Waddle v. Canadian Pacific Railway & Teamsters Canada Rail Conference

Waddle v. Canadian Pacific Railway & Teamsters Canada Rail Conference
Collection
Canadian Human Rights Tribunal
Date
2017-07-14
Neutral citation
2017 CHRT 24
File number(s)
T2041/4214, T2042/4314
Decision-maker(s)
Johnston, Ricki T.
Decision type
Decision
Grounds
Disability
Family Status
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2017 CHRT
24
Date:
July 14, 2017
File Nos.:
T2041/4214 & T2042/4314
Between:
Keith Waddle
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canadian Pacific Railway
Teamsters Canada Rail Conference
Respondents
Decision
Member:
Ricki T. Johnston
Table of Contents
I. Introduction 1
II. Decision 1
III. Issues 2
IV. Facts 3
A. Family Status Ground 16
V. Preliminary Issues 17
A. Credibility of Witnesses 17
B. The Complainant’s Withdrawal of His Admission that he had been Accommodated by February 2012 and his Proposed Addition of Claims Extending Beyond February or March of 2012. 18
(i) Jurisdiction 20
(ii) Rule 9(3)(a) and (c) Leave 21
VI. Decision on the Merits 24
A. Discrimination Based on Family Status 24
B. Discrimination Based on Disability 28
(i) The Prima Facie Case 28
(ii) The BFOR 30
VII. Compensation 36
VIII. Conclusion 39
I. Introduction
[1] This is a decision regarding two separate complaints dated April 13, 2012 and made by Mr. Keith Waddle (the “Complainant”) to the Canadian Human Rights Commission (the “CHRC”). They allege the Respondents, Canadian Pacific Railway (“CP” or the “Employer”) and Teamsters Canada Rail Conference (“TCRC” or the “Union”) discriminated against him during the course of his employment on the grounds of disability and family status.
[2] On July 30, 2014, pursuant to section 44(3)(a) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the “CHRA”), the CHRC requested the Chairperson of the Canadian Human Rights Tribunal (the “Tribunal”) institute an inquiry into the complaints at which time they were consolidated as they involved substantially the same issues of fact and law (the “Complaint”).
[3] The Complainant, through his then counsel, filed a Statement of Particulars (the “SOP”) setting out the details of his Complaint. The Respondents each filed a response to the SOP. The Complainant appeared at the hearing and gave evidence, initially with counsel and later representing himself. The Complainant also had an expert witness give evidence on his behalf. Each of the Respondents appeared at the hearing with benefit of counsel and called several witnesses. The CHRC did not attend the hearing and made no submissions.
II. Decision
[4] For the reasons set out below, I find no prima facie case of discrimination based on family status against either Respondent, and that portion of the Complaint is dismissed.
[5] I further find for the reasons set out below that the Complainant has shown a prima facie case of discrimination based on the ground of disability against each of the Respondents. However, the restrictions imposed on his employment were based on a bona fide occupational requirement (“BFOR”), and the Complainant was fully accommodated at all relevant times to the point of undue hardship. The claim of discrimination on the ground of disability is dismissed.
III. Issues
1. Did the Complainant establish a prima facie case of discrimination by CP under section 7 of the CHRA, based on Family Status?
2. Did the Complainant establish a prima facie case of discrimination by CP under section 7 of the CHRA based on Disability?
3. Did the Complainant establish a prima facie case of discrimination under section 10 of the CHRA by TCRC based on Family Status?
4. Did the Complainant establish a prima facie case of discrimination under section 10 of the CHRA by TCRC based on Disability?
5. If the Complainant establishes a prima facie case of discrimination based on disability, can the Respondents or either of them prove that the impugned restrictions were based on a BFOR?
a. Was the restriction on the Complainant’s work adopted for a purpose rationally connected to the performance of the job?
b. Was the restriction adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose?
c. Was the restriction reasonably necessary such that it was impossible to accommodate the Complainant without imposing undue hardship on the employer, having regard to health, safety and cost?
d. Did the Respondent TCRC, by virtue of its duty as a third party in the accommodation process, accommodate the Complainant to the point of undue hardship?
6. Did the Complainant take reasonable steps to facilitate the accommodation process?
IV. Facts
[6] The Complainant began working for CP in 1986. In 2011 he was employed as a locomotive engineer (an “LE”) at CP’s terminal in Lethbridge, Alberta (the “Home Terminal”) and was a member of the Respondent TCRC. In this job, he was driving trains from his home terminal to various other terminals in Southern Alberta (the “Away Terminals”) and back.
[7] By 2011, the Complainant was in unassigned service. This meant he was required to be on-call during his shifts and would get a phone call during this on-call period, giving him at least two hours’ notice of his start time. After arriving at the given start time, he would be required to operate a train for up to 12 hours to an Away Terminal, then would be allowed up to 8 hours of rest time, after which he was on-call again waiting to begin the up to 12 hour shift back to the Home Terminal.
[8] While employed by CP, the Complainant experienced a number of medical issues, including ongoing difficulty with his neck and spine and osteoarthritis in his knee. These conditions had been raised with Occupational Health and Safety (“OHS”) at CP over the years but had not prevented the Complainant from carrying out the job of LE in unassigned service. By 2010, however, the Complainant was experiencing increased difficulties with sleeping, and increasing anxiety, while waiting to be called for a shift. As a result, he was forced to report medically unfit for work 59 times in 2010 and 33 times in the first half of 2011. He also reported to his physician that he had fallen asleep on two or three occasions while driving a train.
[9] The Complainant’s evidence was consistently that, regardless of his medical status, he preferred to stay in unassigned service as an LE out of the Lethbridge terminal. A position with CP in assigned service as an LE, by contrast, involved set shifts in the yard at the Lethbridge terminal, with no call-out window.
[10] CP led evidence, unchallenged by TCRC and the Complainant, that the Complainant’s position as an LE was Safety Critical. In a Safety Critical position, impaired performance due to a medical condition could result in a significant incident affecting the health and safety of employees, the public, property or the environment.
[11] The Complainant sought out an expert physician, Board Certified in Sleep Medicine, who was also a Sleep Medicine Consultant (the “Sleep Specialist”) on April 11, 2011. The Complainant gave evidence, as did the Sleep Specialist, who was an expert witness for the Complainant, that he did not discuss with her the general working conditions or options at CP, and that she was not familiar with railway operations generally. Instead, the Complainant asked the Sleep Specialist to recommend to his Employer an LE position in unassigned service with a call-out window restricted to the period between 5 a.m. and 5 p.m. He asked for this schedule because it had worked for him when he was based in Calgary a number of years prior, at which terminal this particular call-out window was applied to all LEs in unassigned service.
[12] Based on her diagnosis of a suspicion of Circadian Sleep Rhythm Disorder, the Sleep Specialist recommended a call-out window of 5 a.m. to 5 p.m. for a three month trial period. The Sleep Specialist’s evidence was that when she made this recommendation, she did not know what other options the Complainant had, nor did she know that the 5 a.m. to 5 p.m. call-out window could still have required the Complainant to drive a train overnight. She recommended it because the Complainant requested it.
[13] OHS sought and on June 20, 2011 received a clarification from the Sleep Specialist that the Complainant could work 12 hour shifts, and could work past 5 p.m., as long as he received the call to start work before 5 p.m. The Chief Medical Officer (“CMO”) gave evidence that after considering the Sleep Specialist’s report, her clarification and existing medical records on the Complainant’s other medical conditions, OHS created a Fitness To Work Assessment Form (“FTWAF”) that confirmed the Complainant could continue to work in the Safety Critical Position of LE, with a call out window between 5 a.m. to 5 p.m., 12 hour shifts, and lifting restrictions.
[14] OHS sent the FTWAF to CP’s Return to Work (RTW) Committee, for consideration of an appropriate accommodation. On July 6, 2011, this FTAWF and a proposed accommodation plan were the subject of a RTW meeting involving the Complainant, a member of CP’s RTW Committee, and two members of TCRC (“First RTW Meeting”).
[15] The Complainant’s evidence was that at the time of the First RTW Meeting, he wanted CP to create him a position as an LE in unassigned service at Lethbridge, with a restricted 5 a.m. to 5 p.m. call-out window. CP’s evidence was that they rejected this option because the call-out window could not be managed at the Away Terminals, as no other employees at Lethbridge used it.
[16] The Complainant’s evidence was that he thought everyone involved in his return to work process would understand the Sleep Specialists’ 5 a.m. to 5 p.m. call-out restrictions would not apply at the Away Terminals, and that he told CP and TCRC at the First RTW Meeting that he would seek a further modification of his medical restrictions, to limit the 5 a.m. to 5 p.m. call-out window to the Home Terminal.
[17] Given, however that at the time of the First RTW Meeting, the Complainant was still restricted to a 5 a.m. to 5 p.m. call-out window at all locations, other potential accommodations were discussed. These included: office work—rejected because the Complaint could not read well; relocation—rejected because the Complainant was unwilling to relocate; mechanical engineering positions—rejected because of the need for displacement of a more senior employee; and finally, an accommodation within his own job—rejected due to his medical inability to manage the call-out windows during shifts.
[18] The Complainant’s evidence was that he had asked his Union representatives at the First RTW Meeting to indicate on the RTW Plan that he was unwilling to relocate due to family obligations. Relocation was an issue in this accommodation process, as there were positions in Calgary in which the Complainant could have been accommodated. The original RTW Plan did not make reference to family obligations, but instead just stated that the Complainant was unwilling to relocate. The Complainant took significant issue with this at the hearing, and gave evidence that the failure to indicate family status obligations on this form was part of a plan to force him to relocate at some later date. TCRC’s witnesses refuted this. The Tribunal will not reproduce this evidence in detail, as the RTW Plan was ultimately revised to include family obligations as a reason for not relocating, and the Complainant was never required to relocate.
[19] At the conclusion of the First RTW Meeting, an RTW Plan was signed that included OHS’ medical restrictions. The RTW Plan contemplated the Complainant working any of the day and afternoon shifts in assigned service, as an LE in the Lethbridge Yard. These shifts had no call-out window, and complied with his lifting restrictions, so he could work 5 shifts per week within his restrictions as they stood at that time.
[20] The Respondent CP did call evidence about its refusal to create a unique position in unassigned service, with a 5 a.m. to 5 p.m. call-out window at the Lethbridge terminal:
a. The 5 a.m. to 5 p.m. call-out schedule applied to all the unassigned LEs at the Calgary terminal. It did not exist in Lethbridge;
b. Additional employees would, depending on the time of call-out, be required to travel to an Away Terminal to bring back trains, should those trains be needed before the Complainant’s call-out window;
c. The schedule would involve increased uncertainty for other employees, including the conductor, who travelled on the trains with the Complainant, as they would be required to wait additional amounts of time at the Away Terminal to support the call-out window;
d. The increased uncertainly in the scheduling of the employees could lead to safety concerns in their work, which was Safety Critical; and
e. It would likely result in a loss of income for the Complainant, as he would miss shifts that came outside his call-out window, that would then go to an LE with no such restrictions.
[21] I find creating a 5 a.m. to 5 p.m. call-out window for the Complainant in Lethbridge would have caused considerable expense to CP and would have posed a health and safety risk to other CP employees. The Complaint’s suggestion during the accommodation process that the call-out window could be applied only at the Home Terminal --and not the Away Terminal-- was medically counter-indicated, and could not be considered by OHS in light of the restrictions the Complainant’s Sleep Specialist had recommended. I accept CP’s CMO’s evidence that a medical restriction, if necessary, must be applied consistently. However, I also find as a question of fact, based in particular on the Sleep Specialists’ own evidence, that she would not have recommended this 5 a.m. to 5 p.m. call-out window if she had known it could have resulted in the Complainant driving a train overnight. This proposed accommodation was medically counter-indicated by the Complainant’s own physician, and therefore does not warrant detailed consideration.
[22] Even though, as a result of the First RTW Meeting, an accommodation in assigned service had been developed for the Complainant, he continued to try to modify his medical restrictions to resolve the Employer’s concerns about managing the 5 a.m. to 5 p.m. call-out window at the Away Terminals. He spoke to his Sleep Specialist, and asked her to confirm that he needed the 5 a.m. to 5 p.m. call out window restriction to apply only at the Home Terminal. She provided this confirmation.
[23] The CMO gave evidence that it was inconsistent with the Complainant’s medical diagnosis to have a medical restriction that applied in one location, but not another. Given this, OHS did not relay the modified restriction to management and the Union, but instead asked the Sleep Specialist for clarification.
[24] While this discussion about restrictions between the Sleep Specialist and OHS was ongoing, on July 19, 2011, a letter of agreement was executed between CP and TCRC that allowed for the terms of the Complainant’s RTW (“First RTW Agreement”). He was to work in assigned service in the Lethbridge Yard as an LE, and if needed, a more senior member of TCRC would be bumped to allow the Complainant to work the more senior employee’s shifts. At this time, however, no bump would be required, because the Complainant’s restrictions (which at this point still allowed for overnight shifts), would allow him to work five shifts a week within his seniority.
[25] Subsequent to this First RTW Agreement, the Complainant made a telephone call to an OHS nurse at CP, of which he made an audio recording. The Complainant, at the hearing of this matter, submitted a recording of several telephone calls he had had with members of CP management, employees with OHS, and his Union representatives. All the recordings were made without the knowledge of the other participants in the calls. These recordings had not been previously disclosed to either of the Respondents. The Respondents objected to their admission, based on issues of timeliness, reliability and credibility. Also, the Respondent TCRC raised a concern that allowing surreptitious recordings to be admitted as evidence in the hearing could stifle open discussions in the labour context.
[26] Despite the arguments of the Respondents, I allowed the tapes to be admitted, in accordance with section 50(3)(c), and subject to a subsequent assessment of their weight. I have considered their reliability and the credibility of the statements made within them, and I note a number of concerns. There is no ability for the Tribunal to assess the extent to which the participants in the calls felt the obligation to be truthful on those calls. Some of the recordings produced were of poor quality, and portions of the calls were inaudible. Some of the recordings were incomplete. The Complainant was able to provide only a general time period, rather than a particular date, for many of the calls. Furthermore, many of the statements made by the Complainant in the recordings were simply a repetition of his position before this Tribunal.
[27] With regard to TCRC’s argument that admission of these tapes would stifle communications in labour matters, I reject same. These discussions, whether recorded or not, would to a large extent be admissible in this matter, based on the relevance of their content. The only distinction is how the evidence was given: by tape, rather than through testimony of a live witness.
[28] To the extent that the aforementioned concerns give rise to issues of both the reliability and credibility of the statements made therein, I have accorded little weight to the recordings. Also, to the extent that the recordings simply tend to replicate evidence the Complainant himself gave at the hearing, they did not assist the Tribunal in resolving any dispute of material fact.
[29] In the Complainant’s recording of his conversation with the OHS nurse after the First RTW Agreement, the Complainant stated he had been open to working overnight in unassigned service on the road, but he could not work overnight in assigned service in the yard. The OHS nurse advised him, that according to his medical profile, he was not medically restricted from working overnight only from certain call-outs, and his medical restrictions would have to be updated to deal with overnight shifts.
[30] In August of 2011, the Complainant had his Sleep Specialist update his restrictions to allow him to work in the yard, provided he had a regular start time every day with no ‘graveyard shifts’. It is only at this point that the medical restrictions changed from a restricted call-out to restricted shifts. The Sleep Specialist’s evidence was that it was only at this point that the Complainant advised her as to the availability of assigned service.
[31] The CMO communicated these revised restrictions to the Complainant’s manager and the Union. Given some confusion as to the meaning of a graveyard shift, the Complainant continued to be assigned two shifts requiring him to work past midnight. After communication by the Complainant with OHS, the RTW Committee, the Employer and TCRC, this restriction was ultimately applied appropriately by November of 2011.
[32] In or around September 2011, CP drafted a second RTW Agreement (the “Second RTW Agreement”), which included the restrictions of morning and afternoon shifts only. The Second RTW Agreement also required that TCRC bump a more senior person, if needed, to allow the Complainant to work within his restrictions. TCRC’s evidence was that in order to allow the Complainant to have a guarantee of 5 shifts per week within his restrictions, a more senior LE who was very close to retirement, and had ongoing health issues, would have to be bumped. The Union did not sign the Second RTW Agreement.
[33] At all relevant times, shifts were assigned to employees of CP based on a bid-card they submitted, and their respective seniority. TCRC’s evidence was that they repeatedly asked the Complainant to update his bid-card to ensure he got all the additional shifts he was entitled to, within his seniority (in addition to the three shifts he already had per week). TCRC’s evidence was that completing this bid-card was a simple standard process with which all employees of CP would be familiar.
[34] Between late September and November of 2011, during which time the Complainant had three shifts per week in assigned service with the opportunity to bid for additional shifts, the Complainant continued to seek further accommodation, and in particular, to return to unassigned service. The records from his Sleep Specialist include the following annotations in November 2011:
He would like to be eligible to work shifts on the road again, rather than being restricted to the yard only. As we had discussed, this was something that we had requested only because he did not think that there were any shifts on the road that would be able to meet his accommodation need…He has requested my support for several possible shifts. I made it clear to Keith that while I can make recommendations as to his start times, I would not be providing any recommendations in terms of the nature or location of work.
[35] The CMO’s evidence was that the Complainant’s case was one of the most complicated in the workplace. In the period between April and November of 2011, OHS and the Complainant’s physicians were trying to clarify not only the new restrictions regarding his sleep disorder, but also the additional restrictions regarding his osteoarthritis in his knee (a changing and ongoing condition), as well as his lifting restrictions resulting from his C-spine injury. The efforts of OHS during this time were extensive, and the records show continual ongoing review of —and requests for— medical information and clarification. The records also show that the Complainant was in contact with OHS by telephone.
[36] During this time, TCRC, the Complainant and CP were engaged in discussions about three possible accommodation proposals, in addition to the assigned service shifts the Complainant had already been provided.
a. The union was asked to bump a more senior LE to allow Mr. Waddle all 5 shifts per week in assigned service as an LE in the Lethbridge yard. TCRC did not bump this senior employee.
b. CP was asked to create a position for the Complainant doing a bundle of tasks, or doing office work, to make up the two additional shifts each week. CP’s evidence was that they could not find meaningful office work or bundled tasks for the Complainant.
c. CP offered the Complainant work as a yard foreman in assigned service, with a modification of duties and the addition of a helper. The discussion of this accommodation did not proceed, as the Complainant indicated he thought this would be too much work for the helper, and too difficult for him. In January of 2012, the Complainant provided additional medical evidence indicating he was restricted from the job of yard foreman, even as modified, as a result of his knee.
[37] A Second RTW Meeting between the Complainant, TCRC representatives, and CP took place on November 22, 2011. The accommodation options noted above were discussed, but little progress was made as the Complainant was seeking further medical documentation to confirm his medical restrictions, in particular, in relation to walking.
[38] In September of 2011, TCRC asked the Complainant for a release allowing them to review the Complainant’s medical records, as part of the accommodation process. TCRC’s internal documents tendered in evidence indicate that on September 9, 2011, CP had sent an email to TCRC indicating that the Complainant would now have to be accommodated by bumping a senior person. TCRC agreed in its evidence that it was only upon receipt of this email that access to the Complainant’s medical records was requested.
[39] On September 14, 2011, TCRC executive members exchanged emails challenging the medical restrictions defined by OHS for the Complainant. The email exchange concluded with one TCRC officer noting: “We will (not) subrogate our seniority because person makes subjective complaints.” (While the email itself omits the italicized “not” TCRC agreed in its evidence it was intended to be included.) TCRC also agreed in its evidence that they had had no one with any medical expertise to assess the Complainant’s medical records, and that they did not obtain a third party medical review in this case. The Complainant, in the correspondence adduced, and in his testimonial evidence, expressed his concern at being compelled to provide confidential medical records to his Union.
[40] In late 2011, TCRC received an executed release from the Complainant. The Complainant’s evidence was that it was provided only because he felt he had no other option. TCRC performed its review of the Complainant’s medical records. On January 3, 2012, TCRC executive members exchanged emails that challenged the conclusions of the CMO, OHS, and the Sleep Specialist. One such email read as follows: “What a great criteria for an accommodation; go complain to the doctor I have a problem sleeping so I can bump to that cozy day job. Dame (sp) too late I am already the senior guy. IT IS ALL SELF REPORTING.”
[41] Shortly after this January 3, 2012 email, TCRC wrote to the Complainant’s then counsel: “Your self-reported condition will not allow us to modify any position in Lethbridge based on your seniority. We are not able to adjust seniority on the basis of your self-reporting of a condition.” TCRC then suggested in this letter that the Complainant should move to Calgary.
[42] Dave Abel, a witness for TCRC testified that bumping seniority was not uncommon, and in fact, he had done it on more than 17 occasions in one year. Based on the email correspondence, as well as the testimony before me, I find TCRC’s perception of the nature of the Complainant’s primary disability (which it viewed as being psychological rather than biological in nature) was, at least in part, the reason for TCRC’s refusal to bump a more senior employee as part of the accommodation process. TCRC was not concerned solely with preserving the principle of seniority.
[43] I find that while TCRC was actively engaged in the Complainant’s accommodation process, having, for example, participated in two RTW meetings, several phone calls, and active consideration of his accommodation needs, TCRC’s participation was restricted by a bias against the Complainant. The Union believed that the Complainant’s circadian rhythm sleep disorder somehow did not constitute a real disability deserving of accommodation, through the taking of such measures as bumping a more senior member of TCRC.
[44] Having reviewed the evidence about the steps taken by CP and TCRC to find an accommodation for the Complainant, I would also note shortcomings in the Complainant’s participation in this accommodation process:
a. As a result of his focus on obtaining the 5 a.m. to 5 p.m. call-out window he desired, the Complainant provided the Sleep Specialist with inadequate information to determine appropriate medical restrictions. By designing his own preferred accommodation and seeking it directly, he made the process of arriving at a suitable accommodation more lengthy;
b. As will be discussed in depth below, I find the Complainant also failed to update his bid-card to ensure he obtained 5 shifts per week, as many times as possible between September of 2011 and February of 2012. TCRC led evidence that there were numerous shifts during this time to which the Complainant had been entitled, and which he would have been given if he had bid on them. I find below that the Complainant had no reasonable explanation for his failure to bid on these shifts.
[45] With respect to this last point, a significant issue in this matter is whether the Complainant updated his bid-card as requested, to ensure he received as many shifts as possible as part of the efforts to accommodate him. I have concerns regarding the credibility of the Complainant’s evidence that he did complete an updated bid-card. In an October 24, 2011 letter to the Complainant’s then counsel, TCRC had drawn attention to a full week of shifts to which the Complainant had been entitled during the week of October 17, 2011, but for which he did not bid. TCRC reiterated the Complainant’s obligation to bid for positions within his restrictions, to ensure he obtained five shifts per week as often as possible.
[46] At the hearing of this matter, the Complainant introduced a photocopy of a document purporting to be a bid-card for this October 17, 2011 week of shifts. The Complainant’s evidence was that he submitted this bid-card, but that the shift went to a less senior employee because of an error in the bid-card. He could not point out the error, and he could not produce a fax sheet confirming the card was submitted, although he agreed it was standard practice for railway employees to retain the fax confirmation sheets generated in submitting any bid-cards.
[47] At the hearing, a witness for TCRC produced a summary of a number of other weeks of work between September of 2011 and February of 2012 to which the Complainant was entitled, but which he failed to obtain. These opportunities arose when a more senior employee with shifts within the Complainant’s restrictions was absent on annual leave, sick leave, or for other reasons. That employee’s shifts would become available to the most senior employee who had submitted a bid-card. There were numerous weeks between September of 2011 and February of 2012 when the Complainant was the most senior employee, but did not receive the work. Given that the bid-card, once submitted, would stay in place ensuring the Complainant would obtain these additional shifts, the Complainant had no explanation for why he did not obtain these shifts.
[48] I have concerns regarding the reliability and authenticity of the bid-card submitted into evidence by the Complainant. It simply defies logic that this bid-card would somehow have been overlooked on more than six occasions without explanation. Further, none of the witnesses for TCRC or the Complainant himself, despite being familiar with the bid-card system, was able to identify the alleged error in the bid-card. The Complainant also provided no explanation for why he did not correct the alleged error in the bid-card, when his failure to obtain a week of shifts was brought to his attention in October of 2011.
[49] I find on a balance of probabilities that the Complainant did not update his bid- card to ensure he received as many shifts in assigned service as possible. Rather, the Complainant worked the three shifts per week to which he was entitled, and continued to seek additional accommodation in unassigned service from CP and TCRC until February of 2012.
[50] The Complainant led evidence regarding his losses as a result of the alleged discrimination. He argued that employees of CP working as LEs in unassigned service told him they were making incomes much larger than those he earned in assigned service. He called no witnesses on this point, and provided no records supporting the incomes to which he was comparing his own.
[51] CP led evidence and produced records, through its witness from its pension department, that the Complainant’s income remained stable throughout 2011, and continued to increase as he worked in assigned service until his retirement in February of 2016. In the particular months coinciding with the accommodation process between June of 2011 and February of 2012, the Complainant gave evidence that he had lost 30% of his income, threatening his home ownership. In fact, CP’s records revealed that his earnings each month were either higher than for the months in the previous years, or between 1-5% lower. The Complainant, despite being provided an opportunity by the Tribunal, did not challenge the accuracy of these records or the testimony given in relation thereto.
[52] I find as a fact that the Complainant, throughout the accommodation process in 2011 and early 2012, was able to sustain his earnings on a consistent basis. Some examples of this are as follows:
a. in a pay period falling within October of 2010, the Complainant’s actual earnings were $4,638.44. In the same pay period in October of 2011, his actual earnings were $5,186.40;
b. in a pay period falling within March of 2010, the Complainant’s actual earnings were $900 more than he earned in the same pay period in March 2012. However, in a pay period falling within April of 2012, the Complainant’s actual earnings were $2,900 more than they were in the same period in April of 2010;
c. in 2010, the Complainant’s lowest actual earnings in one pay period were $4,190.48 and his highest actual earnings in one pay period were $6,378.68. In 2011, the Complainant’s lowest pay in a single pay period was $4,218.10 and his highest was $6,706.64. Both the highest and lowest amounts increased during the process of accommodation;
d. also the Complainant’s annual income generally increased or remained stable each year following the accommodation process, and until his retirement.
Further, I find as a fact that the Complainant’s five highest earning years for the purposes of calculating pension benefits, described as annual pensionable earnings, were in 2011, 2012, 2013, 2014 and 2015, namely years corresponding to this accommodation process and the period that followed it.
[53] The pension witness for CP was also able to determine that any impact on the Complainant’s pensionable earnings would have arisen only through the accommodation period, as a result of the decision to describe some of the Complainant’s missed shifts as “company business” rather than “medically unfit”. This was done based on the Complainant’s supervisor’s mistaken belief that it would protect pensionable earnings. Instead, it resulted in a differential pension payment of approximately $7.03 per month, dropping the Complainant’s monthly pension payment from $3,719.97 to $3,712.94.
[54] Such loss in pension amounts, however, would have been off-set by a subsequent increase in pensionable earnings, as the Complainant was able to increase his pensionable earnings from $71,333.71 in 2010, to $86,229.90 in 2014 and $82,617.59 in 2015. In the years from 2011 and up to and including 2015, the Complainant’s average annual pensionable income was $80,226.55. The average income in the five years preceding was only $67, 373.88. Any impact to the Complainant’s pensionable income, and therefore to pension amounts, from the accommodation process and switch to assigned service was minimal at most.
A. Family Status Ground
[55] The Complainant led limited evidence of his obligations to his parents in Lethbridge. In particular, he did not indicate, what, if any eldercare activities he carried out on either of their behalves. He led evidence his father was residing in a care facility, and had Alzheimer’s disease, and his mother lived independently. They both lived in Lethbridge. He also led evidence that he had returned to live in Lethbridge to be near his parents. I would note that in his final argument, the Complainant indicated that if he moved to Calgary, his mother would have to sell her home. He led no evidence of this in the hearing, and I therefore decline to consider the point.
V. Preliminary Issues
A. Credibility of Witnesses
[56] At points, there was disagreement between the Complainant and the Respondents as to the facts in this matter. A number of elements of the Complainant’s testimony raised concerns regarding the reliability of his evidence. While I found the Complainant made efforts to be truthful, I also found he tended to tailor his evidence so as to have it presented in a manner most favourable to him:
a. During examination in chief he was asked directly by the Tribunal if he had further tape recordings of telephone conversations that he had not produced. He denied it, but then admitted in cross-examination that he had many more tapes, but had excluded those that were not “as helpful”.
b. The Complainant repeatedly stated he was close to losing his home as a result of a decline in his income. CP’s evidence, however, showed his income had remained stable through the accommodation process in 2011, and had then increased in 2012 and 2013. The Complainant could not provide an explanation for this discrepancy.
c. The Complainant gave evidence in examination-in-chief that he had been forced to sit in the back of the room at the First RTW Meeting, but then admitted in cross-examination that the seating was changed to place him at the front and ensure his participation.
d. Several times during cross-examination, when faced with a fact not helpful to him, the Complainant avoided questions.
e. The Complainant’s evidence about submitting his bid-card was inconsistent with the undisputed facts about how the bid-card system works.
[57] I further find that the four witnesses for the Respondent CP testified in a forthright, straightforward manner that was consistent with the records produced. Generally, where the evidence of the Complainant differs from that of the Employer’s witnesses, I prefer the evidence of the Employer’s witnesses.
[58] I did find, in general, that the TCRC witnesses gave evidence in a truthful manner. As I have addressed above, I have found evidence of a bias within the TCRC towards the Complainant’s disability, based on its psychological nature. However, TCRC’s witnesses were not evasive when presented with this evidence at the hearing, and while they may have disagreed with the significance of the comments executive members had made in their own email records, their testimony in relation to them remained straightforward. As a whole, I find the witnesses for TCRC to be credible, and to the limited extent that their evidence differs from that of the Complainant, I prefer the evidence of the TCRC witnesses.
B. The Complainant’s Withdrawal of His Admission that he had been Accommodated by February 2012 and his Proposed Addition of Claims Extending Beyond February or March of 2012.
[59] The Complainant’s SOP, filed October 31, 2014, included an admission that the Complainant was fully accommodated by February of 2012. Prior to the original hearing dates in this matter scheduled on November 15 and 16, 2015 (“Original Hearing Dates”) the Complainant, through his counsel, sought to raise claims not included in the SOP relating to ongoing discrimination from February of 2012 until late 2015.
[60] At the Original Hearing Dates, the Complainant’s counsel indicated his desire to proceed with these claims for the period February 2012 to late 2015, and the Respondents objected. At that time, the Complainant, through his counsel, also requested leave to amend the SOP to add family status as a ground of discrimination.
[61] The Original Hearing Dates in this matter were adjourned for unrelated reasons. During a subsequent case management conference call (“CMCC”), the Tribunal directed the Complainant to bring an application seeking any amendments to the SOP he believed were needed, given the recently arising matters. The Complaint brought an application to amend the SOP to include family status as a ground of discrimination, and he was granted leave to do so (see Waddle v. CPR and TCRC 2016 CHRT 8, “the 2016 Ruling”). No other amendments were sought.
[62] The hearing in this matter resumed, based on the now amended SOP, on March 17, 2016 (“Resumed Hearing Date). In the examination-in-chief of the Complainant during the Resumed Hearing Dates, he sought to enter documents, not previously disclosed, to support a claim of discrimination in respect of events occurring after February of 2012.
[63] This additional claim would have significantly altered the amount of damages sought for loss of