BOARD (“Board”) - and – ONTARIO PUBLIC SERVICE EMPLOYEES UNION, On Behalf of its Local 423 (“Union”) (Grievance Of R. Baine) SOLE ARBITRATOR: Jasbir Parmar On Behalf of the Board: Jennifer Birrell On Behalf of the Union: Sarah Khan Based on written submissions completed March 13, 2023. 1 ISSUE [1] I have been appointed by the parties to determine the grievance of Rosemarie Baine, dated September 30, 2020, alleging the Board failed to accommodate her age-related needs, contrary to the Ontario Human Rights Code. [2] This decision deals with the preliminary issue of whether the Union has made out a prima facie case of discrimination on the part of the Board. It is understood that if the Union is unsuccessful in respect of this preliminary issue, the grievance cannot succeed. [3] On agreement of the parties, this issue is being determined on the basis of an Agreed Statement of Facts (ASF) and written submissions. Having considered the parties’ submissions, for the reasons outlined below, I have determined the evidence does not establish a prima facie case of discrimination. FACTS [4] While I have considered all the facts in ASF, the following is a summary of what I view to be the material facts. [5] The Grievor is employed with the Board as an English as a Second Language Instructor, having been hired in January 1989. She turned 71 years old in November 2020. The Grievor is employed as a ten-month employee. Prior to the COVID-19 pandemic, she taught in person twenty-three hours per week. Her assignment typically included two classes, usually with eight hours of evening classes and fifteen hours of daytime classes. [6] In or about March 2020, the World Health Organization declared a global pandemic due to COVID-19. There was a concern that older adults were at risk of getting seriously ill from the virus. Effective March 14, 2020, the Minister of Education ordered all public schools to close for in-person learning. Schools remained closed until September 2020, when the Board resumed in-person learning. In preparation for this process, the Employer developed numerous initiatives for the return to school, including COVID-19 guidelines and protocols for staff and students. [7] On August 28, 2020, the Board issued the “OCSB Adult Programs Return to School Plan”. The plan addressed the programs offered in Continuing and Community Education and confirmed that night school and Saturday classes would remain on-line until further notice. For day school, the plan included limits on the number of students in the classroom and a “cohort schedule” (i.e., alternating days in the school) to limit contact amongst individuals. 2 [8] By letter dated August 24, 2020, for the 2020-2021 school year, the Grievor was assigned to teach one morning class, Monday to Friday from 9:00 am to 12:00 pm, and one evening class. While the morning class was on-line until September 14, 2020, the Grievor was expected to teach this class in person for the balance of the 2020-2021 school year, subject to any changes during the COVID-19 pandemic. [9] On September 3, 2020 the Grievor emailed the Board seeking an accommodation in respect of the day class. At that time, she cited “a family member was diagnosed with stage 4 cancer in early July” and her age as reasons for the accommodation. She stated that she believed “it would be dangerously risky for me to teach in the classroom”, and indicated she was willing to work from home. She also stated that her doctor recommended she “stay home and not go into the workplace”. In response to the Grievor’s request for accommodation, the Board requested further medical information, and provided a questionnaire for the Grievor’s doctor to complete. A cover letter accompanying the questionnaire referenced a number of measures the Board was implementing to limit the spread of COVID-19. There is a dispute between the parties as to whether all of the measures outlined in the cover letter had been fully adopted by September 2020 at the Grievor’s school. [10] The Grievor’s doctor completed the questionnaire. In it, the doctor stated that the Grievor had an “age related risk to COVID-19”. However, in response to specific questions, the doctor stated that the Grievor was not required to self-isolate/quarantine, and that the Grievor was medically capable of leaving home and being present in the general community (e.g., to obtain groceries, attend pharmacy, attend appointments, etc.) with compliance with social distancing guidelines issued by public health authorities. The doctor also provided the following answers to two questions: Q8 Can the Board’s employee attend the workplace with social distancing guidelines along with the additional measures and controls implemented by the Board and as outlined in the letter above without posing an undue risk to the patient? A Yes *** Q12 Please provide any other comments that would assist us in ensuring a safe and productive workplace for the employee in light of the patient’s disability-related needs. A The patient is considered to be in an at risk group for complications should she get COVID- 19. Consideration should be given to reduce her risk of exposure above and beyond that of the general population. Patient has taken the step to stop seeing in person her family when her grandchildren started school in order to reduce her risk of exposure. [11] Upon receipt of the medical documentation, on September 17, 2020 the Board modified the Grievor’s day assignment, such that she would teach virtually from her home school location. In other 3 words, the Grievor would be physically present in her classroom at the school, but the students would be online. The Board concluded this assignment met its legal duty to accommodate the Grievor [12] On September 30, 2020 the Grievor filed the grievance alleging a failure to accommodate. [13] In addition to the ASF, the Union seeks to rely on a document, a printout from the Ottawa Public Health website, printed in December 2022. It is not clear from the face of the document when the content was posted, but there is a reference to a revision date of June 8, 2022. The Board objects to the admissibility of this document. The parties made submissions on the admissibility of this document as part of their submissions on the preliminary issue. BRIEF SUMMARY OF THE PARTIES’ POSITIONS [14] The Union advised that the sole basis for the Grievor’s claim of discrimination is age, which is a Code-protected characteristic. [15] The Union submits that the assignment of in-person teaching exposed the Grievor to COVID-19, and that because of her age she was at greater risk of serious illness from such exposure. The Union submits that the assignment had a differential and adverse impact on the Grievor on the basis of her age. In respect of the adverse impact, the Union relies on the medical documentation from the Grievor’s doctor, and, in particular, the doctor’s statement that the Grievor was considered to be in an “at-risk” group for complications should she contract COVID-19, and that “consideration should be given to reduce her risk of exposure above and beyond that of the general population”. The Union submits that there is a link between the Grievor’s age and the adverse impact of increased risk of complication from contracting COVID-19, and asserts that therefore prima facie discrimination is established. [16] The Board submits that the test for prima facie discrimination has not been met, and therefore there was no legal duty on the Board to accommodate the Grievor. The Board submits that the Grievor’s assignment to teach virtually from her home school location had no adverse impact on the Grievor. The Board submits that the Code requires an individualized analysis, and that the Board engaged in such an analysis by obtaining and considering medical documentation from the Grievor’s doctor. Given the doctor did not identify any limitation and/or restriction on the Grievor’s ability to attend at work in person, the Board submits that the Grievor did not experience an adverse impact relating to age in respect of her teaching assignment. The Board submits that its decision to assign the Grievor to teach virtually from the school location, in response to the doctor’s suggestion that the Grievor be given “consideration”, was a voluntary act that went beyond the requirements of law. [17] The parties provided me with the following authorities: Toronto Hydro-electric System Limited and Power Workers Union, 2020 CanLII 103922 (Albertyn); Moore v British Columbia, 2012 SCC 61; 4 Empower Simcoe v JL, 2022 CanLII 5371 (Ont. Div. Ct.); Ontario v. Tranchemontagne, 2010 ONCA 593; Sprague v. Ontario, 2020 ONSC 2335; Ontario Human Rights Commission v. Simpson-Sears, [1985] 2 S.C.R. 536; BC Human Rights Tribunal v. Schrenk, 2017 SCC 62; British Columbia v. BCGSEU, [1999] 3 S.C.R. 3; A.J.J. v. Toronto District School Board, 2013 HRTO 1198; Finch v. Ontario, 2020 HRTO 340, Law v. Thames Valley District School Board, 011 HRTO 953, and Ontario Human Rights Commission’s “Policy on Discrimination Against Older People Because of Age”. ANALYSIS [18] The issue to be decided is whether a prima facie case of discrimination has been made out on the basis of the facts contained in the ASF. There is no dispute that if prima facie discrimination is not established the duty to accommodate does not arise under the Code. There is also no dispute that the onus to establish a prime facie case of discrimination is on the Union [19] It is well-established that there is a three-part test that must be met in order to discharge the onus of establishing a prima facie case of discrimination. The test, as set out in Moore and British Columbia, supra, is: i) That the Grievor had a characteristic protected under section 5 of the Human Rights Code; ii) That the Grievor suffered an adverse impact regarding employment; and iii) That the protected characteristic was a factor in the adverse impact. [20] In order to establish an adverse impact, an individual must demonstrate they have suffered a disadvantage or a burden in respect of their employment: Law, supra. [21] In the present case, the Union submits the Grievor’s assignment of teaching her day classes in person as of September 14, 2020 had an adverse impact on her, because of the potential for exposure to COVID-19 while physically present in the workplace. The Union’s argument in this respect was largely based on the doctor’s statement about the Grievor being in an “at risk” group for complications if she contracted COVID-19 and asking that “consideration” that should be given to the Grievor. [22] The doctor’s suggestion that the Grievor should be given “consideration” to reduce her risk of exposure must be considered in light of all of the other information in that document and the context in which it was provided. I find, when the medical documentation is considered in its totality, it does not support the Union’s assertion. [23] In considering the medical documentation it is important to keep in mind the information provided to the doctor in the Board’s cover letter. From this letter the doctor was aware the Grievor was an employee of a school board, that she had made a request for accommodation, and that the Board could 5 only offer home assignments based on objective medical needs and not on employee preference. The cover letter also made it clear that the information provided by the doctor was intended to assist the Board in determining the extent of the ability of the Grievor to physically return to work and any related limitations and/or restrictions. [24] In completing the questionnaire, while the doctor stated that the Grievor was part of the at-risk group for complications from COVID-19, the doctor did not state it was inappropriate for the Grievor to attend at the workplace or identify any restrictions on the Grievor’s ability to attend at the school or teach in-person. In fact, the doctor expressly indicated there was no requirement for the Grievor to self-isolate, and expressly indicated the Grievor was able to be present in the general community with compliance with social distancing guidelines issued by public authorities. The doctor also expressly indicated the Grievor could attend at the workplace with social distancing guidelines without posing an undue risk to the Grievor. Furthermore, while the doctor referenced steps the Grievor undertook in relation to limiting personal contact with her family members, the doctor did not indicate that these were steps the doctor had recommended. [25] I have given consideration to the Union’s submissions about the doctor’s statement that “consideration” should be given to the Grievor to reduce her risk of exposure “above and beyond that of the general population”. However, I find that somewhat vague statement to be of limited value in advancing the Union’s case, given the doctor’s clear responses to specific questions about the Grievor’s ability to attend in the workplace. Again, this statement about “consideration” must be read in the context of the doctor’s answers to other questions. There is no reasonable basis to conclude that the “consideration” required the Board to do something inconsistent with what the doctor had already clearly said the Grievor could do – which was be present in the workplace and in the general community following social-distancing guidelines. In fact, rather than identifying a restriction related to the Grievor’s in-person teaching assignment, the medical documentation provided to the Board actually confirmed the Grievor’s ability to be at work and in the presence of other people following social-distancing guidelines. I find the fact that the doctor suggested that “consideration” be given to reducing the Grievor’s risk of exposure was insufficient to establish a Code-related need to not be present in the workplace or not be present in the presence of others, when considered in the context of the rest of the medical information in t he document. [26] The Union’s submissions also made reference to a document printed from the Ottawa Public Health website, suggesting this was evidence which supported the conclusion the Grievor suffered a disadvantage. I agree with the Board’s submission that the webpage document is not admissible, given it is a document dated almost two years after the filing of the grievance and there is no evidence this 6 specific document was presented to the Board for its consideration at the time of the accommodation request. [27] The Union made similar reference to two cases, Sprague and Empower, suggesting the findings in these cases “corroborated” its submission that the Grievor had risk of serious illness related to contracting COVID-19. These two cases are distinguishable because they dealt with different issues and different facts than the case before me. In both those cases the issue was whether a healthcare service provider, one serving in-patients in a hospital and the other serving residents at a health-care facility, had a reasonable basis for imposing visitation restrictions. In the instant case, the Grievor is neither a hospital patient nor a resident of a health-care facility. Therefore, the Court’s conclusions in those cases about any risks for those groups are not applicable to the present case, where the issue is wheth er there is a disadvantage for the Grievor in respect of her employment. [28] In any event, the caselaw is clear that determinations as to disadvantage and/or accommodation are to be based on individualized assessments. In the context of the instant case, the Board did what is advised by the Ontario Human Rights Commission, in its “Policy on discrimination against older people because of age”. That advice is to not rely on presumed characteristics of a group, but engage in an individualized assessment or test to determine the specific abilities of an individual (see “Section 4.5: Individualization vs Assumption”). In the present case, Board properly sought and considered individualized information from the Grievor’s doctor, a health expert who was well-positioned to speak to the Grievor’s individual situation and provide an opinion about the Grievor’s individual needs in the context of her specific employment. [29] The Union submits that there is a factual dispute about whether the Board in fact implemented all the measures referenced in its cover letter to the Grievor doctor. Without identifying which measures the Board is alleged to have failed to implement, the Union submits that failing to do so “could have increased the Grievor’s risk in the school”. However, there is no medical evidence indicating the Grievor suffered a disadvantage by the alleged failure to comply with any of these measures. To the extent the Union is suggesting that the medical documentation should be interpreted as indicating this, I find the medical evidence falls short of supporting such a conclusion. I note again that the doctor clearly stated the Grievor could attend in the general community following social distancing guidelines. There is no reasonable basis to conclude the Grievor could do that but required additional measures when she attended in the workplace. [30] This leads to another argument of the Union, that the Grievor “may have provided additional information” if she had known at the time the medical documentation was not sufficient to establish the need for accommodation. The Union did not specify, and therefore I am unclear, as to the significance 7 of this speculative assertion for the purposes of the determination of the issue at hand. A finding of a prima facie case of discrimination is a prerequisite for triggering the legal duty to accommodate, and it must be established on the basis of evidence demonstrating a disadvantage. It is not possible to establish such a case simply with the assertion that perhaps the evidence might have been different. To the extent this submission is an implicit suggestion that somehow the Grievor’s ability to assert her legal rights was compromised by the fact that the Board offered her a different assignment in response to the medical documentation, such a suggestion ignores how the events unfolded. The Grievor filed a grievance alleging the Board failed to meet its duty to accommodate her within a few days of being granted her new work assignment. It was open to the Grievor at that time to obtain and provide any additional information that she thought would assist her in asserting her legal rights. [31] I find the evidence, when considered as a whole, does not establish the Grievor had any restrictions in relation to her work assignment. As such, the evidence does not establish the Grievor suffered a disadvantage regarding her employment. The Union has failed to discharge its onus of establishing a prima facie case of discrimination. [32] In the absence of such, there was no legal duty to accommodate on the part of the Board. While the Board did agree to offer the Grievor a modified assignment whereby there would be no students in the classroom, I find there was no legal obligation on the Board to do so. DISPOSITION [33] The grievance is dismissed. DATED THIS 18TH DAY OF APRIL, 2023. “Jasbir Parmar” ______________________________ Jasbir Parmar, SOLE ARBITRATOR