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HomeMy WebLinkAbout2013-2473.Fortin.17-02-22 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#2013-2473, 2013-2618 UNION#2013-0599-0023, 2013-0599-0024 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Fortin) Union - and - The Crown in Right of Ontario (Ministry of Finance) Employer BEFORE Gordon F. Luborsky Vice-Chair FOR THE UNION Lesley Gilchrist Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel HEARING April 11, 2014; January 13, February 3 & 17, March 2, 3 & 4, October 5, 2015; January 25, February 8 & 18, April 11 & 25, May 30, June 13, 2016 - 2 - Decision I. Introduction [1] The parties agree the Grievance Settlement Board (hereinafter “Board”) has jurisdiction to adjudicate two grievances alleging in summary that: (i) the Grievor was subjected to “bullying, harassment and discrimination” from her immediate supervisor, Ms. Kathleen Hamilton, resulting in physical, emotional and/or mental illness requiring her to leave work for her health; and (ii) the Employer failed to reasonably accommodate the Grievor’s alleged disability after she was cleared to return to work with appropriate modifications, in violation of the collective agreement and/or applicable legislation. [2] The first grievance dated April 25, 2013 (OPSEU# 2013-0599-0023), hereinafter referred to as the “harassment grievance”, in the Grievor’s own words and signed by her, is reproduced below: NATURE OF THE GRIEVANCE I have been subject to bullying, harassment & discrimination from K. Hamilton my manager. She has created a very stressful, unhealthy environment and poisoned work environment for me. She has abused her use of authority by eg., giving me negative PDLPs [Performance Development and Learning Plan] setting different standards for my work performance i.e. setting me up for failure, closely monitoring my work [and] finding fault with everything I do and not providing effective coaching. Her harassment includes setting me up for discipline. Her ongoing harassment has seriously affected my health. SETTLEMENT DESIRED The Employer shall immediately cease & desist from all forms of bullying, harassment and discrimination. The Employer shall remove immediately K. Hamilton from any direct/indirect supervision of my position. The Employer shall compensate me for all lost wages & benefits and for mental suffering caused by mistreatment. [K. Hamilton] shall issue a public apology to me for her bullying & harassment. [3] The second grievance dated September 9, 2013 (OPSEU# 2013-0599-0024), hereinafter referred to as the “accommodation grievance”, also in the Grievor’s own words and signed by her, is as follows: STATEMENT OF GRIEVANCE The Employer has violated Art. 3 and any other relevant articles of the collective agreement by improperly denying my right to return to work despite by [doctor’s] recommendation that I have sufficiently recovered and [am] fit and ready to return to work as of August 26, 2013. The Employer has also discriminated against me on the basis of my need for accommodation and have (sic) failed in their duty to accommodate me. - 3 - SETTLEMENT DESIRED The Employer shall immediately allow me to return to work and ensure I am properly accommodated based on my [doctor’s] recommendations. The Employer shall compensate me for any loss to wages and wages with interest. [4] The Union claims the Grievor was subjected to bullying, harassment and discrimination over a period of approximately one year at the hands of her manager, Ms. Kathleen Hamilton, with the knowledge and acquiescence of Ms. Hamilton’s immediate superior, Mr. Anatol Monid, who was then the Director of the Market Regulation Branch, Financial Services Commission of Ontario (“FSCO”) of the Ministry of Finance; although Mr. Monid’s alleged complicity or enablement of the purported abuse was not claimed until later (and not mentioned on the initial grievance form), in factual circumstances described below. [5] The Grievor commenced a leave of absence on April 30, 2013 from her position as a “Compliance Officer” in FSCO because of stress related illness allegedly caused by her maltreatment and/or refusal of the Employer to reasonably accommodate her return to work when medically cleared to do so. Having exhausted her sick leave entitlements, the Grievor has been on an approved leave of absence without pay since December of 2013. The Employer refused her subsequent request in January of 2014 to be granted a “compassionate” leave with pay, which the Union points to as a continuation and further evidence of its vindictiveness towards the Grievor (although it didn’t file a separate grievance in connection with that refusal). She accordingly claims an order directing her reasonable accommodation, compensation for all lost wages and benefits, including general damages for alleged mental distress and/or injury to the Grievor’s “dignity and self-respect” for the manner of the Employer’s alleged mistreatment of the Grievor. Although she retains her status as an employee, she has not returned to work to the present date. [6] The Employer denies it subjected the Grievor to any form of “bullying, harassment and discrimination”, maintaining instead that her supervisor, Ms. Hamilton, properly dealt with the Grievor’s ongoing performance deficiencies and that Mr. Monid’s involvement at the time was incidental, if at all, and became even more remote after his promotion to Executive Director of the License and Market Conduct Branch of FSCO, in an acting capacity in October of 2014 which was finalized in May of 2015. It is the Employer’s position that the Grievor is improperly using the accommodation obligations to force the Employer to transfer her to another job and/or different supervision acceptable to the Grievor to avoid or deflect her own deficient performance. But even if the Grievor suffered from a “disability”, which the Employer challenges or denies any responsibility, the Grievor’s insistence she would only return to work if Ms. Hamilton was replaced; and when advised Ms. Hamilton had left her job and that the Grievor would be assigned to a different supervisor, then only if Mr. Monid was effectively removed from any authority over the Grievor (or the Grievor relocated to a different - 4 - position or even to a different Ministry altogether), constituted unreasonable demands contrary to the Grievor’s and the Union’s obligations in the matter. [7] The parties presented extensive testimony from four witnesses and hundreds of pages of documentation during 15 days of oral hearings which, at the parties’ request, was followed by comprehensive written argument equivalent to three additional hearing days with filings of 35 arbitral and judicial authorities over a cumulative period of some two and one-half years. The evidence addresses three major questions for determination by this Board: (a) Was the Grievor subjected to “bullying, harassment and discrimination” from her immediate supervisor, and/or her supervisor’s superior? (b) Did the Grievor suffer psychological, emotional and/or mental health injury constituting a “disability” either as a result or regardless of the cause? And if so, (c) Did the Employer fail to take appropriate steps to “accommodate” the Grievor’s disability by not acceding to her demands for different direct and indirect supervision? II. Decision [8] Having carefully considered this evidence and the parties’ submissions, the Board concludes that both the “harassment” and “accommodation” grievances herein must be dismissed for the reasons set out below. [9] While recognizing the Grievor’s obvious discomfort with the changes occurring around her, which included the need to perform to new standards that she had difficulties achieving and thus rationalized her own failures by blaming them on her supervisor, the Board could not find any bullying, harassment and/or discrimination by any member of management to sustain the “harassment” grievance. The Board had difficulty even finding that the Union satisfied its threshold onus of establishing any disability in law requiring an “accommodation”, although the Board was left with no doubt that the Grievor had such subjective dislike of her immediate supervisor to cause her to feel much personal angst, particularly where the legitimate criticisms of the Grievor’s performance by the Employer clashed with her own notions of self-importance and worth. But even if a disability in law existed, the Grievor’s own unyielding refusal to consider what the Board found to be reasonable accommodative measures offered by the Employer at the commencement of her clearance to return to work up to the current proceedings, undermined any consideration of the broad remedial demands of the Union and the Grievor on the “accommodation” grievance before the Board. III. Preliminary Observations [10] In evaluating the evidence and arguments of the parties, the Board was influenced by the following factors that are appropriate to consider at the outset. (a) The Admissibility of “Stolen” Documents - 5 - [11] The admissibility of confidential documentation that was removed from the workplace by the Grievor without the Employer’s permission is discussed first to underscore its significance in the circumstances of the instant case and to the labour relations community serviced by the Board in general. [12] At the relevant time the Grievor held the position of “Compliance Officer” working in the “Licensing and Market Conduct Division, Market Regulation Branch” of FSCO in the Ministry of Finance. FSCO has only one office in Ontario located in North York (Toronto) and the Grievor (along with Ms. Hamilton and Mr. Monid) worked on the fourth floor of that facility where all of the Compliance Officers are normally situated. Having all Compliance Officers working in close proximity on the same floor apparently promotes efficiencies that serve the Employer’s administrative needs. [13] The Grievor and the other Compliance Officers fulfilled important statutory duties related, among other things, to enforcing ethical standards of conduct and fair dealings by insurance companies, credit unions, mortgage brokers and insurance agents with the public. In response to a complaint by a member of the public, a separate file is generated at FSCO that the assigned Compliance Officer reviews for the purpose of determining whether the responding insurance company, agent or brokerage breached applicable statutes, regulations and/or accepted norms of business conduct. Where a finding of actual or potential wrongdoing was made by the Compliance Officer, there could be administrative sanctions authorized under applicable legislation to the offending party or parties (such as letters of warning and discipline) or possible referral of a file for prosecution. In her role, the Grievor had access to private information concerning the complainant(s) and respondent(s), including personal identifying details and/or financial information that are considered confidential and in some circumstances highly sensitive to one or all of the parties involved. [14] As indicated by the evidence described in more detail below, the Grievor’s last day of active employment was April 29, 2013 and she commenced a leave of absence with pay on April 30, 2013 due to alleged stress related illness (which was later converted to a leave of absence without pay after exhausting her sick leave credits). She and her Union filed the instant harassment grievance on April 25, 2013 and, as of the end of August 2013, the Grievor’s physician had cleared her to return to work with accommodations and the Grievor was awaiting participation in anticipated meetings with the Employer concerning her harassment grievance. [15] Although the Grievor was not working at the time, the Employer continued the Grievor’s status as an employee with full access to the Employer’s internal confidential computerized files of the complaints administered by the Compliance Officers at FSCO. These electronic files are available to all Compliance Officers for purposes, among others, of cross-checking whether a particular complainant and/or responding party has been subject to other investigations and/or sanctions requiring intervention by the Ministry of Finance, and to permit ready review of a file by FSCO supervision. The computer system (at least as it existed - 6 - at that time) also permitted Compliance Officers to access the database of all active and archived compliance disputes from remote locations; including from the Officer’s own home. Anticipating the Grievor’s return to work, the Employer had not thought to suspend her computer access privileges. [16] There is no dispute in the evidence before the Board that on August 28, 2013 while on paid leave of absence, the Grievor entered the Employer’s internal computer system from a location outside of the workplace utilizing her employee access codes without the Employer’s permission or even knowledge until the commencement of the instant grievance adjudication. In this manner, the Grievor reviewed the files of five or six different Compliance Officers who worked with the Grievor (out of a total office complement of approximately 11 such Officers), printing off some 13 separate files involving complaints of different members of the public against a number of responding insurance companies, mortgage brokerages and the like; not only without the Employer’s permission but also without the knowledge of the individual Compliance Officers and/or the complainant(s) or respondent(s) that were the subject of each file. The Grievor admitted in her testimony that she selected these files “at random” (although with three or four exceptions they are all dated in August of 2013). She provided them to her Union representatives without redacting any of the identifying details or confidential information contained in those files. Her purpose in doing so was to support her claim that her work performance was no different than other Compliance Officers who the Grievor alleged were not subjected to the same level of scrutiny and criticism by their common manager, Ms. Hamilton. [17] The Union never requested the disclosure of such documentation from the Employer in advance of the present adjudication; nor did it seek an order for production or ask the Board to issue a summons to a witness or appropriate official of the Employer to bring the relevant documentation to the Board proceedings, with or without suitable measures to safeguard any privacy interests contained in the information. Mr. Monid testified that relatively small number of files printed by the Grievor was not representative of the general workload and/or duties of Compliance Officers. On the issue of the Grievor’s “excessive workload” allegation, Mr. Monid also indicated that since the amount of actual work on a file may vary considerably by the nature and circumstances of the specific complaint, the 13 files selected by the Grievor did not reveal the amount of actual work of the other Compliance Officers compared to what the Grievor was responsible for during the one year prior to the Grievor leaving work on April 30, 2013. Also, as described below, being one of the few French speaking Compliance Officers the volume of the Grievor’s work might fluctuate relative to others depending on the number of requests for services in that language at any one time. [18] When the Employer became aware of the Grievor’s and the Union’s possession of this documentation at the outset of the instant adjudication hearings it objected to its admissibility, which the Employer repeated when the documentation was initially proffered into evidence by the Grievor. The Board ruled it would reserve - 7 - its decision after all of the evidence in this case was completed so to assess the matter in the context of all relevant circumstances. [19] In its subsequent written submissions on point, the Employer contends that such documentation (particularly as it pertains to third parties) is prima facie inadmissible because of the surreptitious means of its acquisition that might support the imposition of significant discipline on the offending employee, referring to the following arbitral and Board jurisprudence in support: North Bay Nugget v. North Bay Newspaper Guild, Local 30241 (Seguin Grievance), [2005] O.L.A.A. No. 476, 143 L.A.C. (4th) 106 (Ont. Arb.) (Luborsky), Imperial Parking Canada Corp. v. United Food and Commercial Workers’ Union, Local 175 (Kiar Grievance), [2010] O.L.A.A. No. 495 (Ont. Arb.) (McNamee), Ontario Public Service Employees Union v. Ontario (Ministry of Transportation) (Guelph Grievance), [2012] O.G.S.B.A. No. 64 (Harris), Centre for Addiction and Mental Health v. Ontario Public Service Employees Union (Cann Grievance), [2004] O.L.A.A. No. 457, 131 L.A.C. (4th) 97 (Ont. Arb.) (Nairn), Intercontinental Hotel v. United Food and Commercial Workers International Union Local 333 (Xu Grievance), [2011] O.L.A.A. No. 209, 105 C.L.A.S. 335 (Ont. Arb.) (Sheehan), Re Greater Niagara General Hospital and O.P.S.E.U., Loc. 215, [1989] O.L.A.A. No. 37, 5 L.A.C. (4th) 292 (Ont. Arb.) (Joyce), Association of Management, Administrative and Professional Crown Employees of Ontario (Bhattacharya) v. Ontario (Ministry of Government and Consumer Services), GSB# 2014-1191, March 29, 2016, 269 L.A.C. (4th) 337 (Ont. Grievance S.B.) (Anderson). [20] In the alternative, the Employer submits that even if the documentation is admissible it ought to be accorded no weight in assessing the usual workload and general standards of performance of Compliance Officers because it does not reflect a representative sampling of the work and volume normally performed by those employees over an appropriate period of time. [21] In its initial written representations the Union concedes the Grievor selected the files that she printed off “with no particular methodology” and that, “Neither the Union nor the Grievor can assert that these are strictly representative”. Nevertheless, the Union claims the documentation should be admitted into evidence and considered by the Board because it “may be suggestive of a different standard that was applied to the Grievor than her colleagues.” In its written reply to the Employer’s submissions the Union also asserts there is no “privacy interest” in the content of the documentation because they are “government records” which contrary to the general jurisprudence relied upon by the Employer that is said to support the exclusion of secretive surveillance evidence or items obtained through an improper search of an employee’s personal locker or belongings unless it is otherwise reasonable to do so, “is not subject to a generalized ‘reasonableness test’ [but rather] is subject to a reasonableness test in the very narrow circumstances in which it engages the personal privacy of employees through search or surveillance.” Also distinguishing the instant case from the arbitration decisions referred to by the Employer, the Union argues that: “these are government documents which, in the normal course of events are accessible through section 11 and 13(2)(i) of the - 8 - Freedom of Information and Protection of Privacy Act [R.S.O. 1990, c. F.31]” (hereinafter “FIPPA”) and thus in the Union’s submission, “there is no reason not to admit these documents”. [22] After considering the foregoing representations the Board has concluded the documentation at issue is inadmissible or can be given little, if any, weight for the following reasons. [23] In North Bay Nugget, supra, the three-day disciplinary suspension without pay of a union president who made copies of an internal company document without permission to buttress allegations made at the bargaining table of company malfeasance related to the alleged underreporting of workers’ compensation claims, was upheld as a justified response to employee misconduct. Relying on the arbitral jurisprudence supporting significant disciplinary sanctions, “for unauthorized possession and/or use of company documents even where personal gain did not motivate the misconduct and the documents were readily accessible and/or where not expressly marked confidential” (at para. 27), the following guiding principles are summarized at paras. 32 – 3: 32. The foregoing cases indicate that a company document need not be expressly marked “confidential” for employees to know that it is not to be disclosed or used outside of its business intention. That may be implied from the surrounding circumstances and applies even if the document is freely accessible without supervision. A written rule is not necessary to bring the employee’s duty of fidelity to his or her attention. That duty includes the obligation to keep the employer’s documentation and by necessary inference the information it contains safe of any possession, reproduction, dissemination and/or use beyond its reasonably intended purpose. The absence of a motive of personal gain by an employee in breaching this obligation, even a well-meaning union official who seeks to prevent the perceived breach of a collective agreement or statutory provision, is not license to take “self-help” measures in support of a cause. For that there are procedures of binding arbitration in collective agreement disputes where relevant information may be demanded by summons; duties of disclosure for collective bargaining purposes with an enforcement mechanism codified in labour legislation; as well as investigatory and prosecutor powers under workers’ compensation and health and safety laws that may compel the production of documents. 33. The application of these principles to the facts in the instant case leads me to conclude the Grievor committed an act of misconduct for which discipline was warranted. Although the Grievor was not motivated by personal gain, taking the pressroom time book and photocopying it for purposes outside of its reasonably understood purpose was minimally an error in judgment that is not excusable by the Grievor’s motivation to use the information solely for collective bargaining with the Employer. Otherwise, it might be considered proper for any aggrieved individual to take and/or surreptitiously reproduce company (or for that matter union) documents in support of any grievance or other righteous cause, thereby undermining any semblance of mutual trust essential to the running of the workplace. [Emphasis added] - 9 - [24] In Imperial Parking Canada Corp., supra, Arbitrator McNamee expressed similar views in sustaining the discharge of an eight-year employee who apparently removed documents from the workplace in pressing allegations of fraud against a subcontractor hired by the employer to collect parking fees, noting at para. 30 that, “Employees owe a clear duty of loyalty and confidentiality to their employer” and that: “Any employee who discloses confidential information about his/her employer risks [discipline and, ultimately, discharge]”. At para. 31 the arbitrator suggested there might be “a case to be made that a true “whistleblower” who finds him or herself in possession of information which genuinely shows an employer to be acting in such a manner as to be blatantly illegal or fraudulent, or reckless as to matters of employee or public safety (to choose but two possible examples), should not be viewed in the same light as an employee who is acting out of malice or a desire for personal gain”, which is not a consideration on the facts before this Board. [25] Without determining whether a “whistleblower” exception exists, it is the Board’s opinion that the foregoing principles at their core apply in the instant factual circumstances of the Grievor’s unauthorized removal of Ministry documentation for personal reasons. With the pervasive use of computer technology permitting employees to retrieve internal documentation from outside the workplace, the Employer has the right to expect the utmost fidelity and honesty from its employees who have the privilege of such access in safeguarding the integrity of computerized records that the employee knows or ought reasonably to know are confidential to the Employer’s operations, even if the electronic documentation is widely available to other authorized individuals and not expressly marked as “confidential”. The fact that the records are computerized and available from remote locations puts those records on no lesser footing than the actual physical pieces of paper and pictures that the employee might work with at his or her desk, which in the instant case are related to the statutory enforcement obligations of the Ministry directly impacting the personal rights and expectations of members of the public and the regulated agencies they deal with. This is inherently private information that may be sensitive in both pecuniary and reputational terms to all of the parties involved. As such, there is a high duty on employees who have access to such electronic files to reasonably ensure the documentation and/or data therein is not divulged to third parties or used for any purpose outside of the scope of their legitimate employment responsibilities. [26] It is clear the Grievor breached that duty out of self-interest associated solely with the prosecution of her grievances against the Employer. The Union had the ability, if it determined such information to be arguably relevant for its proper representation of the Grievor in these adjudicative proceedings, to demand the production of this documentation with safeguards to protect the legitimate privacy interests of all parties involved, through agreement with the Employer and/or by obtaining an appropriate order of this Board. Instead, the Grievor’s “self-help” measure was an act of cyber-theft of confidential documentation she knew she was not entitled to take without the Employer’s permission. This is not a situation where an employee, in the good faith belief that relevant documents or data might be destroyed or altered by an unscrupulous employer, takes reasonable - 10 - steps to secure the integrity of that evidence while showing appropriate regard for the interests of affected parties, in which case there would be an onus on the Union to justify that conduct on a balance of probabilities, which is not suggested. Nor can it be said the Grievor, in her capacity as a statutory officeholder with a broader duty to the community, was motivated to expose unethical, corrupt or blatantly unsafe practices contrary to the greater good, if there is a “whistleblower” exception to the general rule. [27] Rather, the Union argues the disclosure of such documentation is available through freedom of information and protection of privacy legislation and thus no prejudice can result to the Employer by its admission into evidence under the present circumstances, which the Board cannot accept. In the Board’s opinion, even if the documentation is available through a proper application under FIPPA, that does not justify the clear violation of the Grievor’s employment obligations and what may be a breach of FIPPA itself. That legislation permits the release of otherwise confidential information concerning the private affairs of citizens in the custody or control of a governmental institution, only when authorized by an appropriate statutory authority (referred to under the legislation as “a head”), which is subject to a number of express exemptions in sections 12 – 22 of the statute (including “an investigation undertaken with a view to a law enforcement proceeding” under section 14 that may be applicable in some of these cases), and then normally after providing notice to affected parties (in accordance with section 28). The Grievor had no authority under FIPPA to search and secretly print the records of her and other Compliance Officers’ investigations and dispositions of complaints related to the conduct of insurance agents, mortgage brokerages and investment companies, and disclose them to her own Union representatives who have no greater right to that documentation than any other member of the public. [28] To admit such documentation into evidence would not only reward employee misconduct of a most serious kind, which is not in the interest of sound labour relations, but it would also cast the Board’s administration of a fair system of workplace justice into disrepute to the ultimate prejudice of both Union and Employer stakeholders in that system. Thus even if the documentation at issue is arguably relevant to the Grievor’s cause, the Board has concluded it is inadmissible in the present circumstances. [29] In the immediate situation, without suggesting any intentional wrongdoing by the Union representative assigned to this case, once the Union became aware of the Grievor’s misappropriation of the confidential records it was obliged to: (a) promptly notify the Employer’s representative; (b) take steps to safeguard the privacy and restrict any dissemination of that documentation; and (c) engage in meaningful dialogue with the Employer in an effort to remedy the matter, which minimally required the Union to return the documents to the Employer and destroy all copies while attempting to arrive at a mutual agreement with the Employer for the proper production of relevant documentation, if appropriate; or (d) obtain instructions from the Board. - 11 - [30] Even if the Board is wrong in its determination not to admit the challenged documentation in this case, it is clear from the Board’s review of the documentation that little, if any, weight can be given to it in any event. To the extent the documentation is relied upon to demonstrate the purported standards of work (and accuracy) by other Compliance Officers and/or workload compared with the Grievor’s own work expectations, it is of such a small number of files of a select portion of the total number of Compliance Officers (being only 13 files from barely half of the Compliance Officers out of what the evidence showed could exceed 100 files per year handled by individual Officers) almost entirely from the month of August of 2013, without context to indicate whether it is a representative sampling of the usual type of work and workload of Compliance Officers in general, to render it entirely inadequate for comparative purposes. As the review of the testimony of witnesses recounted below shows, without such evidence there simply was nothing presented to the Board of an objective nature from which the Board could conclude the Grievor was treated substantively different than the other Compliance Officers. [31] Accordingly, the Board hereby orders the Grievor to destroy any copies of the disputed documentation that may be in her possession or control, to permanently delete any electronic record of those documents, and to confirm to the Union in writing that this has been done. The Union is similarly hereby ordered to destroy any copies of the documentation, as well as any electronic record thereof in its possession or control and to confirm to the Employer in writing that it has received confirmation of the destruction and/or deletion of the documents from the Grievor and that it has complied with this order as well. The Board will remain seized in connection with any issue concerning the interpretation of and compliance with these orders. [32] But perhaps more importantly, the Grievor’s misconduct in secretly taking and then attempting to rely upon the misappropriated confidential documentation to justify her own actions or failings, without regard for the important privacy interests of the members of the public that she serves, revealed an essential element of the Grievor’s character of entitlement that became even more apparent as this case proceeded through many days of hearings. The impression of the Grievor cemented by this and other disclosures in the testimony of the witnesses is of a person who was deliberately calculating and exhibited a persistent refusal or inability to accept any form of criticism or fault with her own job performance. (b) Credibility Deficiencies of the Grievor [33] The foregoing revelations of character reinforcements the Board’s reservations concerning the Grievor’s credibility, particularly as related to her claims of suffering from a “disability” caused by the two identified managerial employees (towards whom she regularly expressed a personal animus throughout her testimony) rather than the overall stress or demands of her job that both the Grievor and her personal physician confirmed would not prevent her from returning to the workplace. As indicated by the evidence recounted below, after - 12 - being off work for several months commencing April 30, 2013 with a diagnosis from her family doctor of a “stress or adjustment reaction”, the Grievor’s physician indicated in or about the end of August 2013 that the Grievor was medically cleared to return to work without limitations except for the specific accommodation of placing the Grievor in a working environment where she would not have any direct or indirect interaction with her manager, Ms. Hamilton. [34] The Grievor’s physician, Dr. Wyman, testified that this specific accommodative measure was determined following extensive discussions with the Grievor; and that notably, there was no indication until several months after the commencement of her treatment by Dr. Wyman that the source of the Grievor’s medical problems were related to anything more than the alleged abusive treatment at the hands of Ms. Hamilton. Remove the abusive manager and the Grievor could return to the workplace and resume her usual duties without requiring any modifications in her job responsibilities or conditions; at least that was the theory of entitlement for several months following the commencement of the Grievor’s medical leave of absence. [35] That prescription changed, however, after Ms. Hamilton left the workplace in or about July of 2013 for undisclosed reasons related to personal and medical issues. While it appears the Employer initially believed Ms. Hamilton would return later in the summer or early fall, in fact Ms. Hamilton retired from the Ontario Public Service in or about October of 2013, which was before the Grievor had exhausted her sick leave credits. Now able to return to the workplace in her previous role but under a different supervisor without the prospect of Ms. Hamilton’s return, which was offered to the Grievor, the Grievor’s demand for a reasonable accommodation suddenly changed. [36] As elaborated upon below, the evidence before the Board indicates that in response to the Employer’s proposal on or about October 22, 2013 that the Grievor return to her usual work under the overall supervision of Mr. Monid pending a permanent direct managerial replacement, the focus shifted to Mr. Monid being the ultimate source of the abusive treatment allegedly experienced by the Grievor. Being Ms. Hamilton’s superior, he is claimed to have “facilitated”, or “enabled” what the Grievor referred to as the “toxic” or “poisoned” work environment that she was subjected to and thus, no accommodation would be appropriate if it included any actual or potential contact with Mr. Monid, who at the time was the Director of the Branch which is two supervisory levels above the Grievor’s position. Dr. Wyman’s testimony, as supported by her clinical notes, is consistent with the conclusion that Mr. Monid was never identified by the Grievor as a direct or even tangential source of the alleged “abusive” treatment that required accommodation during some six months of discussions between the Grievor and her doctor on the matter, until it was clear that Ms. Hamilton would not be returning to the workplace. [37] In such circumstances the Board came to seriously question the Grievor’s credibility on this and other associated points of contention between the parties, particularly as they related to the medical opinions based primarily, if not solely, - 13 - on the verbal assertions of the Grievor to her physician and later to an investigating neuropsychologist who was engaged to perform an independent medical evaluation of the Grievor. There is no litmus test in such cases to evaluate an individual employee’s claims of being bullied, harassed and discriminated against by a member of management outside of the employee’s own testimony and the observations of others, which is why credibility and confidence in the witness’s testimony regarding allegations of maltreatment is so important. [38] While assessing credibility of a witness is never an easy task, one of the key considerations in weighing the veracity of testimony is to check its consistency and harmony with all surrounding circumstances of a matter. See Farnya v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at p. 354 and Arbitrator MacDowell’s comprehensive review in Re North Simcoe Hospital and O.P.S.E.U. (Jeannotte Grievance), [2004] O.L.A.A. No. 489, at paras. 15 – 17. If Mr. Monid had been the “enabler” or the managerial representative ultimately responsible for the “toxic” or “poisoned” work environment the Grievor claims she was victimized by, the Board anticipated that explicit reference to his name would logically be included with Ms. Hamilton’s in the Grievor’s initial grievance and during her comprehensive discussions with her treating physician, Dr. Wyman, who assiduously described the Grievor’s reported symptoms and statements in the clinical notes that were filed with the Board. Yet the Grievor doesn’t mention Mr. Monid in the detailed particulars she wrote in her harassment grievance dated April 25, 2013 while referring to Ms. Hamilton in a number of explicit circumstances. And in the evidence described below, it is apparent the Grievor didn’t alert her physician to Mr. Monid as an alleged source of her stress until after it was clear Ms. Hamilton would not be returning to the workplace and the Employer was proposing that the Grievor temporarily report to Mr. Monid while making arrangements for a permanent supervisory replacement. [39] The disharmony of the Grievor’s latter position, viewed in the context of all surrounding circumstances and what seems most likely on a balance of probability standard, leads the Board to conclude that she was not credible on that central matter of contention in both her harassment and accommodation grievances; namely, the alleged contribution of Mr. Monid to the “bullying, harassment and discrimination” she claims to have experienced at the workplace and the consequent inability to return to work in any capacity where Mr. Monid had “direct or indirect” authority or even incidental contact with the Grievor. Since the Board did not believe the Grievor on this central point, and given her demeanor described below, it could have little confidence in the general reliability of her testimony as a whole. (c) The Grievor’s Inability to Answer Straightforward Questions [40] Closely aligned with the foregoing credibility deficit, the Board noted a persistent inability by the Grievor to answer directly questions put to her concerning criticisms of her own job performance. Even though Ms. Hamilton did not testify in these proceedings (the Employer indicating that having retired Ms. Hamilton - 14 - was not available), Ms. Hamilton’s criticisms and counselling of the Grievor was carefully documented through e-mails and more formal correspondence that the Union itself submitted into evidence and that the Grievor commented upon. Based on the Grievor’s own acknowledgements during her testimony, there is no question that this documentation, which is business-like in tone using appropriate language in raising a number of performance concerns over an extended period of time and suggesting potential solutions, constituted an accurate record of the dealings between Ms. Hamilton and the Grievor. The documentary record submitted by the Union also included the Grievor’s written responses to some of her supervisor’s criticisms and concerns leading to a relatively straightforward picture of what transpired between them. On that record the Board found the Employer representatives acted in a consistently professional manner on issues of the Grievor’s performance in which the Employer had a legitimate interest, even while being critical of the Grievor’s acts or omissions; while the Grievor responded on occasion with inappropriate commentary, as described below. [41] Whenever asked to confirm the details of a particular criticism or concern raised by Ms. Hamilton, the Grievor invariably launched into a long explanation of why the criticism was unwarranted and/or unfair and/or harsh and/or unreasonable and/or the result of unclear instructions and/or too much work, to name a few of her rationalizations. It was only after being repeatedly pressed during cross- examination, and often following instructions from the Board to answer the questions posed of her, that the Grievor reluctantly admitted the factual basis underling the written criticism, complaint or concern raised by Ms. Hamilton in her correspondence with the Grievor was substantially accurate. The Grievor acknowledged she made the specific “error” or “mistake” referred to in most if not all of the correspondence from her supervisor on various points of the Grievor’s performance, which the Board accepted into evidence as key admissions. However, those acknowledgements were often explained away with the Grievor’s further assertions that the matters raised by Ms. Hamilton were so “trivial” or “inconsequential” or “nitpicking” as to only be illustrative of a general effort or what she characterized as an “agenda” to “humiliate” and/or “harass” and/or to “set me up for failure” and/or being personally “abusive” to the Grievor in an obvious (to the Grievor) effort to get the Grievor to resign from her employment. [42] Thus the Board developed the impression from the Grievor’s demeanor observed over many hearing days of her examination-in-chief and cross-examination of an individual who had great difficulty accepting all forms of criticism or counselling from her own manager, Ms. Hamilton, or likely any authority properly fulfilling a supervisory role in the relationship between the employee and Employer, with the tendency to regard every disapproving comment as disrespectful of the Grievor’s particular expertise in the field, particularly given the Grievor’s (self-proclaimed) superior educational accomplishments that she often pointed out in her responding correspondence. And to the extent of any legitimacy in the criticism it was rarely the Grievor’s fault, in the Grievor’s opinion. [43] This was a further revelation of an essential element of the Grievor’s character that the Board had to consider in weighing all of the evidence; specifically on the - 15 - question of the “reasonableness” of the Grievor’s demands related to the accommodation of her alleged “disability” that to the Board appeared to have at its core a deeply held resistance to any supervisory criticism or direction inconsistent with the Grievor’s own opinion of herself, coupled with her palpable dislike of Ms. Hamilton and Mr. Monid. In the Board’s assessment, that attitude would confront any supervisor attempting in good faith to correct deficiencies in the Grievor’s work performance with a considerable challenge. This conclusion impacted the Board’s view of the Grievor’s claim that no accommodation of the Grievor’s alleged disability was possible without the removal of Mr. Monid from any direct or indirect contact with the Grievor. Rather, the evidence supported the finding that any supervisory criticism of the Grievor would likely suffer the same characterization as being an example of alleged “abusive” mistreatment by the Employer in the Grievor’s eyes. IV. Evidentiary Findings [44] In addition to hearing extensively from the Grievor, the Board received evidence from Dr. Christopher Hope, a neuropsychologist who examined the Grievor at the request of the Employer and Dr. Jennifer Wyman, the Grievor’s family physician. The only witness called by the Employer was Mr. Anatol Monid, who was the Executive Director of the Licensing and Market Conduct Division of the Ministry of Finance at the time of his testimony, which was one supervisory step further removed from the Grievor’s position during the events leading to the instant grievances. [45] While the evidence was comprehensive and certainly time consuming, it is not complex. In basic terms on the “harassment” grievance, the Union presented into evidence and reviewed almost every e-mail and correspondence between Ms. Hamilton and the Grievor documenting what were ultimately acknowledged by the Grievor to be “errors” or “mistakes” made by the Grievor in the performance of her duties, but which she attempted to explain away as variously “unfair” or being examples of “hostile” or “abusive” treatment or alternatively of such a “trivial” nature as not to be reasonably mentioned at all. [46] There was no objection raised to the manner of receiving this documentation or what explicit findings and inferences could be drawn from that evidence as confirmed by the Grievor in her testimony (notwithstanding the Union’s submissions in its later written representations that any concerns expressed by Ms. Hamilton in these e-mails should be discounted as “hearsay”, which the Board addresses below). Similarly, in pressing her position on the “accommodation” grievance, the Grievor relied on the well-documented medical reports and clinical records generated by her personal physician, Dr. Wyman, and from the neuropsychologist who examined her as part of the Independent Medical Evaluation, Dr. Hope, along with the correspondence from Mr. Monid (or other Employer representatives responsible for human resources matters at the Ministry of Finance) related to the unsuccessful efforts to address the Grievor’s accommodation demands. - 16 - [47] On the totality of this evidence, the Board summarizes its essential findings of fact and its conclusions as they relate to the central issues in dispute of (i) whether the Grievor was subjected to improper bullying, harassment and/or discriminatory treatment; (ii) whether the Grievor had a “disability” at law; and if she did (iii) whether the Employer’s refusal to assign the Grievor to different supervision constituted a failure to take reasonable steps to “accommodate” the Grievor’s alleged “disability”, as follows. (a) General Background Information [48] On her first day of testifying the Grievor identified herself as a 58-year-old married woman, having two daughters attending university. By the end of the proceedings the Board understood she had turned 60 years old with some 27 years of accredited service. (The Grievor also filed documentation in support of a collateral complaint under the Employer’s internal ”Workplace Discrimination and Harassment Prevention Policy”, described later in these Reasons, indicating that she was eligible to retire on a full unreduced pension as of March 24, 2016, which had passed before the end of receiving the evidence and submissions in this case). The Grievor’s husband attended on each hearing day, and Mr. Monid was present on every (or almost every) hearing day as well. The Board could not help but take administrative notice that the Grievor typically sat directly across a relatively narrow hearing table from Mr. Monid during some 15 days of oral testimony of the witnesses (which included the Grievor and Mr. Monid) without exhibiting any of the extreme physical manifestations of an alleged stress disorder associated with her exposure to Mr. Monid on even an incidental basis that she later asserted would be the result of any contact with him. [49] The Grievor has an impressive background as the number of educational certificates she filed with the Board will attest. She is fluently bilingual (speaking English and French that is a considerable asset to the Employer which is required to deliver services in both official languages that may vary in frequency from time to time); has a Bachelor of Arts degree specializing in translation; and earned a Bachelor of Education degree in 2003, taking some time away from her employment while doing so. She worked as a French language school teacher in Toronto during the mid-1980s, joining the Ministry of Finance as an “Information Officer” with the Ontario Insurance Commission of Ontario in 1989. After one year in that role, the Grievor held a number of other positions in the Ministry that included working as an “Agent Conduct Officer” between 1992 and 1998 with responsibilities for reviewing complaints against life insurance agents and recommending disciplinary action; and as a “Case Assessment Officer” in the Financial Services Commission of Ontario from 1998 to 2003. She left the Ministry for two years beginning in 2004 to teach at a French language school, apparently as a hedge against anticipated cuts in the workforce (although it is unclear whether she continued to accrue service credits for that period), returning to FSCO as a “Market Conduct Practice Analyst” in September of 2006. In that latter capacity the Grievor described her responsibilities as, “looking at market conduct issues and trends and making some analysis of the market [having] intensive coordination of matters with insurance companies”. - 17 - [50] After returning to the Ministry and working for one to two years reporting to a different manager, the Grievor came under the supervision of Ms. Kathleen Hamilton who joined FSCO as a manager in 2006 (later becoming a Senior Manager in or about 2011) and where Mr. Monid had been Director of the Market Regulation Branch of FSCO since approximately May of 2005. Ms. Hamilton was one of five managers at the Market Regulation Branch directly reporting to Mr. Monid. In addition there were about 50 staff members who indirectly reported to Mr. Monid through their individual managers. In this administrative structure the Grievor reported to Ms. Hamilton and had only minimal contact with Mr. Monid, usually limited to meetings of the Branch personnel that were held twice every month to review matters of general application. Mr. Monid was not responsible for handing out specific work assignments or for evaluating the Grievor’s performance. But all three worked on the fourth floor of an office building in North York where FSCO was housed, with the Grievor’s work station located relatively close to both Ms. Hamilton’s and Mr. Monid’s offices resulting in incidental contact; and on occasion, Mr. Monid consulted with the Grievor about specific cases that the Grievor was working on. This type of close contact of all of the Compliance Officers with their managerial support was considered the most efficient way of managing the responsibilities of the Branch. [51] For the almost five years from September 2006 until in or about April of 2011 there is no suggestion of any conflict or less than appropriate professional, business-like dealings between the Grievor, Ms. Hamilton and Mr. Monid; although as an aside the Grievor gratuitously testified that while having only minimal contact with Mr. Monid, in a casual discussion with him on an unspecified subject: “He was a bit arrogant. He would say: “You are the Analyst, you deal with it” but would rarely offer advice on how to deal with it. But to move a file to another Unit it would need his approval, which was rarely done in person.” This was one of a number of examples over the course of the Grievor’s lengthy testimony of her tendency to interject personal invective of this kind towards both her manager and director. Except for such limited contact with Mr. Monid, the Grievor primarily interacted with her manager, Ms. Hamilton, on day- to-day matters expressing no difficulties at all in their professional relationship during that timeframe. [52] The Grievor filed her performance appraisals that are formally referred to as, “Performance Development Plan and Learning Plan” (or “PDP/LP”) covering each annual fiscal period ending on March 31 of 2006, 2007, 2008, 2009, 2010, 2011, 2012 and 2013, respectively. With the exception of the first two PDP/LPs (signed by another supervisor of FSCO), these were routinely prepared by Ms. Hamilton in two instalments: first in or about the early fall of each year referred to as an “Interim Review”, which was finalized by the end of the following March or early April. (The Board noted that the first two performance appraisals, which were generally positive, were prepared by the Grievor’s then immediate supervisor, Ms. Izabel Scovino, who the Grievor refused to report to as part of an “accommodation” offered by the Employer described later in these Reasons). - 18 - [53] For the entire period from September 2006 to April 2012 the Grievor received the rating of “Met Performance Commitments” on her PDP/LP reports; although criticisms of her performance were beginning to appear in the PDP/LPs during the April 1, 2011 to March 31, 2012 fiscal period (but not enough to change her “Met Performance Commitments” standing) and she received a negative rating of “Did Not Meet Performance Commitments” for the first time in the Interim Review for the April 1, 2012 to March 31, 2013 fiscal year in circumstances described below. [54] As a result of a reorganization of the Market Regulation Branch in or about November of 2011 the Market Conduct Practice Analyst was replaced by the “Compliance Officer” position. There is no evidence of any dispute or grievance filed by the Union in connection with that reorganization and the Grievor’s reassignment to a Compliance Officer’s job. Although the Grievor initially downplayed any significant differences in the two positions, from the job description filed in these proceedings, the testimony of Mr. Monid and the eventual concessions made by the Grievor in cross-examination, the Board finds there were added responsibilities and performance standards in the new position that were reflected by its reclassification from an “Executive Officer 2” to a “Financial Officer 4” paygrade, resulting in an immediate three percent wage increase. [55] Unlike the Market Conduct Practice Analyst that was primarily focused on the insurance industry (which was only one of the main “sectors” dealt with by FSCO), the job description notes that Compliance Officers receive and respond to “complaints/allegations and/or escalated inquiries with varying degrees of complexity about potential misconduct and adverse business practices of individuals/companies within all sectors regulated by the Financial Services Commission of Ontario (FSCO) including insurance companies (life, health & property casualty), mortgage broking, credit unions and caisses populaires, cooperative corporations, pension plans, financial institutions and intermediaries…”(emphasis added). There was also a shift from a “dispute resolution” role in the Market Conduct Practice Analyst position to a “compliance” emphasis that is noted in the job description as requiring the officer to independently perform “detailed fact finding inquiries and desk or on-site market conduct reviews related to identified cases of potential legislative non-compliance [and] to gather information and to perform an initial risk assessment of institution/intermediary business practices and codes of conduct.” After completing these inquiries and/or reviews, the Compliance Officer is responsible for preparing “case reports” and potential “compliance orders” which the job description expounds upon as follows: Preparing timely, accurate, detailed and comprehensive case reports of inquiry/complaint follow-up and resolution, including an outline of the review methodology, analysis, results, actions and recommendations, and an evaluation of the nature and extent of the matter reviewed and all available documentary evidence. Prepares and issues compliance orders (warning or caution) for the Senior Manager’s signature, and/or prepared detailed case materials for referral to the Senior Manager/Director as warranted, with a recommendation to - 19 - program managers for further follow-up action including examination/review, formal investigation and/or enforcement action.” [Emphasis added] [56] While the Market Conduct Practice Analyst had three levels of approvals before any proper recommendations for discipline or enforcement were made, the Compliance Officer is expected to directly assign cases of substantiated misconduct to the Ministry’s Regulatory Discipline Officer (“RDO”) for immediate action. In an effort to enhance customer service and responsiveness, FSCO requires Compliance Officers to close 80% of files within 75 days of receipt of the complaint/inquiry; which is an improvement on the previous standard of a 98% closure rate within 150 days of opening a file for the Market Conduct Practice Analyst. Timeliness standards also include expectations around response times for inquiries made by telephone and correspondence that were tracked and for which the Compliance Officer is accountable. (The Board noted the absence of evidence indicating the Union ever challenged the Employer’s timeliness and efficiencies standards or that those standards were not properly applicable to all Compliance Offers). The Grievor agreed that performance of the Compliance Officer’s position required superior knowledge of the governing legislation; highly developed written communication and interpersonal skills; and that it was a matter of FSCO’s reputational importance for the Compliance Officer to be thorough and accurate in conducting an analysis that was clear and professional in all written and oral communications with the public. (b) Complaints Concerning the Grievor’s Performance [57] Two types of complaints respecting the performance of a Compliance Officer were identified in the evidence: (i) “Quality Assurance Complaints”, which refer to deficiencies in service delivery as in the failure to respond to telephone and/or written inquiries or to complete the assessment and final disposition of a complaint within designated timeframes; and (ii) “Escalated Complaints”, referring to situations where the Compliance Officer has been inaccurate, inadequate in the analysis and/or has otherwise dealt inappropriately with a file, including lack of clarity and typographical or grammatical errors in the final closing letters to the parties and/or the failure to prepare a proper “Risk Assessment Form” (“RAF”) and other reporting documentation normally required for the file under FSCO procedures. The Grievor’s employment record indicates she experienced both types of performance failures shortly after becoming a Compliance Officer. [58] Whenever a file is opened, all work on the file by anyone at FSCO and details of all communications related to the file, including complaints about the performance of the Compliance Officer, are maintained in an electronic database, referred to at the time as “CETS”. From that comprehensive database the Employer filed records of six complaints of either a quality assurance or escalated nature (and sometimes both in connection with the same file) concerning the Grievor’s performance commencing in or about April 2011. As - 20 - indicated above, while rationalizing this record on a number of grounds (i.e. as being unfair, the result of poor training, excessive workload, inconsistent instructions, not applicable to other employees, inconsequential, trivial, etc.) the Grievor ultimately confirmed in cross-examination the substantial factual accuracy of every complaint. The uncontested testimony of Mr. Monid and the documentation provided to the Board indicates that compared with the Grievor’s six complaints, three of the six or seven employees doing the same type of work as Compliance Officers in FSCO had only one complaint each in the same timeframe; the remaining Compliance Officers having no complaints of either type. [59] It is not necessary to describe in detail each of these six complaints, which are technical in nature that were exhaustively reviewed in evidence. It is significant that the complaints about the Grievor’s performance did not come from a single individual or corporation; rather they were primarily made by different members of the public initiating the complaint against the agent and/or insurance company who were dissatisfied with the Grievor’s handling of their claim for legitimate reasons. In addition to Ms. Hamilton in her capacity as the Grievor’s immediate manager, many others were involved in addressing the complaints including the Director of the Branch (Mr. Monid), the then Executive Director of FSCO, the Provincial Ombudsperson and some Members of Provincial Parliament. The record does not disclose anything other than proper business-like communication used in all of the notations on that record. Nor did the Grievor suggest she was ever yelled at or the recipient of foul language from the many individuals who addressed the concerns with her directly. But the various people who commented on deficiencies in the Grievor’s performance were explicit in their criticisms, as summarized below. [60] In one case the number of timeliness and substantive errors by the Grievor in handling a matter over an extended period beginning in August of 2011 resulted in the complaint being referred to the Executive Director of FCSO (which was at least one supervisory ranking above Mr. Monid) who wrote in a June 2012 notation in the file after completing a review of all of the circumstances that: “In conclusion, [the complainant] did not receive timely and appropriate responses to his October 2011 inquiries. While workload issues may have accounted for some delay, the lack of any final response was not an acceptable handling of the case.” [61] In another communication with the Grievor concerning the quality of her written report on a matter that had dragged on since July of 2011, Ms. Hamilton wrote on November 21, 2012: “Joanne, I am not going to review this letter when there are so many grammatical and typos in it. Your letter should be in a condition that is ready to send out as is. We have also discussed that you should not issue sections of legislation that are not applicable to the action you are taking.” (While essentially acknowledging her failures, the Grievor characterized Ms. Hamilton’s tone as “harsh” and her complaint as, “trivial”). - 21 - [62] In a third notation on a quality assurance complaint that the Grievor had not returned telephone calls from one of the parties “for the last three weeks” and was more than one month late in completing her assessment contrary to the Branch’s timeliness expectations, Ms. Hamilton wrote the following apology to the complainant as part of the final closing letter that she signed: “Please accept my apologies on behalf of Ms. Joanne Fortin for not responding to your calls of August 24 and August 29, 2011. That is not our standard practice and I have addressed the matter with her.” [63] In a further instance where the complainant was dissatisfied with the quality and timeliness of a matter handled by the Grievor, Ms. Hamilton issued an apology to the complainant as part of a closing letter dated June 24, 2011, in which she wrote: “Please accept my apologies on behalf of Ms. Fortin for not responding to your emails of February 1 and March 7, 2011. That is not our standard practice.” And later, Ms. Hamilton had to apologize to a different complainant in a letter dated August 5, 2011 on behalf of the Grievor, “for not responding to your letter of March 22, 2011 and the length of time it took to complete our review [which] is not our standard practice.” [64] In some of these cases, the excessive delay and/or inadequate quality of the Grievor’s processing of the file prompted interventions from the Ontario Ombudsperson and the complainant’s local Member of Provincial Parliament. On at least one occasion, an MPP’s inquiry into the unreasonable delay in responding to a complaint and/or quality of the Grievor’s work was found to warrant reopening the file for further review and final disposition by Mr. Monid as Director of the Branch. [65] The Grievor explained her excessive workload that she asserted was more than other Compliance Officers was primarily responsible, however in the Board’s view there was no corroboration of her charge (and indeed, as indicated below, the evidence submitted by the Employer suggests the contrary). She attributed the errors in her work to her trying to “rush” the assignment in order to satisfy response time standards, with poor training and little assistance from her immediate supervisor. These charges are also unsupported by any independent evidence. [66] Given her record of complaints the Grievor began receiving critical comments from Ms. Hamilton on the Grievor’s bi-annual performance appraisal reports. Even though the Grievor’s overall assessment for the 2011 to 2012 fiscal year continued to be rated as “Met Performance Commitments”, under the heading, “Areas for Improvement”, Ms. Hamilton wrote the following on April 25, 2012: While Joanne has done a good job meeting her complaint timeliness and dealing with increased volumes the quality of her work has suffered and she received a higher number of quality service complaints compared to her colleagues. She needs to work to improve her assessment of complaints, ensure effective risk- based and analysis method and ensure sufficient documentation/information is obtained so she can make a reasonable assessment of the compliance issues - 22 - raised by the complainant. Furthermore Joanne must accurately log information in CETS and review her written work for completeness, accuracy and typos. [67] The Grievor added the following response immediately underneath her supervisor’s comments, without indicating she felt any of the criticisms were unfair, trivial or harsh: There was significant challenges (sic) in this last period with respect to increased workload (much larger file volumes/backlogs) due to staff shortage. Best efforts made to keep up with the workload which may have resulted, at times, in rushing things a bit to respond to management pressure regarding the backlogs. (c) Performance Management of Grievor [68] Mr. Monid testified that after reviewing many of the foregoing complaints about the Grievor’s performance, he was advised as the Director of the Branch that Ms. Hamilton decided to provide “progressive coaching” for the Grievor in order to address the various deficiencies identified in her performance as a Compliance Officer. The Grievor’s own testimony and the extensive documentation of those efforts (mostly in the form of follow-up e-mails from Ms. Hamilton to the Grievor in summarizing their meetings) support that finding by the Board. Mr. Monid’s testimony that he wasn’t directly involved in preparing and conducting the coaching process was not contradicted by any evidence before this Board (including Mr. Monid’s thorough cross-examination by the Union where he was steadfast in his assertion on the matter). [69] In both the Grievor’s examination-in-chief and her cross-examination, the Board was taken through each of the e-mails and other notations beginning on April 2, 2012 that document a number of different performance issues and the details of coaching episodes conducted by Ms. Hamilton, on a weekly basis of approximately one hour duration over a period of 12 months, in exacting detail, during which time files that the Grievor had recently closed or in the process of closing were reviewed for completeness and accuracy. It is not necessary to describe each of these notations that the Board has carefully reviewed. The Board finds, primarily on the strength of the Grievor’s admissions concerning the accuracy of the specific criticisms outlined in this record, that the matters raised by Ms. Hamilton were legitimate concerns objectively related to identified deficiencies in the Grievor’s performance, both in terms of quality assurance and escalated competency issues, in meeting the standards of her position (which standards were not challenged at the time as unreasonable expectations for all Compliance Officers generally). [70] Without going through each of these documented efforts by Ms. Hamilton at counselling the Grievor on a number of deficiencies in the Grievor’s performance to the comprehensive extent offered to the Board, they included the following examples raised in the various e-mails and notes covering the 10 month timeframe from April 2, 2012 to the end of January 2013 that while critical, nevertheless appear to have reflected a cooperative and collegial reception by - 23 - the Grievor, following which the tenor of the meetings notably changed, which the Board attributes solely to the Grievor: i. In an e-mail dated April 2, 2012 to the Grievor, Ms. Hamilton wrote that after reviewing a few of the files recently closed by the Grievor, “It does not appear to me that you are being thorough or accurate”. After pointing out various performance shortcomings that included the Grievor’s failure to complete “Risk Assessment Forms” required under the Branch’s normal policies, incomplete notations in files concerning the instructions given to the responding party and/or the responses of the parties to various inquiries, and the inadequacy of the summary notes prepared by the Grievor in one of the files, Ms. Hamilton stated that: “Going forward I would like to review your files before any closing letters are sent until I am confident that they are being handled appropriately.” ii. In a follow up e-mail dated November 6, 2012 by an employee of FSCO identified as a “Senior Communications Officer”, questioning the accuracy of the warning notices provided by the Grievor on April 2, 2012, the Grievor admitted in her testimony she had “missed something” in her searches and consequently had not provided a separate warning notice to an unlicensed entity related to the responding companies. Ms. Hamilton (who was copied on this correspondence) commented in writing: “let’s review searches at next meeting” as part of the remedial counselling to be provided to the Grievor on the issue. iii. In an e-mail to the Grievor dated November 14, 2012, Ms. Hamilton wrote that she couldn’t review one of the Grievor’s files for accuracy without certain court documents that were required to have been scanned into the file and also stated: “All files are to be in your drawer so that I have access and this has been communicated to you several times”. The Grievor conceded in cross- examination that she hadn’t kept the documents where they should have been stored for such access, which was a “mistake” on her part. iv. As part of the usual procedures at the Branch, all Compliance Officers absent from work (usually for vacation purposes) were reminded on December 5, 2012 to provide Ms. Hamilton with the names of “backups” in the event a matter pertaining to one of the files the Officer was handling came up while the Officer was away, and to identify the backup in the greeting voice-mail message so that when members of the public call the Officer they will know where to direct their question(s). The Grievor failed to follow this directive when she left on vacation that December, with the result that Ms. Hamilton issued a “non-disciplinary Letter of Expectation” to the Grievor on December 18, 2012 that stated in relevant part: “My expectation going forward is that when you are out of the office your voicemail and out of office reply on e-mail indicate the name of a backup and their contact information as per FSCO and OPS Common Service Standards”. The Grievor conceded in cross-examination that she had forgotten to do so on this occasion (which she also sloughed off as insignificant). The Grievor later pointed to this “Letter of Expectation” as a form of harassment or abusive treatment and a threat if not a form of unjust discipline; however no specific grievance was raised by the Union at the time. - 24 - v. In an e-mail dated January 21, 2013 to the Grievor, Ms. Hamilton queried whether the Grievor had properly transferred an active file to a different unit. The Grievor responded that, “The file transfer to the other unit was not done correctly”, which the Grievor remedied accordingly. vi. The Grievor was referred to a series of six files completed throughout the year of counselling which had been the subject of criticism by Ms. Hamilton on the quality and depth of information provided in each that the Grievor acknowledged in her examination-in-chief and under cross-examination were very “brief”, without the depth of information normally expected of a Compliance Officer, for which the Grievor received criticism that the Grievor did not dispute. vii. In a series of e-mail communications between Ms. Hamilton and the Grievor from October 3, 2012 to January 30, 2013 on a particular file, Ms. Hamilton raised a number of inaccuracies and suggested changes to the caution letter that was later issued, which the Grievor agreed in cross-examination she should have responded to earlier and that she didn’t disagree with Ms. Hamilton’s suggested changes, which the Grievor made. (d) The Grievor’s Conduct Leading to Potential Discipline [71] After 10 months of weekly counselling sessions, it is apparent from the evidence before the Board, including the documentation and testimony of Mr. Monid who was generally aware of these efforts through being copied on a number of the e- mails exchanges between Ms. Hamilton and the Grievor, along with the Grievor’s own admissions in cross-examination, that the ongoing deficiencies in the Grievor’s performance were continuing. Ms. Hamilton’s commentary was becoming more pointed, reflecting her obvious frustration in the face of express warnings that the Grievor was not meeting the expectations of her position. And while at times blunt in criticizing the Grievor’s performance failures, the Board finds that they never strayed from an appropriate professional tone throughout. However the Grievor’s written responses to some of the written criticisms of her supervisor, also apparently reflective of her own growing anxiety over the security of her position and growing personal animus towards her supervisor, had become notably accusatory. [72] In a detailed e-mail dated January 28, 2013, Ms. Hamilton offered an appraisal of the Grievor’s performance based on their weekly review of her work to that date, making the following comment in relevant part: We have been meeting on a weekly basis since April of last year to review your file work, provide coaching and guidance on the expectation of both the Market Conduct Practices Analyst and Compliance Officer positions and point out where the gaps are in your work. In addition I have not assigned any additional work such as Reviews…or project work in an attempt to give you an opportunity to focus on meeting the expectations of the position. We have also provided a substantial amount of training in the last two years…Joanne, at this point I want to say that you are not meeting the expectations of the position…. - 25 - [Emphasis added] [73] The Grievor replied to Ms. Hamilton in a subsequent e-mail on January 28, 2013 asserting that the Grievor was “shocked to hear your comment…that I was not meeting expectations.” The Grievor went on to make the following allegations that became a recurring theme in their subsequent communications (and in the Grievor’s testimony before the Board), changing the tone of their interaction from a cooperative to a patently adversarial one, which the Board finds on its review of the totality of the evidence was initiated by the Grievor: This is completely unfair and inaccurate. Since April 1, 2012 I have closed about 60 files (including about 30 up to Sept. 30) all with your review and approval. Up until our last meeting on January 17, including my interim performance appraisal, it was my understanding I was meeting expectations. As with any normal file review process, I answered your questions to clarify matters for you as well as enhanced the file documentation, where necessary. Since April 1, 2012 every one of my files has been reviewed. Given this level of scrutiny, it is normal to expect that you may have questions or feedback on enhancing the file documentation to support the analysis etc. All I ask is you tell me what you want. Better yet show me (and others) a sample or example (format, file documentation level of details required etc.) of what you expect as a department standard. I am more than willing and able to deliver on this – I do have two University degrees. [Emphasis added] [74] And in that same e-mail the Grievor made the following assertions to her manager (amounting to charges of Employer bad faith) which she often repeated and later became a matter of obvious growing friction: I feel I am being unfairly treated and targeted and being held to a different standard than others. I cannot help but start to think perhaps there is an alternative agenda behind this. The situation is causing me extreme stress and anxiety. Despite all my efforts to be professional and to take the feedback as constructive comments, I can no longer allow myself to be subject to this abuse or fault finding and bullying – I will not allow myself to be another Mark. I will be talking to my Union Representation to determine what should by my next steps.” [Emphasis added] [75] The reference to “Mark” was to a Compliance Officer reporting to Ms. Hamilton who had recently died of a brain aneurism. Mr. Monid testified, based on his interaction with Ms. Hamilton at that time, that she was “extremely hurt by the reference and felt harassed” by the Grievor’s personal attack. The Grievor admitted in her testimony that she intended to refer to the recently deceased employee and the Board finds from the totality of the evidence the clear inference of the Grievor’s comment was to link the unfortunate death of another employee with Ms. Hamilton’s efforts to counsel the Grievor in connection with deficiencies - 26 - in her performance that the Grievor ultimately admitted in her testimony. If anyone was ratcheting up the discourse between these two individuals in an improper and unprofessional manner the Board finds it was the Grievor, not Ms. Hamilton, which is consistent with the Board’s general perception of the Grievor’s resistance to accept any fault in her performance. [76] The Grievor also complained (both in her correspondence with Ms. Hamilton and in testifying) that the required preparation for and attendance at the weekly meetings caused the Grievor to experience anxiety, and that the time taken out of her usual routine for that purpose interfered with the timely completion of her work. The counselling sessions were one-hour meetings in the course of the normal workweek. Aside from the Grievor’s assertions of the time-consuming nature of the exercise and her preparation for each counselling meeting, since the evidence shows that the Grievor and Ms. Hamilton were reviewing files that had recently been closed, it was not clear to the Board what additional work, if any, was actually required by the Grievor to prepare for those meetings. While there is no question on the evidence before the Board that the Grievor did not appreciate or “welcome” these counselling sessions; the Board could not find on all of the evidence surrounding the lead-up to the counselling sessions and comportment of Ms. Hamilton (from the Grievor’s own testimony) to support the claim of an “abusive” or “poisonous” work environment created as a result. [77] Ms. Hamilton responded to the Grievor’s charges by e-mail on January 30, 2013, in which Ms. Hamilton stated the intent of her January 29 e-mail was: “to provide an overview of our conversation we had…regarding my expectations of the position and that you are not meeting them.” In spite of her warning that the Grievor was at risk of not meeting the expectations of her position in the upcoming performance appraisal, Ms. Hamilton encouraged the Grievor’s improvement with the following words: However, there is still time in this performance period for you to bring about sufficient improvement and we continue to meet on a weekly basis to discuss your files and what supports you required in order to help you improve/meet these expectations. [78] After receiving the e-mails from Ms. Hamilton advising that the Grievor was at risk of receiving a negative performance appraisal, the Grievor testified she experienced shortness of breath, chest pains, difficulties sleeping and anxiety for which she sought urgent medical assistance. In a subsequent e-mail to Ms. Hamilton dated February 4, 2013, the Grievor described her physical symptoms and concerns about her treatment by Ms. Hamilton, writing in relevant part: As you know, I had to go to emergency Thursday morning due to chest pains and headaches. After running a battery of tests, they assumed the episodes I have been having are stress/anxiety related and I was told to rest. I have to go back on Tuesday this week as they want to install a heart monitor for couple days (sic) as a cautionary measure. I will need to work from home Tuesday Feb. 5. - 27 - Just to re-iterate my main point in my follow-up email to our meeting and your email dated January 28, up until our meeting on January 17 it was my understanding that I was meeting expectations. As mentioned in my reply, I have spoken to the union as well as receiving legal advice. While they are recommending a particular course of action including having a union rep present when we meet, I have decided to take a different course of action and continue to work with you on my own to try and resolve this matter in a mutually agreeable way. … Kathleen, I really do hope that we can work through this together and you have my commitment to work hard and be open to constructive feedback. At the same time I expect to be treated fairly and with respect. [Emphasis added] [79] The Grievor’s physical work location on the fourth floor of the FSCO office was changed sometime during the period that the Grievor was being counselled on her performance in September of 2012. In testifying about that matter, the Grievor complained she was required to move to a different work station that was substantially closer to Ms. Hamilton’s and Mr. Monid’s offices, and further away from her colleagues, causing her to feel more “isolated” and “targeted” by Ms. Hamilton. There is no evidence of a separate grievance ever filed by the Union to challenge the bona fides of that move, nor is there evidence of any bad faith in the matter by the Employer. Rather, Mr. Monid’s uncontradicted testimony is that with the reorganization of the Branch in November of 2011, at least three additional Compliance Officers were added to the Market Risk Assessment Unit of which the Grievor was a part. Thus the Grievor was moved to assist in the integration of the new Officers and to prevent the clustering of experienced Officers. In relocating to a different cubicle, it is not disputed that the Grievor was given the choice of her work station in a row that was completely empty, in anticipation of the new Compliance Officers taking the other workstations in that row. [80] Mr. Monid also denied the Grievor’s claim that she was assigned to more work than the other Compliance Officers of the Branch. The Employer’s records introduced through Mr. Monid indicate much diversity in the number of files opened and closed by individual Compliance Officers during 2011 – 2012, 2012 – 2013 and 2013 – 2014; ranging from as low as single digits to as many as 287 files. The records for Grievor in this timeframe indicate she opened and closed 158 files. Having reviewed these records the Board finds that the Grievor’s workload was among the top third of the Compliance Officers, but she wasn’t assigned to the most number of individual files as she claimed. And, as previously noted, there is no evidence before the Board to indicate whether the level of analysis required by the complaints that she was assigned to review was any greater or less than the requirements of the other Compliance Officers. - 28 - [81] The Board was also provided, through Mr. Monid, with a record of the extensive training provided for the Grievor to ensure that she had the required knowledge to perform the expectations of her position. That record supports the Employer’s claim that the Grievor had the basic knowledge and educational resources to fulfill the new expectations of the Compliance Officer role, which was not disputed by the Grievor. [82] After the exchange of the more pointed e-mails between Ms. Hamilton and the Grievor of late January and early February 2013, reproduced above, Ms. Hamilton wrote to the Grievor on February 6, 2013 to schedule a “Job Performance Meeting” with the Grievor along with her Union representative, “to discuss how you are not meeting the expectations of the position and what is required for you to meet your performance commitments”. At the same time, Ms. Hamilton notified the Grievor that the Employer required an explanation of the Grievor’s comments in her January 28, 2013 e-mail in which she charged: “I can no longer allow myself to be subject to this abuse or fault finding and bullying – I will not allow myself to be another Mark”; and the Grievor’s comment in her February 4, 2013 e-mail to Ms. Hamilton that, “…I expect to be treated fairly and with respect”. While it is apparent Ms. Hamilton regarded the Grievor’s comments to be inappropriate and potentially a form of insubordination, and that the Employer put the Grievor and the Union on notice that it would convene an “allegation meeting” to review those comments to determine what, if any, disciplinary might be taken against the Grievor as a result, in fact no allegation meeting or discipline was ever issued to the Grievor. [83] Instead, the evidence before the Board indicates that a meeting was held on February 14, 2013 between the Grievor, her Union representative, Ms. Hamilton and a human resources representative from the Employer, where there was an airing of the Grievor’s concerns and of the difficulties raised by the Employer to the Grievor’s performance. Apparently arising out of that meeting, Ms. Hamilton changed the focus of the weekly counselling sessions from reviewing the completeness and accuracy of closed files to having the Grievor ready to discuss her recently assigned files. In an e-mail explaining the expectations for these weekly meetings, Ms. Hamilton wrote on February 20, 2013 in an e-mail addressed to “Joanne” and signed by “Kathleen”, which was also copied to Mr. Monid and the Grievor’s Union representative who participated in the earlier February 14 meeting, providing the explicit directives to the Grievor reproduced below: As a follow up to our weekly file review meeting today and to ensure you have a clear understanding of the expectations moving forward I want to confirm what we discussed and the new format for our weekly meetings. You will come to the meetings to discuss recently assigned files…(start with the newest file and we can carry over to the next meeting if we need more time). Specifically, you will be able to clearly identify your objectives (i.e. identify any potential non-compliance or business practice concerns), your observations of - 29 - the file, what approach you will take to resolve the file and discuss the completed Risk Assessment Form and Initial Risk Rating based on the information at hand. While your performance is being managed, you will be evaluated on the following criteria: • number of Quality Service complaints • number and reasons for escalated complaints (requests for review of enforcement action) • 90% of your recommendations for reference to the program area are approved • Results of file audits. Marco is auditing files for the unit and will audit 100% of your closed files. In addition you will continue to be responsible for the other measures in your PDLP. I will provide guidance and be available for advice in these meetings and you will remain accountable for the file and the outcomes. Let me know if you have any questions or would like to discuss further. (e) The Grievor’s Unsatisfactory Performance Appraisal [84] The Grievor pointed to the foregoing “change in focus” of their weekly meetings as a further demonstration of Ms. Hamilton’s abusive treatment of the Grievor that was or should have been reasonably known to be “unwelcome”, which the Board cannot accept on the evidence submitted. Instead, consistent with the Grievor’s essential character exhibited throughout the instant proceedings, it is apparent and the Board so finds that in spite of the counselling efforts the Grievor was unwilling or unable to accept the criticisms of her work and that the Grievor’s performance had not improved, which reasonably required the Employer through Ms. Hamilton to adopt a different strategy in trying to remedy the ongoing (and admitted) “errors” and “mistakes” in the Grievor’s work performance. [85] In the subsequent time period to April 29, 2013, the evidence before the Board indicates that Ms. Hamilton met with the Grievor on a weekly (or almost weekly) basis; although there was one incident where a meeting was “missed” by the Grievor in March of 2013 resulting in some discourse between the two with Ms. Hamilton criticizing the Grievor for not properly scheduling their meeting, which the Union later pointed to as an example of inappropriate “threatening” or “chastising” conduct by Ms. Hamilton. [86] The Board was presented with records documenting each of these meetings that are technical and comprehensive in nature, which need not be reviewed in detail; although they often included the Grievor’s own unsolicited minutes of the meetings that Ms. Hamilton wrote were not accurate (including various rationalizations or excuses offered by the Grievor). As an aside, the Board noted that the Grievor’s practice of preparing her own minutes of these meetings was apparently part of an effort to compile a self-serving “record” of her encounters with Ms. Hamilton; obviously anticipating future grievances on the matter. It is sufficient to note that while exacting, the record of the various deficiencies and - 30 - criticisms of the Grievor’s performance and counselling by Ms. Hamilton in the proper performance of her duties, remain at all times polite and business-like in tone, which address substantive issues related to the proper performance of the Grievor’s duties (or at least what Ms. Hamilton seemingly regarded as proper performance). It is apparent from this record that from Ms. Hamilton’s perspective the Grievor’s overall performance was not improving notwithstanding the considerable time that Ms. Hamilton had apparently expended in this effort, and consequently the Grievor was warned by Ms. Hamilton that her continuing poor performance might result in an unsatisfactory performance appraisal. [87] The natural upshot of this activity was the presentation of a Performance Development Plan and Learning Plan (PDP/LP) to the Grievor dated April 12, 2013 that indicated, for the first time in the Grievor’s work history, a final performance appraisal for the 2012 – 2013 fiscal year marked as, “Did Not Meet Performance Commitments”, which Ms. Hamilton discussed with the Grievor in a meeting on April 18, 2013. Under the section of the PDP/LP entitled, “Areas for Improvement”, Ms. Hamilton wrote the following negative assessment of the Grievor’s overall performance for that time period, which given the interactions between the Grievor and Ms. Hamilton over the past year, could not have come as a surprise to the Grievor: End of Year Comments: Joanne has not met key objectives for 2012-2013. She received 125 inquiries in the period, 67 complaint files in the period and closed 73 complaint files with a closing rate of 63% within 150 days and 91% within 365 days. No additional work was undertaken. A substantial amount of coaching and corrective action was required through weekly file review meetings throughout the performance period. There was no evidence of significant improvement. Joanne must continue to work to improve her assessment and analysis of her complaints, ensuring sufficient documentation/information is obtained to support her findings, accurately and thoroughly document her files. [88] The Grievor took about two weeks to submit a written response to the unsatisfactory performance rating and comments of her supervisor that included copies of various “minutes” of the counselling sessions as unilaterally compiled by the Grievor to on or about April 24, 2013 (which Ms. Hamilton had apparently rejected as inaccurate). Under the heading, “Employee’s Comments”, the Grievor set out a lengthy rejoinder of her overall performance rating that, in the Board’s view, reads as an attack of Ms. Hamilton’s integrity and the legitimacy of the entire counselling exercise over the past year, often in personal and patently unprofessional terms. While extremely critical of Ms. Hamilton including questioning her competence as a manager and motives or hidden “agendas” concerning the Grievor, the Board noted there were no comments directed at Mr. Monid’s alleged “enabling” or “facilitation” of what the Grievor later asserted as part of the “harassment” she suffered at the hands of the Employer. (As already indicated and elaborated upon below, that changed after the Grievor was advised in the fall of 2013 that Ms. Hamilton had left the workplace and was retiring from the Ontario Public Service). - 31 - [89] While it is not necessary to set out the Grievor’s lengthy written reply to the negative performance appraisal (which extended to several pages of small print), the Board found it instructive for three purposes: First, the Grievor’s response to her supervisor’s criticisms is a summary of the exhaustive testimony she offered to the Board rationalizing the many “mistakes” and “errors” identified over a year’s worth of counselling sessions that she ultimately conceded in her testimony had occurred, consistent with the Board’s general impression of the Grievor’s essential character that could not accept any form of disapproval or censure from her supervision. Although asserting that Ms. Hamilton’s evaluation was “unfair” and that there were no guidelines or reasonable expectations established to support the legitimacy of the entire coaching process, in fact based on the Board’s reading of the documented coaching sessions prior to issuing the PDP/LP, all of these issues were reviewed consistently in the record, which also supports the finding that Ms. Hamilton regularly set expectations and offered guidance to the Grievor on what the Employer considered the proper performance of the Grievor’s duties. Second, it is noteworthy for what the Grievor does not say in her written response; namely, that any of the Grievor’s objections to her treatment were at all associated with the remote overseeing authority of Mr. Monid, who as the Director of the Branch was generally aware of the concerns respecting the Grievor’s performance but had no involvement in the Grievor’s direct evaluation for the PDP/LP or the counselling process. And third, the Grievor’s reply makes assertions of being treated in a discriminatory manner or subjected to a different standard of performance compared to the other Compliance Officers which, reflecting on the totality of the evidence submitted to this Board was not proven by the Union on any objective basis. [90] In the final paragraph of her written reply to her supervisor’s critical PDP/LP, the Grievor claimed that as a result of Ms. Hamilton conduct (again, not referring to the alleged involvement of Mr. Monid at all), which the Grievor suggested in her testimony was motivated by Ms. Hamilton’s “agenda” to remove the Grievor from the workplace or to ‘set the Grievor up for discipline’ (for reasons that were never clearly articulated), the Grievor claimed she suffered serious medical consequences, which the Grievor described as follows: Finally, continued unclear and changing expectations is (sic) taking a very serious toll on my health. I have had to go to the hospital due to chest pains and headaches and has been (sic) put on a heart monitor. The doctors are very concerned and have told me to be CAREFUL given my age and family history. To date I have not been following the doctors advise because I continue to believe that if I keep trying to keep up and do whatever is asked that things will be ok. It is clearer after my meeting of April 18, 2013 with Kathleen (see Appendix C attached re April 18th meeting) that my performance development is not the agenda. [91] On the same day the Grievor submitted her accusatory response to the negative PDP/LP, the Union filed its “harassment” grievance dated April 25, 2013 in the instant case. The Grievor’s personal physician, Dr. Wyman, also met with the Grievor that day and wrote a medical note to the Employer stating: “Joanne - 32 - Fortin requires a medical stress leave from work effective immediately, for a period of three months. Her condition will be re-evaluated in two months.” [92] The “harassment” grievance was followed by a formal complaint filed by the Grievor on April 29, 2013 under the “Workplace Discrimination and Harassment Prevention Policy” (referred to as “WDHP”). The Board will say more about the “weight” it could properly give to any of the “findings” and “conclusions” reached by the investigator assigned under the WDHP in a “Final WDHP Investigation Report” dated October 30, 2015 later in these Reasons. What immediately impressed the Board about the Grievor’s WDHP complaint that was submitted in the Grievor’s own words was more for what it didn’t say concerning any actionable misconduct by Mr. Monid. Rather, and perhaps ironically given the distain the Grievor later expressed in her testimony towards Mr. Monid, her WDHP complaint was addressed to Mr. Monid (who she referred to by his familiar first name, “Anatol”, in the salutation line of her complaint), setting out the details of her objection to her alleged mistreatment by Ms. Hamilton alone, as follows: This is a formal complaint filed under the Anti Bullying Policy. I have been a victim of continued and deliberate bullying and psychological harassment suffered from Kathleen Hamilton, my manager, which has seriously affected my health. I have suffered considerable mistreatment over an extended period of time, which include (sic): - Receiving a “Letter of Expectation” for forgetting to provide a back-up name on an out of office email notification during christmas (sic) holiday vacation (omission corrected within 3 days). - Being told on January 17 that I am not meeting expectations which was a SHOCK given for 10 months I had weekly file closing meeting (sic) and my manager had not expressed this fact (she had also signed off on each of my files). My Interim Performance Appraisal did not indicate that there was a change from my previous performance level (March 31, 2012 = meets expectations). - Constant and frequent monitoring and fault finding of my work. - Unclear and constantly changing expectations of my work performance. - Setting different standards for me than the other compliance officers. - Setting me up for failure. - Setting me up for disciplinary measures. - Giving me more files than other compliance officers even though my work was also subject to much higher level (sic) of scrutiny. - 33 - - Issuing a “not meets” expectations on March 2013 PDLP without providing necessary evidence to support her general statements. Worse yet, suggesting that the nature of our discussions in file planning meetings held since March 6 supported her assessment. This is not true – I produced and distributed minutes of the file planning meetings to Kathleen which details outcome (sic) of these meetings. There is also lack of a development plan within the PDLP suggesting an alternative agenda. [93] Thereafter, the Grievor left work on “stress leave” beginning April 30, 2013. The timing of that illness viewed in the context of the preceding events is not surprising. The first indication of an alleged anxiety disorder coincided precisely with the Grievor’s notification at the end of January 2013 that she was at risk of receiving a negative performance appraisal unless improvements were achieved, apparently resulting in the Grievor’s reported attendance at the hospital for chest pains and other manifestations of anxiety in early February and a brief absence from work. She booked off work again immediately after receiving the final 2012 – 2013 PDP/LP assessed at, “Did Not Meet Performance Commitments”, and has not returned to the workplace since. [94] Although the Grievor was criticized by Ms. Hamilton during their year of counselling commencing April 2, 2012 to April 29, 2013 for many and ongoing performance deficiencies that the Grievor ultimately admitted in her testimony, which included: (a) one “Letter of Expectation” concerning her failure to place a vacation notification on her voice-mail when absent in or about the Christmas holiday period notwithstanding the Employer’s explicit instructions that she agreed she had forgotten about (which was not grieved at the time); (b) being summoned to attend an “allegation meeting” in mid-February (which seems to have been rescheduled to early March) to explain her comments concerning becoming “another Mark” and her allegations of not being “treated fairly and with respect”, coupled with a warning that the outcome of the meeting might result in the issuance of discipline (that never materialized); (c) and received a “Did Not Meet Performance Commitments” based on substandard performance in both the interim (January 28) and final (April 25) 2012 – 2013 PDP/LP, the Board finds the Grievor in fact never received discipline for anything that occurred prior to the Grievor leaving work for alleged illness commencing April 30, 2013. Nor did the Grievor or Union file any grievances concerning the propriety of the counselling and performance evaluations conducted by Ms. Hamilton in that period. (f) The Grievor’s Medical Leave and Accommodation Demands [95] The Board heard testimony from Dr. Jennifer Wyman, who has been the Grievor’s personal physician for more than 10 years. Dr. Wyman impressed the Board as a caring and empathetic medical practitioner who obviously has the best interests of her patient at heart (although at times she appeared to the Board to be acting more in the capacity as medical advocate than detached observer of events). Dr. Wyman graduated from medical school in 1993 and works primarily as a family practitioner with a sub-specialty in addiction medicine; however, all of her dealings with the Grievor were as her personal family physician. While she is not a psychiatrist, psychologist or specialist in mental - 34 - illnesses, as a family physician Dr. Wyman testified she is on the “front lines” of mental health issues that comprises between 25% and 33% of the problems presented by her patients, which the Board does not doubt. [96] The first time the Grievor consulted with Dr. Wyman on the matter of her difficulties at work and her supposed medical reactions to them was on April 25, 2013. Dr. Wyman testified she was “somewhat surprised” the Grievor hadn’t mentioned anything about her alleged medical problems before then. Prior to the April 25 consultation, Dr. Wyman could not recall (and had no clinical records of) the Grievor ever discussing any specific workplace conflicts or adverse medical reactions arising out of her work. The Board thought this odd given the Grievor’s claim of a hospital attendance for shortness of breath, chest pains and headaches in early February 2013 after being put on notice by Ms. Hamilton of her potential poor performance rating, which the Grievor testified was the culmination of ongoing stress caused by her manager’s alleged abuse for some time and of great concern to the Grievor who was worried about becoming “another Mark”. [97] Dr. Wyman produced her clinical notes documenting the visits and telephone discussions with the Grievor (or messages from her) and responses to requests for information from the Employer in the timeframe April 25, 2013 to January 28, 2015. While it is not clear whether Dr. Wyman typed her own notes from a computer terminal she had with her whenever she interviewed the Grievor and/or dealt with any aspect of the Grievor’s file that she diligently recorded on the Grievor’s file, or whether typed by an assistant that Dr. Wyman later verified and signed as accurate, these notes are a reasonably contemporaneous and comprehensive record of the symptoms described by the Grievor, their treatment, and what the Grievor specifically told Dr. Wyman about the circumstances leading to the Grievor’s need for medical assistance. [98] In compiling that record and making decisions about appropriate treatment options, Dr. Wyman testified she relies upon what her patients tell her, which she takes to be factually correct or at least believed by her patient. (Indeed, when asked more about this Dr. Wyman confirmed that it is the patient’s subjective beliefs, even if they are unreasonable, on which treatment decisions and recommendations are made). Applied in the present case, Dr. Wyman accepted what the Grievor told her about the situation in the workplace, including the Grievor’s own characterization of her manager’s behaviour as “bullying”, which was duly recorded in the clinical notes and ultimately formed the basis of Dr. Wyman’s later recommendations concerning the accommodations required to return the Grievor to the workplace. Dr. Wyman candidly acknowledged that she made no independent assessment or investigation as to whether the Grievor was objectively “bullied” or dealt with improperly by her Employer. It was sufficient for Dr. Wyman’s purposes that her patient believed this to be the case; and thus the treatment prescribed for the Grievor was based solely on what the Grievor told her doctor about her symptoms and what the Grievor believed to be the underlying reasons for those symptoms, whether rooted in reality or not. - 35 - [99] While testifying, Dr. Wyman referred to her clinical notes made at the time to refresh her memory. These notes are informative for what they say and don’t say. In reviewing those notes and Dr. Wyman’s evidence, the Board found that from the very first consultation on April 25, 2013 until October 24, 2013; a period of six months over which it appears that Dr. Wyman either met or communicated with the Grievor on some seven different occasions (four directly and the rest via telephone or e-mail communications), the Grievor had repeatedly told Dr. Wyman that she was “bullied” (being the Grievor’s word) at work by her “manager stating that she’s not meeting expectations”, who was not specifically identified by name but which the Grievor confirmed in her testimony as referring to Ms. Hamilton. At the initial consultation the Grievor self-reported that as a result of the claimed mistreatment by her manager over the previous 12 months caused by their regular weekly meetings, the Grievor was not sleeping, and the clinical records record that the Grievor stated she was “upset, affecting [her] self-esteem, relationships, [she] has lost her normal drive and intensity, lost interest in outside activities, [she was] not exercising for almost 12 months and [was] tearful throughout, [feeling] devastated.” [100] From the Grievor’s self-report, Dr. Wyman concluded the Grievor was suffering from “stress/adjustment issues” that in cross-examination Dr. Wyman clarified by describing the Grievor’s diagnosis as, “a stress or adjustment reaction” but which she qualified by also stating the Grievor, “didn’t meet the criteria of a major episode that is what we call an ‘adjustment reaction’ when someone is having such a long period of adjustment to a specific set of circumstances”. Dr. Wyman testified that it is her experience that a patient suffering from an “extreme period of stress” needs at least three months duration away from the environment with counselling and drug therapy, “to re-stabilize to a baseline function” and then another three to six weeks to go back to work. Dr. Wyman also noted it usually takes about four weeks for a therapeutic response to the medication usually prescribed in such situations and then another month after that for the full benefits of that mediation “to kick in”. On this testimony the Grievor would normally have been expected to be able to return to work in about four months, which in the present case would have been anticipated (and in fact was) by the end of August of 2013. [101] Hence in the immediate aftermath of the Grievor’s initial visit with her physician, Dr. Wyman provided the medical note of April 25, 2013 submitted to the Employer that the Grievor, “requires a medical stress leave from work effectively immediately for a period of three months [and that her] condition will be evaluated in two months.” No other details of the Grievor’s medical status were provided to the Employer at that time. Dr. Wyman also considered psychological counselling and prescribed a drug called “Celexa” used to treat depression and anxiety, which the Grievor only took for about one week and then stopped because she complained it was making her feel groggy. While Dr. Wyman testified the Grievor received psychological counselling, the details of that counselling were vague. There was no evidence offered from the Grievor or any treating psychologist of the Grievor’s psychological prognosis, whether the Grievor attended such counselling on a regular basis or any reports of an - 36 - attending psychologist in the clinical notes produced by Dr. Wyman. However, there was an oblique reference in the clinical records of the September 17, 2013 visit with the Grievor indicating the Grievor reported she “stopped counselling [at the] end of June” but had recommenced her exercise regime with cardio and weight training “3 – 4 days/week”; she was also participating in “meditation, yoga” with the Grievor self-reporting that she, “has been doing great”. This record shows, at most, that the Grievor received one to two months of psychological counselling with no indication of the frequency of such counselling which the Grievor elected to discontinue without apparent disagreement by her family physician. Later, in a psychological assessment report prepared by Dr. Hope dated January 24, 2014, reviewed below, the Grievor advised she participated in only four psychological counselling sessions and told Dr. Hope she, “received some tools for handling anxiety” that she believed was “beneficial”. Neither Dr. Wyman nor the Grievor considered further psychological counselling necessary. [102] Mr. Monid testified he would not have been involved in the instant dispute but for the fact that the Grievor was making allegations against her manager, Ms. Hamilton, who would have normally handled the matter. Given those allegations it was determined by the Ministry’s human resources advisors that Mr. Monid should take the lead on behalf of the Employer. [103] In response to Dr. Wyman’s April 25, 2013 medical note on behalf of the Grievor and the Grievor’s continuing absence from work, Mr. Monid wrote a letter to Dr. Wyman dated May 10, 2013 enclosing the Grievor’s job description and a medical questionnaire asking, among other things, whether the Grievor’s restrictions on continuing employment were “temporary or permanent in nature”, whether the Grievor was “taking any medications which may affect her ability to attend work on a full time and consistent basis”, whether going forward the Employer could expect “further absences from work” and if so, “the frequency of those absences” and whether the Grievor was medically fit to participate in both the Workplace Discrimination and Harassment Policy investigative process (that had commenced by that time) and at an upcoming “stage 2 grievance meeting” related to the Grievor’s then extant harassment grievance. Mr. Monid testified that this type of inquiry was standard practice on which he received ongoing advice from the Ministry’s human resources advisor. [104] In responding to such requests, Dr. Wyman testified that she often had a telephone discussion or actually met with her patient to consider the appropriate response. Consequently, Dr. Wyman faxed her response to the Employer’s inquiry on May 23, 2013 indicating that the Grievor’s restrictions were “temporary – 3 months”; that she was not taking any medication that would affect her ability to attend work on a full time and consistent basis; that the expectation was the Grievor would be ready to resume full time work without undue absence when she returned, and that by mid-June 2013 the Grievor could participate in the investigation of her WDHP complaint and in the grievance procedure related to her existing harassment grievance. - 37 - [105] The clinical notes filed by Dr. Wyman, consistent with her testimony, show that on the day before responding to the Employer’s request for information the Grievor provided Dr. Wyman with an e-mail dated May 22, 2013 in which the Grievor wrote that she would like to have a referral to a psychiatrist (although, no evidence was ever provided to the Board of an actual referral or any psychiatric therapy administered) and the Grievor requested that Dr. Wyman include in her response to the Employer’s inquiry the statement that the Grievor was exposed to: “An unhealthy work environment which is dangerous to my patient’s health [and that] Joanne has experienced a very high level of stress over a period of 12 months”. Dr. Wyman did not include these specific words in her response to the Employer. [106] On June 21, 2013, Mr. Monid sent a follow-up letter to Dr. Wyman requesting an update of the Grievor’s medical situation and any restrictions on her future employment, advising Dr. Wyman that: “It is the responsibility of the employer and not her medical practitioner to determine specific employment accommodations based upon the medical restrictions provided”. In responding to the medical questionnaire attached to that correspondence on July 7, 2013, Dr. Wyman wrote that, “I expect Ms. Fortin to return to the workplace August 26, 2013” and in response to the question of whether she supported the Grievor’s “return to work planning with or without accommodation”, Dr. Wyman stated: “I support return to work planning as Ms. Fortin should be placed with a different supervisor”. [107] The Employer sought clarification of Dr. Wyman’s recommendation that the Grievor be placed with a different supervisor, and thus Mr. Monid mailed another letter to Dr. Wyman dated July 31, 2013 requesting more details about the “specific medical restrictions” to provide the Employer with enough detail to determine the appropriate employment accommodations based on the medical restrictions provided. In addressing that inquiry Dr. Wyman’s clinical notes show that she had a telephone consultation with the Grievor on the matter and subsequently responded to the Employer’s inquiry by advising that: “Ms. Fortin’s mood and concentration should have improved (by August 26, 2013) and I expect complete resolution (i.e. they were temporary)”. However, on the question of whether any accommodation would be necessary Dr. Wyman wrote: “I support return to work on August 26, 2013 without specific accommodation except as previously noted with respect to placement with another supervisor.” Dr. Wyman explained in her testimony that she had concluded, based on what the Grievor had reported to her, that while the Grievor was capable of returning to her regular duties as of August 26, 2013 without modifications on full-time basis, she was at sufficient risk of relapsing to her former feelings of anxiety and depression coupled with chest pains, difficulties sleeping and weight loss if required to report to the same supervisor, to warrant the recommendation that the Grievor be assigned to a different supervisor. [108] Mr. Monid did not accept that as constituting the basis of a reasonable accommodation in the circumstances. From the Employer’s perspective it was not the role of the Grievor’s physician to dictate the specific accommodation, but - 38 - rather to objectively set out the medical limitations or restrictions for the Employer to consider in determining the appropriate accommodative response, if necessary. What seemed confusing to Mr. Monid was the fact that no specific medical disability or limitation was identified by Dr. Wyman. After conferring with the Ministry’s human resources advisor, the Employer decided not to assign the Grievor to a different supervisor at the end of August as Ms. Hamilton was expected to return to the workplace. Mr. Monid was of the view that the Grievor had not been subjected to any improper conduct by Ms. Hamilton who, in his opinion, had addressed the concerns over the Grievor’s performance deficiencies no differently than what would be expected of any other supervisor. [109] Consequently on September 9, 2013, Mr. Monid mailed a further medical questionnaire addressed to Dr. Wyman who, after consulting with the Grievor submitted a typed response dated September 16, 2013, that in very explicit terms described what Dr. Wyman felt to be the accommodation necessary for the Grievor’s safe return to work consistent with the self-reporting information relayed to her by the Grievor, which is reproduced in relevant part below: Ms. Fortin no longer has medical restrictions or limitations that impact her ability to perform the requirements of her job. I indicated in my previous letter that I expect Ms. Fortin to be ready to return to work August 26 because of the improvement in her condition. I have known Ms. Fortin for over ten years. She has no prior history of mental health issues of any sort (anxiety or depression). Her difficulty over the past year is related specifically to the workplace environment under her supervisor, Ms. Kathleen Hamilton. Ms. Fortin finally approached me for assistance after struggling for almost twelve months, culminating in a visit to the emergency department for chest pain. The investigations for chest pain concluded that her symptoms were stress related. Ms. Fortin was also experiencing insomnia, uncontrollable anxiety, decreased mood, racing thoughts, poor appetite and insomnia, self-doubt, poor concentration and difficulty with decision making, as described previously. While being on leave, Ms. Fortin has engaged in counseling, exercise, meditation and breaching exercise to manage her symptoms, which have been very effective. However, her symptoms can recur with re-exposure to the same stressors. Ms. Fortin reported that after a meeting regarding return to work she again began to experience chest tightness, insomnia, anxiety and loss of appetite. She was able to manage these symptoms by using the techniques she has learned and re-stabilize over just a couple of days. I am very concerned that if she returns to a situation in which she reports to Ms. Hamilton that she will experience a full-blown recurrence of her previous symptoms, which might not remit so readily. While I feel Ms. Fortin is ready and capable of return to her job, I do not recommend that she report to Ms. Hamilton. [Emphasis added] [110] Thus it appears there was a standoff on the matter. The Grievor’s physician, based on the self-reporting of the Grievor, was of the opinion the Grievor could return to her regular full-time duties without restrictions only if assigned to a - 39 - manager other than Ms. Hamilton, who was expressly identified as the only managerial employee at issue. But the Employer did not accept that as appropriate in the circumstances. The Board notes, as it will comment upon further below, and contrary to what the Union submitted in argument, Dr. Wyman does not identify the Grievor’s medical condition as being a specific “mental illness”. Rather the symptoms are described as “stress related” to the “workplace environment under her supervisor, Ms. Hamilton.” [111] On the same day the Employer mailed its September 9, 2013 letter requesting further clarification of the Grievor’s re-employment restrictions, the Union filed its “accommodation” grievance now before the Board. The Grievor claimed the Employer was violating the collective agreement by improperly denying her right to return to work despite her doctor’s recommendation that she was fit to work as of August 26, 2013, and failed in its duty to accommodate the Grievor with an appropriate assignment. The settlement demanded was that, “The Employer shall immediately allow me to return to work and ensure I am properly accommodated based on my [doctor’s] recommendations. The Employer shall compensate me for any loss to wages and wages with interest” (emphasis added). That recommendation was to return the Grievor under the supervision of someone other than Ms. Hamilton, with no additional restrictions noted. The Grievor’s status remained one of an employee absent on sick leave and receiving sick leave benefits while the issue remained in dispute. [112] The foregoing events were of course premised on the expectation by both parties of Ms. Hamilton’s imminent return to the workplace. Mr. Monid testified that with the assistance of his human resources advisors who he was consulting with throughout, he considered offering the Grievor a “Corporate Health Reassignment”. This is a program designed to match employees having disabilities to jobs in the Ontario Public Service, permitting the movement of employees to appropriate positions across organizations, ministries, agencies, etc., outside of FSCO. (In that event the employee might be on a reassignment list for a considerable time until a suitable position becomes available). Mr. Monid produced an e-mail exchange with a human resources official to support his understanding that in their opinion the Grievor was not eligible for participation in that program because of the nature of her claimed disability which in their opinion was not supported by the medical documentation. Mr. Monid also testified he investigated transferring the Grievor to a different position within FSCO known as “Investigative Analyst”. That position worked out of the eighth floor of the FSCO building as opposed to the fourth floor where the Compliance Officers and Mr. Monid were located. It was rejected by the Ministry’s human resources advisors as a suitable accommodation because it paid a lower salary by approximately 7.2%, although its job responsibilities were comparable with the Grievor’s past duties as a Compliance Officer. Mr. Monid’s testimony on this point was similarly corroborated by e-mails on the matter that he had exchanged with the Ministry’s human resources officials. [113] However by mid-October, Ms. Hamilton’s retirement became generally known. Consequently, with the apparent roadblock to the Grievor’s return to work - 40 - eliminated by Ms. Hamilton’s departure, Mr. Monid communicated via e-mail to the Grievor on or about October 22 a proposal that she return to work under Mr. Monid’s direct supervision until a new permanent manager was assigned to the Grievor’s unit. That had been the reporting arrangement for all of the Compliance Officers at FSCO from the time that Ms. Hamilton began her leave of absence in June 2013, and Mr. Monid proposed to treat the Grievor the same. [114] By that time Mr. Monid had already requested an update of the Grievor’s ability to resume to her regular duties with or without accommodation in a letter and new medical questionnaire dated October 18, 2013. In preparing her response to the questionnaire, Dr. Wyman’s met with the Grievor on October 24, 2013. During that consultation, the Grievor advised Dr. Wyman for the first time that the Grievor’s symptoms of anxiety, shortness of breath, chest pains, insomnia, headaches, etc., would recur if she was exposed to a workplace requiring her to have even incidental contact with Mr. Monid, and she told her doctor her symptoms had in fact returned just thinking about that possibility; although there is no indication in the clinical notes that Dr. Wyman observed that reaction at the time or that the Grievor received any medical treatment to address those reported symptoms. The Grievor testified he hadn’t mentioned Mr. Monid as a source of her distress previously because she knew she had to deal with him on the WDHP complaint and feared a reprisal as a result. However the Grievor had no answer to why that prevented her from mentioning Mr. Monid’s alleged mistreatment of her to her trusted family physician before then, which the Board found greatly undermining the Grievor’s credibility. Dr. Wyman recorded what the Grievor told her on the matter in her clinical notes of October 24, 2013, as follows: Bullying environment – created by manager AND director; didn’t launch complaint against director initially, primarily out of fear but environment of harassment was under his watch if not continued by him; he has been involved in all of the correspondence regarding these issues and has made no effort to recognize/address. … Cannot return to position in which she reports to the same director; understanding was that she would have a new manager, which she took as a position in another branch. Being back in the same place reporting to her director will be very taxing and [she] feels it will launch another depressive episode. [115] Consequently, and clearly adopting the new information provided to her by the Grievor without further testing or examination, in Dr. Wyman’s response to the Employer’s request for updated medical information she changed her accommodation recommendation from “not reporting to Ms. Hamilton” to returning to work in a different “reporting relationship” that she did not explain. Dr. Wyman’s letter with that changed recommendation dated November 6, 2013 is reproduced in relevant part below: In response to your request for further information dated October 18, 2013, I will attempt to be as clear as possible. - 41 - From Ms. Fortin’s perspective, she has been subjected to bullying and harassment in her workplace. While it is obviously not my role to make a determination about her allegation, I can verify that her health has been significantly impacted by this situation. Ms. Fortin has once again been experiencing symptoms of depression, including insomnia, anxiety, decreased mood, tearfulness, lack of confidence, pessimism, distraction and pre-occupation. Physical symptoms include headaches, abdominal and chest pain. These symptoms had almost completely resolved with (significant commitments to) exercise, meditation and counseling while Ms. Fortin was on leave from her workplace, hence my statement that Ms. Fortin no longer had medical limitations preventing her from working. However, her symptoms have returned full force with the realization that she would be returning to work in the same reporting relationship. Ms. Fortin does not have any difficulty handling stress per se. As mentioned previously, she has never had any mental health issues in the past. I do not recommend that she be medicated to return to an environment which triggers such a profound impact on her mental health. Therefore, while you have been clear that it is not my role to recommend specific accommodation strategies, I have no suggestions for accommodation other than a change in her reporting relationship. [116] However, it appears this response was not entirely satisfactory to the Grievor. In a discussion with Dr. Wyman on November 12, 2013 the Grievor asked Dr. Wyman to make changes to that response. In the first substantial paragraph of the response after stating that, “From Ms. Fortin’s perspective, she has been subjected to bullying and harassment in her workplace”, the Grievor asked that the following words be added: “by her manager which was enabled by her manager’s manager.” And at the end of the second substantial paragraph, the Grievor asked Dr. Wyman to change the reference to “the same reporting relationship” by adding an “s” to the word “relationship”, thus amending that phrase to read: “the same reporting relationships.” By that point it appears that Dr. Wyman had already sent the earlier response and/or elected not to make the changes requested by the Grievor. [117] Dr. Wyman’s statement in the foregoing November 6 response that the Grievor’s “symptoms had almost completely resolved with (significant commitments to) exercise, meditation and counseling while Ms. Fortin was on leave from her workplace” neglected to add that, as recorded in the clinical notes, the Grievor had ceased psychological counselling by the end of June (some five months earlier). And while the Grievor had apparently requested a referral to a psychiatrist, there was no evidence that the Grievor was participating in any regime of psychiatric therapy (or any other consistent professional therapy) for the “mental health issues” identified by Dr. Wyman. Aside from the Grievor’s reported physical exercise and meditation, the medical records show that the Grievor was not receiving ongoing counselling; nor was she taking any medication. The clinical records also show that diagnostic testing conducted to investigate the cause of the Grievor’s reported chest pains, headaches, shortness of breath and insomnia (that included cardiac stress tests, blood tests - 42 - and a referral to an internist), did not reveal any physical reason for those reported symptoms. And to the extent Dr. Wyman may have been providing some counselling to the Grievor to help her address her fears and/or anxieties related to the claimed workplace environment, according to the clinical notes provided to the Board there were only four face-to-face meetings with Dr. Wyman in the almost two years from April 25, 2013 to January 28, 2015, as recorded in those records (the last one being on October 24, 2013), in addition to a number of telephone calls or message from the Grievor often coinciding with and concerning Dr. Wyman’s response to the requests for information from the Employer and the Grievor’s suggested responses to those requests. [118] Confronted with the latest medical review, Mr. Monid noted the change in the Grievor’s accommodation recommendation and, after receiving further advice from his human resources professionals, wrote to the Grievor via e-mail dated November 22, 2013 stating that: “In light of the change in your medical condition and the medical reports we have received from your doctor, the Employer requires clearer information about any specific medical restrictions and limitations, as well as a long-term prognosis in order to determine appropriate accommodation strategies, if required”. Along with that e-mail, Mr. Monid attached a formal request to the Grievor for an updated medical report from her physician, in which Mr. Monid also placed the Grievor on notice that the Employer would require an independent medical evaluation (“IME”) of the Grievor’s condition. The relevant portions of that letter are reproduced below: I have reviewed the medical information received so far from your doctor, including your doctor’s letter of November 6, 2013 which states that you have “…once again been experiencing symptoms of depression…” She further states, “Ms. Fortin does not have any difficulty handling stress per se “and”…I have no suggestions for accommodation other than a change in her reporting relationship.” You doctor also stated the following: “However, her symptoms have returned in full force with the realization that she would be returning to work in the same reporting relationship” The fact is that you reporting relationship has changed, in effect, as the manager in question is no longer in the workplace and you would have been reporting to the director. Accordingly, before returning to the workplace, to any reporting relationship, we must have a clearer understanding of your medical restrictions and limitations through an Independent Medical Evaluation (IME). To be clear, the Employer requires clearer information about specific medical restrictions and limitations, as well as a long-term prognosis to determine - 43 - appropriate accommodation strategies, if required. As a result, I require you to attend an IME. [Emphasis added] [119] The Grievor forwarded this request to Dr. Wyman on November 24 which she followed up the next day with a letter (presumably also transmitted via e-mail) in which the Grievor offered detailed instructions on how Dr. Wyman should answer the Employer’s latest request for clarification, reproduced in relevant part below: This is further to my email of November 24, 2014, whereby I forwarded an email from my employer requesting that I go for an independent medical assessment. I will respond to my employer’s email however would like to first discuss this with you as it is unclear as to their request and I believe the employer has misinterpreted your latest response. It is my understanding from our discussions and your response to the employer: - Yes, I had an additional episode once confronted with prospects of going back into the same work environment / same stressors which impacted my health. - However, I have been able to work it out and am able to return to work subject to your recommendation with respect to accommodation. As a result there currently are no medical restrictions or limitations. - To answer the employer’s previous question, the stessors are the manager and the director in the alleged bullying and harassment. - The accommodation as per your prior response pertains to reporting relationship(s) remains the same. Dr. Wyman could you please clarity situation (sic) for the employer just so we are clear and on the record. Thank you again for your support. [Emphasis added] [120] As discussed later in these Reasons, the Grievor’s comment, “just so we are clear and on the record” was consistent with the Board’s ultimate assessment of the Grievor as a calculating individual who seemed primarily focused on her outstanding grievances and anticipated litigation with the Employer, as opposed to seeking any treatment to get over her self-professed anxiety at having any contact with Mr. Monid after it was known that Ms. Hamilton had left the workplace. It was apparent to the Board that the Grievor had been working on this “record”, reflecting her side of the interactions with Ms. Hamilton, for some time in anticipation of a poor performance appraisal and the filing of a grievance concerning the matter. [121] As it turned out, Dr. Wyman did not follow all of the recommendations requested by the Grievor; although she did accede to the Grievor’s request to specify that the accommodation related to the “reporting relationships” (i.e. plural) instead of using the singular word, “relationship” as stated in the earlier medical update. - 44 - Thus Dr. Wyman responded to the Employer’s request to clarify the Grievor’s medical restrictions and limitations, with the following letter addressed to Mr. Monid dated December 1, 2013: I am writing in follow up to my previous correspondence and a recent conversation with Ms. Fortin in which she informed me that she was being referred to Long Term Disability. Ms. Fortin and I both feel that she is capable of working and has been since the beginning of September. Ms. Fortin would like to be working. There are no limitations at this point on her ability to work. The only accommodations required relate to the reporting relationships in her workplace, as discussed previously. [Emphasis added] (g) Admissibility of Post-Grievance Allegations of Mistreatment [122] At the commencement of the instant hearings on the merits of the two grievances, and after the Union had provided the Employer with a detailed statement of particulars outlining the various allegations of misconduct against the Employer generally, and Ms. Hamilton and Mr. Monid in particular, the Employer requested a ruling on its preliminary objection to the Union’s intention to ask the Board to consider evidence of what the Union claimed were further acts of improper treatment of the Grievor that occurred after the Grievor filed her harassment and accommodation grievances dated April 25 and September 9, 2013, respectively. [123] These specific post-grievance acts included: (a) the Employer’s alleged failure to properly consider and adopt the result of an independent psychological assessment of the Grievor dated January 24, 2014 in offering a reasonable accommodation for the Grievor; (b) the Employer’s alleged refusal to accept the findings of an investigation under the Employer’s Workplace Discrimination and Harassment Prevention Policy (“WDHP”) dated October 30, 2015 that was initiated by the Grievor in an e-mail transmission to Mr. Monid on April 29, 2013, as reproduced above; and (c) the Employer’s refusal to grant the Grievor a compassionate leave of absence with pay after her sick leave benefits were exhausted at or about the end of December 2013. Aside from asserting the Employer’s conduct in connection with these post-grievance events were wrongful in themselves supporting separate claims of a violation of the collective agreement and/or breaches of human rights legislation, the Union submitted they were part of an alleged pattern of abusive and/or vindictive conduct intended to cause mental distress to the Grievor and discourage her from ever returning to work; thus supporting the claims in both grievances and a higher award of damages in the event of the Union’s success on those grievances. [124] The Employer did not dispute the admissibility of the IME report of neuropsychologist Dr. Hope considered later in these Reasons for the limited purpose of assessing the Grievor’s contention of suffering from a disability and the reasonableness of her accommodation demands, which the Employer also relied upon. But with respect to the other post-grievance events, the Employer - 45 - not only disputed the Union’s allegations of misconduct, it requested a preliminary ruling prohibiting the Union from even adducing the evidence of those events that it maintained were irrelevant to the matters over which the Board is presently seized. In support of its preliminary objection the Employer also referred to OLBEU (Koonings/Froner) v. Ontario (Liquor Board of Ontario), GSB# 3483/92, December 21, 1995 (Ont. Grievance S.B.) (Stewart), OLBEU (Koonings/Froner), GSB# 3483/92, February 2, 1995 (Ont. Grievance S.B.) (Stewart), and Re Religious Hospitallers of Hotel-Dieu of St. Joseph of the Diocese of London and O.N.A. (Curtis), [1995] O.L.A.A. No. 47, 47 L.A.C. (4th) 84 (Ont. Arb.) (Watters). The Union took the contrary position, arguing that the post-grievance evidence is admissible to the extent it is consistent with the ongoing pattern of abusive treatment and harassment by the Employer that extended over a considerable period of time and thus may be relied upon as an aggravating factor in determining the appropriate remedy for the Grievor in the event of success on both or either one of the present grievances. [125] After considering the representations of the parties when the preliminary objection was initially raised, the Board ruled it would not decide the issue at that time, leaving it open for the Employer to raise the objection when the post- grievance evidence was adduced or to argue at the end of the case that the impugned evidence was inadmissible and/or could be accorded little weight as evaluated in the context of all of the surrounding circumstances. In its closing arguments the Employer repeated its objection to the admissibility of the evidence related to the WDHP complaint and in denying the Grievor’s request for a compassionate leave of absence with pay, for the same reasons it advanced at the outset. The Employer consequently submitted that the Board was without authority to determine whether the Employer properly dealt with and/or responded to the Grievor’s WDHP complaint, both in terms of process and in its reaction to the result. However, if the Board held it had the ability to admit evidence about that process or response to the outcome of the WDHP complaint and found either to be lacking, it asked the Board to consider a prior decision in Ontario Public Service Employees Union (Groves) v. Ontario (Ministry of Community Safety and Correctional Services), GSB# 2008-3971 (Ont. Grievance S.B.) (Mikus), at paras. 94 – 101, where in determining that an employer had improperly processed a WDHP complaint, nevertheless limited the remedy to a declaration and nominal payment of $1,500 in damages for loss of dignity and mental distress. [126] The Union maintained in final argument that the evidence was admissible and properly before the Board because it was part of a continuous pattern of abusive conduct extending over an extended period that supported the Union’s claims on the merits of the two grievances before the Board and was also relevant in assessing the appropriate remedy available for the Grievor, including substantial damages for mental distress. In support of its written representations the Union referred to Canac Kitchens Ltd. v. C.J.A., Local 1072, 1996 CarswellOnt 5767, 45 C.L.A.S. 345, 58 L.A.C. (4th) 222 (Ont. Arb.) (Abramsky), Spruce Falls Inc. v. I.W.A.-Canada, Local 2995, 2002 CarswellOnt 1743, [2002] L.V.I. 3282-6, 106 L.A.C. (4th) 41, 68 C.L.A.S. A278 (Ont. Arb) (Knopf), Waterloo Region District - 46 - School Board v. Custodial & Maintenance Assn., 2010 CarswellOnt 11071, [2010] O.L.A.A. No. 225, 102 C.L.A.S. 24 (Ont. Arb.) (Monteith), Re Waterloo Region District School Board and CAMA (Eveleigh), 2013 CarswellOnt 18462 (Ont. Arb.) (Craven) and Ontario (Liquor Control Board of Ontario) v. OPSEU (Sin), 2008 CanLII 32798 (ON GSB) (Dissanayake). [127] Having evaluated these divergent viewpoints, the Board substantially agrees with the Union on the admissibility of the post-grievance evidence in the circumstances of the present case; but subject to the proviso that such admissibility is limited or constrained to the extent it is demonstrably relevant to the matters raised in the two specific grievances before the Board as opposed to supporting independent breaches of the collective agreement and/or applicable legislation justifying separate or additional remedial relief. The Board’s brief reasons are as follows. [128] In OLBEU (Koonings/Forner), supra, the Board considered the employer’s objection to the admissibility of evidence of certain events that occurred after the filing date of two grievances alleging harassment and intimidation. In the Board’s first decision of February 2, 1995, it refused to rule on a preliminary motion by the employer to prohibit the evidence, stating at p. 1 that, “We agree with the [the Union’s] submission that it is the relevance of events rather than their timing that determines their admissibility” (emphasis added). Thus the Board decided it would wait to “make a ruling with respect to this evidence in the course of the hearing, where this matter can be assessed in context” (at p. 2). When the matter arose again in the context of the evidence before it, the Board ruled in a subsequent decision dated December 21, 1995 that the challenged evidence was inadmissible for the following reasons at pp. 1 – 2: As the Board indicated in an earlier interim award in this matter, it is the nature of the event, rather than its timing, that determines relevance and thus admissibility. However, the Collective Agreement contemplates complaints being defined and crystallized in the course of the grievance procedure. Accordingly, insofar as the subsequent events were put forward as separate allegations of impropriety it was our view that such evidence was beyond the scope of the particular allegations that crystallized at the time of the grievance and therefore should not be adjudicated by the Board. While, as the Board noted, there may be other contexts in which events occurring after the filing of the grievance are relevant to the allegations which gave rise to the grievance and therefore properly admissible, the appropriate scope of this matter is limited to the allegations in existence at the time the grievance arose. Accordingly, in this context, the Board upheld the Employer’s objection to the introduction of this evidence. [Emphasis added] [129] Thus the Board’s decision in that case was to subject the evidence of post- grievance actions or events to the test of its relevance to the allegations in the specific grievances before the Board. This approach has been adopted by a number of arbitrators who have accepted that the proper focus is on the “real complaint” between the parties, liberally construed, and thus post-grievance - 47 - events that have a “tie to the original grievances” or “flow naturally from what is expressed in the grievances” and are found relevant within the broad scope of the dispute may be admitted into evidence to be assessed as to weight along with all of the other relevant evidence: per Arbitrator Abramsky in Re Canac Kitchens Ltd., supra, at para. 30, and see also Re Spruce Falls Inc., supra, per Arbitrator Knopf at para. 44 and Re Waterloo Region District School Board, supra, per Arbitrator Craven at para. 14. This approach was also adopted by Vice-Chair Dissanayake in Ontario (Liquor Control Board of Ontario) v. OPSEU (Sin), supra, where in the context of a job competition dispute the Board articulated the following test in concluding it was appropriate to admit evidence of post-grievance job competitions within certain limitations at p. 4: The test to be applied in deciding whether or not to admit subsequent event evidence was laid down by the Supreme Court of Canada in Re Compagnie minère Québec Cartier, [1995] 2 S.C.R. 1095 at para. 13 as follows, per L’Heureux-Dubé J: 13. This brings me to the question I raised earlier regarding whether an arbitrator can consider subsequent-event evidence in ruling on a grievance concerning the dismissal by the Company of an employee. In my view, an arbitrator can rely on such evidence, but only where it is relevant to the issue before him. In other words, such evidence will only be admissible if it helps to shed light on the reasonableness and appropriateness of the dismissal under review at the time that it was implemented. The test set out by the court is itself very simple. If subsequent-event evidence (as the court called it) helps to shed light on the issue before the arbitrator, the evidence is admissible. The difficulty is in applying the test to the particular circumstances. [130] The Board agrees with the general proposition advanced by the Union that, “Harassment, by definition, involves a course of conduct which necessarily extends over a period of time [that] may not stop dead in its tracks when a grievance is filed.” The April 25, 2013 grievance before the Board alleges the Grievor experienced “bullying, harassment and discrimination” from the Employer, and thus evidence of post-grievance events related to an ongoing pattern of such alleged misconduct, including the results of medical inquiries touching on its effects and the outcome of investigations into such allegations (as well as the Employer’s reaction to that outcome) may be admitted into evidence, leaving the effect and weight of such evidence to be evaluated in the context of all of the other findings in this case. [131] However, not every negative event in the post-grievance history of the parties’ relationship evidences an ongoing pattern of “bullying, harassment and discrimination” without the demonstration of some persuasive nexus. The Employer’s refusal to grant the Grievor’s request for a paid leave of absence when her medical benefits were exhausted at the end of December 2013 illustrates that point. There is nothing in the collective agreement requiring the Employer to grant a paid leave of absence in the instant circumstances, and to - 48 - the extent the Employer has discretion to make such payments in the exercise of its managerial rights under article 2 of the collective agreement (reproduced below), neither the Union nor the Employer presented any evidence on the matter. The onus remains with the Union to show some connection between the Employer rejection of the Grievor’s request for paid compassionate leave and an improper motive related to an alleged ongoing “agenda” (adopting the Grievor’s characterization) to bully, harass and discriminate against the Grievor, which remained unsatisfied. Thus the Board could take nothing from the fact that the Employer refused the Grievor’s request for a paid leave of absence commencing in January of 2014, as it may touch on the two grievances before the Board. [132] But the consideration of post-grievance events that may illuminate the true motives of the Employer and/or Grievor relevant to the present dispute cuts both ways. Mr. Monid received a promotion to Executive Director of the License and Marketing Division of FSCO that was one step above his previous role (and at the Assistant Deputy Minister level), commencing in an acting capacity in October of 2014 until he was confirmed in the position in August of 2015, which he currently holds. As a result, Mr. Monid had even less contact with the Compliance Officers and his involvement was even more removed from the day- to-day activities of the Grievor’s unit than to the “incidental” degree described while the Grievor was working there. Mr. Monid testified a new Director has consequently been appointed and that Ms. Izabel Scovino has become the Senior Manager of the Grievor’s unit. [133] Mr. Monid’s uncontradicted evidence is that to his knowledge as the Executive Director (and the obvious intention of the Employer to get past the current impasse on the matter) Ms. Scovino extended a written offer to the Grievor to return to her previous employment in the same unit now supervised by Ms. Scovino, with no likelihood that the Grievor would have any contact with Ms. Hamilton (who has retired) and Mr. Monid (who is working in another capacity). Neither the Grievor nor Union has disputed that offer. As indicated above, Ms. Scovino was the Grievor’s direct supervisor when the Grievor returned to FSCO as a “Market Conduct Practice Analyst” in September of 2006, and prepared the first two Performance Development Plan and Learning Plan (PDP/LP) evaluations of the Grievor that reflected positively on the Grievor. There is no suggestion of any personal or professional conflict between Ms. Scovino and the Grievor. Yet the Grievor declined the Employer’s offer without explanation. [134] As discussed below, accommodation for an employee’s disability is a continuing obligation of the Employer, Grievor and the Union. Thus the Board has determined it is appropriate to consider the Employer’s offer extended up to the commencement of the instant proceedings before the Board and ongoing, as a reasonable one that the Grievor rejected which, along with a number of other concerns with the veracity of the Grievor’s testimony already expressed above, added to the Grievor’s credibility gap in advancing her current grievances before the Board. (h) Independent Psychological Assessment - 49 - [135] In its first major post-grievance action after the Grievor’s entitlement to sick leave with pay ended at the end of December 2013 and she refused to apply for long term disability under the benefit plan, the Employer arranged for an independent psychological evaluation of the Grievor on January 16, 2014 by Dr. Christopher Hope. Dr. Hope is not a medical doctor; rather he has practiced as a registered clinical psychologist since 2009, earning a Ph.D. from the University of Windsor, Ontario in neuropsychology which is a subspecialty that Dr. Hope described as the study of the structure and function of the brain as they relate to various psychological processes and disorders of memory, concentration and cognition, as well as behavioural and cognitive effects of neurological disorders. The parties agreed that Dr. Hope was an expert in the field and therefore qualified to provide the Board with his opinions relevant to the matters between them. Dr. Hope’s psychological evaluation of the Grievor consisted of a one hour face-to- face meeting and observation of her, coupled with an additional one hour of psychometric testing completed by the Grievor and a review of the medical record provided to him by the Grievor’s family physician. [136] As a result of that examination, Dr. Hope prepared a “psychological assessment” report dated January 24, 2014 that was filed with the Board and further elaborated upon by Dr. Hope in testimony. Dr. Hope confirmed that in preparing his report, he relied upon the history and medical symptoms as reported by the Grievor and Dr. Wyman’s clinical notes and correspondence with the Employer. While his own “validation testing” indicated that the Grievor believed she was being truthful in recounting her physical reactions to various stressors at work and her perceived reasons for these difficulties, Dr. Hope testified he could not comment on the legitimacy of what she reported about the conditions at her workplace. Based only on what the Grievor told Dr. Hope, he understood she had been “doing the same job” at FSCO for 24 years; that she had been required to undertake “more files than her colleagues [and that] she was never informed that there were concerns about her performance”; that she “was given a letter of discipline” when she “forgot to leave an alternate contact on her email over her holidays” during Christmas of 2012; and that she was subjected to weekly meetings with the result that “all of her files started being audited and conflicts with her manager increased over this time”. Dr. Hope also reported that the Grievor told him: “Currently, she does not accept that there was anything lacking in her work…[and that]…two other colleagues went through a similar process and one was terminated and the other passed away. She states the entire environment was poisonous” (and also used the word “toxic” when describing her workplace). During the recounting of this history the Grievor indicated she had a total of four counselling sessions with a psychologist for handling anxiety that she believed was beneficial, but had not undergone any other form of counselling or treatment since. [137] From his interview, observations and testing of the Grievor, along with the Grievor’s self-reported symptoms and her family physician’s notes, Dr. Hope’s report stated he was “not in a position to comment on the appropriateness of [the Grievor’s] complaints [about the workplace environment]”. Although he found that the Grievor “is not currently presenting with any significant psychological - 50 - impairments that would prevent a return to work” he nevertheless concluded that, “returning to the same work environment that caused her symptoms is likely to result in a return of those symptoms”. In testifying Dr. Hope confirmed this conclusion was based on the Grievor’s self-reporting and the Dr. Wyman’s recommendations (which were also based on the Grievor’s self-reported symptoms). In response to the Employer’s question of whether the Grievor could return to work under the supervision of Mr. Monid, Dr. Hope wrote: “Although [the Grievor’s] direct manager is not currently working, [the Grievor] perceives the director as similarly threatening. As such a return to this environment is likely to lead to a return of her symptoms, even in the absence of the manager”. And when asked whether the Grievor was suffering from “a psychological condition that limits her ability to handle stress and manage anxiety, Dr. Hope further offered that: “There is no psychological condition that limits [the Grievor’s] ability to manage stress and anxiety. The condition was caused by an environment that she perceived as being very stressful and anxiety provoking”. In completing his written report Dr. Hope stated: “[The Grievor] is able to return to full-time work from a psychological perspective. However, as opined by Dr. Wyman, a return to the same work setting is likely to result in a return of her symptoms”. [138] The Board will comment later in these Reasons on the factual accuracy of the history reported by the Grievor to Dr. Hope, which was largely unsubstantiated by the evidence presented by the Union during the instant adjudication proceedings. Of immediate significance, the Board noted there was no specific diagnosis or finding of a mental illness of any kind by Dr. Hope; aside from his repeated opinion based on the information he had been provided by the Grievor and Dr. Wyman that “a return to the same work setting is likely to result in a return of [the Grievor’s] symptoms”. However, when asked during his testimony whether “it would have been reasonable for the Grievor to return to the workplace with another supervisor and promises by the director [Mr. Monid] that he would have limited contact with her”, Dr. Hope agreed that would be reasonable along with any supportive treatment to address any recurrence of stress, offering the Board the following opinion: That would be my advice in most situations. She should go back to the workplace with the new supervisor. If she would report to me that just the idea caused her to have panic attacks that would be of concern to me. But knowing what I know based on the assessment I did, it wouldn’t be unreasonable to try. And really, that is the only way to go if you were to accompany that with treatment if there was an increase in stress issues. [Emphasis added] (i) Workplace Discrimination and Harassment Prevention Report [139] The second major area of post-grievance evidence submitted to the Board related to the results of the WDHP complaint initiated by the Grievor with her letter to Mr. Monid dated April 29, 2013, reproduced above, and the Employer’s response to the outcome of the WDHP investigation, which the Union pointed to - 51 - as further indicia of the Employer’s improper treatment and ongoing harassment of the Grievor. [140] The Employer’s Workplace Discrimination and Harassment Prevention Policy, which was filed with the Board and carefully reviewed, applies to all ministries and Commission public bodies (“CPBs”), deputy ministers and chairs of CPBs and public servants appointed under Part III of the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sch. A (“PSOA”). Among other things, the purpose of the WDHP Policy is to, “establish a framework for the prevention of workplace discrimination and harassment and effective response to issues of workplace discrimination and harassment”. Under the Policy, “discrimination” is defined as “any practice or behaviour, whether intentional or not, which has a negative impact on an individual or group based on one or more of the prohibited grounds under the [Human Rights Code, R.S.O. 1990, Chap. H. 19 (the “Code”)], except where the conduct is permitted under the Code. The Policy covers “workplace harassment” as defined and prohibited under the Code and the Occupational Health and Safety Act, R.S.O. 1990, Chap. O.1 (hereinafter OHSA) which is further defined under the Policy “as engaging in a course of vexatious comment or conduct against an employee or other worker in the workplace that is known or ought reasonably to be known to be unwelcome.” It also defines “poisoned work environment” as “a negative, hostile or unpleasant workplace due to comments or conduct that tend to be demeaning [that may] result from a serious and single event, remark or action”. The Policy does not override other collectively bargained rights under the parties’ collective agreement or statutory prohibitions. [141] The WDHP Policy is administered through an office provided by the Employer referred to as the ”Centre for Employee Health, Safety & Wellness”, and the documentation filed by the Union indicates that after initiating her complaint of workplace harassment and discrimination, the Grievor was contacted by the “Workplace Discrimination and Harassment Prevention Policy Advisor for FSCO”, who met with her and her Union representative for the purposes of explaining and assisting her with the complaint process further to an internal investigation of her complaint by an outside consultant. The documentation includes the Grievor’s detailed particulars of her complaints of being harassed and bullied in the workplace (which was substantially repeated in her evidence before this Board) and, while not expressly explained to the Board, it appears from the documentation that on the basis of a list of seven current and former Compliance Officers (and in one case the widow of the deceased Compliance Officer, Mark), an independent investigator was dispatched to question the witnesses identified by the Grievor and come to findings of fact and conclusions respecting the Grievor’s complaints of violations of the WDHP Policy, ultimately resulting in the production of an Investigation Report containing those findings and conclusions, which the Grievor was given the opportunity to comment upon before it was formally issued. [142] The parties did not supplement the written record of the WDHP investigation and outcome with testimony from anyone associated with the preparation of that report. Rather, the parties filed a number e-mails and correspondence purporting - 52 - to document the investigative process and the final WDHP Investigation Report dated October 30, 2015, which the parties invited the Board to read and consider in assessing all of the evidence in this case. There is no dispute that the Employer followed the procedures required under the Policy in investigating the Grievor’s WDHP complaint. The Union agreed that the investigation report was “hearsay” as to the truth of the statements therein which formed the basis of the investigator’s conclusions on the Grievor’s various complaints. Nevertheless the Union argued the Board was entitled to consider the Investigation Report, both for the purpose of assessing the merits of the “harassment” grievance before the Board and for considering whether the Employer’s response to the report was consistent with what the Union claimed to be a pattern of abuse towards the Grievor. The Employer disagreed, submitting that given the entirely hearsay nature of the report that it’s “findings of fact” and its “conclusions” on the question of whether the Employer violated the WDHP Policy could be given no weight. [143] The Board has carefully read the final 65-page Investigative Report dated October 30, 2015. Without specifically identifying the Grievor (or any witness) by name or the Grievor’s manager, Ms. Hamilton, it states that: “The investigation was initiated as a result from a complaint from an employee (Complainant) about her Manager (Respondent).” It also notes that the Respondent (i.e. Ms. Hamilton) did not participate in the investigation because she had retired, which the investigator noted had the effect of permitting an adverse inference to be drawn against the Respondent’s interests. [144] The results of the investigation were mixed; some of the Grievor’s complaints were “substantiated” as violations of the WDHP Policy and some were found “not substantiated”. Based on the statements of witnesses who were interviewed by the investigator, which were not reproduced or described in detail so that the specific questions asked and answers received from each witness could be scrutinized; nor were the witness’s statements subject to cross-examination, the Investigation Report addressed each of what it identified as eight “incidents” raised by the Grievor, concluding that four of the allegations were “substantiated” and four were “not substantiated”, as follows: Incident 1: The Grievor’s claim that the weekly coaching meetings conducted by the Respondent, “was part of a course of conduct which constituted harassment as defined by the Policy” was “substantiated”. Incident 2: There was “insufficient evidence” to substantiate the Grievor’s claim that she was subjected to “unequal expectations” as compared with other Compliance Officers. Incident 3: The “Letter of Expectation” issued to the Grievor arising out of her failure to properly change her vacation voice-mail message to identify an individual who would respond in her absence was “substantiated” as “part of a course of conduct which the Respondent ought reasonably to have known was unwelcome in violation of the Policy and not protected as an appropriate and legitimate exercise of managerial authority”. - 53 - Incident 4: A meeting convened with the Grievor by the Respondent and representatives of FSCO’s human resources department to discuss the Grievor’s “does not meet” performance appraisal at or about the end of January 2013 was “not substantiated” as a breach of the Policy; Incident 5: The decision to change the focus of the weekly coaching meetings from an examination of closed files to a review of recently opened files that began in February of 2013 was “not substantiated” as a violation of the Policy. Incident 6: The allegation that the Grievor was “verbally chastised” by the Respondent in March of 2013 for not scheduling their usual weekly meeting was “substantiated” as a violation of the Policy because of the “harsh and abrupt” nature of the interaction that was found to be “part of a vexatious course of comments and conduct, [that] ought reasonably to have been known to be unwelcome”. Incident 7: The “allegation meeting” scheduled for February and later in early March 2013 to discuss the Grievor’s comments in an e-mail to the Respondent that she didn’t want to wind up “like another Mark” was “not substantiated” as a violation of the Policy. Incident 8: And the investigator concluded there was “insufficient evidence” to determine whether the Grievor’s claim that the “does not meet expectations” rating on the final PDP/LP performance appraisal was a form of harassment; however, the investigator went on to state that, “the Respondent refused to give the Complainant the support she needed to improve her performance” thus substantiating the Grievor’s claim of harassment in violation of the Policy. [145] Thus in summary the investigator concluded that, “the Respondent [Kathleen Hamilton] did not violate the WDHP Policy as pertaining to Incidents 2, 4, 5 and 7” and that, “the Respondent, however, violated the WDHP Policy as pertaining to incidents 1, 3, 6 and 8” (emphasis in original). Mr. Monid, who was not named as a co-respondent in the Grievor’s complaint, was never criticized or found by the investigator to have committed any act towards the Grievor that violated the WDHP Policy. [146] Looking at the limited reasoning offered for the investigator’s conclusions that Ms. Hamilton violated the WDHP Policy in connection with “Incidents 1, 3, 6 and 8,” it is not at all clear to the Board that the investigator properly interpreted the Policy and/or underlying law in coming to those conclusions, based on the evidence presented to the Board on each of those incidents. [147] For example, with respect to what was described as “Incident 1” (i.e. the holding of weekly meetings), while the investigator concluded on p. 49 of the Report that based on the six quality service complaints concerning the Grievor’s documented substandard performance that, “the determination that weekly meetings were - 54 - necessary was found to be within the Respondent’s appropriate exercise of managing the Complainant’s performance”; nevertheless, the investigator then goes on to find at p. 50 that, “the Respondent’s behaviour during these meetings was part of a course of vexatious conduct which she ought to have known was unwelcome and which exceeded appropriate exercise of managerial authority”, without explaining the basis of that conclusion. On the evidence present to this Board concerning the same events, which the Board had the opportunity to assess from the examination and cross-examination of the Grievor and Mr. Monid, the Board comes to the opposite conclusion. [148] The event described as “Incident 3” (concerning the issuance of the “Letter of Expectation” to the Grievor) which was also found by the investigator at p. 50 to have been “substantiated” “as part of a course of conduct [that] constituted harassment…insofar as it was excessive and unduly harsh“, was from the Board’s own evaluation of the same factual allegations, an unfounded conclusion. Instead, as discussed later in these Reasons, the Board found the “Letter of Expectation” was a clear reminder for an event that might have appropriately justified a disciplinary letter for the Grievor having failed to identify a back-up in her voice-mail message when she left on vacation, contrary to the explicit notice recently given to her and the other Compliance Officers of the proper out-of-office protocol. [149] The event described as “Incident 6” (where the Grievor alleged she was “chastised” in front of others for failing to schedule a weekly meeting that she claimed was only brought to her attention as a matter within her obligation) was not substantiated as a form of harassment in itself; however, the investigator concluded at p. 52 of the Report that “the Respondent was harsh and abrupt in her dealing with the Complainant” and thus it was “the Respondent’s manner of dealing with the Complainant [that] constitutes harassment as defined by the WDHP Policy”. Having considered the same event from the facts present to this Board, the Board rejects the investigator’s conclusions as patently wrong in both fact and law. Even accepting the investigator’s unexplained finding that Ms. Hamilton was “abrupt” and “harsh” with the Grievor on the matter, which was not substantiated on the evidence before this Board, the fact that a supervisor may be unfeeling, or abrupt or even harsh from an employee’s perspective does not in itself satisfy the objective test required in such circumstances to support a conclusion that harassment has occurred. [150] And finally, the investigator’s conclusion at pp. 52 – 53 of the Report that the event described as “Incident 8” (concerning the issuance of a “Did Not Meet Expectations” rating in the final April PDLP), was substantiated as a “category of harassment as defined by the WDHP Policy” cannot be supported on the evidence submitted to this Board. In studying the investigator’s conclusion, the Board noted that the investigator expressly found there was insufficient evidence to determine if the unsatisfactory PDLP rating was warranted. However, the investigator then went on to base a conclusion of harassment on the investigator’s assessment that Ms. Hamilton “declined to give the appropriate support to the Complainant”, which without hearing from the Respondent on the - 55 - matter led to an inference of harassment from the investigator’s perspective. This, in the Board’s opinion, is another unsupported finding. The extensive documentation provided to this Board on the matter, coupled with the Grievor’s own repeated admissions in the course of her extensive cross-examination of the many “mistakes” and “errors” in her job performance, along with the undisputed record of Ms. Hamilton’s efforts to counsel the Grievor on the proper performance of her duties, defies any logical foundation for the investigator’s contrary finding. [151] Mr. Monid testified the Employer was not required to accept the findings of the Investigation Report or its conclusion that the Respondent violated the WDHP Policy, which in the circumstances of the present case it elected not to accept. In an undated letter signed by Mr. Brian Mills, who was the Interim CEO and Superintendent of Financial Services at the time, Mr. Mills explained the reasons for the Employer’s position in the matter, writing in relevant part as follows: I have received the investigators’ final report, which is the result of a Workplace Discrimination and Harassment Prevention (WDHP) Policy investigation initiated in response to allegations you filed against Kathleen Hamilton. The report of the investigator concludes, on a balance of probabilities, that the allegations(s) that Kathleen personally harassed you are partially substantiated. I accept the facts as set out by the investigator but do not accept the investigator’s conclusion that there was a violation of the WDHP policy. I acknowledge that the Respondent’s behaviour may have been unwelcome by you. However, in my view, based on the advice I have received, the substantiated events do not reach the threshold of harassment and, based on the available evidence, fall within the scope of appropriate exercise of managerial authority. You will be contacted by Izabel Scovino shortly to close out this process. [Emphasis added] [152] Having carefully reviewed the Investigative Report and accompanying documentation in the appendices, it was not possible for the Board to give its findings of facts and/or conclusions much, if any, weight, as far as the merits of the two grievances before the Board were concerned. The Board doesn’t know the specific questions asked of the witnesses and full answers given (since the report summarizes that information and states its conclusions based thereon); why those witnesses were identified by the Grievor as having relevant information (since none of them were presented to give testimony before the Board); and the basis on which the investigator’s conclusions of “substantiating” or “not substantiating” different “incidents” identified by the Grievor was reached. [153] All of the “incidents” identified in the Investigation Report were raised in the Grievor’s testimony before the Board in support of the Grievor’s claims of abusive behaviour by her supervisors, which unlike the process before the WDHP investigator was subject to cross-examination by the Employer (including the many admissions made by the Grievor recounted above which were probably not - 56 - before the investigator), thus enabling the Board to come to its own factual findings and legal conclusions on whether Ms. Hamilton and/or Mr. Monid acted in a harassing, bullying and/or discriminatory manner towards the Grievor. Consequently, nothing of substance on these matters in the Investigation Report could be accorded much, if any, weight separate from the Board’s own observations of the witnesses who testified and its evaluation of the evidence on the merits of two grievances before the Board. [154] At most, the evidence of the WDHP investigation process and the ultimate report (including its conclusions) is a fact the Board could take into account in examining the general deportment of the Employer towards the Grievor as a whole, in considering the Union’s allegation that the Employer subjected the Grievor to a continuing pattern of vexatious and/or unwelcome behaviour designed with the “agenda” or motive to have her quit her employment. Contrary to that conclusion, the inferences the Board draws from the apparent fulsome investigation and unrestrained report is that all of the procedural and substantive rights under the WDHP Policy were extended to the Grievor. The fact that the Employer chose to reject the conclusions of any breach of the WDHP Policy does not, in itself, support a finding that the Employer was acting improperly or with malice towards the Grievor. The Interim CEO of FSCO expressed the view that “the substantiated events [did] not reach the threshold of harassment”, but rather fell “within the scope of appropriate exercise of managerial authority”. [155] On the information before the Employer, as supported by the evidence presented to this Board, that opinion was not unreasonable given the Board’s assessment of the evidence on the same complaints by the Grievor. But even if it was, in the absence of any provision in the collective agreement requiring the Employer to accept the results of the investigation into the Grievor’s claims of various breaches of the WDHP Policy by Ms. Hamilton, which was not identified by the either party to the instant dispute, the Board concludes there was no breach of the collective agreement by the Employer in rejecting the factual findings and conclusions in the WDHP report; nor was there any support for a finding on the evidence before the Board that the Employer acted in bad faith in coming to its conclusion on the validity of that Report. V. Arguments and Analysis [156] The Board has taken care in recounting the extensive evidence presented to it because in cases of this nature the facts ultimately matter the most. The findings of fact drive the result. As indicated earlier, the evidence reviewed above raises three questions for determination by this Board in considering the merits of the Union’s “harassment” and “accommodation” grievances: (a) Was the Grievor subjected to “bullying, harassment and discrimination” from her immediate supervisor, and/or her supervisor’s superior? (b) Did the Grievor suffer psychological, emotional and/or mental health injury constituting a “disability” either as a result or regardless of the cause? And if so, (c) Did the Employer fail to take appropriate steps to “accommodate” the Grievor’s “disability” having regard to the Grievor’s and Union’s obligations in the matter? If the answer to - 57 - any of these questions is “yes”, the issue of the appropriate remedy would also need to be addressed. (a) Was the Grievor subjected to “bullying, harassment and discrimination” by her immediate supervisor and/or her supervisor’s supervisor? [157] The Employer through the actions of Ms. Hamilton (and latterly by Mr. Monid) is alleged to have engaged in “bullying, harassment and discrimination” of the Grievor in violation of article 3 of the collective agreement, the Human Rights Code, R.S.O., 1990, Chap. H.19, as amended (“Code”), and the Occupational Health and Safety Act, R.S.O. 1990, Chap. O.1, as amended (“OHSA”). These are serious charges that the Union bears the onus to prove on a balance of probabilities standard from the objective evidence presented to the Board. The relevant contractual and statutory provisions are set out below: Collective Agreement in Effect January 1, 2013 to December 31, 2014 ARTICLE 2 – MANAGEMENT RIGHTS 2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workplace, including the right to hire and lay- off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central collective Agreement and any other Collective Agreement to which the parties are subject. ARTICLE 3 – NO DISCRIMINATION / EMPLOYMENT EQUITY 3.1 There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability, as defined in section 10(1) of the Ontario Human Rights Code (OHRC). … 3.3 The Parties are committed to a workplace free from workplace harassment, including bullying, by other employees, supervisors, managers, any other person working or providing services to the Employer in the workplace, clients or the public, in accordance with the law. Workplace harassment is engaging in a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome. … - 58 - Human Rights Code, R.S.O. 1990, Chap. H.19 Employment 5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identify, age, record of offences, marital status, family status or disability. Harassment in employment 5. (2) Every person who is an employee has a right to freedom from harassment in the workplace by an employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identify, gender expression, age, record of offences, marital status, family status or disability. Definitions re: Parts I and II 10. (1) In Part I and in this Part, … “disability” means, (a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device, (b) a condition of mental impairment or a developmental disability, (c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, (d) a mental disorder, or (e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”) … “harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome; … Disability … Accommodation - 59 - 17. (2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. Occupational Health and Safety Act, R.S.O. 1990, Chap. O. 1 Definitions 1. (1) In this Act, … “workplace harassment” means, (a) Engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, … Duties of employers … 25. (2) Without limiting the strict duty imposed by subsection (1), an employer shall, … (h) take every precaution reasonable in the circumstances for the protection of a worker; … Policies, violence and harassment 32.0.1 (1) An employer shall, … (b) Prepare a policy with respect to workplace harassment; and (c) Review the policies as often as is necessary, but at least annually. … [158] In its comprehensive written representations the Union expressed its view of the relevant facts in detail that the Board has carefully considered in arriving at its own factual findings set out above. On behalf of the Union, Ms. Gilchrest submits the evidence supports the conclusion that the Grievor was the victim of a “vexatious” course of comment and conduct that was known or ought to have been known to be unwelcome by her direct supervisor, Ms. Hamilton, which was “enabled” by her supervisor’s supervisor, Mr. Monid, over a period of one year, constituting forms of bullying, harassment and discrimination contrary to the Employer’s own WDHP Policy, the statutory prohibitions and governing jurisprudence. That conduct included the Union’s assertions that: (a) Ms. Hamilton displayed an “unwillingness to train” and to give the Grievor “unfair - 60 - performance appraisals”; (b) the Grievor was “isolated from her co-workers”; (c) that she experienced “some inappropriate expressions of anger from Ms. Hamilton; (d) that the Grievor was “held to different work standards” than her colleagues; (e) that Ms. Hamilton exercised “an improper use of power”; and (f) the Grievor experienced “a consistent and unwarranted and harsh criticism; she was given completely unreasonable expectations and was harangued when she could not meet them”. The Union accordingly asks the Board to allow the “harassment” grievance, assessing significant damages for loss of employment and reasonably foreseeable mental distress suffered by the Grievor as a result. In support of its representations the Union relies upon: Toronto Transit Commission v. Amalgamated Transit Union (Stina Grievance), [2004] O.L.A.A. No. 5O65, 132 L.A.C. (4th) 225 (Ont. Arb) (Shime), Re Ontario (Ministry of Community & Social Services) and OPSEU (Lafranboise), GSB# 2268/95, March 24, 1997 (Ont. Grievance S. B.) (Roberts), Nunavut v. P.S.A.C., 2008 CarswellNat 4671 (Can. Arb.) (Knopf) and Re Canada Safeway Ltd. and UFCW, Local 401 (M. (D.), 2012 CarwellAlta 2355 (Alta. Arb.) (Ponak), [159] The Employer urges the Board to come to the contrary result on the same facts. Thus on behalf of the Employer, Mr. Shahab argues that nothing in the evidence satisfies the Union’s threshold onus to demonstrate that Ms. Hamilton acted in a manner that can be characterized as “bullying, harassment and discrimination” on any objective basis. Moreover, it is submitted there is no evidence to suggest Mr. Monid had any material involvement in the ongoing counselling and evaluation of the Grievor leading to the legitimate criticisms of her work and her negative performance ratings. The fact that Mr. Monid was Ms. Hamilton’s supervisor, or even knew that the Grievor was being counselled and criticized by Ms. Hamilton for legitimate business reasons, hardly places him in the position of being an “enabler” of harassing activities in violation of the collective agreement, Code or the OHSA, according to the Employer. The Employer therefore requests that the Board dismiss the “harassment” grievance, referring to the following authorities in support: Cara Operations Ltd. (c.o.b. Toronto Flight Kitchen) v. Teamsters Chemical, Energy and Allied workers Union, Local 647 (Palmieri Grievance), [2005] O.L.A.A. No. 302, 141 L.A.C. (4th) 266 (Ont. Arb.) (Luborsky), Ontario Public Service Employees Union v. Ontario (Grievor Grievance), [2015] O.G.S.B.A. No. 47, 253 L.A.C. (4th) 22 (Ont. Grievance S.B.) (Briggs), Ontario Public Service Employees Union (Waraich) v. Ontario (Ministry of Labour), GSB# 2003-0187, January 9, 2009 (Ont. Grievance S.B.) (Watters), Professional Institute of the Public Service of Canada v. Communications, Energy & Paperworkers Union of Canada (Menard Grievance), [2014] O.L.A.A. No. 106 (Ont. Arb.) (Starkman). [160] The conclusions on the Union’s “harassment” grievance dated April 25, 2013 turn in part on the Board’s interpretation of the words, “bullying, harassment and discrimination” that the Union alleges was the effect of the conduct of Ms. Hamilton and Mr. Monid towards the Grievor. What do these words mean? [161] Article 3.3 of the collective agreement provides that the parties: “are committed to a workplace free from workplace harassment, including bullying, by other - 61 - employees, supervisors, managers, any other person working or providing services to the Employer in the workplace, clients or the public, in accordance with the law.” The term “workplace harassment” is defined in that article as, “a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome”, which is substantially the same as the statutory definitions of employment or workplace harassment in sections 10(1) of the Code and 1(1) of the OHSA. [162] The word, “vexatious” is defined in The New Shorter Oxford English Dictionary (Clarendon Press, Oxford: 1993) as “causing or tending to cause annoyance, frustration, or worry” and in law it denotes, “an action or the bringer of an action that is brought without sufficient grounds for winning, purely to cause annoyance to the defendant”. Applied in the context of labour relations, “vexatious comment or conduct against an employee in the workplace” by a supervisor or person in authority as that phrase appears in article 3.3 of the parties’ collective agreement, refers to words or actions without sufficient grounds or bona fide purposes other than to cause annoyance, frustration and/or worry to an employee, constituting a form of bad faith. This must be distinguished from the words or actions of a supervisor, which the supervisor reasonably knows is unwelcome by the employee, but is nevertheless part of the legitimate exercise of the supervisor’s right to manage the enterprise in the good faith application of the power expressly conferred under article 2 of the collective agreement (and any residual prerogatives), “to manage the business and direct the workforce”, which is not “vexatious” in itself. [163] The word, “bullying” describes a spectrum of conduct related to the improper use of power that one person has over another, “to coerce or intimidate weaker persons” (per The New Shorter Oxford Dictionary, supra). In the Board’s opinion, “bullying” is a form of an “abuse of power” in the workplace, which includes conduct by a person in a relative position of authority against an employee that a reasonable person would find hostile or offensive causing or having the potential to cause physical or psychological harm or adverse employment consequences to the employee, such as: (a) repeated infliction of verbal invective or maltreatment in the form of derogatory remarks, foul language and/or insults; (b) verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating, including yelling and physical displays of aggression and/or any form of violence; (c) deliberate sabotage or undermining of an employee’s work performance; (d) whether as part of a pattern of repeated misconduct or even where it occurs on a single occasion that is especially severe. [164] The word, “discrimination” is referred to in article 3.1 of the collective agreement in the context of prohibiting any distinctions or inequality of treatment between employees “by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability, as defined in section 10(1) of the Ontario Human Rights Code (OHRC).” There is no evidence to suggest (nor does the Union assert) any differences in the treatment of the Grievor by reason of a prohibited ground under - 62 - human rights legislation. Rather, the Grievor alleges she was treated unfairly when compared with other employees in a similar position because of her alleged “excessive workload” and/or the requirement to satisfy standards of performance that she claims other employees were not expected to achieve. While the Board agrees that workplace discrimination outside of those grounds expressly prohibited by human rights legislation can include singling an employee out for disproportionate treatment on workload and performance metrics, there is a range of variability to be expected in such matters. Subject to the provisions of a collective agreement to the contrary, one employee in the same job classification as another may be assigned more work, work of a differing character and/or may be reasonably expected to achieve different standards of performance depending on a host of circumstances that include the specific skills and experience of the employee involved, the complexity of the assignments and/or the particular needs of the employer’s operations that may change from time to time. Such differences may provide the evidentiary basis for the finding of a form of improper “discrimination” in employment where they are without legitimate reason and thus are capable of supporting inferences of harassment or bullying behaviour of a supervisor. However, whether such differences in treatment amount to an abuse of power or form of harassment is a question of fact to the assessed in the context of all of the circumstances in a particular case. [165] The foregoing concepts and the appropriate evidentiary tests for determining whether harassment or bullying has occurred in the workplace have been considered by arbitrators and adjudicators in a variety of employment contexts. For example, in Toronto Transit Commission and ATU (Stina Grievance), Arbitrator Shime defines “abusive conduct” and “harassment” as follows at paras. 248 – 9: 248. Abusive conduct includes physical or mental maltreatment and the improper use of power. It also includes a departure from reasonable conduct. 249. Harassment includes words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness. A single act, which has a harmful effect, may also constitute harassment. [166] In Nunavut v. P.S.A.C., supra, Arbitrator Knopf also considered the “onus of proof” and the test that arbitrators should apply in evaluating allegations of harassment and abusive conduct at para. 33: 33. An allegation of harassment is a serious matter. It cannot be taken lightly, and the onus of proof lies with the Union. A finding of harassment can only be made if there is objective evidence to support that claim. The fact that [the grievor] honestly felt that she was being harassed, and the fact that she suffered greatly, is not enough to make this claim succeed. Nor can it succeed if the evidence showed that the harassment came solely from the community. The grievance is against the Employer. This grievance can only succeed if the objective evidence supports a finding that there has been - 63 - abusive conduct as a result of improper use of power or a departure from reasonable norm. Harassment also includes actions which annoy, harm, persecute and embarrass another person, as well as subject someone to vexatious attacks, questions and unnecessary unpleasantness. See Cara Operations, supra…. [Emphasis added] [167] The case of Cara Operations Ltd., supra, referenced above, concerned a claim that a supervisor’s conduct (identified as “Sharma”) which included the use of profanity in the supervisor’s usual pattern of speaking and allegations that Sharma wouldn’t grant certain indulgences (such as permission to leave early for working during breaks) that were permitted by other supervisors, constituted harassment which caused the grievor to suffer emotionally and to be absent from work for medical reasons. Accepting Arbitrator Shime’s definition of “abusive conduct” in Stina, supra, as including “a departure from reasonable conduct” and applying the Supreme Court of Canada’s test in Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252 of an objective standard for the determination of sexual harassment to claims of workplace abuse and/or harassment generally, the following is stated at paras. 20 and 24: 20. I accordingly adopt the foregoing as authority for the proposition that I must objectively assess the evidence to determine whether workplace harassment has occurred. Consequently, even if the Grievor believed she was a victim of such harassment, and suffered real medical consequences as a result, her perceptions and their result are not enough, in themselves, to support a finding of harassment. … 24. It appears that the Grievor suffered emotional and physical distress arising, at least in part, from her inability to cope with Sharma’s perceived harsh and disrespectful character. Fortunately, the Grievor was not required to work with Sharma all of the time which would have relived some of her tension. But even if that was the substantial cause of the Grievor’s illness, one must be careful not to construct too narrow a definition of “departure from reasonable conduct” lest every perceived slight or subjective inference of abuse might result in paralyzing consequences to the workplace. There is a wide range of personalities that we experience in our interactions with others; not all of which may be pleasing to our individual sensitivities, but which we must live with nevertheless, within legal bounds, developing a certain “thickness of skin” to the challenge another’s disagreeable mannerisms might present. Whether dealing with a family member, backyard neighbor, co-worker or supervisor, the question of whether the other person’s behaviour amounts to a “departure from reasonable conduct” is an objective inquiry that given the expected variability in human capabilities and personalities, must be afforded a relatively wide margin of interpretation. Not every supervisor is a “good” one, but not all “bad” supervisors are abusive, without suggesting that Sharma fell within one or the other category. [Emphasis added] - 64 - [168] The application of an objective standard in determining grievances alleging workplace abuse or harassment and the requirement that the Union discharge an onus to establish the satisfaction of that standard was also followed by Arbitrator Bendel in the decision of Fanshawe College of Applied Arts and Technology v. Ontario Public Service Employees Union, 2016 CanLII 23226 (ON LA), which bears some similarity to the circumstances of the case before this Board. In Fanshawe College, supra, the grievor alleged she was harassed and bullied by her supervisor for criticizing the grievor’s work performance in the context of rapid changes in the department where the grievor worked and notwithstanding the grievor’s performance record which had been consistently rated as excellent to that point. The grievor characterized her supervisor’s conduct as “negative…which took the form of belittling her, criticizing her and speaking malicious rumours about her, all of which led to an unbearable level of stress [causing her] to go on extended sick leave as a result.” The award recounts a number of complaints by the grievor for the supervisor criticizing different aspects of the grievor’s performance and the manner of the supervisor’s communication that the grievor did not accept as justifiable, all of which the grievor claimed had made her feel “insignificant” and “undervalued”. [169] In dismissing the grievance, Arbitrator Bendel set out the following principles of analysis at the beginning of Section IX of the award, which the Board adopts as applicable in the similar factual circumstances presently before this Board: In my view, a prerequisite for a finding of harassment is that the conduct about which the complaint is made be “a departure from reasonable conduct”. This was the conclusion of arbitrator Luborsky in Re Cara Operations, supra, drawing on language used by arbitrator Shime in Re Toronto Transit Commission, supra. An employee who complains about behaviour that is within the realm of reasonable conduct will be unable to satisfy an arbitrator that there has been harassment, regardless of the effect that behaviour might have had on the employee. I should add that it seems obvious to me that a decision on the reasonableness of the impugned conduct has to take account of the particular work situation. In this connection, I note that the grievor worked in an organization that was undergoing rapid growth. It is entirely foreseeable that some employees might find a fast-paced and rapidly changing environment to be stressful (although others might find it invigorating). The question I have to consider is whether [the supervisor’s] behaviour could be regarded as egregious in such an environment. [Emphasis added] [170] Thus applying an objective standard and considering the circumstances of the particular work situation to the question of whether the Grievor was the “victim” of harassment or bullying behaviour at the hands of her supervisor, Ms. Hamilton, and/or her supervisor’s supervisor, Mr. Monid, the Board concludes after a comprehensive review of all of the Grievor’s allegations and the claims made on her behalf, that the Union has failed to satisfy its onus of establishing a threshold case of harassing, bullying or discriminatory behaviour as those terms are - 65 - defined above. Rather, it is the Board’s conclusion that the actions of Ms. Hamilton and Mr. Monid were at all times “within the realm of reasonable conduct”. [171] As indicated above, the evidence before the Board supports the finding that the Grievor’s performance was consistently ranked as, “Met Performance Commitments” while the Grievor worked in the classification of “Market Conduct Practices Analyst” from September 2006 until in or about November of 2011 and there is no suggestion of any conflict or less than appropriate professional, business-like dealings between the Grievor, Ms. Hamilton and Mr. Monid throughout those many years. The evidence also indicates the Grievor primarily interacted with her manager, Ms. Hamilton, on day-to-day matters, expressing no difficulties in their professional relationship during that timeframe; and that any contact with Mr. Monid was incidental at best and of no real consequence to the employment relationship. Other than asserting that Mr. Monid’s purported knowledge of Ms. Hamilton’s alleged misconduct towards the Grievor was enough to indict Mr. Monid for the same offences claimed of Ms. Hamilton, there was no evidence presented to this Board of any substantive interaction between Mr. Monid and the Grievor, and certainly nothing to support a finding on an objective standard of any “departure from reasonable conduct” by Mr. Monid. [172] The decline in the Grievor’s performance to “Did Not Meet Performance Commitments” wasn’t sudden or without a logical sequence of events leading to that rating. Rather, as indicated above the Board finds that as a result a reorganization of the Market Regulation Branch in or about November of 2011 the Market Conduct Practice Analyst was replaced by the “Compliance Officer” position, which neither the Grievor nor Union grieved at the time. The Board has found, contrary to the Grievor’s assertions (and what she told her doctors), that there were added responsibilities and performance expectations in the new position reflected by its reclassification from an “Executive Officer 2” to a “Financial Officer 4” paygrade, and resulting in a modest wage increase. But it is evident on the totality of the evidence that the Grievor was struggling to achieve the new standards established for the position that were never challenged by the Union as an improper application of the Employer’s “right and authority to manage the business and direct the workforce” in accordance with article 2 (“Management’s Rights”) of the collective agreement. [173] The Board’s findings on the evidence recounted above also establishes that the Grievor received appropriate training for her new responsibilities as a Compliance Officer and, while the Grievor was not assigned to exactly the same number of files as the lowest or highest producing Compliance Officer in the Branch, and indeed appears to have been assigned to more than a number of her colleagues (but fewer than some others), her workload and expectations of performance were within the range that was broadly comparable to all of the Compliance Officers. (And this conclusion would not have changed even if the Board had accepted the “comparable” information from random files that the Grievor removed from the Employer’s computerized records system in August of 2013 without permission). - 66 - [174] But compared with the Compliance Officers generally, the evidence is conclusive that the number of quality assurance and escalated compliance complaints reported by sources other than Ms. Hamilton and Mr. Monid, and ultimately confirmed by the Grievor in her own reluctant testimony in cross-examination, exceeded the number of such complaints issued in the same timeframe to all Compliance Officers combined. The documentation surrounding these quality assurance and compliance complaints, while at times bluntly stated by Ms. Hamilton who in the Board’s opinion was legitimately critical of the Grievor’s poor performance on those occasions, was polite and business-like in tone and obvious purpose. Nothing in the record of the detailed correspondence and e- mails presented to the Board from Ms. Hamilton to the Grievor discloses conduct coming even remotely close to being “a departure from reasonable conduct” necessary to support a finding of harassing or bullying conduct. Nor was there any evidence of anything less than proper language and decorum in any of their verbal interactions, even when those interactions may have become contentious. [175] In the context of the Grievor’s performance deficiencies, which the Employer did not respond to by issuing discipline but rather properly sought to redress through a corrective approach, the Board concludes there was nothing vexatious about the decision to require the Grievor to meet with Ms. Hamilton on a weekly basis beginning in April of 2012 for one hour out of the usual workweek in an attempt to address legitimate business concerns, even if those meetings were known to be unwelcome by the Grievor. Rather than providing her full cooperation, the written record of the Grievor’s interactions with Ms. Hamilton chronicled above reveals a Grievor who, perhaps not immediately but certainly over time, was increasingly unwilling or unable to accept criticism. While the Grievor may have subjectively felt she was being “picked on” and that the complaints from her supervisor were “inconsequential” and “unfair”, the objective evidence before the Board, as confirmed by the Grievor’s own testimony, supports the conclusion that the criticisms of the Grievor’s performance were well-founded and were expressed to the Grievor in an appropriate manner consistent with the maintenance of a respectful work environment in the face of understandable business conflict or disagreement. [176] Even accepting the Grievor’s perception that Ms. Hamilton’s counselling abilities were ineffective and that the Grievor was legitimately confused by what she claimed were inconsistent expectations or unclear instructions, particularly after the focus of the weekly meetings had changed following an unsatisfactory ten months from their review of closed files to newly opened files, the fact that a supervisor may not be particularly skilled at counselling and/or directing his or her subordinates (which is not to make a finding that that occurred in this case), does not constitute a form of harassment or bullying as defined above, nor does it denote any attempt to sabotage the work performance of an employee in the absence of evidence of bad faith, which has not been established on the evidence before the Board. [177] Rather than finding that Ms. Hamilton was less than sincere in her counselling efforts, the evidence supports the conclusion that the Grievor was the one in the - 67 - relationship with Ms. Hamilton who was escalating the discourse by the end of 2012, with unfounded allegations of an improper “agenda” by Ms. Hamilton and personal references to becoming “another Mark” (effectively suggesting that Ms. Hamilton was responsible for that employee’s unfortunate death), which in the Board’s view was disrespectful and may have justified disciplining the Grievor for insubordination. Ms. Hamilton’s reaction to those comments in convening an “allegation meeting” in February or March of 2013 (which never resulted in the issuance of discipline) was not unreasonable in those circumstances nor did it disclose any attempt to intimate or harass the Grievor as she has claimed. Instead the Board concludes it was a legitimate managerial response to the Grievor’s continued unsatisfactory performance if not developing defiance of her supervisor’s reasonable efforts to remedy the Grievor’s deficiencies. [178] On other matters that may have led to the legitimate issuance of discipline to the Grievor, the objective evidence before the Board also supports the conclusion that the dealings between Ms. Hamilton and the Grievor were respectful throughout, even while becoming notably strained. Ms. Hamilton’s issuance of a “Letter of Expectation” to the Grievor for failing to properly change her vacation voice-mail at the end of 2012 was a reasonable reminder for non-compliance with an explicit directive that was not followed by the Grievor. It was not a disciplinary letter as later claimed by the Grievor in her discussions with her physicians. The fact that a supervisor exercises his or her managerial authority to issue such letters or even discipline in these circumstances is not indicative of an effort to harass or bully an employee in the absence of showing any lack of arguable legitimacy to the exercise of such authority, which has not been demonstrated here. [179] The Board can similarly find no basis for the Grievor’s complaints that she was “isolated” and thus dealt with in an inappropriate or harassing manner by having her work location moved closer to Ms. Hamilton’s and to Mr. Monid’s offices on the fourth floor of the FSCO building. The right to determine, “the location of the workplace” is vested solely within management under article 2 of the collective agreement and while accepting that the Grievor might not have appreciated the change in the location of her workspace station, her complaint is so petty in the Board’s view that it is hardly worthy of comment, except to confirm what the Board increasingly came to recognize as the Grievor’s overblown sense of personal “entitlement” over the many days of her testimony. Contrary to the Grievor’s claim that her move was in furtherance of an attempt to intimidate the Grievor by placing her closer to the two managerial employees who she felt had unfairly targeted her, the Employer’s rationale for the move; namely to place a more experienced Compliance Officer among the anticipated arrival of new employees in that role, was a legitimate exercise of the Employer’s managerial rights, there being no evidence to support any inference to the contrary. [180] The relatively minor disagreement between the Grievor and Ms. Hamilton over the Grievor’s failure to schedule one of their weekly counselling sessions (which the Grievor also admitted was her “mistake”) resulting in harsh criticisms by Ms. Hamilton that could be characterized as being “verbally chastised” as claimed by - 68 - the Grievor, even if unpleasant, in the Board’s opinion does not in itself or in concert with the other events in what appears to have become a deteriorating relationship by that point, constitute harassing and/or bullying behaviour as much as it appears to be the natural outcome of the increasing frustration by both the Grievor and Ms. Hamilton. Indeed, not every disagreement or argument between an employee and his or her supervisor (in or outside the presence of other employees), which appears to have occurred on this occasion between Ms. Hamilton and the Grievor, will result in the automatic finding that the supervisor is bullying or harassing the employee. Supervisors are people too, and they sometimes express their anger and/or frustration with another that all people might in a host of circumstances. As stated in Cara Operations Ltd., supra, “the question of whether the other person’s behaviour amounts to a “departure from reasonable conduct” is an objective inquiry that given the expected variability in human capabilities and personalities, must be afforded a relatively wide margin of interpretation”. Based on the description of the “verbally chastised” incident presented to the Board, while unfortunate and seemingly an unpleasant experience for the Grievor, there is insufficient basis to conclude that Ms. Hamilton crossed the line to acting in a bullying or harassing nature even though the emotions of both participants appear to have been heightened and were certainly strained by that time. The event appears to have been an isolated incident in a relatively long history of otherwise passive interactions between these two individuals, which is not to suggest that this incident was less than polite, albeit pointed. [181] On its objective assessment of the totality of the evidence the Board also finds insufficient support for the Grievor’s allegations that the mere fact of receiving a “Does Not Meet Performance Commitments” rating in the interim January 28, 2013 and final April 25, 2013 PDP/LP performance appraisals evidenced a form of “bullying, harassing and discriminatory” conduct by Ms. Hamilton. Consistent with article 2 of the collective agreement that vests in management, “the right and authority to manage the business and direct the workforce, including…training and development and appraisal”, Ms. Hamilton’s evaluation of the Grievor’s performance was a legitimate part of her role as the Grievor’s manager. Moreover, given the record of the quality assurance and escalated complaints surrounding the Grievor’s performance leading up to the commencement of their weekly counselling sessions in April of 2012, along with the Grievor’s own acknowledgements in testifying that every documented criticism of the Grievor’s performance throughout the one year period of counselling to the final performance appraisal of April 25, 2013 was founded on admitted “mistakes” or “errors” committed by the Grievor, it is not possible for the Board to come to any conclusion other than the clear justification of the general rating of unsatisfactory performance issued by Ms. Hamilton on both occasions. Even if the Grievor disagreed with that assessment, and accepting that anyone in the Grievor’s position would find such criticism of her performance to be “unwelcome”, Ms. Hamilton’s evaluation of the Grievor was rationally supported by the evidence of the Grievor’s poor performance documented extensively before this Board. - 69 - [182] The Grievor and the Union were quite loose throughout these adjudicative proceedings with the words, “toxic” or “poisonous work environment” in debasing both Ms. Hamilton and Mr. Monid. These are damning words connoting very serious acts of alleged misconduct by these two managerial employees. Thus when they are bandied about in such a reckless or disingenuous manner by what the Board has concluded is a disgruntled Grievor who was dissatisfied with her performance appraisals the Union has the obligation to discharge an onus to prove those charges on cogent evidence. When the Union fails to do so as it has utterly failed in the instant case, it is appropriate for the Board to make it clear that there is no basis to the claims of “bullying, harassment and discrimination” by these two presumed respected members of management, lest there be any residual damage to their professional reputations as a consequence of the mere leveling of such spurious allegations against them by the Grievor. [183] Rather than pointing an accusing finger at these two managers, on the totality of the evidence and in particular, given the timing of the Grievor’s claims of being harassed and/or bullied by Ms. Hamilton and latterly by Mr. Monid that coincided precisely with the issuance of the first and second negative performance appraisals; which the Grievor urged her own personal physician, Dr. Wyman, to include as the cause of the Grievor’s medical complaints “just so we can be clear on the record”, the Board concludes that the Grievor has acted in bad faith by invoking the instant grievance proceedings in an attempt to justify or deflect from her own deficient performance if not wreak a certain vengeance on these supervisors for what the Board has found to be legitimate criticisms of the Grievor’s competence that were expressed in an appropriate manner by managerial employees fulfilling their expected roles. [184] In all of these circumstances the Board has no hesitation in dismissing the Union’s “harassment” grievance herein. (b) Did the Grievor suffer psychological, emotional and/or mental health injury, constituting a “disability”? [185] But the foregoing determination does not dispose of the Grievor’s second grievance dated September 9, 2013 alleging that the Employer failed to reasonably accommodate the Grievor’s “disability”, even though the Grievor’s claims of being bullied, harassed and discriminated against by Ms. Hamilton and/or Mr. Monid are not sustained. As the Union submits, properly in the Board’s view, the Grievor might very well have been suffering from a disability that the Employer was required to accommodate even without the demonstration of Employer misconduct as the proximate cause of the disability. [186] Given the definition of “disability” under sections 10 (1)(b) and (d) of the Code that includes “a condition of mental impairment” and “a mental disorder”, the Board accepts that an employee who has genuine symptoms of debilitating anxiety or experiences extreme stress reactions to work impeding the employee’s ability to function may be suffering from a disability. But the determination of whether a disability in such circumstances exists is a matter of - 70 - degree. Human beings are emotional creatures to greater or lesser extent, and there is a range of stress reactions to working situations that employees can reasonably be expected to bear, notwithstanding that the experience may be uncomfortable. Temporary periods of distress or apprehension, sleepless nights, loss of appetite, and the like, are common realities of the workplace that many employees must endure in the course of their careers; sometimes more often than not. Rushing to meet deadlines; making a presentation; surviving “office politics”; facing criticisms for deficient work or poor performance appraisals with the looming prospect of termination from employment; are among the multitude of situations that can reasonably result in the kind of general symptoms described by the Grievor. Some thrive in that environment while others falter; many are able to cope. The mere fact that an employee may be faltering because he or she can’t handle the stress of the workplace does not in itself constitute a disability. [187] To be sure, if the stress reaction or symptoms of anxiety by the employee to the challenges of the workplace reaches the point where the employee cannot function in his or her employment, which is ongoing or permanent, that may very well constitute a “mental disorder” being a disability in law that the employer is required to accommodate, subject to the limitation provided in section 17(2) of the Code where “the person cannot be accommodated without undue hardship”. But is that really the situation facing the Board in the instant case? On the evidence before the Board both Dr. Wyman and Dr. Hope confirmed that after a temporary period of illness during which the Grievor increased her exercise and meditation and also had only four sessions of psychological counselling ending in June, the Grievor was capable of resuming her usual duties as a Compliance Officer in the Market Regulation Branch of FSCO by August 26, 2013, without limitation or accommodation. [188] However the Board is asked to accept that the Grievor’s extreme aversion to having anything to do with her former supervisor, Ms. Hamilton and her director, Mr. Monid, no matter how remote her association with either of these individuals might be, was the proximate cause of symptoms constituting a disability of a permanent nature. The Grievor obviously dislikes these individuals and holds them personally responsible for her own failures in the workplace, even though the evidence before the Board is conclusive that these two managerial employees were dealing properly with the Grievor, who could not expect to be treated differently by any other supervisory authority in the workplace. The narrow question before the Board is whether this kind of focused anger or perhaps vengeance resulting in the reported symptoms of the Grievor constitutes a form of permanent “disability” that the Employer is required to accommodate. [189] For the Union it is sufficient proof of a permanent disability that the Grievor’s personal physician medically approved the Grievor’s return to work in as a Compliance Officer, with the reservation that the Grievor “be placed with a different supervisor.” When pressed to clarify her recommendation by Mr. Monid on July 31, 2013, Dr. Wyman wrote: “I support return to work on August 26, 2013 without specific accommodation except as previously noted with respect to - 71 - placement with another supervisor” who Dr. Wyman later explicitly identified in her September 16, 2013 letter to Mr. Monid as Ms. Hamilton. When Ms. Hamilton left the workplace, Dr. Wyman’s recommendation changed (after discussing the matter with the Grievor) in her November 6, 2013 correspondence from reporting to someone other than Ms. Hamilton to “a change in her reporting relationship” (that was understood to refer to Mr. Monid). In her last letter to Mr. Monid dated December 1, 2013, Dr. Wyman indicated that if exposed to the same “stressors” there was a risk that the Grievor’s reported symptoms of chest pain, insomnia, headaches, anxiety and loss of appetite would return, leading to the recommendation that: “There are no limitations at this point in her ability to work. The only accommodations required relate to the reporting relationships in her workplace, as discussed previously”. This along with Dr. Hope’s report that the Grievor honestly believed, “a return to the same work setting is likely to result in a return of [the Grievor’s] symptoms”, was sufficient for the Union to submit that the Grievor suffered from a permanent or ongoing disability being a form of “mental illness”, which the Board was obliged to accept from these medical opinions. [190] The proposition put to the Board by the Union is that the Grievor’s physician cleared the Grievor to return to work, without accommodation except that she not be assigned to work with Ms. Hamilton; and then when it was realized that Ms. Hamilton had retired, in any direct or indirect reporting relationship to Mr. Monid. Dr. Wyman’s medical opinion was that in an environment without Ms. Hamilton and Mr. Monid the Grievor could satisfy all of the demands of her position as a Compliance Officer, with all of its attendant stresses and requirements. The “disability” that the Board understood the Union to be identifying as supported by the medical documentation was thus a very specific form of “mental illness” (although not explicitly identified as such in any of the medical reports) that in the Union’s submission involved the requirement to avoid all direct or indirect supervisory authority over the Grievor by Ms. Hamilton and Mr. Monid (but not from anyone else); failing which the Union claimed the Grievor’s symptoms that were variously described by Dr. Wyman as a cluster of some or all of, “abdominal and chest pains”, “shortness of breath”, “anxiety”, “depression”, “insomnia”, “decreased mood”, “tearfulness”, “lack of confidence”, “pessimism”, “distraction” and “pre-occupation”, would return. [191] The Employer offered a different perspective on the same facts to the effect that, faced with legitimate criticisms of her work as a Compliance Officer, the Grievor has used her contractual sick leave entitlements and claims of having a disability to deflect from her own deficient performance in a bad faith attempt to force the Employer to reassign the Grievor to a position of her liking. According to the Employer the Union had the onus of establishing a disability that the Board could accept or reject based on its independent assessment of the cogency of the evidence. On the evidence before the Board the Employer disputed the Union’s claim of the existence of any disability in law, which was entirely dependent on the veracity of the self-reported symptoms of the Grievor that in the Employer’s submission could not be accorded much weight. The Employer also referred to Dissing v. Racz, 2001 CarswellBC 1038, 2001 BCPC 91, [2001] B.C.J. No. 1020 - 72 - (B.C. Prov. Ct.) and Re British Columbia and BCGSEU (Jansen-Jones), 2004 CarswellBC 3985, [2004] B.C.C.A.A.A. No. 227, 79 C.L.A.S. 85 (B.C. Arb.) (Germaine) in support. [192] The case of Dissing v. Racz, supra, which arose out of a minor motor vehicle accident, concerned the assessment of damages for the alleged injuries of a driver and his wife (“Claimants”) that is instructive in the way that the court considered the medical evidence proffered in support of the Claimants’ monetary claims. That medical evidence was not accepted without critical analysis. Rather, after hearing testimony from both Claimants and reviewing the medical report of their doctor, Romilly Prov. J. held at para. 45 that the doctor’s report, “leaves much to be desired and seems to be based primarily on what was reported to him by [the driver] to the point of containing several discrepancies”. Having also found that parts of the driver’s testimony concerning his injuries were “contrived”, the provincial judge concluded at para. 46 that, “[the doctor’s] report was more subjective than it should be and merely reports [the driver’s] view of his injuries and his disability without any proper findings. This coupled with the contrived manner I found the Claimants to have proceeded in this matter, led me to rely very little on [the doctor’s] report.” [193] The award of Arbitrator Germaine in Re British Columbia and BCGSEU (Jansen- Jones), supra, is similarly instructive. That case concerned a denied claim for benefits under the parties’ short term illness and injury plan (“STIIP”) for a number of symptoms said to constitute an illness that the grievor alleged had rendered her temporarily incapable of working. The parties agreed the union bore the onus of proving both that the grievor had a temporary illness and that she could not reasonably work as a result. Since the employer failed to adduce independent evidence contradicting the medical reports of the grievor’s own doctor, the union argued it had satisfied its onus on both parts of its claim while the employer submitted at para. 57 that, “because the grievor’s symptoms were largely subjective and self-reported, it is necessary to assess the reliability of the grievor’s evidence”. Arbitrator Germaine agreed with the employer, and relying on a decision by Arbitrator Glass in an earlier dispute between the parties concerning a denied STIIP claim referred to as the “Stadnyk award”, Arbitrator Germaine concluded at para. 59 that: 59.…I must carefully weigh the evidence of the self-reported conditions which provide the underpinning for the expert medical evidence. Indeed, depending on the degree of doubt cast by the surrounding circumstances, “convincing” evidence may be necessary to prove such self-reported symptoms. Where a diagnosis is dependent on self-reported complaints, the credibility of the claimant is, as Arbitrator Glass said, “absolutely key”. I adopt the following conclusions of Arbitrator Glass: …this is a case where the standard of proof to be applied to the grievor’s claims is such that I should be “exceedingly careful” and I also consider that I must decide for myself “the critical issues of credibility” which are raised in this case, and not rely on opinions expresses by doctors as to the plaintiff’s reliability, truthfulness or motivation. That is not to say that I - 73 - will ignore their views on these matters, but ultimately their views cannot be decisive. (page 4) [194] The Board adopts the foregoing test with one clarification: The onus of proof of whether the Grievor has a disability lies with the Union to be determined on the totality of the evidence before the Board on a balance of probabilities; not on any arguably higher standard that might be suggested by the word “convincing” in the above quotation to prove self-reported symptoms. In coming to its own conclusions on the matter, the Board is not bound by medical reports without critical assessment but is entitled to consider all of the circumstances revealed by the evidence, which in the instant case includes the undisputed fact that the evidence said to support the existence of a disability in the nature of what the Union asserted to be a “mental illness” or “mental health” disorder is based solely on the self-reported symptoms of the Grievor. Thus part of that assessment, particularly in the case of self-reported symptoms, must be the consideration of the Grievor’s credibility as a whole and her reliability specific to the immediate issue of her self-reported maladies. On both considerations, the Board has concluded the Grievor’s credibility or at least reliability is seriously wanting, thereby undermining her claims. [195] Aside from the substantial credibility deficit introduced by the Grievor’s failure to identify Mr. Monid as a source of the perceived “bullying, harassment and discrimination” in any of her discussions with her trusted personal physician of some ten years’ duration, before being advised in late October of 2013 that Ms. Hamilton had retired, in outlining her symptoms to both Dr. Wyman and Dr. Hope, the Grievor premised the self-reported descriptions of her physical and mental symptoms with a vision of the workplace in which she claimed to have been assigned to more work than any of the other Compliance Officers; that she was repeatedly dealt with “harshly”, “abusively” and “micromanaged” by her supervisor; that she was being “bullied”, “belittled”, “chastised” and “harassed” on many occasions about issues that there often “trivial” or “inconsequential”, in a working environment she characterized as “toxic” and “poisonous”; and with a supervisor who had a “hidden agenda”, culminating in “unfair” interim and final performance appraisals on January 28 and April 25, 2013, all of which was “enabled” or “accepted” by Mr. Monid. In addition to these charges, the Board noted the Grievor appears to have gone further in her negative depiction of her working conditions she described to Dr. Hope by adding the claims that she had been doing the same job for 24 years; that she had never been informed that there were any concerns about her performance; that she had been disciplined for forgetting to leave an alternate contact on her email during Christmas of 2012; and most significantly, she told Dr. Hope that, “Currently, she does not accept that there was anything lacking in her work…[and that]… two other colleagues went through a similar process and one was terminated and the other passed away”. [196] The Board has concluded for the reasons set out above that all of these allegations were unsubstantiated on the evidence presented. Whether as a matter of deliberate or innocent deception, or perhaps a mixture of both, the - 74 - entire premise of the Grievor’s discussions with Drs. Wyman and Hope was undermined by what the Board has determined to be the serious credibility deficiencies in all of the Grievor’s foundational assertions. In the case of Dr. Wyman, the evidence also indicates that the Grievor was overtly coaching (or at least attempting to) and sought the support of Dr. Wyman for her ongoing grievances against the Employer, by suggesting changes to Dr. Wyman’s accommodation recommendations (that shifted from no contact with Ms. Hamilton alone, to a “different reporting relationship” (singular) to “different reporting relationships (plural) as a result). Hence the Grievor asked Dr. Wyman in her November 24, 2013 email to “clarify” that the “stressors are the manager and the director in the alleged bullying and harassment”…just so we are clear and on the record” (emphasis added). This was behaviour consistent with what the Board perceived to be the Grievor’s general “calculating” nature when it came to the prosecution of her grievances. Regrettably, the Board has concluded that Dr. Wyman succumbed to the tendency to act more as a conduit (and sometimes advocate) for the Grievor’s self-reported symptoms and her unsubstantiated charges in offering a rationale for those symptoms, than being an unbiased observer and reporter of objective medical facts. [197] In the foregoing context the Board could have little confidence in the reliability of the Grievor’s self-reported symptoms (as itemized in Dr. Wyman’s November 6, 2013 letter to the Employer) of “depression, including insomnia, anxiety, decreased mood, tearfulness, lack of confidence, pessimism, distraction and pre- occupation”, along with physical symptom that included “headaches, abdominal and chest pains” that, according to the Grievor, were triggered by the mere thought of returning to a workplace that included either of Ms. Hamilton and/or Mr. Monid in any direct or indirect supervisory capacity over the Grievor’s work. While the Board is sensitive to the reality that mental illness may take many forms that are likely influenced by the subjective and/or irrational feelings of the individual, neither Dr. Wyman nor Dr. Hope described the Grievor as having a specific illness, other than referring to the Grievor’s self-reported cluster of symptoms under the general rubric of being “a mental health issue” or a “stress/adjustment reaction”, with no objective diagnostic or clinical findings to support those characterizations. [198] Moreover, it seems to the Board that one indicia of a genuine illness or disability is to look at the treatment prescribed to address the issues presented by the specific malaise. For example, in the case of a person who is depressed, has insomnia and symptoms of decreased mood, tearfulness, lack of confidence, pessimism, which are among the symptoms reported by the Grievor, one might think that medication could help; and for an employee experiencing symptoms of workplace stress or reactive anxiety to stressors presented by the employee’s supervisors and/or the rigors of the job, that in addition to drug therapy the employee might receive psychological or psychiatric counselling and/or even the services of a “life coach” to help the employee face his or her demons. [199] Yet the evidence before the Board indicates that except for four counselling sessions by a psychologist that the Grievor ceased attending by the end of June - 75 - 2013 (i.e. only two months after leaving work following her poor performance rating), the Grievor was receiving no treatment whatsoever for her claimed disability, either in the form of drug therapy or counselling. The Union did not even provide the Board (through an appropriate witness or possibly on consent) with any medical literature to substantiate the existence of the kind of disability asserted by the Grievor that is specific to an unresolvable aversion to working in an environment that has an identified individual or individuals in any direct, indirect or even incidental supervisory capacity over the Grievor. Having found nothing to support the Grievor’s claims that Ms. Hamilton and Mr. Monid acted improperly in their dealings with the Grievor, it is difficult to reconcile how any other supervisor would have dealt differently with the performance issues presented by the Grievor’s admitted “mistakes” and “errors”, who both the Grievor and her personal physician confirm that the Grievor is capable of working with successfully. [200] In such circumstances the Board concludes that the Union has failed to discharge its onus of proving that the Grievor had any permanent disability recognized in law. Rather the preponderance of the evidence, consistent with the Grievor’s inability to accept legitimate criticism of her work that she demonstrated throughout her many days of testimony before the Board, and he tendency to blame her supervisors for her own failures, supports the theory advanced by the Employer: Namely, that after being confronted with a poor final performance rating on April 25, 2013, the Grievor took advantage of her sick leave entitlement (with the assistance of an empathetic physician) to remain off work with benefits until the end of December 2013, and then through the false or embellished allegation of suffering from a “disability” to force the Employer to assign the Grievor to a position or supervisor of her liking. (c) Did the Employer fail to “reasonably accommodate” any disability? [201] But if the Board is wrong in the foregoing conclusion, it is necessary to consider the Union’s submission that the Employer breached its duty to “reasonably accommodate” the Grievor’s disability because there was no evidence before the Board that it would be an “undue hardship” for the Employer to grant the Grievor’s request for different supervision, by either assigning her to the position of “Investigative Analyst” within FSCO that Mr. Monid refused to consider, or by approving a transfer to another Ministry altogether through the “Corporate Health Reassignment” program. Thus the Union claimed that the Employer had not fulfilled its contractual and statutory obligations to accommodate the Grievor, relying upon the following authorities in support: Ottawa (City) v. Civic Institute of Professional Personnel (Ghadaksaz Grievance), [2009] O.L.A.A. No. 273, 185 L.A.C. (4th) 227 (Ont. Arb.) (P. Picher), Line Emond v. Treasury Board (Parole Board of Canada) (P.S.S.R.B.) (Gobeil), 2016 PSLREB 4 (CanLII) and Ontario (Ministry of Community Safety and Correctional Services) v. OPSEU (Ranger), 2010 CanLII 7275 (ON GSB) (Leighton). [202] In reply, and In the alternative to its position that the Grievor was not suffering from a disability requiring any accommodation whatsoever, the Employer - 76 - submitted that as a matter of established law the search for an appropriate accommodation of a unionized employee is a three-party exercise requiring the reasonable conduct of the employer, employee and his or her union. The employee cannot dictate the specific form of accommodation where several reasonable options are available and the employer acts in good faith in selecting one of those options. [203] Thus the Employer argued the offer extended to the Grievor in late October 2013 to return to work under the general direction of Mr. Monid until a new supervisor could be assigned was reasonable. When that was rejected, the Employer continued to press an offer that the Grievor return to her previous employment under the supervision of Ms. Izabel Scovino, who the Grievor had reported to in the past with no difficulty. This was after Mr. Monid was promoted to an acting Executive Director position in the fall of 2014 and thus would be expected to have even less interaction with the Grievor, which the Grievor did not respond to. Given what the Employer characterized as the Grievor’s and the Union’s unreasonable demands that the Employer either remove Mr. Monid from any association with FSCO or assign the Grievor to a different job of her liking or be made available for transfer through the Employer’s Corporate Health Reassignment program, the Employer submitted there was no further obligation to seek an accommodation for the Grievor and that any monetary losses as a result were to the Grievor’s own account. [204] The Employer also referred the Board to the following authorities: Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, 95 D.L.R. (4th) 577 (S.C.C.), Ontario Public Service Employees Union (Balog) v. Ontario (Ministry of Community, Family and Children’s Services), GSB# 1998-1972, April 21, 2010 (Ont. Grievance S.B.) (Abramsky), Re Westfair Foods Ltd. and UFCW, Local 1000A (Walkosz), 2014 CarswellOnt 8143, 119 C.L.A.S. 54 (Ont. Arb.) (Bendel), Hydro-Québec v. Syndicat des employee-e-s- de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP- FTQ), [2008] S.C.J. No. 44, 174 L.A.C. (4th) 1 (S.C.C.), Ontario Public Service Employees Union (Bartolotta) v. Ontario (Ministry of Children and Youth Services), 2015 CanLII 19329 (ON GSB) (Tims), Marian Jones v. Ontario (Ministry of Community Safety and Correctional Services), P-2005-3536, October 16, 2013 (Ont. P.S.G.B.) (Leighton) and Ontario Public Service Employees Union (Clarke) v. Ontario (Ministry of the Attorney General), GSB# 2004-3263, January 26, 2005 (Ont. Grievance S.B.) (Abramsky). [205] The Board agrees with and substantially adopts the Employer’s representations. The leading case on the obligations of employers, employees and their unions for accommodating the employment of an employee with a disability is the Supreme Court of Canada’s decision in Central Okanagan School District No. 23 v. Renaud, supra, wherein Sopinka J. set out the following governing principles at paras. 43 – 4: 43. The search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation. - 77 - […] To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with the search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered. 44. This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer’s business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O’Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer’s duty is discharged. [206] In addition to Renaud, the Board has reviewed the other cases submitted by the parties that are all fact-specific applications of the principles from Renaud. They are part of the abundance of case law “making it clear that if an employee either does not co-operate or turns down reasonable accommodation, then the employer’s duty is at an end and discharge is the inevitable result” (per Re Garda Security Screening Inc. and UFCW, Local 175 (Cicconne), 2015 CarswellOnt7297, 123 C.L.A.S. 190 (Ont. Arb.)(Baxter) at para. 263). Similarly applying the foregoing principles to the fact-specific “accommodation” grievance before this Board, the Board concludes that even if the Grievor was suffering from a disability recognized in law, she failed in her duty to accept what the Board has determined to have been a reasonable accommodation proposal by the Employer and “to facilitate the implementation of the [Employer’s] proposal”, thereby depriving her of any remedy from this Board. The Board comes to this conclusion for two primary reasons. [207] First, the Grievor’s steadfast rejection of any return to her previous employment where there was the possibility of contact with Mr. Monid presented serious credibility problems for the Grievor. As noted above, the Grievor didn’t mention any aversion to working with Mr. Monid until after being off work for almost five months; and then only focused on Mr. Monid as the target of her obvious anger when she became aware of the retirement of Ms. Hamilton. The Board could not accept the credibility of the Grievor on this point given the preponderance of the evidence best in harmony with all of the surrounding circumstances. [208] But even if the Grievor had made her aversion to Mr. Monid known immediately, the objective evidence shows that Mr. Monid’s involvement in the Grievor’s - 78 - employment as a Compliance Officer had always been incidental, which was less so after he was promoted to an acting Executive Director position. The Grievor’s adamant refusal to consider returning to work as a Compliance Officer where Mr. Monid might have any association with the Market Regulation Branch of FSCO was, in the Board’s opinion, patently unreasonable and more an expression of malice directed at an Employer raising legitimate concerns about the Grievor’s performance deficiencies than a justifiable objection to the Employer’s accommodation proposal. [209] Second, the Employer’s proposed accommodation was supported by the expert testimony of Dr. Hope. When specifically asked his opinion on whether it would have been reasonable for the Grievor to return to the workplace with another supervisor and promises by Mr. Monid that he would have limited contact with her, Dr. Hope testified that “knowing what I know based on the assessment I did, it wouldn’t be unreasonable to try”. He also expressed the view that the return to work could be accompanied with appropriate treatment if there was an increase in stress issues as a result. This was notwithstanding Dr. Hope’s report that the Grievor honestly believed that her symptoms would recur if she was returned to a workplace where Mr. Monid had any potential involvement in her employment, however remote. [210] There are two important aspects of Dr. Hope’s opinion. First, he considered it objectively reasonable for the Grievor to “at least try” to return to her previous employment under a different direct supervisor, even though Mr. Monid remained in the background. Second, Dr. Hope’s view contemplates the Grievor would do her part in facilitating the accommodation by engaging in an appropriate course of treatment, likely in the form of psychological counselling that the Grievor indicated had been beneficial in the past. Since the duty of accommodation is a joint search by the employer, employee and the union to arrive at a result that is objectively reasonable, part of the Grievor’s duty to facilitate the accommodation is to undertake any appropriate form of counselling or other treatment in order to help her to continue working in the assignment offered. An employee must do his or her part to facilitate an accommodation even where that may require participation in reasonable treatment options to help alleviate the underlying physical or mental conditions. The Grievor’s apparent refusal to even consider ongoing counselling to address her stated concerns over the proposed work assignment after Ms. Hamilton left the workplace, in the Board’s opinion, breached her obligation to take those reasonable steps. [211] The Board therefore finds that even if the Grievor’s reported symptoms in reaction to any ongoing employment association with Mr. Monid, however minimal, reflected an underlying “disability” at law, the Grievor’s failure to accept the Employer’s reasonable accommodation proposals and/or to satisfy her duty to help facilitate the search for a reasonable accommodation, independently justifies the dismissal of her “accommodation” grievance before the Board. - 79 - VI. Disposition [212] Thus for the foregoing reasons the Board concludes there have been no violations of the collective agreement and relevant statutory prohibitions related to the harassment and accommodation claims raised in the Union’s April 25, 2013 and September 9, 2013 grievances. It follows that the Grievor is not entitled to any compensation for lost wages and demands for mental distress damages since leaving her employment on April 30, 2013. [213] Consequently, the “harassment” and “accommodation” grievances herein must be and are hereby dismissed. Dated at Toronto, Ontario this 22nd day of February 2017. Gordon F. Luborsky, Vice-Chair