Christoforou v. John Grant Haulage Ltd.

Christoforou v. John Grant Haulage Ltd.
Collection
Canadian Human Rights Tribunal
Date
2020-10-19
Neutral citation
2020 CHRT 33
File number(s)
T2097/1315
Decision-maker(s)
Khurana, Jennifer
Decision type
Decision
Decision status
Final
Grounds
Age
Disability
Summary:
For 33 years, Michael Christoforou drove cement trucks for John Grant Haulage Ltd. The job was dangerous and required a lot of skill, concentration, and alertness. Drivers were expected to work 45 hours per week.
In 2010, Mr. Christoforou called in sick to work. He was told he would be fired if he didn’t show up. He didn’t go in, and the company suspended him. Afterwards, his doctor wrote a medical note for him. It said that he couldn’t work more than 40 hours per week due to stress and fatigue. He was later fired.
Mr. Christoforou said that the company discriminated against him based on disability and age.
The Tribunal found that the key issue was whether the company could have safely accommodated Mr. Christoforou. Instead of trying to figure out what he could do, the company took an “all or nothing” approach. Either he could drive with no restrictions, or he couldn’t work at all. They did not seek more information. They did not explore alternate arrangements. They did not ask to test him.
The company said that they simply couldn’t consider accommodations for a driver with any medical restrictions. They claimed this was because of safety concerns. The Tribunal did not accept the company’s argument. If an employer could cite safety as a reason not to engage in any efforts to accommodate, many other workers in “safety sensitive” jobs could be suspended or fired without any investigation into their actual abilities. To comply with human rights law, efforts to accommodate must be meaningful.
The Tribunal decided that John Grant Haulage Ltd. discriminated against Mr. Christoforou based on disability.
This matter was heard in 2016-2017. The original Tribunal member never wrote a decision, and eventually stopped responding to communication. With the consent of both parties, the chair of the Tribunal reassigned the case to another member in January 2020. In its decision, the Tribunal apologized to the parties for the unacceptable delays that they experienced.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2020 CHRT
33
Date:
October 19, 2020
File No.:
T2097/1315
Between:
Michael Christoforou
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
John Grant Haulage Ltd.
Respondent
Decision
Member:
Jennifer Khurana
Table of Contents
I. OVERVIEW 1
II. DECISION 1
III. BACKGROUND TO THIS DECISION AND WHY I AM WRITING IT 2
IV. THE HEARING AND THE SCOPE OF THE COMPLAINT 4
V. FACTUAL CONTEXT 6
VI. ISSUES 11
VII. REASONS AND ANALYSIS 12
A. Age 12
B. Legal Framework 12
Issue 1: Has the complainant established a prima facie case of discrimination under section 7 or 10 of the Act, or both, because the respondent refused his request to work reduced hours and refused to employ him? 14
Issue 2: If the complainant established a prima facie case, has the respondent provided a valid justification for its otherwise discriminatory actions? In particular, has it established that the requirement to work without any medical restrictions was a bona fide occupational requirement (BFOR)? 16
VIII. REMEDIES 31
Issue 3: If the respondent cannot establish a justification, what remedies should be awarded that flow from the discrimination? 31
IX. ORDER 31
I. OVERVIEW
[1] Michael Christoforou, the complainant, was a commercial tractor trailer driver from 1977 until 2010 with John Grant Haulage Ltd., the respondent. The respondent is a regional and long haul trucking company that transports bulk cements and resins in Ontario, Quebec and parts of the United States.
[2] In 2006, the complainant gave the respondent a doctor’s note recommending that he not work more than 45 hours a week due to ongoing stress and anxiety. For the next 4 years the complainant continued working for the respondent, often exceeding 45 hours a week if he felt up to it. In May 2010, the complainant tried to book off work for health reasons, but was suspended for failing to report for work. He provided the respondent with a letter from his doctor recommending that he work no more than 40 hours a week for health reasons. The complainant has not worked for the respondent since. The respondent would not allow Mr. Christoforou to come back to work without medical confirmation that he was fit to drive without any restrictions.
[3] This case turns on whether it was discriminatory for the respondent to deny the complainant’s request to work reduced hours and ultimately to refuse to continue to employ him. The complainant argues that his employer did nothing to try to accommodate him. The respondent justifies its decision on the basis of safety. It could not risk putting the complainant back on the road unless he was fit to drive, and it could not accommodate the complainant short of undue hardship.
II. DECISION
[4] The complaint is allowed. Mr. Christoforou has shown that the respondent’s denial of his request for accommodation and refusal to continue to employ him constitute a prima facie case of discrimination on the ground of disability. The respondent did not establish that it would have been impossible to accommodate Mr. Christoforou without suffering undue hardship.
[5] The complainant is entitled to remedies, but I will need to seek clarification from the parties before making an order. I am asking the parties to consider resolving this on their own or with the Tribunal’s assistance in mediation. If not, the Tribunal will contact the parties to determine next steps.
[6] The complainant’s discrimination allegations on the basis of age are dismissed.
III. BACKGROUND TO THIS DECISION AND WHY I AM WRITING IT
[7] I am writing the final decision in this case, but I did not hear it. This case was reassigned to me by the Chairperson in January 2020 with the consent of the parties. Given the circumstances that led to this reassignment, I am compelled to review some of the background that led to me taking carriage of this file.
[8] This file was initially assigned to the former Vice-Chairperson of this Tribunal. It was later reassigned to Member Dena Bryan who conducted the hearing of this complaint over 13 days in 2016 and 2017 (October 31 to November 4, 2016; November 14 to November 18, 2016 and January 23, 25 and 27, 2017).
[9] Ms. Bryan made two procedural rulings in this case. The first granted the complainant’s motion to exclude the report and oral evidence of a proposed expert witness (2016 CHRT 14). The second denied a motion filed by the respondent shortly after the end of the hearing in January 2017, asking that Ms. Bryan recuse herself due to a reasonable apprehension of bias. Approximately 5 months later, Ms. Bryan denied the motion and wrote: “As I stated at the conclusion of the hearing, I will review the evidence and submissions thoroughly and carefully, and make a decision supported by comprehensive reasons (2017 CHRT 17 at paras 37-38) (emphasis added).”
[10] Unfortunately, this did not happen. Ms. Bryan did not render a final decision or issue any reasons. The parties inquired multiple times as to the status of the decision in 2018 and 2019. Ms. Bryan promised that a completed decision would be issued several times. Yet she did not issue reasons and the parties were kept waiting.
[11] In December 2018, the Tribunal’s Chairperson gave the parties three options to allow the file to proceed given Ms. Bryan’s failure to render a decision. He offered to: 1) reassign the file to another member of the Tribunal who would issue reasons relying on the record and the transcripts of the hearing; 2) return to mediation with the parties; or 3) start over with a new hearing and a new Tribunal member on an expedited basis. The parties rejected these options in favour of waiting for Ms. Bryan to issue a decision. They hoped that she would finally make good on her numerous promises to complete the decision.
[12] Ms. Bryan did not render the decision as promised. Over the course of the next year, the Tribunal Chairperson tried to follow up with Ms. Bryan. She responded on a few occasions, promising to issue the decision. At a certain point, she stopped taking his calls or responding to his emails.
[13] Finally, in December 2019, the parties revisited the three options discussed in 2018 with the Tribunal Chairperson. The parties agreed that if Ms. Bryan did not finish the decision by December 31, 2019, the Chairperson would reassign the complaint to another member who would issue reasons on the basis of the record. The file was then reassigned to me by the Chairperson with the consent of the parties.
[14] There are different approaches to handling a situation where an adjudicator who did not hear the case must render the decision. I will not review these here. The parties were offered other options, including recalling witnesses, or starting over with a new hearing. They agreed in this case that I would base my decision on the transcripts and on the official case record and the recordings.
[15] First I must start by apologising to the parties on behalf of the Tribunal. The parties have had to endure unacceptable delays and unfulfilled promises at every turn. The Tribunal has fallen well short of its duty to the public and to parties looking for a resolution of their human rights complaints in an effective, timely and accessible way. I empathise with both the complainant and the respondent who have expended considerable resources on a lengthy hearing. They have been faced with difficult choices and imperfect options in trying to get access to justice in this case.
[16] I cannot undo what has happened in this case but I am very sorry for what the parties have had to endure. Proceedings before the Tribunal are to be conducted informally and expeditiously (s.48.9(1) of the Canadian Human Rights Act (the “Act) and Rule 1(1) of the Tribunal’s Rules of Procedure (the “Rules”)). Yet most regrettably, the parties have waited until 2020 to get a decision, close to 4 years following the end of proceedings.
[17] We must do better by Canadians. The Tribunal has a duty to conduct an inquiry in human rights complaints that have been referred to it by the Canadian Human Rights Commission (the “Commission”) and to do so in a fair and timely way. Canadians must have confidence in their public institutions and systems of justice and this type of failure erodes that confidence.
IV. THE HEARING AND THE SCOPE OF THE COMPLAINT
[18] This hearing was conducted over 13 days (October 31-November 4, 2016; November 14-18; January 23, 25, 27). The Commission did not participate at the hearing.
[19] It should be clear to everyone involved in a complaint– the parties, counsel, and the presiding member – what the issues are in dispute. In other words, everyone should understand what the Tribunal’s task is and what the member has to decide. Unfortunately this was not made clear by the member either at the beginning of or during the hearing. This may have impacted the scope of evidence admitted by the Tribunal, the length of the hearing, including the many discussions between the member and the parties about evidence and issues that either predated the scope of the inquiry, or that were not referred to the Tribunal.
[20] A Tribunal member does not decide on their own what they should decide. Rather, the Act mandates the Tribunal start an inquiry into a complaint referred to it by the Commission (ss. 49, 50 of the Act). The summary of complaint form sent by the Commission lists the dates of alleged discrimination as May 7, 2010 to August 9, 2010. No harassment allegations were referred to the Tribunal on the basis of s.14 of the Act. While sometimes parties disagree about the scope of what was referred to the Tribunal, that did not happen in this case. The parties did not file a motion either prior to or during the hearing requesting that the Tribunal determine the scope of the complainant.
[21] When I received a copy of the case file, I reviewed the entire case record, including the transcripts. During a case management conference call held with the parties, the parties confirmed that there were no outstanding procedural rulings for me to address.
[22] I also asked the parties to confirm my understanding of the issues in dispute, including the temporal scope of the complaint, because of what I had read in the transcripts. Specifically, I asked them to confirm that my task was to determine whether the respondent failed to accommodate the complainant’s request for reduced working hours and whether it terminated his employment on the ground of disability or age. I indicated that the complaint does not include any issues that were not before the Tribunal and that the allegations cover the period from May to August 2010. I also asked the parties to validate the exhibit list and to address any discrepancies.
[23] I offered the parties the opportunity to review the transcripts and make additional submissions or direct me to what they believed were the most important parts of their evidence. They did not opt to do so, but they did offer to respond to any questions I may have in the event that the hearing record did not allow me to make a decision. I will take them up on that offer with respect to the remedies being sought by the complainant.
[24] Neither party modified the way I framed the issues, either during the call or in writing in response to the Tribunal’s request for confirmation of the issues in dispute. The complainant provided minor corrections to the exhibit list.
[25] The respondent’s counsel advised that due to the passage of time and difficulties accessing his records he could neither confirm nor suggest changes to the way I framed the issues. However I note that in closing submissions, the respondent’s counsel stated as follows: “the issue that we’ve been in this hearing for, and that we’re closing with today is with respect to the second accommodation request after the first one had already been accommodated”. The “second accommodation request” refers to the same time period I mention above, and to the very issues I have determined in this decision.
[26] At the hearing, the complainant testified, as did his former colleagues who were drivers, some of whom also played a role in the union as stewards. Robert Gaumont, Mike Riley, Jeffrey Seaton, Marcello Leasey and Ray Guenette all testified on behalf of the complainant. The respondent called Ralph Shepley, the respondent’s general manager, as well as John Valeri, the dispatcher, Gregory St. Croix, Wayne Gibson, and Ronald Trecoce. The respondent also questioned Dr. Bautista, the complainant’s family physician. I have not listed the evidence chronologically or witness-by-witness. Rather, the evidence is integrated into my analysis and reasons below. I refer to it where it is relevant to my determination of the issues in dispute.
V. FACTUAL CONTEXT
[27] The allegations in this case start in 2010, but I will provide some background context that is relevant to the circumstances underlying the complaint.
The complainant’s work at John Grant Haulage until 2010
[28] The complainant completed Grade 10 as well as specialised training in the operation of trailers. He worked for the respondent for 33 years from 1977 until 2010 as a tractor trailer driver, transporting cement. He was a member of the Teamster’s Local Union No. 879 and the terms of his employment were covered by a collective agreement.
[29] The complainant’s working relationship with his employer was generally positive and continued largely without incident until the end of 2003 when a new general manager, Ralph Shepley, was hired. The complainant did not like Mr. Shepley’s managerial style.
[30] The complainant filed a number of grievances from 2005 onwards. He felt like Mr. Shepley and the respondent were trying to push him out, along with other senior drivers, in favour of using brokers or independent contractor drivers who cost less for the company. He felt like he was being picked on for small things.
[31] The complainant met with the respondent and the union after he filed a grievance related to incidents involving his working hours and his relationship with Mr. Shepley. After that meeting, the complainant went to see his family physician, Dr. Bautista. His doctor issued a medical note dated November 24, 2006, stating that the complainant could not work more than 45 hours a week due to ongoing stress and anxiety. The respondent did not ask for more information or take further action after it received this note. That same year, in 2006, between April and November 2006, the complainant was absent 21 times.
[32] For the next 4 years, the complainant continued to work as advised by Dr. Bautista, but many weeks he worked more. On average he worked 49 hours a week in 2006; 60 hours a week in 2007; 59 hours a week in 2008; 46 hours a week in 2009 and 43 hours a week in 2010.
The trucking industry and the complainant’s job at Grant Haulage
[33] The trucking industry, and cement truck driving in particular, is difficult work that requires a lot of skill. Drivers work long hours and the schedule is unpredictable because of traffic, site and delivery delays and mechanical issues. Drivers must be alert, sharp and focused. When a cement truck like the one driven by the complainant was fully loaded, it weighed approximately 63 tons or somewhere between 120,000-140,000 pounds.
[34] Public safety is paramount. The consequences of making a mistake, whether during pre-trip inspection, during loading or unloading cement, or while driving on some of North America’s busiest roadways, can be catastrophic.
[35] Cement trucking companies are a largely unionised environment and the industry is heavily regulated for safety reasons. According to the terms of the collective agreement that governed the respondent’s workplace, the hours of work of the general driving force consisted of 11 hours per day and 55 hours per week. The collective agreement also provided that no employee could be compelled to work more than 9 hours in any one day or 45 hours a week.
[36] For long trips, drivers are entitled to layover money. Drivers doing long-haul trips could make use of the layover provision, whereas drivers doing local routes, even if they exceeded 9 hours, would generally return to the terminal and go home.
[37] Drivers would typically call dispatch at around 7 p.m. to get information about the following day’s work. Shifts were allocated based on seniority. According to the collective agreement, the most senior drivers were entitled to get the “best day’s pay”.
[38] At the start of a shift, drivers would go to the terminal and dispatch, punch in, and do full circle checks and safety inspections on their vehicles. Drivers also travelled with log books, as required by the Ministry of Transportation (MTO), and could be inspected at truck inspection stations on the highway.
[39] Start times vary as schedules would be tied to when a load would come in and when the client needed the delivery. Sometimes drivers could do multiple loads in a single day, requiring them to return and reload. Loading and unloading requires concentration to avoid an accident or even an explosion.
[40] At the end of a day when returning the truck to the terminal, drivers would fuel up, complete paperwork and ensure that their log book was up to date. They would also do a post-inspection check. These duties would take on average 15 to 30 minutes.
[41] In May 2010, the respondent employed 60 drivers out of a staff of 75 employees. At the time of the hearing, 15 of those 60 drivers were still employed by the respondent, in addition to approximately 25 independent contractors, also known as owner-operators, who are not employees and who drive their own trucks.
The allegations of discrimination start in May 2010
[42] The allegations of discrimination underlying this complaint start in May 2010 when the complainant was 59 years of age. On Thursday, May 6, 2010, the complainant called dispatch and spoke with John Valeri, one of the respondent’s dispatchers. He told Mr. Valeri that he needed to book off the next day due to fatigue as he was not feeling well. Mr. Valeri told the complainant that he had been instructed by Mr. Shepley to tell him that he would be fired if he booked off that Friday. The complainant did not come to work on May 7, 2010. He was suspended until further notice on May 10, 2010, for “refusal to work Friday May 7th and for his previous attendance record.
[43] On May 13, 2010 the complainant met with the union and Mr. Shepley. At that meeting, it was agreed the complainant would see his doctor and get clarification of his health status.
[44] On May 14, 2010 the complainant went to see Dr. Bautista, and she provided a handwritten medical note stating that the complainant has been unable to attend work “more than 40 hrs per week as a result of stress and fatigue”. The complainant did not provide this note to his employer after the visit to Dr. Bautista. That same day, the complainant called dispatch and attempted to book on to work the following Monday, May 17, 2010. He was told he could not return to work without a medical note clearing him to work regular hours.
[45] On May 23, 2010 the complainant started a planned vacation for two weeks. He was due to return to work on June 9, 2010.
[46] On May 26, 2010, Mr. Shepley sent the complainant a letter stating that he had been absent from work without permission. The complainant did not pick up the May 26 letter, sent by registered mail, until June 11. In the letter, the respondent requested the doctor’s note discussed at the May 13 meeting confirming Mr. Christoforou’s ability to return to regular duties “unencumbered by any physical or mental disabilities or in the alternative, your “prognosis for return to regular duties”. The letter noted that the complainant had attempted to book on to work on May 17 and reminded the complainant of the documentation required before he could return. According to the letter, the complainant “did not report for duty during the week of May 17th”, such that the respondent considered him absent from work without permission as he did not make contact with the company during that week. The letter concludes with the following paragraphs:
Noting your previous attendance record, this week’s absence in now under investigation.
We also note that you had vacation booked for two weeks, starting May 23, 2010. As such, if we have not received written medical proof of your status, or contact from you immediately, it will be deemed you have abandoned your employment at John Grant Haulage, and will be sent your remaining pay, record of employment and deemed to have quit.
[47] On June 7, 2010 the complainant called Mr. Shepley to advise that he was at the doctor’s on Friday June 4th. He indicated that his medical note would be ready to pick up on June 8th and wanted to book on for work on Wednesday. Mr. Shepley told the complainant to come to a 6:30 a.m. interview with him, and that depending on the content of the medical note, he may be able to return to work.
[48] On June 9, 2010, the complainant provided his employer with a letter from Dr. Bautista dated June 8, 2010 supporting his absence on May 7th, and recommending that he work no more than 40 hours due to his symptoms:
This letter certifies that Mr. Christoforou has been under my care since February 16, 1995. Last May 14, 2010, Mr. Christoforou came to the office due to stress, headache and feeling fatigued. These symptoms started the previous week. He felt exhausted and was not feeling confident that he will be able to drive more that [sic] forty hours that week. He requested a sick leave on May 7, 2010 and was unable to go to work. Mr. Christoforou's work agreement with his employer is forty hours per week. He has the option of extending it when he is not yet exhausted and feels capable of driving further during that day. He does not get paid if he opts not to work.
He had the same episode in November 2006 when he was required to drive beyond his regular weekly hours. He was also feeling stressed, exhausted and fatigued at that time. I have recommended to his employer to limit his working hours to forty hours per week which was in agreement with the required hours by his employer. However, he may drive and extend his hours when he has recovered with his symptoms. In this context, I still feel that he has to continue on these recommendations. His work entails a lot of skill, concentration and alertness and it might be hazardous when he is ordered to drive when he has the symptoms.
Mr. Christoforou has requested this letter for legal purposes. If you need further information, please contact this office.
[49] On June 15, 2010, the complainant met with Mr. Shepley and union stewards in an attempt to resolve the grievance. At that meeting, the complainant was given an application for short-term disability benefits.
[50] On July 23, 2010, the complainant received a notice of termination of his health benefits as of a termination date of July 1, 2010.
[51] On August 9, 2010, Mr. Shepley wrote to the complainant issuing a Record of Employment indicating that he “voluntarily terminated” his employment with John Grant Haulage Ltd. The letter refers to the May 26th letter and notes that per the last meeting with the union, the complainant was supposed to report back to the company with information to support a claim for benefits. Mr. Shepley notes: “Not only have you failed to report as agreed with your Union, but have not had communication with the Company as to your status”. At the time he received the letter, the complainant was paid $24.20 per hour.
[52] On August 12, 2010, the complainant completed an application for short-term disability after seeing Dr. Bautista.
[53] On August 20, 2010, the complainant filed a grievance because of the August 9, 2010 letter stating that he had voluntarily quit.
[54] In October and again in November 2011, Dr. Bautista wrote other letters about Mr. Christoforou in relation to his grievance. The letters advise that the complainant could safely work a maximum of 40-42 hours a week, and recall that he has always been willing to work these hours.
[55] In 2013 the complainant rejected an offer of reinstatement through the union representative that was conditional on him being able to prove that he was medically fit to work 45 plus hours a week.
VI. ISSUES
[56] I have to determine the following issues. I will address them in turn in my analysis below.
Has the complainant established a prima facie case of discrimination under section 7 or 10 of the Act, or both, because the respondent refused his request to work reduced hours and refused to employ him?
If yes, has the respondent established a valid justification for its otherwise discriminatory actions? In particular, has it established that the requirement to work without any medical restrictions was a bona fide occupational requirement (BFOR)?
If the respondent cannot establish a justification, what remedies should be awarded that flow from the discrimination?
VII. REASONS AND ANALYSIS
A. Age
[57] I dismiss Mr. Christoforou’s allegations on the basis of age. No specific submissions were made on the basis of this protected ground, and minimal evidence was led by the complainant to support these allegations. The complainant testified that he believed Mr. Shepley and the respondent were trying to push him and other drivers out of the company because of their age and because they favoured using brokers. Robert Gaumont, who worked for the respondent for over 35 years and was also the chief union steward, testified that he believed Mr. Shepley wanted to get rid of more senior drivers because they cost more for the company.
[58] The respondent led evidence at the hearing regarding the seniority of the drivers. A number of drivers were in their 60s, and as of the time of hearing, 15 were still employed by the respondent. Mr. Shepley testified about the shortage of drivers in the industry and the fact that many are over the age of 55.
[59] The allegations about age are speculative, particularly in light of the respondent’s evidence about the age of its drivers, which I accept. The complainant did not make any other submissions at the hearing about age or present evidence to explicitly link this protected ground with the alleged adverse treatment he suffered. Rather, the focus was on the respondent’s alleged failure to accommodate his disability-related request for reduced work hours. I will therefore only address the allegations on the ground of disability in my reasons below.
B. Legal Framework
[60] Mr. Christoforou alleges discrimination in relation to employment on the basis of disability, contrary to sections 7 and 10 of the Act. There are two parts to proving discrimination in the employment context.
[61] First, the complainant has the onus of proving the existence of a prima facie case. A prima facie case of discrimination is one that covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent—employer (Ontario Human Rights Commission v. Simpsons-Sears Ltd. [1985] 2 S.C.R. 536 at para. 28 (“Simpsons-Sears”).
[62] The use of the expression “prima facie discrimination” must not be seen as a relaxation of the complainant’s obligation to satisfy the tribunal in accordance with the standard of proof on a balance of probabilities, which he must still meet (Québec (C.D.P.D.J) v. Bombardier Inc., 2015 SCC 39, at para. 65 (“Bombardier”).
[63] To establish a prima facie case, the complainant has to prove that it is more likely than not that he meets all three parts of this test: 1) he had a characteristic protected from discrimination under the CHRA; 2) he experienced an adverse impact with respect to employment; 3) the protected characteristic was a factor in the adverse impact (Moore v. B.C. (Education) 2012 SCC 61, at para. 33).
[64] The protected characteristic need not be the only factor in the adverse treatment, and a causal connection is not required (See, for example, First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 [“FNCFCSC”] at para. 25).
[65] In determining whether discrimination has occurred, the Tribunal may consider the evidence of all parties. The respondent can present evidence to refute an allegation of prima facie discrimination, put forward a defence justifying the discrimination under s. 15 of the Act, or do both (see Bombardier at paras. 64, 67, 81; Emmett v. Canada Revenue Agency, 2018 CHRT 23 at paras. 61, 63-67).
[66] If the complainant establishes a prima facie case of discrimination, the burden shifts to the respondent to justify its decision or conduct based on the exemptions set out in the Act or developed by the Courts (Bombardier, supra, at para 37).
Issue 1: Has the complainant established a prima facie case of discrimination under section 7 or 10 of the Act, or both, because the respondent refused his request to work reduced hours and refused to employ him?
(a) Does the complainant qualify for protection from discrimination because he has a protected characteristic?
[67] Yes, I find that the complainant had a disability and therefore qualifies for protection from discrimination. The respondent did not argue at the hearing that the complainant did not have a disability or dispute that he has a characteristic protected by the Act.
[68] A “disability” under the Act means any previous or existing mental or physical disability...” (s. 25 of the Act). The Act does not contain list of “disabilities”. A disability does not have to be permanent and it is not just the most serious or most severe mental disabilities that are entitled to the protection of the Act (Mellon v. Canada (Human Resources Development), 2006 CHRT 3, at para. 88). The Act prohibits discrimination in the workplace on the basis of a perception or impression of a disability, and requires accommodation by the employer unless it constitutes undue hardship (Dupuis v. Canada (Attorney General), 2010 FC 511 at para. 25).
[69] There is no dispute that the respondent recognised the complainant had health issues related to a disability or perceived disability and that he was not permitted to continue working because of the respondent’s concerns about how his health was impacting his ability to safely perform his job.
(b) Did the complainant suffer an adverse impact with respect to employment?
[70] Yes. The complainant’s request to be accommodated was refused, he was suspended, and he was ultimately terminated.
[71] There is no dispute that the complainant’s request to work fewer hours was denied. The complainant wanted to book off work on May 6, 2010 and indicated that this was due to health issues. He was suspended for not coming to work and because of his previous attendance record, also related, at least in part, to his health. That suspension remained in place even after the complainant submitted the medical note from Dr. Bautista. Mr. Shepley acknowledged at the hearing that the complainant’s suspension was never lifted and even if he had wanted to work, the complainant was told he could not do so unless his doctor could confirm that he could work without restrictions. The complainant called in on May 14th to try to work the following week and was told he could not book on without the medical confirmation he could work regular hours.
[72] I also find that the complainant suffered an adverse impact because the respondent refused to continue to employ him on the basis of a prohibited ground of discrimination within the meaning of s.7(a) of the Act. The complainant was sent a Record of Employment by the respondent by way of Mr. Shepley’s August 9, 2010 letter.
[73] I do not find that the evidence supports the respondent’s claim that the complainant abandoned his position. The August 9, 2010 letter suggests the claimant abandoned his job as he had not communicated with his employer about his medical status and the benefits form, as agreed at the last meeting with the union. The May 26, 2010 letter from Mr. Shepley had previously warned that if the complainant did not provide the requisite medical documentation, he would be considered to have abandoned his employment.
[74] While the complainant did not immediately complete the Short-Term Disability (STD) form that he was given during the June meeting, he testified that he did not think he should because he intended to return to work. While I accept that the complainant did not complete the STD form until mid-August, I am not persuaded that his delay in communication or this failure, constitute “abandonment” of his job of 33 years. He clearly indicated his intention and desire to return to work in calling in to book on. He was restricted from doing so, which is admitted by the respondent. I also accept the oral evidence of both Robert Gaumont and Mike Riley, who were the complainant’s colleagues, and testified that they did not believe that Mr. Christoforou, a long-standing driver with seniority, would voluntarily leave his job. Further, while the complainant did not send any further information after the June 9th letter, he was technically still suspended from work on the understanding that he was being investigated.
(c) Was the complainant’s disability a factor in the refusal to work reduced hours and in his termination?
[75] Yes. There was a connection between Mr. Christoforou’s disability and the reason his request to be accommodated was refused. The complainant would have been able to continue working but for his health issues and disability-related restrictions.
[76] The respondent does not dispute that it did not allow the complainant to work any amount of hours because of his health issues, but argues that its actions were justified due to public safety reasons and undue hardship. Mr. Shepley and Mr. Gibson, a consultant employed by the respondent at the time, both testified that they did not consider accommodating the complainant because of safety reasons. The respondent also submits that given the complainant’s attendance record in 2010 and what it saw as a pattern of absenteeism, it suspended the complainant pending investigation.
[77] I also find that the complainant’s disability was a factor in his termination from his employment. For the same reasons that the complainant was not permitted to work reduced hours and was suspended, he was ultimately terminated. While the respondent claimed that the complainant abandoned his employment and failed to communicate about his status or complete the benefits form, these issues all ultimately related back to concerns about the complainant’s health and absences which were, at least in part, due to a disability or perceived disability.
[78] The complainant has established a prima facie case of discrimination. This now requires a justification or explanation from the respondent.
Issue 2: If the complainant established a prima facie case, has the respondent provided a valid justification for its otherwise discriminatory actions? In particular, has it established that the requirement to work without any medical restrictions was a bona fide occupational requirement (BFOR)?
[79] The respondent must demonstrate that it is more likely than not that the standard or policy it established is a BFOR (s.15 of the Act; Bombardier, supra, at para. 37 and British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) at paras, 54 and 71-72). If the respondent fails to justify the discriminatory conduct, this will result in a finding of discrimination.
[80] To establish that an occupational requirement is genuine or real, or bona fide, the respondent must prove, :
[...](1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work related purpose, and;
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
(Meiorin, supra at para. 54)
[81] The respondent must demonstrate that it took reasonable steps to accommodate the employee without suffering undue hardship. The onus is on the employer, as the employer is in possession of the necessary information to show undue hardship. The employee, will rarely, if ever, be in a position to show its absence (Simpson-Sears, supra, at para. 28).
[82] Where a respondent refutes the allegation of discrimination, this explanation must be reasonable, it cannot be a “pretext” - or an excuse - to conceal discrimination (Moffat v. Davey Cartage Co (1973) Ltd., 2015 CHRT 5 at para. 38).
[83] The balance of my reasons is focused on the third part of the Meiorin test. In my view, this case turns on whether the respondent has met its burden to show that it could not accommodate the complainant short of undue hardship.
(a) Did the employer adopt the standard for a purpose rationally connected to the performance of the job?
[84] Yes. The general purpose of the requirement to prove that drivers are fit to drive without restriction was to ensure that drivers could do their job safely and effectively