Desormeaux v. Ottawa-Carleton Regional Transit

Desormeaux v. Ottawa-Carleton Regional Transit
Collection
Canadian Human Rights Tribunal
Date
2003-01-14
Neutral citation
2003 CHRT 2
Decision-maker(s)
Mactavish, Anne L.
Decision Content
Canadian Human Rights Tribunal Tribunal canadien des droits de la personne
BETWEEN:
FRANCINE DESORMEAUX
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
OTTAWA-CARLETON REGIONAL TRANSIT COMMISSION
Respondent
REASONS FOR DECISION
MEMBER:Anne L. Mactavish
2003 CHRT 2
2003/01/14
TABLE OF CONTENTS
I. MS. DESORMEAUX'S EMPLOYMENT WITH OC TRANSPO
A. Ms. Desormeaux's Attendance History
B. How Did OC Transpo Deal With Ms. Desormeaux's Absenteeism?
C. The Termination of Ms. Desormeaux's Employment
II. LEGAL FRAMEWORK
III. ANALYSIS
A. Implications of the Adams Decision
B. What is the Standard?
C. Is There a Prima Facie Case of Discrimination?
(i) Was Ms. Desormeaux Disabled?
(ii) Was Ms. Desormeaux's Disability a Factor in the Decision to Terminate her Employment?
C. Has OC Transpo Discharged its Burden?
(i) Rational Connection
(ii) Good Faith
(iii) Did OC Transpo Accommodate Ms. Desormeaux to the Point of Undue Hardship?
IV. REMEDY
A. Reinstatement
B. Wage Loss
C. Gross-up
D. Special Compensation
E. Interest
F. Apology
G. Lost Wages for Attendance at the Hearing
H. Consultation with the Canadian Human Rights Commission
I. Retention of Jurisdiction
V. ORDER
[1] During her nearly nine years of employment as a bus operator with the Ottawa-Carleton Regional Transit Commission (OC Transpo), Francine Desormeaux was frequently absent from work. Her absences were caused by a variety of health problems including migraine headaches, kidney stones, gall bladder problems, ovarian cysts, viruses, a broken ankle, a back injury, bronchitis and stress. After numerous warnings from her employer, Ms. Desormeaux's employment with OC Transpo was terminated because of her chronic innocent absenteeism. Ms. Desormeaux alleges that this constitutes discrimination on the basis of disability, contrary to the provisions of section 7 of the Canadian Human Rights Act.
I. MS. DESORMEAUX'S EMPLOYMENT WITH OC TRANSPO [2] After working for a number of years as a supervisor in a child care facility, Francine Desormeaux began work as a bus operator at OC Transpo in March of 1989. OC Transpo provides public transit in the National Capital Region.
[3] Ms. Desormeaux says that she went through a period of adjustment, as she became used to driving a bus for her employer. Working in public transit presents a number of challenges for new employees, as they become used to dealing with the public, navigating the city and operating large vehicles. As junior employees, new drivers also get the least attractive shifts, including split shifts, as well as night and weekend work.
[4] Despite these challenges, Ms. Desormeaux successfully completed an initial probationary period, and drove for OC Transpo for a number of years without any major incidents. It appears that apart from the issue of the frequency of her absences from work, Ms. Desormeaux was a good bus driver. She clearly enjoyed working with the public, and was generally a competent and reliable employee. Ms. Desormeaux's level of attendance was, however, a matter of concern to her employer, virtually from the day that she started working for OC Transpo.
A. Ms. Desormeaux's Attendance History [5] Ms. Desormeaux reviewed OC Transpo's records of her attendance, in conjunction with the diaries that she kept throughout the period of her employment. In so doing, she was able to identify the reasons for most of her absences from work. Her testimony in this regard is summarized in the following table:
Total Days Absent from Work Migraine-related Absences Significant Periods of Absence for Other Medical Reasons
1989 (from March 28) 21 full days 2 part days 9 full days 2 part days 6 full days - bronchitis 6 full days - minor gynaecological surgery
1990 16 full days 4 part days 8 full days 1 part day 6 full days, 2 part days - bronchitis 2 full days - gall bladder
1991 34 full days 2 part days 2 full days
3 full days - bronchitis 16 full days - gall bladder
10 full days, 1 part day - surgery - wisdom teeth
3 full days, 1 part day - sprained ankle
1992 52 full days 1 part day 3 full days 41 full days - gall bladder 5 full days - stomach flu
1993 96 full days 1 part day 2 full days 1 part day 8 full days - bronchitis/flu 79 full days - back injury
1994 26 full days 1 part day 7 full days 1 part day (1) 12 full days - back injury
1995 52 full days 5 part days 3 full days 2 part days 12 full days, 1 part day - ovarian cyst 32 full days - broken ankle (injury on duty)
1996 24 full days 7 part days 6 full days 3 part days 15 full days - 1 part day - ovarian cyst
1997 41 full days 1 part days 14 full days 1 part day 21 full days - kidney stones
1998 (to Jan.30) 3 full days 3 full days
Total 365 full days 24 part days 57 full days 11 part days
[6] It is evident from Ms. Desormeaux's testimony that the above table does not reflect the full extent of her absenteeism. There were several occasions when Ms. Desormeaux was ill, and unable to work, where she entered into an informal arrangement with a co-worker to cover for her. Under this arrangement, the co-worker would report to work in Ms. Desormeaux's stead. Ms. Desormeaux then paid her co-worker directly for the day worked. Ms. Desormeaux estimates that this occurred on three or four occasions. It is common ground that this practice was contrary to the policies of OC Transpo.
B. How Did OC Transpo Deal With Ms. Desormeaux's Absenteeism? [7] Having its employees attend work on a regular and reliable basis is clearly important to OC Transpo, which delivers time-sensitive public transport. In an effort to manage employee absenteeism, OC Transpo has had a number of attendance management policies over time.
[8] Ron Marcotte was Ms. Desormeaux's supervisor at the time that her employment with OC Transpo was terminated. He explained that during the early years of Ms. Desormeaux's employment with OC Transpo, excessive absenteeism was treated in the same way that other performance problems were dealt with: that is, as a disciplinary matter. Employees who were chronically absent from work were subject to progressive discipline, with sanctions ranging from reprimands up to and including dismissal. This view of chronic innocent absenteeism as a disciplinary matter is evident in the way in which Ms. Desormeaux's absenteeism was managed in the early stages of her career.
[9] As previously noted, Ms. Desormeaux's absenteeism was a matter of concern to OC Transpo from the time that she started working for the organization. Ms. Desormeaux met with Chris Walton, who was the Operations Relations Officer and Ms. Desormeaux's supervisor, for a probationary evaluation on October 27, 1989. The appraisal document indicates that there were no concerns with respect to Ms. Desormeaux's performance, apart from her absenteeism. As of October, 1989, Ms. Desormeaux had missed 20 full or part days of work. According to the document, Mr. Walton spoke to Ms. Desormeaux about her attendance during the course of her evaluation meeting.
[10] It appears from the documentation that Mr. Walton told Ms. Desormeaux on February 23, 1990 that serious consideration was being given to terminating her employment. In this and subsequent meetings, Ms. Desormeaux assured Mr. Walton that her attendance would improve.
[11] By April of 1990, Ms. Desormeaux had been absent from work on 13 occasions, for a total of 37 full and part days. Mr. Walton again met with Ms. Desormeaux to discuss her unsatisfactory level of attendance. At the time that Ms. Desormeaux was notified of the meeting, Mr. Walton advised her that Due to the seriousness of this matter a decision on your future employment will be made. Ms. Desormeaux testified that she discussed the difficulties that she was having in adjusting to working at OC Transpo. She also told Mr. Walton about her migraine headaches and other health problems. Despite OC Transpo's concerns, Ms. Desormeaux successfully completed her probationary period, and was made a permanent employee. She was advised, however, that her attendance would be monitored on a regular basis.
[12] Three months later, Ms. Desormeaux was given a one day suspension because of her absenteeism, and because she was involved in a minor accident. This suspension was imposed after another meeting with Mr. Walton, in the course of which Ms. Desormeaux again referred to her migraines. Ms. Desormeaux also advised Mr. Walton about problems that she was experiencing with her gall bladder, which would likely require surgery in the future. Ms. Desormeaux grieved this suspension, claiming that the majority of her absences were illness-related. In the course of the first level grievance hearing, Ms. Desormeaux's union argued that Ms. Desormeaux was experiencing severe migraine headaches, that she was receiving medical attention for the problem, and that she had scheduled all of her medical appointments outside of her working hours. An OC Transpo representative explained that Ms. Desormeaux's frequent absences created difficulties, as there were not always enough staff available to replace her. Ron Marcotte, who was then the Assistant Superintendent of Operating Personnel, was also in attendance at the grievance meeting. His notes indicate that:
Ms. Desormeaux was advised that the situation was of her own doing. It was also noted that there were various options open to her at OC Transpo should she want to seek assistance. It was stressed that the Commission was not trying to terminate her but are trying to put her career on the right path.
It appears that the only option identified to Ms. Desormeaux with respect to the assistance available to her at OC Transpo was the Employee Assistance Program (EAP).
[13] This grievance was resolved on the basis that if Ms. Desormeaux was not absent from work on more than five occasions, or for more than 12 days over the next 12 months, and did not have another accident for which she was at fault, consideration would be given to reducing the suspension. Ms. Desormeaux testified that Mr. Walton told her that she would have to do whatever it took to get herself to work. It was recognized that Ms. Desormeaux might require surgery for her gallstones, and she was instructed to contact Mr. Walton in order to make arrangements for this absence.
[14] It should be noted that this was the only occasion during Ms. Desormeaux's employment with OC Transpo when she was given a specific attendance target. Ms. Desormeaux met this target, although she says that to do so, she reported to work on occasion while taking Tylenol 3. Tylenol 3 contains codeine, and driving while taking it is contraindicated.
[15] Ms. Desormeaux was interviewed regarding her attendance on December 9, 1992 and again on July 20, 1993. There is little information as to what was discussed in the course of these meetings.
[16] On June 19, 1994, OC Transpo's policy regarding the Employment of Disabled Employees came into effect. This policy, which reflects a shift away from the disciplinary treatment of health-related absences, established a protocol for the consideration of requests for accommodation. It is common ground that although this policy remained in effect for a couple of years, Ms. Desormeaux's situation was never addressed in accordance with the policy, as no one, including Ms. Desormeaux herself, considered her to be disabled.
[17] On July 11, 1994, Ms. Desormeaux met with Ron Marcotte, who had by this point replaced Mr. Walton as Ms. Desormeaux's supervisor. The purpose of this meeting was to discuss Ms. Desormeaux's unacceptable level of attendance. The contemporaneous documentation indicates that Ms. Desormeaux advised Mr. Marcotte that her absences were primarily due to her migraine headaches and the personal problems that she was experiencing at the time. Ms. Desormeaux was again warned that more serious discipline could be imposed if her level of attendance did not improve, and was once again referred to the EAP for assistance.
[18] Mr. Marcotte met with Ms. Desormeaux again on December 6, 1995, to discuss her attendance. Rob Vye, Ms. Desormeaux's union representative, was also present at this meeting. Mr. Marcotte noted that if Ms. Desormeaux's absences for compensable injuries were excluded, her level of attendance had improved somewhat. Nevertheless, he advised Ms. Desormeaux that her attendance was still unacceptable, and cautioned her that if her level of attendance did not improve, the issue of her medical fitness to continue working would have to be addressed. A similar discussion took place between Ms. Desormeaux and Mr. Marcotte on August 29, 1996.
[19] In November of 1996, OC Transpo introduced a new attendance management policy. Amongst other things, the purpose of this policy was to reduce absenteeism, while making every reasonable effort to provide assistance, accommodation, and rehabilitation to employees, and to provide employees with clear and fair communication of the employer's attendance expectations. In cases of illness or injury, the program required supervisors to ascertain from an independent medical consultant whether the employee in question suffered from a 'disability', within the meaning of the Canadian Human Rights Act, which required accommodation. The policy also advised supervisors to try to get employees to agree to a defined reasonable level of attendance for the future, suggesting that the plant average for absenteeism is a reasonable standard. Article 8 of the policy provides that, before terminating the employment of an individual for chronic innocent absenteeism, OC Transpo must be satisfied that, amongst other things, ... an honest effort has been made to accommodate the involved employee.
[20] This attendance management program contemplated a more pro-active approach to managing employee absenteeism than did its predecessor. In accordance with this approach, employees whose absenteeism rate put them in the top 25 percent of the OC Transpo workforce were contacted with respect to their absenteeism, and many were interviewed regarding the situation. In this context, in March of 1997, OC Transpo bus operators, including Ms. Desormeaux, were notified that the absenteeism rate for the first months of 1997 was up 30% over the same period in 1996. Drivers who had been absent in the first three months of 1997 were advised that excessive absenteeism was threatening to compromise OC Transpo's ability to meet its service requirements, and were reminded of the necessity of regular attendance.
[21] On September 29, 1997, Ms. Desormeaux and Mr. Vye met again with Mr. Marcotte. Although Mr. Marcotte did not question the legitimacy of Ms. Desormeaux's absences, he was concerned as to her medical fitness to work on a regular and reliable basis. Ms. Desormeaux testified that she asked Mr. Marcotte to tell her precisely how many days a year that she would be allowed to miss. It is common ground that Mr. Marcotte refused to do so, telling Ms. Desormeaux that her rate of attendance would simply have to improve.
[22] Because of his concerns with respect to Ms. Desormeaux's fitness for work, Mr. Marcotte invoked Article 15.3 of the collective agreement in force between OC Transpo and the Amalgamated Transit Union, of which Ms. Desormeaux was a member. This Article allows OC Transpo to request that an employee provide a certificate from her doctor attesting to her fitness for work, where the employer has reasonable grounds for believing that the employee may be medically unfit to work on a regular basis. The collective agreement further contemplates that the employer may not be satisfied with the medical certificate provided by an employee. In such circumstances, the employee can be asked to provide a further certificate from a physician selected by OC Transpo. Mr. Marcotte explained that he was not seeking information about Ms. Desormeaux's diagnosis, but rather about the prognosis for attendance at work in the future.
[23] In order to safeguard the confidentiality of employee medical information, requests of this nature are routed through OC Transpo's Occupational Health unit. On September 30, 1997, Louise Culham, an Occupational Nurse, wrote Ms. Desormeaux, asking her to provide a letter from her physician, giving an opinion as to Ms. Desormeaux's ability to perform work on a regular basis. Ms. Culham asked Ms. Desormeaux to have her doctor consider the following questions:
Do you have a medical condition that could cause your attendance to be in excess of reasonableness? Is your problem of a temporary or chronic nature? What is the prognosis that you can perform your duties on a regular full-time basis?
[24] Ms. Desormeaux's family doctor, Dr. Anne Meehan, responded to OC Transpo's request by letter dated October 16, 1997. Dr. Meehan's letter states:
... during the past year [Ms. Desormeaux] has had a few problems which have necessitated an absence from work. The first problem related to migraine headaches. Over time we have resolved that these are related to mechanical neck dysfunction. As a result, she has begun a program of regular neck exercises, as well as physiotherapy, which have significantly reduced both the severity and frequency of her headaches.
The other problem which arose this past year was one of a renal calculi. The problem has resolved and is not likely to become an ongoing problem. Finally, Ms. Desormeaux is being investigated for a possible mass on her ovary. She is under the care of Dr. Treehuba for the investigation and potential treatment. This ovarian abnormality is not causing her any problem at the present.
Hence, in response to your specific questions, the only problem among the above list which is possibly of a longer-term nature is that of migraines. In view of the definite improvement Ms. Desormeaux has experienced through her own efforts, and through physiotherapy, I do not anticipate that they will significantly interfere with her ability to perform her duties on a regular full-time basis. Both the renal calculi and the ovarian problem are isolated events and unlikely to become chronic or to recur ...
Dr. Meehan was not specifically asked whether Ms. Desormeaux suffered from a disability, and consequently, her letter did not address this issue. There is no indication in Dr. Meehan's letter that Ms. Desormeaux required any form of accommodation in the workplace.
[25] Louise Culham subsequently advised Mr. Marcotte that:
[Ms. Desormeaux] does possibly have a problem which is of a longer-term nature. However, in view of the definite improvement Ms. Desormeaux has experienced through her own efforts, her physician did not feel that this should significantly interfere with her ability to perform her duties on a regular full-time basis.
Although Dr. Meehan's stated that Ms. Desormeaux suffered from a condition that could have longer-term implications, no one from OC Transpo followed up with Dr. Meehan, nor was any attempt made to obtain an independent medical assessment of Ms. Desormeaux.
[26] The evidence suggests that OC Transpo would handle an employee in Ms. Desormeaux's situation quite differently today. Lois Emberg was OC Transpo's Employment Equity Co-Ordinator at the time, and had responsibility for human rights and employment equity. According to Ms. Emberg, if a letter such as the one from Dr. Meehan was received from an employee's doctor now, OC Transpo's staff physician would likely follow up on Dr. Meehan's letter, and an effort would be made to determine whether the employee suffered from a disability. Consideration would also be given to whether the employee needed accommodation, and what could be done in this regard.
[27] Ms. Desormeaux, Mr. Vye and Mr. Marcotte met again on November 6, 1997(2), in order to discuss the results of the medical inquiry and Ms. Desormeaux's prognosis for regular and reliable attendance at work. Ms. Desormeaux testified that she told Mr. Marcotte that she was doing everything that she possibly could to attend work regularly. She says that she again asked Mr. Marcotte to specify how many days' absence could be tolerated, and that he declined to do so, telling her only that he wanted to see a substantial improvement in her attendance.
[28] Ms. Desormeaux testified that in the course of this meeting, Mr. Vye told Mr. Marcotte that Ms. Desormeaux's migraines could constitute a disability, and suggested that they look at ways in which Ms. Desormeaux could be accommodated. Mr. Marcotte agrees that the question of whether Ms. Desormeaux was disabled was raised by Mr. Vye at some point, although he was uncertain if the issue was raised at this meeting. Mr. Vye did not testify. There is no mention of any such discussion in the documentation prepared by Mr. Marcotte with respect to this meeting.
[29] I accept Ms. Desormeaux's testimony in this regard, and find that on November 6, 1997, OC Transpo was made aware that Ms. Desormeaux potentially suffered from a disability. Mr. Marcotte testified that he had between 300 and 350 employees under his supervision in 1998, and that over the course of his career at OC Transpo, he conducted somewhere between 700 and 800 performance-related employee interviews. It is therefore not surprising that he was unable to recall when the issue first arose. Given that her employment was in issue, this meeting was obviously of greater importance to Ms. Desormeaux than it was to Mr. Marcotte, and her recollection as to the timing of Mr. Vye's comments is thus more likely to be reliable. Ms. Desormeaux says that Mr. Marcotte was 'not hearing' what Mr. Vye was saying, and thus it is not surprising that the discussion was not mentioned in the documentation relating to this meeting. From Ms. Desormeaux's testimony it does not appear that the issue of accommodation was explored in the course of this meeting.
[30] According to Ms. Desormeaux, Mr. Marcotte closed the meeting by saying I don't want to have to call you back in here next September for another meeting. She understood from this that she had another year to try to improve her attendance.
[31] Mr. Marcotte's letter documenting this meeting refers to the assurances given by Ms. Desormeaux regarding the steps that she was taking to control her migraines, and states Further, I am encouraged to hear that you realize that you can take actions on your own to assist in controlling your problems and that it is solely up to you.
[32] Although the disability issue was raised during the November 6 meeting, Mr. Marcotte did not follow the procedure set out in the Attendance Management Program. He did not send Ms. Desormeaux for an independent medical assessment in order to ascertain whether Ms. Desormeaux did indeed suffer from a 'disability' within the meaning of the Canadian Human Rights Act. Similarly, he did not ask that Dr. Meehan be consulted with respect to this question.
[33] Between November 6, 1997, and the termination of her employment on January 30, 1998, Ms. Desormeaux was absent from work on four separate occasions for a total of seven full days. Ms. Desormeaux says that all of these absences were attributable to migraine headaches. She explained that she was taking Norgesic Forte, a very powerful medication, for these headaches, and could not have safely driven a bus. Each of these absences was documented by an OC Transpo absence form, signed by Dr. Meehan, indicating the reason for the absence.
[34] Ms. Desormeaux was also late for work on two occasions in this period, as a result of having slept in.
C. The Termination of Ms. Desormeaux's Employment [35] On January 30, 1998, Ms. Desormeaux and Mr. Vye met with Mr. Marcotte and Mr. Walton, at which time Ms. Desormeaux was advised that her employment with OC Transpo was being terminated. Ms. Desormeaux stated that she was shocked, as she thought that she had another year to prove herself.
[36] Mr. Walton's contemporaneous notes of the meeting confirm that Ms. Desormeaux told Mr. Marcotte and Mr. Walton that all of her recent absences had been due to migraines. According to Ms. Desormeaux, Mr. Vye again suggested that her headaches constituted a disability and that OC Transpo should look at ways to accommodate her. Ms. Desormeaux says that Mr. Marcotte responded by saying that OC Transpo's decision would stand.
[37] Mr. Marcotte agrees that the issue of Ms. Desormeaux suffering from a disability that required accommodation was raised by Mr. Vye during this meeting. Mr. Walton's notes record Mr. Marcotte responding by stating that while some of Ms. Desormeaux's absences may have been due to migraines, she had also missed substantial periods of work for other reasons. Mr. Marcotte testified that he did not have any information from OC Transpo's health unit to indicate that there was a need to explore possible accommodative measures. Similarly, Mr. Marcotte says that he had no information suggesting that there was a need to obtain an independent medical assessment.
[38] Based upon the opinion provided by Dr. Meehan, Mr. Marcotte stated that in November of 1997, OC Transpo's expectation was that Ms. Desormeaux would be able to provide regular and reliable attendance in the future. According to Mr. Marcotte, Dr. Meehan's opinion indicated that there was no impediment to Ms. Desormeaux's attending work on a regular basis. In the weeks following the November 6 meeting, Ms. Desormeaux was absent from work on several occasions, totaling 7 full and 2 part days. This led the employer to conclude that the prognosis for reliable future attendance by Ms. Desormeaux was very poor. Thus the decision was made to terminate her employment for chronic innocent absenteeism.
II. LEGAL FRAMEWORK [39] Ms. Desormeaux's complaint is brought pursuant to section 7 of the Canadian Human Rights Act. Section 7 makes it a discriminatory practice to refuse to employ someone on a prohibited ground of discrimination. Section 3 of the Act designates disability as a prohibited ground of discrimination.
[40] Pursuant to section 15(1)(a) of the Act, it is not a discriminatory practice to treat an employee in a differential fashion, where the differential treatment is based upon a bona fide occupational requirement.
[41] Counsel for OC Transpo submits that the standard of proof in a human rights case is something higher than the ordinary civil standard of balance of probabilities, relying on the decision of the Alberta Court of Queen's Bench in Berry v. Farm Meats Canada Ltd.(3) as authority for this proposition. I disagree. At the federal level, the standard of proof in discrimination cases is the ordinary civil standard of the balance of probabilities. (4)
[42] OC Transpo further contends that arbitral jurisprudence affirms the right of an employer to receive its part of the employment bargain, that is, to have an employee provide work in exchange for compensation. While arbitrators do take human rights principles into consideration, counsel says, nevertheless, employment contracts may be frustrated through no fault of the individual employee.
[43] The interface between human rights and arbitral jurisprudence was discussed in the recent decision of this Tribunal in Eyerley v. Seaspan International Ltd.(5), and I adopt the reasoning in that case. Labour relations concepts do not operate freely, but are constrained by human rights legislation.
[44] The Supreme Court of Canada revisited the approach to be taken in human rights cases in its decisions in British Columbia (Public Service Employee Relations Commission) v. BCGSEU(6) ('Meiorin') and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (7) ('Grismer'). The historic distinction between direct and indirect discrimination has been replaced by a unified approach to the adjudication of human rights complaints. Under this approach, the initial onus is still on a 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.(8)
[45] Once a prima facie case of discrimination has been established, the onus shifts to the respondent to prove, on a balance of probabilities, that the discriminatory standard or policy is a bona fide occupational requirement. In order to establish this, the respondent must now prove that:
i) it adopted the standard for a purpose that is rationally connected to the performance of the job;
ii) it adopted the standard in good faith, in the belief that it is necessary for the fulfilment of that legitimate work-related purpose; and
ii) 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 an individual employee sharing the characteristics of the claimant without imposing undue hardship on the employer.(9)
[46] The term 'undue hardship' is not defined in the Act, however, Meiorin and Grismer provide considerable guidance in determining whether or not an undue hardship defense has been made out. In Meiorin, the Supreme Court observed that the use of the word 'undue' implies that some hardship is acceptable - it is only 'undue' hardship that will satisfy the test. (10) The Supreme Court has further observed that in order to prove that a standard is reasonably necessary, a respondent always bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship.(11) It is incumbent on the respondent to show that it has considered and reasonably rejected all viable forms of accommodation. The onus is on the respondent to prove that incorporating aspects of individual accommodation within the standard was impossible short of undue hardship.(12) In assessing the adequacy of the respondent's efforts to accommodate, regard may be had to the prospect of substantial interference with the rights of others. (13) The adoption of the respondent's standard has to be supported by convincing evidence. Impressionistic evidence will not generally suffice. (14) Finally, factors such as the financial cost of methods of accommodation should be applied with common sense and flexibility in the context of the factual situation under consideration.(15)
[47] It is not necessary that discriminatory considerations be the sole reason for the actions in issue for a complaint to succeed. It is sufficient if the complainant's disability was a factor in the decision to terminate her employment.(16)
III. ANALYSIS A. Implications of the Adams Decision [48] The Amalgamated Transit Union grieved the termination of Ms. Desormeaux's employment. The grievance proceeded through an expedited arbitration process, and was heard by the Hon. George Adams, Q.C. on July 27, 1998. On August 5, 1998, Mr. Adams rendered a decision wherein he concluded that OC Transpo had just cause to dismiss Ms. Desormeaux. Accordingly, the grievance was dismissed.
[49] Prior to the commencement of this hearing, the respondent brought a motion challenging the jurisdiction of the Tribunal on a number of bases. One of the respondent's arguments was that the doctrine of res judicata prohibited the Tribunal from taking jurisdiction over Ms. Desormeaux's complaint due to the application of issue estoppel.
[50] I dealt with this motion in a preliminary ruling, wherein I found that issue estoppel did not arise in this case, as the issue before Mr. Adams was not the same as the issue before the Tribunal, nor were the parties to the two proceedings the same.
[51] The arbitration before Mr. Adams proceeded on the basis of an agreed statement of facts. In the course of the Tribunal hearing, counsel for the respondent contended that, in the event that there is an issue regarding any of these facts, I should apply the doctrine of issue estoppel, and take these facts as having been proven in the arbitration proceeding.
[52] It is not open to the respondent to try to re-litigate an issue that I have already dealt with in my preliminary ruling. I have already decided that I am not bound by the findings of Arbitrator Adams. However, having looked closely at the submissions of counsel for the respondent, it seems that what she is really arguing is that Ms. Desormeaux should not be permitted to resile from admissions made on her behalf at the arbitration.
[53] I do not find it necessary for me to address this argument, in light of the evidence adduced before me in this hearing, as it does not appear that either the Commission or Ms. Desormeaux take substantial issue with the facts agreed to before Mr. Adams.
B. What is the Standard? [54] The employment standard in issue in this case is OC Transpo's requirement that its employees attend work on a regular and reliable basis.
C. Is There a Prima Facie Case of Discrimination? [55] In considering this complaint, I must first determine if Ms. Desormeaux and the Commission have established a prima facie case of discrimination on the basis of a disability. The respondent contends that no prima facie case has been established here, as it has not been proven that Ms. Desormeaux suffered from a disability. OC Transpo submits that the evidence does not establish that Ms. Desormeaux suffers from migraine headaches, and that all of the other illnesses and injuries that she has suffered over the years are transitory ailments, and do not rise to the level of disabilities.
(i) Was Ms. Desormeaux Disabled? [56] Ms. Desormeaux testified that she suffered from chronic headaches for many years prior to being hired by OC Transpo. According to Ms. Desormeaux, her headaches usually start during the night, and begin with neck pain. The pain gradually moves forward into one side of her head. If Ms. Desormeaux stands up while suffering from one of these headaches, she experiences nausea and vomiting. She also becomes very sensitive to light. The headaches have historically occurred once or twice a month, and typically lasted anywhere from one to three days. These headaches persisted throughout the time that Ms. Desormeaux worked for OC Transpo.
[57] Ms. Desormeaux has frequently sought medical assistance for her headaches. At the time that Ms. Desormeaux joined OC Transpo, she was being treated by her family physician, then Dr. Lyla Graham. In 1990, Dr. Graham referred Ms. Desormeaux to Dr. H. Rabinovitch, a neurologist, for further investigation. Dr. Rabinovitch examined Ms. Desormeaux on January 11, 1990, and subsequently reported his findings to Dr. Graham. Dr. Rabinovitch's report notes I expect that she probably has mixed migraine, tension headaches .... I will arrange for an EEG and CAT scan but I think it is very doubtful that much else will be found ... Ms. Desormeaux says that she underwent both the EEG and the CAT scan, but was never advised of the test results. Her understanding was that she would only be notified if something noteworthy was disclosed by the tests. There is no record of the findings of either test.
[58] In July of 1996, Ms. Desormeaux changed family doctors, and began seeing Dr. Meehan on a regular basis. Dr. Meehan testified in these proceedings, describing her observations with respect to Ms. Desormeaux's headache condition, as well as the various forms of treatment and types of medication that she prescribed for Ms. Desormeaux over the years.
[59] According to Dr. Meehan, the symptoms that Ms. Desormeaux described with respect to her headaches were consistent with those Ms. Desormeaux reported to Dr. Rabinovitch in 1990, and are classic symptoms of more severe migrainous-type headaches. Dr. Meehan explained that the cause of migraine headaches is not known, but certain 'triggers' can bring on headaches. Treatment for migraines consists of trying to identify and avoid these triggers, and can include prophylactic medication aimed at preventing recurrences. Various types of analgesic medications are also prescribed to reduce the level of pain quickly and effectively, with as few side effects as possible.
[60] The treatment of migraine headaches often involves an element of trial and error, according to Dr. Meehan. In Ms. Desormeaux's case, Dr. Meehan recommended that Ms. Desormeaux try physiotherapy to reduce muscle tension in her neck. Reducing neck tension can lessen the severity of migraine headaches. She also had Ms. Desormeaux try a variety of medications, in an effort to identify the most effective form of treatment for the headaches. Because fluctuations in female hormonal levels can often trigger migraine headaches, Dr. Meehan eventually started Ms. Desormeaux on a course of Depo-Provera, medication that suppresses ovulation, and eliminates the menstrual cycles that often trigger migraines. (17)
[61] Dr. Meehan stated that she did not see any need to refer Ms. Desormeaux to a neurologist for further assessment. According to Dr. Meehan, Ms. Desormeaux had already been assessed by a neurologist, and did not exhibit any symptoms that would cause Dr. Meehan to question the accuracy of Dr. Rabinovitch's diagnosis.
[62] Since becoming Ms. Desormeaux's family doctor in 1996, Dr. Meehan also treated Ms. Desormeaux for kidney stones, ovarian cysts, a respiratory infection and viral gastroenteritis.
[63] By the Fall of 1997, when she was asked for an opinion regarding Ms. Desormeaux's fitness for work, Dr. Meehan says that all of Ms. Desormeaux's health problems, apart from the migraines, had resolved, and would not cause any ongoing problems. Insofar as Ms. Desormeaux's migraines were concerned, Dr. Meehan says that they were under better control, but that the nature of Ms. Desormeaux's condition was such that one could not predict when the headaches would occur. Ms. Desormeaux's headaches impaired her ability to perform her job. Further, many of the medications used to treat migraine headaches have side effects that would make driving a bus unsafe.
[64] The starting point for my determination of whether or not Ms. Desormeaux suffered from a disability must be the definition of 'disability' contained in section 25 of the Canadian Human Rights Act. Unfortunately, this section is of limited assistance in this case, in that the definition that it provides is somewhat circular: 'disability' is defined as - any previous or existing mental or physical disability ...
[65] The most recent judicial pronouncement as to what constitutes a disability is the decision of the Supreme Court of Canada in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City).(18) The Supreme Court determined that the term 'handicap', (which is used synonymously with 'disability' in the human rights context)(19), ... must not be confined within a narrow definition that leaves no room for flexibility.(20)
[66] Counsel for OC Transpo submits that Ms. Desormeaux did not suffer from a disability, contending that it has not been properly established that Ms. Desormeaux in fact suffers from migraine headaches. Counsel submits that diagnosing migraine headaches is beyond the expertise of Dr. Meehan as a family physician. In the absence of a diagnosis by a neurologist, counsel says, I cannot find that Ms. Desormeaux suffers from migraines.
[67] There are several reasons for rejecting counsel's submission. I am satisfied that the diagnosis and treatment of migraine headaches is within the expertise of the reasonably competent family practitioner. Further, Ms. Desormeaux was assessed by a neurologist in 1990. Dr. Rabinovitch concluded that Ms. Desormeaux probably suffered from