Audet v. Canadian National Railway

Audet v. Canadian National Railway
Collection
Canadian Human Rights Tribunal
Date
2006-05-16
Neutral citation
2006 CHRT 25
File number(s)
T1030/1105
Decision-maker(s)
Hadjis, Athanasios
Decision type
Decision
Decision Content
Canadian Human Rights Tribunal Tribunal Canadien Des Droits De La Personne
JEAN-RAYMOND AUDET
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
CANADIAN NATIONAL RAILWAY
Respondent
DECISION
2006 CHRT 25 2006/05/16
MEMBER: Athanasios D. Hadjis
I. WHAT FACTS GAVE RISE TO MR. AUDET'S COMPLAINT?
A. Mr. Audet's work history at CN
B. Mr. Audet's seizure of September 10, 2002
C. CN removes Mr. Audet from service
D. Mr. Audet's dealings with CN following his removal from service
E. CN invites Mr. Audet to be tested for the position of Intermodal Dispatch Coordinator - December 2003
F. CN offers Mr. Audet the position of Train Movement Clerk - July 2004
G. CN invites Mr. Audet to undergo clerical testing - May 2005
H. CN offers Mr. Audet the Rule 42 Foreman position - October 13, 2005
II. WHAT MUST BE PROVEN TO ESTABLISH DISCRIMINATION IN THIS CASE?
A. The Prima facie case
B. CN's justification
C. Application of the Meoirin test
(i) Was the standard adopted by CN for a purpose rationally connected to the performance of the job?
(ii) Did CN adopt the standard in the good faith belief that it was necessary for the fulfillment of the purpose?
(iii) Has it been demonstrated that the accommodation of Mr. Audet is impossible without imposing undue hardship on CN?
a) Was Mr. Audet individually assessed?
b) Did the employer consider and reasonably reject all viable forms of accommodation?
c) Would accommodating Mr. Audet have imposed undue hardship on CN?
d) Did Mr. Audet hinder CN's accommodation efforts?
1. Mr. Audet's reaction to the July 2004 TMC job offer
2. The UTU's alleged failure to facilitate the accommodation
3. Mr. Audet's reaction to the offer of the Rule 42 Foreman position
III. FINDING OF DISCRIMINATION
IV. WHAT REMEDIES DOES MR. AUDET SEEK?
A. An order that CN review its accommodation policy
B. Return to active service
C. Compensation for lost wages
D. Compensation for pain and suffering - s. 53(2)(3) of the Act
E. Special compensation - s. 53(3) of the Act
F. Costs
G. Interest
H. Retention of jurisdiction by the Tribunal
[1] The complainant, Jean-Raymond Audet, alleges that his employer, the Canadian National Railway Company (CN), refused to continue to employ him and did not accommodate him after he had an epileptic seizure on September 10, 2002. He contends that CN thereby discriminated against him on the basis of his disability, in breach of s. 7 of the Canadian Human Rights Act.
[2] Both Mr. Audet and CN participated at the hearing and were represented by legal counsel. The Canadian Human Rights Commission did not participate. Prior to the start of the hearing, the Commission reached an agreement with the other parties regarding the policy issues engaged by this case in relation to the application of the Railway Association of Canada's Medical Guidelines. The details of the agreement were not disclosed to the Tribunal.
[3] For the reasons set out below, I have determined that CN discriminated against Mr. Audet by effectively refusing to continue to employ him, on the basis of his disability, without a valid justification under the Act, and that Mr. Audet's complaint has therefore been substantiated.
I. WHAT FACTS GAVE RISE TO MR. AUDET'S COMPLAINT? A. Mr. Audet's work history at CN [4] Mr. Audet is 47 years old and resides in Sudbury. He became an employee of CN in May of 1988. By July of 1989, Mr. Audet was working as a brakeman, based out of CN's terminal in Capreol, just outside of Sudbury. A typical three-person train crew is comprised of the locomotive engineer, the conductor, and the brakeman, who assists the conductor. The brakeman's duties include moving tracks to switch out rail cars from a train and assisting in the marshalling of the various rail cars.
[5] In August of 1989, Mr. Audet suffered a single convulsive seizure while working. He was diagnosed with complex-partial epilepsy, also known as Temporal-Lobe epilepsy. As a consequence of that episode, Mr. Audet has been on anti-seizure medication ever since.
[6] Following the seizure, CN removed Mr. Audet from his position. He received short term disability benefits and employment insurance benefits while off work. In 1992, he was returned to work by CN in the position of yard helper, at CN's MacMillan Yard terminal in Toronto.
[7] In 1995, Mr. Audet suffered an injury to his back while at work. He received disability benefits and on occasion was assigned light duty work. As a result of his injury, the Ontario Workplace Safety and Insurance Board (WSIB) imposed several work-related restrictions, including a requirement that he not work for prolonged periods of time, that he limit his lifting of heavy objects, and that he avoid repetitive back motions.
[8] In 1997, CN's Chief Medical Officer identified certain restrictions relating to Mr. Audet's epilepsy that had to be respected in order for him to regain employment as a brakeman on the main rail line. The Chief Medical Officer observed that Mr. Audet had been seizure-free for more than five years and concluded that his chance of a new seizure was quite remote. The restrictions provided that Mr. Audet was not to work alone, and was to always remain in radio or visual contact with a team partner. His team was to be kept informed of the remote possibility of his sudden impairment. All applicable rules regarding rest periods were to be fully respected. No overtime work would be permitted for Mr. Audet, unless it was in an emergency situation.
B. Mr. Audet's seizure of September 10, 2002 [9] With the issuance of the Chief Medical Officer's letter setting out Mr. Audet's restrictions, he was able to return to work as a brakeman based out of Capreol, in 1998. On certain trains, where crews were only comprised of two persons, he would work as the conductor, a job for which he had been qualified in 1992.
[10] On account of his relatively low rank on the seniority list for CN's Capreol-based brakemen and conductors, Mr. Audet had been placed on the spare board. As a result, he would be called in to fill vacancies created on the occasions when a regular employee was absent or when none of the regular employees had opted to work on a given shift. Thus, if CN required the services of a brakeman or conductor on a run, Mr. Audet and the other spare board employees would be telephoned on a rotational basis and invited to take the available run. Mr. Audet was remunerated based on the number of hours worked or miles travelled, depending on the circumstances.
[11] Mr. Audet claims that there was an overall shortage of employees at Capreol in 2002, as a result of which he was called in to work more hours than ever before. He contends that the workload took its toll on him and that by the end of the summer, he was feeling quite tired.
[12] On the morning of September 10, 2002, he returned to Capreol after helping bring in a train overnight from Hornepayne, Ontario. He got into his car at the end of his shift and was going home to rest. He had booked himself a 24-hour rest period. On the way home, he felt what he describes as an aura coming over him, and he realized immediately that a seizure was imminent. He pulled his car over. He had a seizure but does not recall it. He remembers waking up in an ambulance. He was taken to the hospital but was released several hours later.
[13] Mr. Audet went home. He did not notify CN of the incident. During the evening of the following day, September 11, 2002, he received a call from CN's dispatcher calling him in to work on an available run, as was the normal practice. Mr. Audet asked if he could be excused from coming in, claiming he did not feel well. The dispatcher replied that without a note from a physician, he would not be considered to be on sick leave. Mr. Audet testified that since he was not in possession of such a note, he felt that he had no choice but to report for work as requested. He completed his train run that night and returned to Capreol the following day, September 12, 2002.
[14] Mr. Audet's supervisor, Gerald Nadon, who held the position of trainmaster, confirmed in his testimony that CN views negatively any last-minute requests for sick leave that are made to a dispatcher by employees when they get their call to come in to work. The employee's trainmaster usually conducts follow-up inquiries to learn why the employee has booked sick. Employees are expected to inform CN of their unavailability due to illness as soon as possible. Tardy notifications cause logistic difficulties for CN, which in turn result in train delays.
[15] While Mr. Audet was out on his overnight run, Mr. Nadon heard about his seizure from some of the other CN employees at Capreol. Mr. Nadon invited Mr. Audet into his office as soon as he returned to Capreol. When asked by Mr. Nadon directly if the rumour was true, Mr. Audet confirmed that he had indeed experienced a seizure. Mr. Audet testified at the hearing that he had intended to tell CN about his seizure, but only after having first taken the opportunity to be examined by his own family physician and his neurologist.
C. CN removes Mr. Audet from service [16] Mr. Nadon informed CN's department of Occupational Health Services (OHS) about the seizure. OHS's function within CN is to develop and monitor all policies with respect to health and fitness for duty. The medical component of OHS's functions has been assigned by CN to an outside firm, Medisys. The information provided by Mr. Nadon was reviewed by the Medisys team of health professionals, who in turn sent a message to CN's Crew Management Office directing that Mr. Audet be pulled out of service immediately and not be assigned to work on any more runs, as he was considered unfit for work in his position.
[17] Medisys' determination was based on the Railway Association of Canada's Medical Guidelines for the Employment of Individuals with Epilepsy or Other Epileptic Seizures in a Safety Critical Position in the Canadian Railway Industry (the RAC Guidelines). According to Transport Canada's Railway Rules Governing Safety Critical Positions, which were developed pursuant to s. 20 of the Railway Safety Act, R.S., 1985, c. 32 (4th Supp.), safety critical positions are defined as any positions directly engaged in the operation of trains in main track or yard service, or engaged in rail traffic control. CN considers brakemen and conductors as falling into this category.
[18] The Railway Medical Rules for Positions Critical to Safe Railway Operations (the Railway Medical Rules) also developed by Transport Canada pursuant to s. 20 of the Railway Safety Act, require that persons working in safety critical positions be assessed by their employers in regard to their medical fitness for duty. If a railway company's Chief Medical Officer, in making an individual assessment of a person's medical fitness for duty, is of the opinion that there exists a threat to safe railway operations, that person may be restricted from occupying a safety critical position, or be otherwise restricted from working or performing certain tasks in a safety critical position (Rule 6.1).
[19] The RAC Guidelines reaffirm the principle espoused in Transport Canada's Railway Medical Rules that employees working in safety critical positions must be physically and mentally fit. They underscore the fact that impaired performance due to a medical condition could result in an incident affecting the health and safety of employees, the public, property or the environment. Section 4 of the RAC Guidelines sets out a series of criteria to be considered in assessing medical fitness for duty. In the case of someone diagnosed with epilepsy who has been treated with antiepileptic drugs, the criteria specify that the person must not have experienced any seizures for a period of five years. Also, the person must not exhibit any epileptiform activity in a series of electroencephalograms (EEGs) performed over the same period.
[20] Upon learning of Mr. Audet's September 2002 seizure, and based on these criteria, CN immediately decided that his removal from service in any safety critical position would remain in effect for the five year evaluation period. He was effectively removed from his position of brakeman/conductor for a period of five years.
[21] As of October 2005, when the hearing before the Tribunal into Mr. Audet's human rights complaint took place, he had yet to be called back into service by CN, be it in a safety critical or non-safety critical position. He was in receipt of disability benefits until the end of June 2005. CN has not formally dismissed Mr. Audet.
[22] Mr. Audet experienced three more seizures after the seizure of September 10, 2002, (one each in June, September, and November 2003). After the last of these seizures, his medication was changed and he has not had any seizures since.
D. Mr. Audet's dealings with CN following his removal from service [23] Mr. Audet testified that following his removal from service, he was frequently in contact with Medisys. He signed a form authorizing Medisys to view his hospital records. On November 1, 2002, his neurologist completed a form issued by the Railway Association of Canada, relating to the evaluation of epilepsy or isolated epileptic seizures in individuals occupying safety critical positions. The form is essentially a medical report. Mr. Audet passed the form on to Medisys.
[24] About one week after being released from service, Mr. Audet contacted his union representative, Glenn King, to report the seizure incident and to look into how he could be accommodated in his employment. Mr. Audet testified that after being removed from service, he would still visit the Capreol facility on a regular basis, asking CN management personnel there if they could accommodate him in another position. One of the persons he spoke to was Brian Gillies, a trainmaster at the Capreol facility. Mr. Audet claims that Mr. Gillies advised him to contact CN's management offices in Toronto to inquire about the possibilities for accommodation. Mr. Audet followed his suggestion and telephoned the Toronto office many times between 2002 and 2005. He was always told that someone would look into his situation and get back to him to discuss his case. No one ever did.
[25] After September 12, 2002, Mr. Nadon never spoke to Mr. Audet again about his employment or any accommodation. According to Mr. Nadon, it was not his responsibility to engage in such discussions. That was the task of CN's human resources department and CN's risk management office.
[26] Mr Audet was frequently in touch by telephone with June Sheppard, a registered nurse working for Medisys, who was handling Mr. Audet's file. Mr. Audet kept her up to date with respect to his medical condition, including the three seizures that he experienced in 2003. He testified that he frequently asked her what could be done about accommodating him. She always said that she would look into the matter, but he was never given any information about the outcome of her inquiries.
[27] As the months passed, Mr. Audet claims that he did not get any response from CN, so on August 21, 2003, he filed the present human rights complaint alleging that he had not been accommodated.
E. CN invites Mr. Audet to be tested for the position of Intermodal Dispatch Coordinator - December 2003 [28] According to Mr. Audet, it was only in December 2003, almost four months after filing his human rights complaint, that he first received any word from CN regarding accommodation. Richard Theberge, who was CN's Risk Management Officer for the Northern Ontario Zone, contacted Mr. Audet requesting that he attend an interview and complete a test for a bilingual intermodal dispatch coordinator position at Toronto's MacMillan facility. Mr. Audet was not consulted in advance about this position. His views about his suitability for the job were never sought. Nonetheless, as Mr. Theberge noted in a follow-up memo to Mr. King, Mr. Audet seemed eager to attend the interview and participate in the testing.
[29] Mr. Audet travelled to Toronto to be interviewed and tested. He testified that he was given a general aptitude test to complete, containing elements that he described as clerical or secretarial. For instance, his typing skills were assessed. Mr. Audet had no previous work experience in any positions that required such skills. He had trouble with the testing, but not just because it related to areas in which he lacked experience and skill. He claims that he was also feeling headaches and pressure around his eyes that day. He was having trouble focussing on the questions, even though he could tell that some of them were simple. His hands were trembling.
[30] His test results were very poor, falling between the first and fifth percentiles. The minimum score required for this type of position was the 25th percentile. He was therefore not offered the job. The person who administered the test wrote in her follow-up report to CN's human resources department that Mr. Audet had remarked a number of times during the testing that he felt the medication he was taking at the time was affecting his performance.
[31] Shortly after the testing, a different neurologist took over Mr. Audet's treatment, and immediately changed the dosages of the medication being administered. On February 28, 2004, the neurologist wrote a note, which was forwarded to Medisys, stating that Mr. Audet's difficulties during the testing were related to his medication at the time. The neurologist urged CN to consider re-administering the test since those difficulties had now been resolved. Mr. Audet testified that CN did not react in any way to the note. He did not receive any offer of additional testing until May 2005, some five months after the Commission had referred the human rights complaint to the Tribunal.
F. CN offers Mr. Audet the position of Train Movement Clerk - July 2004 [32] On July 19, 2004, Mr. Theberge sent a letter to Mr. Audet offering him the position of Train Movement Clerk (TMC) at the Administrative Building in MacMillan. Mr. Theberge noted that the job was being offered pursuant to CN's Disability Management Program. The position involved sedentary work, which would be supervised by the Program's Return to Work team, made up of Medisys nurses and doctors, as well as kinesiologists. Attached to the letter was a description of the physical demands and working conditions associated with the position. It indicates that a TMC may spend up to three hours per shift driving a vehicle.
[33] On July 21, 2004, Mr. Audet replied in writing to Mr. Theberge's letter. Mr. Audet explained that he did not possess a valid driver's licence at the time. Following his seizure of November 2003, the Ontario Ministry of Transport had suspended Mr. Audet's driver's licence, on the advice of his neurologist. He was not eligible to regain his licence until early in 2005. Mr. Audet added in his reply that he hoped Mr. Theberge can take these factors into consideration. Mr. Audet concluded his letter by providing his telephone number and asking Mr. Theberge to contact him if he had any questions.
[34] Mr. Audet testified that he did not get a response to his letter, so he placed a call to Mr. Theberge. They spoke on October 4, 2004. According to Mr. Audet, Mr. Theberge claimed, during their conversation, that CN had waived the driving requirement in Mr. Audet's case, and that Mr. Audet has been notified of this waiver previously. Mr. Audet replied to Mr. Theberge that on the contrary, he had never been informed of any such waiver. Mr. Audet then asked, if indeed the driving requirement had been waived, whether the position was still available. Mr. Theberge answered that it was not.
G. CN invites Mr. Audet to undergo clerical testing - May 2005 [35] CN did not contact Mr. Audet again about employment possibilities until May 2005. CN invited him back to MacMillan Yard in Toronto to undergo testing. Suzanne Fusco, CN's human resources manager for Eastern Canada, testified that this was simply clerical testing, which did not relate to any specific position. The testing was administered on May 25, 2005, and according to Mr. Audet, it concentrated on secretarial skills even more than the first round of testing in December 2003. Typing ability was again assessed, and many portions of the testing were timed. Several weeks afterwards, Mr. Audet received a call from a representative of CN informing him that he had performed poorly on the test, without giving any further details. No follow-up report of the results was provided to him.
H. CN offers Mr. Audet the Rule 42 Foreman position - October 13, 2005 [36] On October 13, 2005, just four days before the Tribunal began its hearing into the complaint, legal counsel for CN sent a letter to Mr. Audet's counsel stating that CN had an employment position available that could accommodate his various restrictions. The position is called a Rule 42 foreman, and the work location was to be in the Greater Toronto Area and in the Great Lakes District. Some testing would be required before Mr. Audet could obtain the position.
[37] On October 14, 2005, Mr. Audet's counsel replied that the position was unsatisfactory. The work location was a great distance from his home terminal in Capreol, at substantially less pay than he formerly enjoyed. There was also some concern that the hours and duties of the job may be in violation of Mr. Audet's restrictions, established by CN's Chief Medical Officer in 1997. In addition, it was a position that fell into another bargaining unit, which was represented by a different union than the UTU. His ability to keep his seniority rights would depend on the cooperation of the new union. Mr. Audet's counsel underscored his client's reasonable expectation that CN would make greater efforts to accommodate his disability. But it was also pointed out that Mr. Audet was not refusing the offer of employment outright.
[38] By the close of the hearing, Mr. Audet had not as yet formally rejected the offer, but during final submissions, Mr. Audet's counsel reiterated his above mentioned reservations regarding the position being offered.
II. WHAT MUST BE PROVEN TO ESTABLISH DISCRIMINATION IN THIS CASE? [39] It is a discriminatory practice to refuse to continue to employ an individual on the basis of his or her disability (s. 3 and s. 7 of the Act). A disability is defined in s. 25 of the Act as any previous or existing mental or physical disability. This definition has been interpreted to mean any physical or mental impairment that results in a functional limitation, or that is associated with a perception of impairment (see Desormeaux v. Corporation of the City of Ottawa 2005 FCA 311 at para. 15). CN unquestionably perceives Mr. Audet's epilepsy, which resulted in his experiencing seizures, as impairing his ability to function in a safety-critical position. I am satisfied therefore that his condition constitutes a disability within the meaning of the Act.
[40] The employer's conduct will not be considered discriminatory if it can establish that its refusal in relation to any employment is based on a bona fide occupational requirement (BFOR) (s. 15(1) of the Act). For any practice to be considered a BFOR, it must be established that accommodation of the needs of the individual or class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost (s. 15(2) of the Act).
[41] The Supreme Court of Canada articulated the approach to be followed in determining whether a BFOR has been established in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 (Meiorin). The complainant has the initial burden of establishing that the standard or policy adopted by the respondent is prima facie discriminatory.
[42] Once a prima facie case of discrimination has been established, the respondent may justify the impugned standard by establishing the following, on the balance of probabilities:
The respondent adopted the standard for a purpose rationally connected to the performance of the job; The respondent adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; The standard is reasonably necessary to the accomplishment of that work-related purpose. To show that the standard is reasonably necessary, the respondent must demonstrate that it is impossible to accommodate the complainant without imposing undue hardship on the respondent. It is incumbent on the respondent to show that it considered and reasonably rejected all viable forms of accommodation (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (Grismer)).
A. The Prima facie case [43] Although CN never formally dismissed Mr. Audet, it unquestionably pulled him from service as a brakeman or conductor immediately after learning of the seizure that he experienced on September 10, 2002. CN decided to restrict Mr. Audet from his position for a period of five years, after which he could return, provided he remained seizure-free. CN did not assign him to any other position or duties in the meantime.
[44] I am satisfied that Mr. Audet has established prima facie that CN effectively refused to continue to employ him, on the basis of his disability. It is therefore incumbent upon CN to establish that its refusal to employ Mr. Audet was justified.
B. CN's justification [45] CN contends that its standard and ensuing course of conduct were justified. In light of Mr. Audet's significant medical restrictions, which included not only those related to his epilepsy but to his back injury as well, CN claims that it was unable to individually accommodate him without incurring undue hardship.
C. Application of the Meoirin test (i) Was the standard adopted by CN for a purpose rationally connected to the performance of the job? [46] CN considers the positions of brakeman and conductor as safety critical. These workers are directly engaged in the operation of a train. As indicated in the RAC Guidelines, if the performance of persons in safety critical positions is impaired due to a medical condition, it could result in a significant incident affecting the health and safety of employees, the public, property or the environment. Individuals who hold such safety critical positions are therefore required to be medically fit to perform their duties.
[47] CN applied a standard that it derived from the RAC Guidelines, according to which, in cases like Mr. Audet's, where epilepsy is being treated by antiepileptic drugs, an employee will be considered medically fit for a safety critical position if he or she has been free of seizures for a period of five years. The employee is subject to ongoing monitoring of his or her condition.
[48] In my view, there is an obvious rational connection between the purpose of avoiding incidents affecting the health and safety of employees, the public, property or the environment, and the performance of the jobs of brakeman and conductor. The safe operation of the rail system is certainly a concern for CN. The prevention of an incident that could affect the health and safety of employees or the public is rationally connected to the performance of such safety critical jobs.
(ii) Did CN adopt the standard in the good faith belief that it was necessary for the fulfillment of the purpose? [49] I am satisfied that CN adopted this standard in good faith, in the belief that it was necessary to ensure the safe operation of its rail system.
(iii) Has it been demonstrated that the accommodation of Mr. Audet is impossible without imposing undue hardship on CN? [50] To show that a standard is reasonably necessary (the third step of the Meiorin test), an employer must demonstrate that it is impossible to accommodate individual employees sharing the characteristics of the complainant without imposing undue hardship upon the employer.
a) Was Mr. Audet individually assessed? [51] The Supreme Court, in Meiorin at paragraph 64, counsels courts and tribunals to be sensitive to the various ways in which the individual capabilities of employees may be accommodated. An employer should inquire into the possibility that there may be different ways to perform the job while still accomplishing the employer's legitimate work-related purpose. The skills, capabilities and potential contributions of the individual complainant and others like him or her must be respected as much as possible.
[52] These considerations are also reflected in the RAC Guidelines themselves. While s. 4 of the RAC Guidelines provides the general criteria for medical fitness in cases of epilepsy, s. 6 specifies that the employer should not conclude that an individual is unfit for duty without having first conducted an individual assessment with regard to the individual's particular position:
6. Individual assessment
Individuals with epilepsy or other epileptic seizures must be assessed with regard to their suitability for a particular position. The nature of the duties and responsibilities associated with their specific Safety Critical Position must be closely evaluated before any final determination of their fitness for duty.
[53] What efforts did CN make to individually assess Mr. Audet regarding his suitability to work as a brakeman or conductor? There was no evidence of any attempt by CN to make any such assessment until December 10, 2003, almost four months after Mr. Audet had filed his human rights complaint with the Commission, and precisely 15 months after experiencing his seizure. On that date, Dr. Claude Lapierre, CN's Chief Medical Officer, wrote a letter to Dr. Guy Rémillard, a neurologist in Montreal, asking his professional opinion on the nature of the seizure disorder that [Mr. Audet] is suffering from and [Dr. Rémillard's] recommendation on his fitness for duty in a safety critical position.
[54] Dr. Rémillard did not meet or examine Mr. Audet personally, nor was he asked to do so. Jackie Anderson, a nurse on CN's Medisys team, testified that the standard protocol is to conduct a paper review of the medical condition of an employee with epilepsy. The assessment is made based on information from the employee's treating physicians and specialists. Ms. Anderson added that the assessment is usually made in consultation with CN's Chief Medical Officer. In some complex cases such as Mr. Audet's, the advice of a specialist on the medical condition is sought, in order to determine if Medisys' assessment is correct.
[55] After reviewing the file, Dr. Rémillard discussed the matter with Dr. Lapierre, who in turn documented the content of their conversation in a follow-up e-mail message to Ms. Sheppard at Medisys. Apparently, at the core of the two physicians' discussions was the question of whether Mr. Audet's seizure was provoked by the deprivation of sleep associated with the requirements of his position. The RAC Guidelines provide that where the seizure is provoked, the employee can be deemed fit for duty in a safety critical position as early as one year following the seizure. In Dr. Rémillard's opinion, Mr. Audet's seizure was not provoked by sleep deprivation but came about instead as a recurrence of his epilepsy. Thus, as a person with epilepsy who had experienced a seizure, Mr. Audet was not fit to work in a safety critical position for a period of five years, based on s. 4 of the RAC Guidelines.
[56] There is no evidence to indicate, however, whether Dr. Lapierre or Dr. Rémillard ever closely evaluated the nature of the duties and responsibilities associated with Mr. Audet's specific safety critical position, as provided for in s. 6 of the RAC Guidelines. Instead, based on the finding that the seizure was not provoked, Dr. Lapierre apparently felt that no further inquiry was warranted and he sent Mr. Audet's file back to Medisys.
[57] I am not persuaded, from the evidence adduced in this case, that CN made any efforts to individually assess Mr. Audet with a view to determining whether his medical condition prevented him from performing his duties and responsibilities in his positions of brakeman and conductor. CN's sights seemed focussed on determining whether it was responsible for having provoked Mr. Audet's seizure due to of his workload over the summer of 2002. In this respect, it is very telling that one of Dr. Lapierre's final remarks in his e-mail is that Mr. Audet has very little chance of convincing any tribunal that he only had provoked seizure [sic]. There is no mention about whether Mr. Audet, as an individual, could still safely perform his job, and if not, how he could be accommodated.
[58] There may be an additional explanation for why CN's attention was drawn to the question of whether the seizure was provoked by his workload, apart from the need to determine whether Mr. Audet's removal for service should be for one year or five. Evidence was led with respect to a prolonged dispute at the time between CN and the UTU about the workload of running trades employees, including brakemen and conductors. The debate centred on the employees' right to book rest periods after their runs. The UTU had taken the position that the employer had been pressuring its employees not to exercise this right to the fullest extent, with the objective of making them available sooner to take on their next run. The employer disagreed and argued that it was merely preventing excessive and abusive booking of rest periods by some employees. I suspect that these lingering issues may have influenced CN in the positions that it adopted following Mr. Audet's seizure, and may help explain why CN seemed so concerned with ensuring that it had not provoked the seizure, rather than concentrating on accommodating its employee.
[59] Whatever CN's motives may have been, the fact is that there is no evidence of any individual assessment of Mr. Audet having been conducted in order to determine his suitability for his specific safety critical position. It is apparent to me that once CN learned that he had experienced an epileptic seizure, it applied the criteria set out in s. 4 of the RAC Guidelines in a routine, mechanical fashion, without any consideration of his individual circumstances or condition. CN simply decided that Mr. Audet would be restricted from working in his safety critical position for a five-year period, without any further examination into his individual suitability for his position.
[60] CN contends that it was not necessary to assess Mr. Audet's individual suitability. The nature of a brakeman's and conductor's duties are such that any person who experiences an epileptic seizure, like Mr. Audet, is immediately medically unfit to perform these safety critical duties.
[61] I am not persuaded by this argument. To permit an employer to invoke opinions about its employees' disabilities that it views as somehow self-evident, would hand to the employer too facile a justification for conduct that may be otherwise discriminatory. As the Supreme Court noted in Grismer at paragraph 19, the reason why accommodation must be incorporated into a standard is to ensure that each person is assessed according to his or her own personal abilities, instead of being judged against presumed group characteristics, which are frequently based on bias and historical prejudice. An individual assessment of the employee is therefore an essential step in the accommodation process (see Grismer at paras. 22 and 30; Meiorin at para. 65).
b) Did the employer consider and reasonably reject all viable forms of accommodation? [62] Even if CN's opinion regarding the necessity to conduct an individual assessment in Mr. Audet's case was valid, however, the question that would still have to be addressed is whether CN, having determined that Mr. Audet was medically unfit to work in his position, considered and reasonably rejected all other viable ways of accommodating him. In my opinion, CN has failed to establish that it satisfied this requirement.
[63] Mr. Audet testified that he and Mr. King had repeatedly asked CN to cooperate with him in finding some sort of accommodation that would allow him to return to work at CN. These attempts were in fact documented in the log that Ms. Sheppard kept of activity in Mr. Audet's Medisys file. As early as September 17, 2002, Ms. Sheppard noted, after having spoken to Mr. Audet, that he was concerned about the future outcome of his case and his ability to work. There are several references to Ms. Sheppard's conversations with Mr. King regarding his attempts at contacting CN to find Mr. Audet some form of accommodation. Ms. Anderson testified that she had reviewed the notes in Mr. Audet's file and she agreed that he had definitely spoken to Ms. Sheppard about having his disability accommodated.
[64] How did CN react to these requests? What efforts did it make to accommodate Mr. Audet? CN has established certain guidelines that are to be followed when accommodating employees with special needs (the Accommodation Guidelines), excerpts of which are found in Tab 31 of Exhibit C-1. The Accommodation Guidelines provide that even where the supervisors and managers of the employee are aware that the employee needs to be accommodated, they have a responsibility to initiate the procedure for accommodation, even if the employee has not requested it (para. 7.12.3). CN's managers and supervisors were obviously aware of Mr. Audet's need for accommodation; it was they who had removed him from his job in the first place because, in their view, his disability rendered him unfit to work in a safety critical position.
[65] What procedures for accommodation did CN initiate? Paragraph 7.12.4 of the Accommodation Guidelines provides that the first thing for the employer to do is to meet with the individual employee and allow him or her to present the problem or need. The employer representative should ask questions to the employee in order to fully understand the request, and both persons should then together discuss possible solutions.
[66] Mr. Audet's evidence in this regard is uncontroverted. No CN representative met with him at any time, let alone as the first thing, to discuss his disability, ask questions, or discuss possible solutions. Mr. Audet sought as much information and assistance as he could obtain from CN, but it was all to no avail. After removing him from service, Mr. Nadon never spoke to Mr. Audet again about his job or any form of accommodation. Another trainmaster, Mr. Gillies, redirected Mr. Audet's inquiries to CN's Toronto office. The Toronto office promised to call Mr. Audet back, but did not.
[67] In fact, there is no evidence to suggest that CN ever discussed with Mr. Audet the possibilities for his accommodation at any time prior to his filing the human rights complaint in August 2003. Some four months after the human rights complaint was filed, the risk management officer, Mr. Theberge, finally contacted Mr. Audet, but not to seek his input on the disability or to discuss possible solutions, pursuant to the Accommodation Guidelines. Mr. Theberge telephoned Mr. Audet to present him with just one option - come to Toronto to be interviewed and tested for one specific position. There was no discussion with Mr. Audet about whether he had any of the skills or qualifications to work in a clerical position, like dispatch coordinator.
[68] Although this was the first accommodation option to actually be presented to Mr. Audet, did CN at least examine other accommodation possibilities prior to