Todd v. City of Ottawa

Todd v. City of Ottawa
Collection
Canadian Human Rights Tribunal
Date
2020-08-13
Neutral citation
2020 CHRT 26
File number(s)
T2610/3416
Decision-maker(s)
Mercer, Kirsten
Decision type
Decision
Decision status
Final
Grounds
Disability
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2020 CHRT 26
Date: August 13, 2020
File No.:
T2610/3416
Between:
Jamison Todd
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
City of Ottawa
Respondent
Decision
Member:
Kirsten Mercer
I. Summary of Conclusions 1
II. Overview 2
III. The Complaint 4
IV. Preliminary Issue 5
A. Counting the Days 5
V. Chronology of the Complaint 7
(i) Musculoskeletal Pain 7
(ii) IBS Diagnosis and Accommodation 7
(iii) Gastroesophageal Reflux Disorder (GERD) Diagnosis and Treatment 9
(iv) Mr. Todd’s 2012 Absence from Work 16
(v) The Continuing Employment Agreement 22
(vi) The call-in requirement 25
(vii) Improved Attendance under the CEA 26
(viii) Mr. Todd’s repeated failure to contact his supervisor 27
(ix) Mr. Chaudhari issues a Formal Warning 29
(x) Termination of Employment 29
VI. Issues 31
VII. Analysis 32
(i) The CHRA 32
(ii) The threshold test 33
(iii) Justification 34
(iv) Accommodation and Cooperation 35
(v) No Procedural Duty to Accommodate under Federal Law 36
A. Narrowing the focus of this analysis 37
(i) Mr. Todd’s GERD 37
(ii) Mr. Todd’s Mental Health 39
B. Are Mr. Todd’s IBS and/or Musculoskeletal Conditions Protected Characteristics under the Act? 43
(i) Irritable Bowel Syndrome 44
(ii) Muskuloskeletal Issues 45
(iii) Summary of Mr. Todd’s Disabilities 48
C. Did Mr. Todd Experience an Adverse Impact? 48
(i) Mr. Todd Was Not Treated Adversely in the Course of his Employment 48
(ii) The CEA was not Adverse Treatment 53
(iii) Mr. Todd’s Termination was Adverse Treatment 57
D. Was there a Nexus between the CEA and Mr. Todd’s Disability? 57
E. Was there a Nexus between Mr. Todd’s Termination and his Disability? 59
F. Did OC Transpo Justify its Termination of Mr. Todd on the Basis (in part) of his Disability? 61
VIII. Conclusion 64
IX. Disposition 64
I. Summary of Conclusions
[1] In large part, I am satisfied that OC Transpo met its obligations in respect of Mr. Todd’s human rights during his employment as a bus driver. While there were some flaws in the agreed approach to accommodating Mr. Todd’s disabilities, particularly apparent with the benefit of hindsight, I find that the approach to accommodation adopted by OC Transpo and Mr. Todd was to their mutual satisfaction at the time. I do not believe that OC Transpo discriminated against Mr. Todd in the way that it approached his accommodation or in adopting the Continuing Employment Agreement (as defined herein) upon his return to work in 2012.
[2] When OC Transpo terminated Mr. Todd in 2014, I find that it was within its rights to do so pursuant to the CEA. Neither the obligation on Mr. Todd to contact his supervisor, nor his failure to do so were in any way related to Mr. Todd’s disability, and Mr. Todd understood what he was required to do and the consequences for not doing it.
[3] If Mr. Todd’s breaches of the CEA were the only reason provided for his termination, then I do not believe that terminating him would have been discriminatory. However, when it terminated Mr. Todd, OC Transpo conflated the breach of the CEA with Mr. Todd’s overall pattern of absenteeism and in doing so did not distinguish the disability-related absences from the non-disability-related absences. At that time, it did not consider any other options of accommodation and it failed to demonstrate that it had reached the point of undue hardship.
[4] By identifying Mr. Todd’s overall absenteeism as one of the reasons for his termination, OC Transpo engaged the protections of the Canadian Human Rights Act against actions motivated in whole or in part by discrimination.
[5] While OC Transpo argued at the hearing that it was justified in its decision to terminate Mr. Todd because his absenteeism was excessive, the evidence before me at the hearing did not satisfy OC Transpo’s burden to demonstrate that it took care to disaggregate Mr. Todd’s disability-related absences from his other absences. Further, while there was no dispute that regular and reliable attendance at work is important, OC Transpo did not discharge its burden to prove that it had reached the point of undue hardship in its efforts to accommodate Mr. Todd.
[6] Even though it was in a position to fire Mr. Todd for other reasons, when OC Transpo included Mr. Todd’s overall history of absenteeism without accounting for his disability-related absences or demonstrating that it had reached the point of undue hardship, it breached the Canadian Human Rights Act.
II. Overview
[7] Jamison Todd (the Complainant) worked as a bus operator for the public transit service of the City of Ottawa, OC Transpo (the Respondent) from 2001 until he was fired in 2014. While Mr. Todd enjoyed his work as a bus operator, he missed a lot of work over the course of his career for various reasons, including a number of medical conditions.
[8] This complaint is about whether OC Transpo discriminated against Mr. Todd on the basis of one or more of his disabilities while he worked as a bus driver or when it decided to terminate his job as a bus driver in 2014.
[9] Although Mr. Todd was diagnosed with several conditions identified in his complaint, his ability to perform his duties as a bus driver was impacted particularly by two disabilities. First and foremost was Mr. Todd’s Irritable Bowel Syndrome (“IBS”), which was diagnosed in 2004 and flared up intermittently over the course of his career. Mr. Todd also experienced musculoskeletal pain, which came and went over several years, but which was particularly bad in the period from 2008 to 2010.
[10] In other words, the medical restrictions provided by Mr. Todd’s doctors (particularly in relation to his IBS) made it hard for him to drive a bus. OC Transpo and Mr. Todd agreed that he would miss work when his disabilities prevented him from working, and those disability-related absences would not be counted against him for the purpose of OC Transpo’s attendance management system.
[11] This approach to accommodating Mr. Todd’s disability (which the parties referred to as the Accommodation Plan) meant that Mr. Todd accumulated a large number of absences from work.
[12] Mr. Todd also missed work for other reasons. And in some cases, Mr. Todd said he was missing work because of a disability, but OC Transpo said that there was no medical documentation to support his claim.
[13] After Mr. Todd was away from work for an extended period of time, which was not supported by the medical evidence, OC Transpo decided to impose a new plan with rules designed to ensure that Mr. Todd improved his attendance at work. This was called the Continuing Employment Agreement (the “CEA”). Sometimes these plans are called Last Chance Agreements, because they are often used as a last chance for an employee who would otherwise be terminated.
[14] After a little more than a year of working under the CEA, Mr. Todd’s attendance at work was improving, but he was not doing all of the things that he was required to do under the CEA. Most importantly, he was not calling his manager, Mr. Chaudhari, before he missed a shift. This meant that his manager could not offer him alternate duties. The CEA required Mr. Todd to contact his manager, and the consequence for failing to do what the CEA required was that Mr. Todd could be fired.
[15] After warning Mr. Todd both verbally and in writing about his failure to contact his manager before he was going to miss a shift, on January 29, 2014, Mr. Todd missed a shift because he had the flu, and he did not call his manager.
[16] OC Transpo decided to fire Mr. Todd.
[17] When OC Transpo was making the decision to fire him, however, it also considered Mr. Todd’s whole history of missed work. OC Transpo didn’t consider Mr. Todd’s disability-related absences separately from his other absences, and it didn’t consider whether there was anything else it could do to accommodate Mr. Todd’s disability before considering his overall absences in its decision to fire him.
[18] The Canadian Human Rights Act protects Canadians from discrimination on the basis of a protected characteristic- in this case, disability. That means that an employer can’t impose a negative treatment where the protected characteristic (disability) is a factor in its decision.
[19] When a complainant proves on the balance of probability that an employer acted in a way that negatively impacted them on the basis of a protected characteristic, the employer then has to prove that it did everything it could to accommodate the employee up to the point of undue hardship.
[20] In doing so the employer will be required to prove, on a balance of probabilities, that it accommodated the complainant to the point of undue hardship. If the employer fails to justify the discriminatory conduct, discrimination will be found to have occurred (Beattie and Bangloy v. Indigenous and Northern Affairs Canada, 2019 CHRT 45, at 91).
[21] In this case, OC Transpo was in a position to fire Mr. Todd for failing to contact his manager in advance of his shift. However, when it added Mr. Todd’s “continued excessive absenteeism” as an additional reason for firing him, it had to show that it had tried to accommodate Mr. Todd but had reached the point of undue hardship in terms of health, safety or cost. OC Transpo didn’t do so and thus did not meet its burden under the CHRA.
[22] As a result, I have decided that OC Transpo breached the Canadian Human Rights Act when it fired Mr. Todd (in part) for “continued excessive absenteeism”.
III. The Complaint
[23] Mr. Todd filed a complaint with the Canadian Human Rights Commission in which he identified three main elements:
OC Transpo’s response to Mr. Todd’s request for accommodation represented a breach of its procedural and substantive duties to accommodate his disabilities at work.
OC Transpo’s imposition of a CEA when Mr. Todd returned to work in 2012 was discriminatory on the basis of his disability, especially when considering the reason for imposing the CEA; and the terms imposed.
OC Transpo discriminated against Mr. Todd when it terminated him in 2014, because his termination was, at least in part, based on his disability-related absences.
[24] OC Transpo argued that it did not breach its obligations to Mr. Todd. Rather, OC Transpo argued:
Mr. Todd sought and received an accommodation for his IBS and that the accommodation was appropriate in the circumstances.OC Transpo argued that Mr. Todd was satisfied with the accommodation plans, despite the fact that the practical result of the plan was that Mr. Todd was frequently absent from work.OC Transpo argued that Mr. Todd only objected to the accommodation plans following his termination.
Mr. Todd was placed on the CEA upon his return to work because he had been absent without any medical justification for several months, and Mr. Todd’s manager felt that he needed a more rigorous approach to his management of Mr. Todd’s attendance.Furthermore, OC Transpo asserted that Mr. Todd’s absence from work in 2012 was not related to any disability.
Mr. Todd was terminated in 2014 for repeatedly breaching the CEA by failing to contact his supervisor before the start of his shift.OC Transpo argued that this requirement existed so that Mr. Chaudhari could better manage Mr. Todd’s attendance at work and so that Mr. Todd could be offered alternate duties (that satisfied his medical restrictions) if he was unable to perform his regular duties as a bus driver.
IV. Preliminary Issue
A. Counting the Days
[25] A great deal of time and effort has been expended by the parties and by the Tribunal in an attempt to capture a complete record of Mr. Todd’s attendance at work from 2001 to 2014.
[26] In addition to the voluminous records that were filed with the Tribunal, at my request, the parties produced (on consent) an annotated calendar for the 11 years that are the subject of this complaint (2004-2014). This calendar has been immensely helpful to me to get an overall picture of Mr. Todd’s attendance at work and the reasons for his absences when they occurred, despite the fact that the record contains a number of dates about which the parties were not able to agree.
[27] These instances are fairly limited and are immaterial over the span of 11 years that are the subject of a dispute.
[28] After an examination of all of the evidence in this case and detailed consideration of the complaint, and for the reasons detailed herein, I do not believe that this case turns on precisely how many days Mr. Todd worked, or how many days of work Mr. Todd missed, and for what reason. Even without perfect clarity on the precise number of days worked, or agreement on the nature of every absence, it is clear that Mr. Todd missed a lot of work.
[29] Sometimes these absences were related to Mr. Todd’s disability. Sometimes they were not. And still other times, I am left with significant questions about the reasons for Mr. Todd’s absence from work, unable to satisfy myself on a balance of probabilities of any valid reason for a significant number of Mr. Todd’s absences.
[30] My findings with respect to this complaint, however, do not turn on a question of how many days were too many, or whether Mr. Todd’s sick days were accurately represented in a log or spreadsheet.
[31] I have not attempted to parse the hundreds of pages of evidence accounting for every missed shift in Mr. Todd’s career to make a precise determination of how many days Mr. Todd worked in a given year, or to make a finding about whether Mr. Todd’s or OC Transpo’s characterization of a given absence is the correct one. I don’t believe that I have enough evidence to answer these questions with sufficient precision, nor do I believe that anything turns on the answer one way or the other.
[32] In recounting the evidence in this decision, therefore, I have been as precise as I believe the evidence permits and my decision requires, and where specific numbers are provided, they should be seen as my best determination based on the evidence before me. I acknowledge that there are some areas where perfect clarity has eluded me, but in the overall context of this complaint, I believe that this imperfection is not material.
V. Chronology of the Complaint
[33] The complaint alleges a discriminatory conduct that spans almost a decade. And while I have found that the complaint centres on two primary health concerns, the facts disclose four alleged distinct medical conditions experienced by the Complainant during his tenure at OC Transpo.
[34] I hope that an overview of the relevant chronology will help to clarify the legal analysis that follows.
[35] Mr. Todd was hired as a bus operator at OC Transpo in 2001 and began his career with considerable success. Mr. Todd was a member of the Amalgamated Transit Union (the “ATU”).
[36] By all accounts, Mr. Todd enjoyed his work as a bus driver, and early in his career received a number of commendations for excellent service.
(i) Musculoskeletal Pain
[37] In or around 2004, Mr. Todd began to suffer from increasing pain and impairment in his neck and shoulder. In the fall of 2004, Mr. Todd sought treatment from Dr. Maureen Grace, a sports medicine doctor. Dr. Grace recommended a series or treatments, including massage and physiotherapy, which Mr. Todd pursued.
[38] Dr. Grace’s medical file for Mr. Todd was introduced as evidence at the hearing. Based on those notes, Mr. Todd’s treatment for musculoskeletal pain was limited at this time to a few visits with Dr. Grace, and the follow up therapies as directed. There is no evidence to suggest that Mr. Todd experienced limitations on his ability to work as a result of musculoskeletal pain at this time.
(ii) IBS Diagnosis and Accommodation
[39] Also in 2004, Mr. Todd was diagnosed with IBS, a gastrointestinal condition that impacts the lower intestine and can cause cramping, abdominal pain, bloating, gas, and diarrhea or constipation. While there is no known cure for IBS, the condition is intermittent (resulting in flare-ups of the symptoms), and they can often be managed by lifestyle choices such as diet, exercise, and limiting stress.
[40] Following his IBS diagnosis, Mr. Todd initiated the process of having his condition recognized as a disability by his employer, including restrictions and limitations to his ability to work as a bus driver.
[41] Mr. Todd’s gastroenterologist, Dr. Tambay, completed a City of Ottawa Medical Assessment Form (an “MAF”) outlining a series of restrictions relating from Mr. Todd’s condition. Essentially, Dr. Tambay advised OC Transpo that Mr. Todd required access to washroom facilities when he was experiencing a flare-up of his IBS. Dr. Tambay also advised that the flare-ups would be intermittent and somewhat unpredictable in their frequency.
[42] In September 2005, OC Transpo granted Mr. Todd’s request for accommodation of his IBS. Mr. Todd was advised that his diagnosis would be formally recognized as a disability by his employer.
The 2005 Accommodation Plan
[43] On September 22, 2005, OC Transpo, Mr. Todd and the ATU signed a formal agreement laying out the approach that they would take to accommodate Mr. Todd’s IBS in the workplace. The agreement stated:
(…)
As a result of this disability, information from the attending physician and discussion between the Employer and the Employee, the following Accommodation Plan has been established:
The Employee will consult with their treating physician for each and every absence from the workplace related to the disability.
For each and every absence from the workplace, which is due to the Employee’s documented disability, medical certificate signed by the treating physician must be provided to EHW, clearly outlining that the absence was due to the documented disability.
The employee will contact EHW prior to or upon return to duty after each and every absence from the workplace, which is due to the documented disability.
All absences satisfying No. 2 above will be recorded separately from the Employee’s Leave and Attendance record.
This Accommodation Plan will be reviewed annually from the date of its signing and the medical information related to the documented disability will be reassessed at that time.
(the “2005 Accommodation Plan”)
[44] The evidence before me at the hearing was that the 2005 Accommodation Plan was implemented successfully, without issue or complaint from either Mr. Todd or OC Transpo.
(iii) Gastroesophageal Reflux Disorder (GERD) Diagnosis and Treatment
[45] Around this time, Mr. Todd was also experiencing symptoms of a condition known as Gastroesophageal Reflux Disorder (“GERD”), resulting in sometimes debilitating acid reflux. Mr. Todd experienced considerable discomfort as a result of this condition and sought treatment.
[46] The treatment that Mr. Todd underwent included a surgical procedure which was, unfortunately, unsuccessful. Mr. Todd experienced complications associated with the procedure, including swelling of the area around the esophagus, which Mr. Todd testified was painful and sometimes incapacitating.
[47] In order to address these surgical complications, in 2006 and 2007, Mr. Todd underwent a series of procedures to stretch the esophagus in an effort to restore its normal functions. This procedure is known as esophageal dilatation.
[48] Mr. Todd testified that the esophageal dilatation was also very painful, and he was required to fast in advance of the scheduled procedure. In the days following the procedure, Mr. Todd was unable to work.
[49] Mr. Todd was off work for about a month in early 2005 for the initial GERD surgery. Mr. Todd missed approximately 22 scheduled workdays and took 5 vacation days during this period. The OC Transpo records indicate that these absences were treated as non-culpable (or excused) absences for the purpose of the OC Transpo attendance management system.
[50] On at least three other occasions, Mr. Todd missed work in order to undergo the dilatation procedure. In each of these cases, Mr. Todd missed two or three days of work.
[51] Throughout 2007, Mr. Todd experienced intermittent bouts of IBS, missing approximately 42 workdays that year as a result. Mr. Todd also missed two days as a result of a workplace injury, three vacation days, six certified sick days as a result of a cervical strain, 5 days as a result of illness and 6 days attributed to a mental health condition known as dysthymia, for a total of 64 missed work days.
[52] In 2008, Mr. Todd testified that he was still experiencing musculoskeletal pain and some anxiety associated with the failed GERD procedure. In 2008, Mr. Todd was referred back to Dr. Grace for further assessment and treatment of pain in his neck and shoulder.
[53] Mr. Todd was diagnosed with rotator cuff tendonitis, and on February 4, 2008, Dr. Grace recommended that Mr. Todd take 12 weeks off work as a bus driver to give his neck and shoulder a chance to recover, which he did.
[54] Dr. Grace also identified a number of temporary medical restrictions related to Mr. Todd’s musculoskeletal pain, but as Mr. Todd was not attending work, these temporary restrictions were never implemented.
[55] According to Mr. Todd’s testimony and detailed notes that were entered in evidence at the hearing, Mr. Todd had been working only intermittently in the period leading up to Dr. Grace’s diagnosis of rotator cuff tendonitis. Mr. Todd had been off on short term disability starting on January 2, 2008.
[56] On June 18, 2008, Mr. Todd returned to work in an accommodated position with modified duties, based on the restrictions provided by Dr. Grace. Mr. Todd worked cleaning buses until August 26, 2008. Mr. Todd testified although the accommodated position satisfied the restrictions and limitations identified by his doctor, he did not enjoy these modified duties and he found them difficult with his injuries.
[57] On August 26, 2008, Mr. Todd went off work due to his musculoskeletal injury and collected long term disability benefits until February 5, 2010.
The 2010 Accommodation Plan
[58] Soon after Mr. Todd returned to work in February 2010, OC Transpo initiated a process to review and update (if necessary) the 2005 Accommodation Plan. The 2005 Accommodation Plan contemplated an annual review process, but it does not appear from the evidence that such a review had taken place prior to 2010.
[59] Mr. Todd sought updated medical information from Dr. Tambay that confirmed his ongoing IBS diagnosis, and a somewhat revised accommodation plan was drafted.
[60] On June 28, 2010, the updated accommodation plan was signed. The provisions of the new plan largely mirrored those of the 2005 Accommodation Plan, with a few changes. In practice, however, little changed. The revised plan stated:
The Employer has received confirmation from Employee Health and Wellness (EHW) that the Employee has a disability according to established human rights guidelines, and requires a workplace accommodation. The Parties agree to the following:
Medical absences related to the Employee’s disability will be recorded separately from his/her Leave and Attendance Record, provided that:
The Employee will be assessed by their treating physician (or alternate should treating physician not be available) for every absence from the workplace related to the disability.
The employee will provide a medical certificate (forms provided to employee), signed by their treating physician, which clearly indicates that the absence is due to the documented disability – within the first ten (10) days of the absence.
The Employee will contact EHW, and his/her supervisor, as soon as possible at the commencement of any disability-related absence.
Medical certificates for absences unrelated to the documented disability shall be provided in accordance with applicable collective agreement provisions.
This Accommodation Plan will be reviewed annually or as needed if requested by either party (employee or employer).
(the “2010 Accommodation Plan”)
[61] The 2010 Accommodation Plan required that Mr. Todd contact his supervisor “as soon as possible” at the commencement of any disability-related absence. The parties to this complaint agreed that while Mr. Todd routinely contacted the dispatcher when he was going to miss a shift (for any reason), he did not contact his supervisor as required by the 2010 Accommodation Plan.
The 2010 Ergonomics Assessment
[62] On his return to work in February 2010, Mr. Todd met with Susan Gibbons, an ergonomics consultant with the City of Ottawa, to ensure that he would be successful in his transition back to his role as a bus operator. Ms. Gibbons’ role was not to provide or confirm medical restrictions and limitations. Rather, the objective of this appointment was to determine how best to avoid re-aggravating the neck and shoulder condition that had put Mr. Todd off work for more than a year.
[63] At this time, Mr. Todd’s only musculoskeletal medical restriction was that he required time to stretch every 2-3 hours. The OC Transpo had determined that this medical restriction could be met within Mr. Todd’s existing role and did not require any adaptation of his position as a bus operator or a formal accommodation. In other words, Mr. Todd could self-accommodate.
[64] At his Feb 8, 2010 ergonomics appointment with Ms. Gibbons, Mr. Todd expressed concern about whether his return to work would permit him to continue with his stretching regime. Mr. Todd also noted that his tolerance for sitting was about one hour, though this was not identified by his physician as a medical restriction at this time.
[65] Also at the ergonomics appointment, Mr. Todd expressed a preference for buses with arm rests and noted that he preferred shifts with straighter bus routes, as they involved less manipulation of the large steering wheel.
[66] In her Feb 12, 2010 report, Ms. Gibbons made the following recommendations to support Mr. Todd’s return to work:
1. To support success in his RTW, I would suggest Mr. Todd get assigned onto a route that has sufficient recovery time at the end of a run; his impression is that this would be more likely on an evening shift.
2. I would also recommend that he be assigned buses that have arm rests during his RTW process to provide additional support for his neck and shoulder region. These would include the later models of 4300 buses, 4400 and 5000 series buses.
3. I have asked Mr. Todd to contact me to arrange a follow up date after he has returned to work for 2 weeks.
4. Mr. Todd was encouraged to get up out of the chair and stretch at the end of every run, even if only for a short interval of time (1-2 minutes).
[67] In response to Ms. Gibbons recommendations, OC Transpo determined that while certain routes were more likely to have the style of bus that Mr. Todd favoured, it was operationally unable to guarantee that Mr. Todd would get a specific bus on any given day during his return to work.
[68] The way that route assignments are set out in the collective agreement also limited the extent to which the City could assign a specific route to Mr. Todd. However, it was agreed at the hearing that Mr. Todd had sufficient seniority at this point in his career at OC Transpo that he could exercise some control over the routes he was driving, through the bidding process.
[69] In other words, the City argued that Mr. Todd could increase the likelihood that he was assigned routes with his preferred model of busses by booking shifts that regularly use those vehicles, or that run straighter routes, in order to self-accommodate. He did not do so.
[70] It appears from the evidence that neither Mr. Todd nor OC Transpo took any steps to implement Ms. Gibbon’s ergonomic recommendations during Mr. Todd’s return to work in 2010 or that Mr. Todd ever pursued the recommended follow up appointment.
[71] Following his return to work, Mr. Todd continued to experience intermittent flare-ups of his IBS which resulted in his absence from work. He also experienced two bouts of myofascial pain. After only a few months back at work, Mr. Todd testified that his musculoskeletal condition began to deteriorate.
The April 2010 MAF
[72] Mr. Todd returned to Dr. Grace, who provided a new MAF diagnosing bilateral myofascial arthritic neck pain with shoulder tendonitis. Dr. Grace provided OC Transpo with a number of medical restrictions and advised that Mr. Todd would require a permanent workplace accommodation (the “April 2010 MAF”).
[73] In the April 2010 MAF, Dr. Grace noted that Mr. Todd’s musculoskeletal condition was likely to reoccur in the form of “intermittent flare-ups”, but that his prognosis for regular and consistent attendance at work was good.
[74] Dr. Grace went on to direct that, during a flare-up, Mr. Todd was able to perform modified work, provided his duties met with certain medical limitations, including:
Lifting restricted to 5 kg
Pushing or pulling restricted to 5 kg
Avoid repeated turning of the neck.
[75] Dr. Grace also reiterated Mr. Todd’s earlier request for a bus with arm rests. She noted that the 4200 series buses should be avoided due to the steering column and that the 97 NOVA series buses should be avoided due to the forward seat placement. However, on cross-examination, Dr. Grace conceded that these recommendations were not medical limitations derived from her examination of her patient, but rather were requests that she was relaying on Mr. Todd’s behalf.
[76] Upon receipt of the April 2010 MAF, OC Transpo sought clarification regarding the medical restriction that Dr. Grace had identified limiting Mr. Todd’s neck movement, as this restriction raised questions about Mr. Todd’s ability to safely drive a bus.
[77] In the meantime, OC Transpo decided to offer Mr. Todd modified duties until it was able to resolve the outstanding questions about Mr. Todd’s restrictions and limitations, and how they might impact his ability to safely operate a vehicle.
[78] On July 12, 2010, OC Transpo wrote to Dr. Grace seeking this clarification and specifically inquiring if Mr. Todd was medically able to drive. Dr. Grace completed the form provided by the City on August 9, 2010 and confirmed that Mr. Todd could indeed drive safely. At this time, she also reversed her prior medical opinion about Mr. Todd’s medical conditions stating that Mr. Todd now had no permanent medical restrictions whatsoever pertaining to his musculoskeletal condition.
The 2010 Functional Capacity Evaluation
[79] In the face of this sudden reversal of Dr. Grace’s medical advice, and to satisfy itself of Mr. Todd’s ability to safely operate a bus, the City requested that Mr. Todd undergo a Functional Capacity Evaluation (an “FCE”).
[80] The FCE was conducted in September 2010, and the results indicated that Mr. Todd had no functional limitations and no barriers to work. Based on his musculoskeletal examination and functional testing, the prognosis for Mr. Todd’s regular and reliable attendance at work was “excellent”.
[81] The evidence before the Tribunal did not provide any rationale for the discrepancy between Dr. Grace’s findings detailed in the April 2010 MAF (indicating a need for a permanent accommodation) and the results of the September 2010 FCE. However, the results of the FCE confirmed Dr. Grace’s revised diagnosis provided in August, which found that he did not have any restrictions or limitations at that point.
[82] If Mr. Todd believed that his medical or operational limitations were not being adequately assessed or represented in the FCE report, it was incumbent upon him to make that known at the time that the report was prepared- either through further medical documentation from his physician, by communicating directly with the evaluator, by alerting his supervisor or Employee Health and Wellness that he had ongoing concerns or by contacting his union.
[83] Mr. Todd did none of these things.
[84] Mr. Todd returned to work with the 2010 Accommodation Plan still in place, and no other accommodations or restrictions. There is no evidence that Mr. Todd had any objection to returning to work under these conditions. Rather, based on the report of the FCE, and Mr. Todd’s own evidence, I find that he was eager to return to work as a bus driver at this time, with as few restrictions possible.
(iv) Mr. Todd’s 2012 Absence from Work
[85] In or around March 2012, Mr. Todd claimed to have experienced another physical injury that impacted his ability to do his job. The evidence before the Tribunal does not clearly demonstrate the precise nature of the condition, or its cause.
[86] Mr. Todd testified that he injured his quadriceps while moving a refrigerator in early March, causing him to miss work from March 2-8, 2012. He provided the City with a medical certificate to this effect.
[87] Mr. Todd also made an insurance claim in respect of a different musculoskeletal condition during this time period.
[88] The documentation pertaining to these absences in Mr. Todd’s Employee Health and Wellness (“EHW”) file, which was entered as evidence at the hearing, provides no information about the nature of this injury. Mr. Todd filed a series of medical certificates without providing reasons for the absence and it is not clear that OC Transpo had any information about why Mr. Todd had missed these shifts.
[89] By April 7, 2012, OC Transpo took the position that Mr. Todd had exhausted his available sick days, as he had used 17 cumulative weeks since the fall of 2011.
[90] At the time, Mr. Todd disputed that he had exhausted his bank of sick days and these conflicting views led to some confusion and a series of exchanges between Mr. Todd and EHW in early May 2012.
[91] Based on the evidence before me at the hearing, I am unable to conclude with any certainty what transpired with regard to Mr. Todd’s purported sick leave in the first part of 2012, and I am unable to find on a balance of probabilities that this period of absence was disability-related. However, what is clear is that EHW encouraged Mr. Todd to apply for long-term disability (LTD) in early May 2012.
[92] Eventually, Mr. Todd did apply for benefits (which were denied), but the process was not completed until late August 2012. In the interim, Mr. Todd did not attend work and while Mr. Todd asserted that he was disabled, this claim was not supported by the evidence before me at the hearing.
[93] Dr. Grace, who was involved in Mr. Todd’s application for benefits, testified that she completed paperwork in June 2012 wherein she identified Mr. Todd’s diagnosis as myofascial neck pain, myofascial pain in the right hip, trochanteric bursitis in the right hip and calcific tendonitis in his left shoulder. She noted that Mr. Todd was unable to sit for 30 minutes without a break and was unable to do repetitive forward reaching with his right arm (the “June 2012 Medical”).
[94] Dr. Grace further noted that Mr. Todd had had these conditions since 2004, and that his symptoms flared up occasionally and intermittently.
[95] On cross-examination, Dr. Grace admitted that she had not examined Mr. Todd in advance of completing the insurance paperwork in June 2012. She further testified that she had no idea that Mr. Todd had not been attending work during this period. Dr. Grace testified that she believed that the June 2012 Medical she prepared was in support of Mr. Todd’s claim for massage and physiotherapy benefits and had no idea that the forms were being used to support a claim for total disability.
[96] On August 8, 2012, Manulife contacted Mr. Todd and advised him that they would require further information by August 29, 2012 in order to complete their assessment of his application for LTD benefits.
[97] On October 12, 2012, Manulife contacted Kendra Haggarty of EHW to advise that Mr. Todd’s LTD claim was not medically supported and was therefore being denied. The same information was formally communicated to EHW by letter dated October 15, 2012.
[98] Based on the evidence before me at the hearing, and in particular the evidence of Dr. Grace, I am unable to conclude on a balance of probabilities that Mr. Todd was unable to attend work as a result of a disability in 2012 (excluding any IBS-related absences, at this time, which are not in dispute).
[99] After being advised that his claim for long term disability benefits had been denied, on October 19, 2012, Mr. Todd reached out to Mr. Chaudhari to inquire about modified duties and to seek clarification about his retroactive entitlement sick days in 2011 and 2012. Mr. Todd did not advise Mr. Chaudhari that his LTD claim had been found to be medically unsubstantiated.
[100] On October 22, 2012, Mr. Chaudhari directed Mr. Todd to EHW regarding his allotment of sick days and promised to inquire about a return to work with modified duties.
[101] On October 25, 2012, Mr. Chaudhari followed up with Mr. Todd to let him know that he had sent a request to EHW regarding accommodation and modified duties.
[102] By this time, some concern was being raised internally at OC Transpo about Mr. Todd’s unexplained absence from work and his ability to return to work on a regular and reliable basis. Mr. Chaudhari set up a meeting with Labour Relations to discuss the situation and the next steps. That meeting occurred on October 24, 2012.
[103] On October 27, 2012, Mr. Todd followed up with EHW regarding his sick days and the possibility of returning to modified duties, and on October 29, 2012, EHW advised Mr. Todd that he would need an updated medical form outlining his current medical restrictions and limitation before he would be able return to work. Ms. Kendra Haggerty, an EHW employee, requested that Mr. Todd have his physician complete the form and return it to EHW by November 12, 2012.
[104] On Nov 1, 2012, Mr. Todd advised Ms. Haggerty that he would not be able to see his doctor until November 19, 2012 and was therefore unable to meet the November 12 deadline.
[105] On November 6, 2012, EHW contacted Yogi Sharma at the AMT to advise him of Mr. Todd’s file, and to alert him to the complexity of the case.
[106] OC Transpo took the position that Mr. Todd had been off work for 263 days since August 2011, and that EHW was unable to provide Mr. Todd with any further top up payments for sick leave. In documents tendered in evidence before me at the hearing, Ms. Lefebvre of EHW noted that Mr. Todd had drawn 101 days of paid sick leave in 2010, 104 days of paid sick leave in 2011 and that by April 12, 2012, his sick leave bank had run out.
[107] Ms. Lefebvre advised that EHW was working to develop a return to work plan for Mr. Todd, but that the process required medical information from Mr. Todd’s doctor.
[108] On November 13, 2012, Mr. Chaudhari issued a letter to Mr. Todd formally advising him that his current employment status was that he was considered to be on a leave of absence without pay, and that his health, dental and life insurance benefits would run out on November 30, 2012. Mr. Chaudhari advised Mr. Todd that OC Transpo was waiting for completed medicals and put him on notice that his employment status would be reviewed if the supporting medicals were not received by EHW on or before November 30, 2012.
[109] On November 19, 2012, Mr. Todd saw Dr. Grace, who testified at the hearing that she did not have time at that appointment to complete the required medical forms. Mr. Todd advised EHW of the situation and notified them that the forms would be completed on November 26, 2012 and promptly submitted to EHW. He also advised that he believed that he would be cleared to return to regular duties and inquired about updated training.
[110] EHW responded that they would review the completed medical information upon receipt and