Mellon v. Human Resources Development Canada

Mellon v. Human Resources Development Canada
Collection
Canadian Human Rights Tribunal
Date
2006-01-25
Neutral citation
2006 CHRT 3
File number(s)
T928/4804
Decision-maker(s)
Doucet, Michel
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
MARY MELLON
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
HUMAN RESOURCES DEVELOPMENT CANADA
Respondent
DECISION
2006 CHRT 3 2006/01/25
MEMBER: Michel Doucet
I. INTRODUCTION
II. HISTORY OF THE COMPLAINANT'S EMPLOYMENT WITH THE RESPONDENT
III. THE EVENTS OF APRIL TO AUGUST 2001
IV. THE EVIDENCE OF DOCTOR CHARANJEAT MANDER
V. LEGISLATION
VI. THE ISSUES
VII. LEGAL ANALYSIS
VIII. CONCLUSION
I. INTRODUCTION [1] On May 27, 2002, Mary Mellon (the Complainant) filed a complaint under section 7 of the Canadian Human Rights Act (the Act) against Human Resources Development Canada (the Respondent). In her complaint she alleged that the Respondent engaged in a discriminatory practice on the ground of disability in a matter related to employment.
[2] The Complainant alleges that she suffers from a disability; more specifically, she testified that she suffers from panic and anxiety attacks. She further asserts that a series of events related to these attacks occurred in the workplace between April 17 and August 30, 2001, creating conditions that led to the Respondent's decision not to renew her contract.
[3] During the hearing, the parties requested that the issue of liability and the issues of damages and relief, if any, be dealt with separately. I agreed to the bifurcation of the hearing. Therefore, this decision will deal only with the issue of liability. Since I have found the complaint to be substantiated, another hearing will be ordered to deal with the issues of damages and relief.
II. HISTORY OF THE COMPLAINANT'S EMPLOYMENT WITH THE RESPONDENT [4] The Complainant started working for the Respondent on November 25, 1991 as a term employee. She held the position of CR-03, Reception and Enquiries in the Respondent's Hamilton office. This employment was to end on December 31, 1991 but three term extensions were granted. It finally terminated on May 1, 1992.
[5] She was given another term appointment on December 31, 1992, at the same position and classification. This term ended on March 31, 1993. A new term appointment, at the same position and classification, was made on December 2, 1993, with two more extensions, one on December 30, 1993, and another on March 1, 1994. This period of employment terminated on March 23, 1994.
[6] The Complainant testified that she enjoyed her work in this position. She added that the workplace provided a happy and pleasant environment. A letter of recommendation, dated December 7, 1993, prepared by the Respondent's Supervisor of Employment Services, referred to the Complainant as an employee who diligently carr[ies] out her duties with efficiency and effectiveness and as a pleasant individual who is easy to work with.
[7] On July 28, 1994, the Complainant was offered another term of employment, this time in the Respondent's Burlington Office. This was again a CR-03 position. Two other term extensions were offered to the Complainant in this position, one on October 6, 1994 and the other on December 29, 1994. The last term came to an end on March 22, 1995.
[8] On February 24, 1995, her supervisor in the Burlington Office, Mr. Rick Levert, wrote that the Complainant has proven herself to be a most reliable and dependable worker. He further added that [s]he adapted well to the routine of our office and has become a valuable member of our staff in the short time she has worked here. Her pleasant manner and friendliness enabled her to quickly gain the respect of other staff members and her helpful and accommodating attitude towards working with others has been a positive influence for our office.
[9] In the summer of 1997, the Complainant was contacted by Ms. Marg Garey, manager of the Respondent's Oakville office. They had previously met in 1991 when the Complainant was working in the Hamilton Office. Ms. Garey offered the Complainant term employment in the Oakville office. The Complainant accepted, and from July 7, 1997 up to September 25, 1997, she worked in a CR-04 position, as a Client Service Representative. The difference between a CR-03 and a CR-04 job classification is that a CR-04 job involves more decision-making and multi-tasking.
[10] According to the Complainant, this position was very challenging. She added that although she enjoyed her work, at one point it became too much for her and it started to affect her health. On October 29, 1997, she saw Dr. Charanjeat Mander, who was filling in for her regular family doctor. Dr. Mander eventually became the Complainant's family doctor. Dr. Mander decided to put the Complainant off work for a period of three weeks. She also prescribed Paxil, an antidepressant. The Complainant was on sick leave from October 17 to November 14, 1997. The memo in her file indicated emotional stress related to work/cannot cope, unable to work until further notice.
[11] The Complainant testified that she had informed her manager of her medical condition. She referred to a telephone conversation they had around that period. Her understanding of this conversation was that Marg Garey understood what she was dealing with. She added that she had informed her manager that she was on antidepressants and that they were having a really bad effect on her. She said that she indicated that under these circumstances she could not return to the workplace. Marg Garey testified that she had no recollection of this conversation.
[12] The Complainant returned to work on November 17, 1997. On February 2, 1998, Ms. Garey offered the Complainant a lower level deployment to a CR-03 (Program Support Clerk) position. The Complainant said that she accepted this lower level deployment because it provided a more stable environment.
[13] The Complainant was again hired, on a term basis, at the Oakville office at a CR-03 level, as service delivery support clerk, on May 11, 2000. This CR-03 position is referred to as her substantive or home base position. This appointment was renewed without break in employment, on July 7 and September 22, 2000 and on March 30, 2001. As of July 9, 2001, she was still working under this term but acting in another position at the CR-4 level, as a service delivery assistant.
[14] The workplace was described as being self-directed, meaning that employees were being asked to sort out any problems within their team. This also meant that when someone was absent in the unit, then the unit had to work together to cover that absence.
[15] According to the organizational chart dated July 9, 2001, the Oakville office had seven service delivery assistants at the CR-04 level and thirteen and a half program officers. During the summer period the number of program officers was actually inflated by four because of the summer career placement program. These four additional officers were only temporary and would have been gone by the Fall.
III. THE EVENTS OF APRIL TO AUGUST 2001 [16] Ms. Debby McIntyre was appointed service delivery manager at the Oakville office on April 17, 2001, to replace Marg Garey. She then asked Rick Levert, the service delivery coordinator, to oversee both the Foreign Worker Unit and the Labour Market Information Unit in addition to the in-person services.
[17] Mr. Levert described this period as a transition stage. He added that one of the proposed changes was to work the Complainant into becoming the service delivery support person for the Foreign Worker Unit. This was a change for both the Unit and the Complainant since the Unit had never had a dedicated support person until that time. Prior to that period, the Complainant and Diann Luksa were handling the support functions for the Unit. The decision to make these changes was taken by Debby McIntyre, Dal Swackhammer, the supervisor of the Program Unit and Mr. Levert. Mr. Levert did not recall having any special conversation with the Complainant about these changes.
[18] Debby McIntyre kept notes of her various meetings with the Complainant and other employees. She stated that it was her practice to make notes of meetings with employees. She would write her notes immediately following these meetings. These notes were very helpful in reconstructing the events of that period as the recollection of the various witnesses had become, in many cases, blurred by the passing of time.
[19] Prior to April 17, 2001, Ms. McIntyre admitted that she had no knowledge that the Complainant had had any problems performing her duties. She also admitted that the Complainant's work performance never came up in her discussions with Marg Garey when she took over her position in Oakville.
[20] The Complainant first met with her new supervisor on June 21, 2001. According to Debby McIntyre's notes, this meeting was requested by the Complainant. Her notes further indicate that the Complainant told her during this meeting that she was experiencing a reoccurrence of a health issue in the area of her neck which was causing her stress and anxiety. The Complainant admitted that she had had a growth removed in the area of the neck in March 2000.
[21] Debby McIntyre also noted that the Complainant told her that she had consulted her doctor but had not shared with her the full extent of her situation and concerns for fear the doctor would advise her to stop working. Ms. McIntyre added that the Complainant indicated that in the past she had not given her former manager, Marg Garey, all her medical notes, choosing instead to ignore the advice of her doctor to take sick leave during previous illnesses. The Complainant disagreed with this statement, saying that she had never ignored a medical certificate issued by her doctor. She added that it was true that she was hesitant about taking medication because of the bad reaction she had had in the past while on medication.
[22] On June 25, 2001, Ms. McIntyre met with Monica Kington and Esther Davis, two officers in the Foreign Workers Unit. In her notes, she states that they came to her office to let her know that they had some concerns regarding the Complainant. She noted they had observed that although the Complainant was at her work station, her work was piling up and was not getting done.
[23] On June 27, 2001, the Complainant was invited to a meeting with Monica Kington, Esther Davis and Pat Richard, all officers of the Foreign Workers Unit. The purpose of the meeting was to discuss how to deal with the extra workload in the unit which was created by the fact that Diann Luksa was on sick leave. Ms. Luksa was absent from work from June 18 to July 13, 2001. During the meeting the Complainant was asked if she would take on the extra work. She testified that she tried to discuss her health but that Monica Kington replied that they didn't need to hear that. Monica Kington testified that she had no recollection of this exchange. She added that she remembered that the Complainant was upset during this meeting and that she indicated that she wanted to speak with her supervisor. Pat Richard testified that the Complainant had indicated that she would not do the work. The Complainant said that at the end of the meeting she agreed to take on this extra work.
[24] The Complainant stated that following this meeting, she felt that the perception of her co-workers was that she did not want to do her work. She felt that because of this, her relationship with them was falling apart.
[25] Immediately following this meeting, the officers went to Ms. McIntyre to give her some feedback. Ms. McIntyre noted that they had concerns that the Complainant did not want to join or participate in the meeting and that she became agitated and upset. Ms. McIntyre was also informed that the Complainant had raised issues regarding her health during this meeting. During her cross-examination, Ms. Kington said that she had not given this information to Ms. McIntyre. Pat Richard did not recall any discussions regarding the Complainant's health during that meeting. Since Esther Davis did not testify, I either have to accept that she is the one that told Ms. McIntyre that this issue was discussed at the meeting or that both Ms. Kington and Ms. Richard do not have a proper recollection of what was said at that meeting. Ms. McIntyre certainly did not make this up and I conclude that the Complainant's health was raised at the meeting and afterwards discussed with Ms. McIntyre.
[26] Ms. McIntyre added that the fact that someone ended up being upset was not helpful in finding a solution to how the work would get done. She further noted that the officers had indicated that the Complainant seemed to like doing the lower priority work, like mailing out kits and typing letters, instead of doing data input. At that point, she indicated that she was mainly preoccupied with understanding what was needed operationally to get the work done, but did not become directly involved.
[27] Pat Richard also met with Rick Levert to inform him about what was discussed during this meeting. On cross-examination, Mr. Levert said that he was not aware that it was during this meeting that the Complainant was first informed that she was to assume all the duties of the Foreign Worker Unit. He added, that while he could not remember when, she must have been informed of these changes before that meeting, though probably not formally. However, he agreed that it was possible that this issue came up for the first time at that meeting.
[28] The Complainant testified that the added workload started to have an effect on her health. By the end of June 2001, she said that she was experiencing anxiety attacks and was feeling very stressed. She added that she did not have the skills to do Ms. Luksa's job, although she did attempt to do it. She felt that she was letting down the officers of her unit because she was unable to complete all of her work. Up until then she had been responsible for the live-in caregiver applications which, in her words, were simpler to learn. She was now expected to do the industrial applications data entry for which she says she had no training except for maybe twenty minutes with Diann Luksa.
[29] The Complainant described her anxiety attacks as causing difficult[y] to breathe and think clearly. She added that they would last from five to ten minutes and afterwards she would be fine. The Complainant said that on or about June 28, 2001, she had explained her situation to her supervisor, Rick Levert. Mr. Levert testified that during this meeting the Complainant was very emotional. She kept repeating that she felt that they were taking the jobs of two people and compressing them into one. He said that he tried to explain that the duties were reasonable for one person to perform. The issue of training was also discussed. He indicated that she did make reference to the fact that she could not let her health be negatively affected by her work. He also added that she had indicated that she was seeing her doctor and that after she had seen her she would get back to him.
[30] On June 28, 2001, the officers met again with Ms. McIntyre. Ms. McIntyre's notes indicate that there was then a real concern in the unit. The officers told her that the Complainant had gone home sick without telling them, which, according to Ms. McIntyre, would be the normal practice. She added that at that time she was looking at this whole issue of controllables and knowing that Mary was perhaps dealing with a previous health condition, a recurrence of this neck situation... and I didn't know what that was. You know, my mind was taking me to tumours and things like that? She further added I looked at what Mary's job was in the Foreign Workers Unit and I looked at what the jobs were in talking with the other supervisors and the other clerk... I was trying to do an analysis of what is the best clerical job in the office in terms of controllables, in terms of flexibility, stress level. It is clear that by this time Ms. McIntyre knew that there was a health issue, although she did not know the extent, and that this health issue was having an impact on the Complainant.
[31] The Complainant left a voice mail with Ms. McIntyre on June 29, informing her that she would not be at work since she was not doing well. She also mentioned that she needed to resolve some issues before returning to work. On that same day, she saw Doctor Huschilt, who at that time was covering for Doctor Mander. She was then complaining of neck pains and stress at work. Doctor Huschilt decided to send her for x -rays of her neck. He also prescribed Flexeril, a muscle relaxant, and Tylenol, an analgesic.
[32] Rick Levert also received a voice mail from the Complainant on June 29, 2001. She informed him that her doctor had put her off work indefinitely and that she would keep him up to date. He also received a medical note dated June 29, 2001 from Dr. Mander indicating that she was under medical care and unable to work.
[33] The Complainant was absent from work from June 30, 2001 to July 23, 2001. A medical note dated July 19, 2001 indicated work stress. The Complainant added that she had given this medical note to her employer.
[34] Rick Levert contacted the Complainant on July 3, to inquire about the length of her absence. On July 9, the Complainant left a voice mail for Rick Levert in which she indicated that she hadn't received the test result from her doctor. She also added that it might be possible for her to come back to work soon but before she returns however, if she does return back, she does need to clarify a few things. On cross-examination, the Complainant explained that what she was referring to in this voice mail was the problem she was experiencing with the workload and the stress this was causing her.
[35] On her return to work on July 23, 2001, she said she felt that nothing had changed. According to the Complainant, the attitude of management was that her position could be done by one person. The Complainant testified that during this period she was trying desperately to hold on to her job. She added that she felt really bad because the relationship that she had with her co-workers in the unit had disappeared.
[36] She said that she met Rick Levert on July 25, 2001. The Complainant added that she got the feeling from this meeting that there would not be any help with her workload. The message she was getting was that her job was doable by one person.
[37] Rick Levert took notes of this meeting. This was the first time that he took notes of a meeting with the Complainant. He said that he felt that the situation was getting complicated and that after discussing the matter with Debby McIntyre they had decided that it would be a good idea to take notes of these meetings. During this meeting he noticed that the Complainant was not as emotional as the previous meeting. He added that she seemed more determined. She informed him that her health was not good and that this was a permanent condition. She felt that her illness was work-related. Mr. Levert remembers telling her that the duties associated with her job were reasonable. He also remembers discussing with her the question of her reverting back to her CR-03 job. He advised her that in the new organization of the office, that job was no longer required. The Complainant was very definite that she could not handle the job and that she had decisions to make. Mr. Levert did not ask her to elaborate on her medical condition.
[38] The Complainant wrote a note to Rick Levert and to Debby McIntyre on July 26, 2001. She was requesting clarification regarding her duties and responsibilities. She also mentioned that she wanted this issue solved as the health problem due to the stress/workload in the past is now returning and [the] extra workload has contributed to this problem.
[39] On that same day, Rick Levert met with Monica Kington, Esther Davis and Pat Richard to discuss the operational working of the Unit. Mr. Levert made some notes of this meeting. Most of these notes refer to the performance of the Complainant in the Unit and are observations made by her co-workers.
[40] Debby McIntyre was away on vacation from July 23 to August 7, 2001. On her return, the Complainant was starting her two weeks' vacation, so, as Ms. McIntyre stated, they were like two ships passing in the night.
[41] On August 8, 2001, Ms. McIntyre prepared another note which reflects a visit to her office by Esther Davis. Ms. Davis related to her that since the Complainant's return to work from her sick leave, she had observed that she had resumed her duties to a degree and that she was working at about 50% of her normal productivity level. Ms. Davis, according to the note, also referred to a meeting between the Complainant and Rick Levert on July 25 where she observed that the Complainant burst into tears. Rick Levert testified that this did not happen during the July 25 meeting, but at the previous meeting, on June 28, 2001.
[42] On August 9, 2001, Ms. McIntyre wrote a memo to the Complainant answering the Complainant's note of July 26, 2001. She informed the Complainant that Rick Levert had reviewed her job duties, in consultation with other staff members, and had come to the conclusion that the job was reasonable for one person. She further added: I share your concerns regarding your health, and want to discuss your concerns.
[43] The Complainant returned from her vacation on August 20, 2001, and on that day she met with her manager. At this meeting, Debby McIntyre presented to the Complainant a copy of the memo she had prepared on August 9, 2001. The Complainant testified that her manager looked irritated and seemed frustrated that she was still requesting help. The Complainant recalls having discussed her health condition with her manager during this meeting but stated that she received no suggestions from her on how to approach this problem. She said that she had taken that extra step to explain to her manager that she was suffering from anxiety attacks and stress. The Complainant testified that she left this meeting feeling very upset and convinced that her job in the Oakville office was gone.
[44] According to Debby McIntyre's notes, the Complainant indicated that while she felt that she was capable of doing the whole job, she still felt that her health was an issue. She added that the Complainant mentioned that she would do her best and see how her health would hold out. The Complainant told her that she was suffering from increased anxiety attacks which were triggered by job-related stress. According to Ms. McIntyre, this was the first time that the Complainant had mentioned this to her.
[45] Esther Davis and Monica Kington approached Debby McIntyre on August 21, 2001, regarding the Complainant. Again according to Ms. McIntyre's notes, they were observing that although the Complainant appeared very busy her work was lagging behind. They indicated that they were having difficulties with her ability to set priorities and to perform her duties.
[46] On August 23, 2001, the Complainant went back to see her manager to bring her the statistics she had compiled regarding the phone calls she had to deal with in the Foreign Workers Unit. According to the Complainant, her manager told her that she was too busy to deal with them and told her to bring this matter up with Rick Levert. In her evidence, Debby McIntyre does not disagree with this. In her note, she indicates that the Complainant was teary during this meeting. She added that she inquired how she was doing and the Complainant answered that she was not doing very well and that she had to make some decisions about her job and her health. Ms. McIntyre added that she did encourage the Complainant to see her doctor and to take time off if that is what she needed.
[47] August 30, 2001 was the Complainant's last day at work. The Complainant recalls that the files kept piling up and that she was getting sicker and sicker. She also recalls that Pat Richard was getting upset that she wasn't getting through the files. She testified that on that day she had a lot of Foreign Recruitment files for the industrial applications which needed attention. She remembers sending an e-mail to Debby McIntyre at 8:05 a.m., requesting help with these files because there was a deadline and they needed to be dealt with.
[48] In her written notes of that day, Ms. McIntyre indicates that she went over to the Complainant's work station after she received the e-mail. The Complainant mentioned that she was still having problems with some of the filing. Ms. McIntyre then indicated that Pat Richard was busy and that she would ask Diann Luksa to help her. Around 10:45 a.m., she noted that Glen Harris, a co-worker of the Complainant, told her that the Complainant was in the lunch room crying. She added that she went over to get the Complainant and offered her office to help her compose herself before she was driven home. The Complainant said to her that she was having an anxiety attack. After she had calmed down, she added that the CR-04 job was just too much for her. She also indicated that her health was being affected and that she could not continue working.
[49] The Complainant testified that during this attack, she was having difficulty breathing and that she felt as if she was going to pass out. She added that she was shaking, that she was emotionally upset and that she could not think clearly. She further added that this was not the first time that she had experienced a panic attack during that summer. These attacks would last for about ten minutes and afterward she would feel unwell.
[50] In her evidence, Ms. McIntyre stated that she asked the Complainant whether she had seen her doctor recently and the Complainant indicated that she had the day before and that the doctor wanted her to take some medication. Ms. McIntyre testified that she encouraged the Complainant to see her doctor again as soon as she could and to seriously reconsider the medication.
[51] Ms. McIntyre indicated in her notes of August 30, 2001 that she had told the Complainant that she felt that, for her own well-being as well as the functioning of the unit, she could not offer her the CR-04 job after September 30, 2001. During her examination, she added that she didn't want the Complainant leaving that day thinking that she had to come back to that job. Ms. McIntyre also stated that she informed the Complainant that there were no CR-03 jobs available for her in the Oakville and Burlington offices. She offered to approach the corporate services manager of the Respondent in Mississauga East to see if there might be CR-03 opportunities elsewhere.
[52] On September 28, 2001, the Complainant received a letter from Debby McIntyre informing her that her current term CR-03 contract was extended for one month as an interim staffing measure, in order to make you aware of other CR-03 vacancies in Peel-Halton-Dufferin, and market you accordingly, if you wish.
[53] On October 10, 2001, Debby McIntyre had a telephone conversation with the Complainant at which time she told her that there was possibly a CR-03 position in the Mississauga West office of the Respondent. The Complainant said that she would be happy to meet with Vicky Shea, the manager of that office, to discuss this possibility but she never heard from Ms. Shea.
[54] On October 22, 2001, the Complainant wrote a letter to Ms. McIntyre in which she referred to her employer's obligation to accommodate her. She was requesting to be kept on leave without pay until she was well enough to return to work.
[55] She received an answer to this letter on October 29, 2001. Her manager stated, amongst other things, [t]he Duty to Accommodate pertains to technical aids in the context of workplace accommodation for persons with disabilities - and I believe there is some confusion in your suggestion that accommodation includes contract extensions, in a location where there is no job.
[56] On May 27, 2002, the Complainant filed a complaint with the Canadian Human Rights Commission.
IV. THE EVIDENCE OF DOCTOR CHARANJEAT MANDER [57] The only medical evidence presented by either party was that of Dr. Charanjeat Mander, the Complainant's family doctor.
[58] Dr. Mander studied medicine at the Christian Medical College, in the City of Ludhiana, Punjab, India, where she obtained her medical degree in 1965. After her graduation, she moved to Glasgow, Scotland, with her husband, where she did one year of residency in psychiatry. In 1974, the family moved to Canada where she did her internship in internal medicine at St. Joseph Hospital (now the Queensway Health Centre) in Toronto. In 1979, after having successfully passed her licensing exam, she started her medical practice, in Burlington, where she has been practicing as a general practitioner ever since.
[59] Dr. Mander was qualified as an expert in general family clinical practice and was allowed to give opinion evidence as the treating physician of the Complainant.
[60] According to Dr. Mander, anxiety is a very common complaint in a practice such as hers. She added that because of the shortage of psychiatrists, general practitioners play an important role in treating people with anxiety. The most common symptoms of anxiety are nervousness, palpitations and lack of sleep. Normally, when a patient comes forward with these symptoms, the doctor must listen to them carefully and identify the reasons for the anxiety. In such cases the patient's history is the most important thing.
[61] Dr. Mander indicated that she would, in these cases, recommend first rest or a few days off work. The second step in the treatment would be to prescribe a mild tranquillizer, for example Ativan. She said that she would usually prescribe, at this stage, five milligrams sublingual to see how the patient responds. If this does not work she would consider moving up to a stronger tranquillizer. The third step would be to refer the patient to a specialist.
[62] Dr. Mander testified that she first saw the Complainant, as her family doctor, on October 5, 1999, although she had seen her on October 29, 1997, when she was replacing the Complainant's previous family doctor.
[63] Dr. Mander's clinical notes indicate that the Complainant was seen on June 26, 2001, by Dr. Huschilt, who at the time was covering her practice. In her notes she indicates that Dr. Huschilt mentioned that during this visit the Complainant complained of neck pain and stress at work. The Complainant again saw Dr. Huschilt on June 29, 2001, complaining of stress at work. Dr. Huschilt's diagnosis was anxiety and he prescribed time off-work.
[64] Dr. Mander saw the Complainant on July 19, 2001. She noted stress at work - too much work. Neck pains. Needs some changes at work. Doing work as two people. Emotional stress. Extremely distraught. At that time the Complainant had been off work since June 29, 2001. The Complainant told Dr. Mander that she wanted to return to work but with some changes in the workplace.
[65] The doctor saw the Complainant again on August 3, 2001. Although there is no reference to this in her notes, Dr. Mander testified that the Complainant was still tense. She informed her doctor that she had written to her manager about her work-related problems, but that the manager at that time was on holidays. She told Dr. Mander that she was going to take 10 days of vacation which should help her get a little bit more settled.
[66] The Complainant's next appointment was on August 28, 2001. She had just returned to work. In her notes Dr. Mander wrote: Anxiety attacks, palpitations, nervous, shortness of breath once or twice a week [...] typical anxiety. At the hearing, Dr. Mander added that during this visit the Complainant was crying, was very nervous and had shaky hands. The Complainant told her that she was very nervous and had difficulty sleeping. Dr. Mander prescribed Ativan, a tranquillizer, at 0.5 milligrams, sublingual, to be used as required. She also noted that the Complainant was quite upset about her workload.
[67] Dr. Mander saw the Complainant again on August 31, 2001. She noted that the Complainant told her that she could not handle her job; that it was too much pressure. She also noted that the Complainant was crying and that she was very upset. The Complainant told Dr. Mander that she did not want to go back to her job under the present circumstances. She wanted management to take away the extra duties which she claims had been given to her. Dr. Mander noted that panic attacks are starting from pressure. She gave the Complainant a note which indicated that she was to stay off work for [an] indefinite period. Extreme stress at job situation. Too much work was loaded on her.
[68] The Complainant returned to see her doctor on September 4, 2001. Dr. Mander noted that she was feeling better because she was off work. The Complainant told her doctor that she was sleeping better and had no more panic feelings. Dr. Mander added that the Complainant was not on antidepressants at this time because she was not depressed.
[69] On September 10, 2001, Dr. Mander made arrangements to refer the Complainant to a specialist, Dr. V. M. Celine Kumiranayake, a clinical psychiatrist in Burlington. According to Dr. Mander, the Complainant saw Dr. Kumiranayake on September 18, 2001. Dr. Kumiranayake, who is now retired, was not called as a witness. She sent a report of her evaluation of the Complainant to Dr. Mander which she received on September 20, 2001. After this meeting, Dr. Kumiranayake did not see the Complainant again.
[70] According to Dr. Mander, Dr. Kumiranayake's diagnosis of the Complainant was acute panic attack secondary to work related stress. In her report, Dr. Kumiranayake wrote [t]his lady seems to have had an Acute Panic Attack secondary to Work Related Stress. (Emphasis added)
[71] The next notation by Dr. Mander is for September 25, 2001. The doctor noted that the Complainant was feeling happier, had a positive attitude and no panic. The Complainant told her doctor that she didn't want to take any medication as she was now feeling better.
[72] On October 18, 2001, the Complainant again saw Dr. Mander. According to the doctor's notes, she was beginning to feel stress due to some problems with [the] employer...regarding disabilities. Dr. Mander did not make any physical observations of the Complainant.
[73] The next appointment was on November 9, 2001. The doctor noted that the Complainant was tired, depressed, anxious, very, very tense. She decided to prescribe Paxil, an antidepressant, because she felt that the Complainant was not improving despite being off the job. On cross-examination, she added that the Complainant told her afterwards that she never took the antidepressant.
[74] On December 14, 2001, Dr. Mander saw the Complainant. The Complainant seemed to be doing better and she verbalized her intention to go back to work. Dr. Mander gave the Complainant a Doctor's Note indicating that she was ready to return to work full time.
[75] During her cross-examination, Dr. Mander admitted that she personally didn't have any idea of what was going on in the Complainant's workplace and that for this information she relied solely on the Complainant. She further added that her role was to observe the patient and not to get involved in what she described as the legal hassles between the workplace and the patient. She also indicated that the Complainant was suffering from reactive depression to her workplace which does not mean that the Complainant was suffering from clinical depression.
V. LEGISLATION For the purpose of this case the relevant sections of the Act are:
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.
15. (1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement.
(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.
25. In this Act
disability means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.
VI. THE ISSUES The issues in this proceeding are the following:
Has the Complainant established a prima facie case of discrimination? If a prima facie case is established, did the Respondent fail to accommodate the Complainant?
VII. LEGAL ANALYSIS [76] In the Supreme Court's decisions in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 [also referred to as Meiorin] and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [also referred to as Grismer], the Court indicated that the initial onus is on the complainant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent.[ See Ontario Human Rights Commission and O'Malley v. Simpson Sears Limited, [1985] 2 S.C.R. 536, at p. 558.]
[77] In Canadian Human Right Commission v. Attorney General of Canada, (Morris) 2005 FCA 154, the Federal Court of Appeal stated that the legal definition of a prima facie case does not require the Complainant to adduce any particular type of evidence to prove that she was a victim of a discriminatory practice. A flexible test is more appropriate.
[78] Section 3 of the Act declares that disability is a prohibited ground of discrimination. Disability is defined at section 25 as a previous or existing ... mental disability.
[79] A key issue in this case is whether or not the Complainant has a disability. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal City and Boisbriand (City), [2000] 1 S.C.R. 665 [also referred to as Mercier], the Supreme Court of Canada made some important comments about the ways in which courts need to think about and view disabilities. The Court sets out a broad legal test for how one establishes whether or not there is a disability within the meaning of human rights legislation.
[80] Although the Mercier decision arose out of the Quebec Charter of Human Rights and Freedoms and not the Act, the comments of the Court are just as applicable to the latter since both provide similar protections. The Court focused its attention on the meaning and scope of the term handicap, which is the term used in the Quebec Charter to refer to a disability. More specifically the Court had this to say:
75 The following definition of the term handicap appears in the International Classification of Impairments:
In the context of health experience, a handicap is a disadvantage for a given individual, re