Mr. X v. Canadian Pacific Railway

Mr. X v. Canadian Pacific Railway
Collection
Canadian Human Rights Tribunal
Date
2018-05-15
Neutral citation
2018 CHRT 11
File number(s)
T1897/12712
Decision-maker(s)
Luftig, Olga
Decision type
Decision
Grounds
Disability
Family Status
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2018 CHRT
11
Date:
May 15, 2018
File No.:
T1897/12712
Between:
Mr. X
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canadian Pacific Railway
Respondent
Decision
Member:
Olga Luftig
Table of Contents
I. Complaint 1
II. Confidentiality 1
A. Background 1
B. The Respondent’s position on further anonymization 2
C. The Commission’s position 3
D. Analysis 3
III. DECISION ON THE MERITS 8
A. POSITIONS OF THE PARTIES 8
(i) Complainant & Commission’s position 8
(ii) Respondent’s position 9
IV. CREDIBILITY OF WITNESSES 9
A. Credibility of Complainant 9
V. ISSUES 10
VI. DISCRIMINATION BASED ON A DISABILITY 11
A. FACTS 11
(i) Complainant’s employment history 11
(ii) OHS and Return to Work Rules (“RTW” rules) 13
(iii) Overview of Medical witnesses 15
(iv) Overview of Complainant’s Medical History re: Anxiety 19
B. Law 30
C. Analysis 31
(i) Does the Complainant have a disability within the meaning of the Act? 31
(ii) Did the Complainant suffer an adverse impact and was the protected characteristic a factor in the adverse treatment? 43
D. Conclusion on liability – discrimination based on disability 43
VII. DISCRIMINATION BASED ON FAMILY STATUS 43
A. FACTS 44
(i) Overview of accommodation request 44
(ii) Summary of Information re: Adult Child 48
B. Law 50
C. Analysis 51
(i) Care and Supervision 51
(ii) Legal responsibility to the Adult child (“care on a constant basis”) 52
(iii) Reasonable efforts for alternative solution 58
(iv) Workplace Rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation 62
VIII. Did the Complainant fail to participate in the accommodation process? 62
IX. Employer’s obligation to advise employee to apply for family status accommodation 62
X. INTERSECTIONALITY 64
A. The Complaint and the parties’ positions 64
B. Intersectionality & prima facie discrimination 64
C. How to apply intersectionality, if at all, in this Complaint 66
XI. Processes to consider when dealing with accommodation requests on potentially intersecting grounds 67
XII. RETALIATION 71
A. Statute and case law 71
B. What human rights complaints did the Complainant file and when? 72
C. The Complainant’s Specific Allegations of Retaliation 73
(i) Mr. D 73
(ii) Manager Mr. P 78
(iii) OHS Nurses C or E regarding the referral to Respondent’s Mr. Tom W 80
(iv) Mr. Tom W 82
(v) Ms. Kari Giddings 85
(vi) OHS Nurse C 87
XIII. CONCLUSION ON LIABILITY 89
XIV. REMEDIES 89
A. Compensation for any or all lost wages (subsection 53(2)(c)) 89
B. Pension (ss. 53(2)(b)) 91
C. Pain and Suffering (s. 53(2)(e)) 91
D. Special Compensation (subsection 53(3)) 93
E. Interest 94
F. Commission’s requested remedies 94
XV. ORDER 95
A. Confidentiality 95
B. Remedies 95
I. Complaint
[1] On March 25, 2011, Mr. X (Complainant) brought a complaint (Complaint) at the Canadian Human Rights Commission (Commission) alleging that his employer, Canadian Pacific Railway (Respondent or CP), discriminated against him on the grounds of disability and family status, contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, cH-6 (Act or Human Rights Act). The Complainant also alleges the Respondent retaliated against him for filing previous human rights complaints, contrary to section 14.1 of the Act. The Complaint alleges the discrimination was wilful and reckless.
[2] On January 3, 2013, by its referral letter pursuant to section 44(3)(a) of the Act, the Commission asked the Acting Chairperson of the Canadian Human Rights Tribunal (Tribunal) to institute an inquiry into the Complaint. The Commission participated throughout the inquiry, including at the hearing.
[3] For the reasons that follow, the Complaint is partially substantiated.
II. Confidentiality
A. Background
[4] The Complainant sought and received an oral confidentiality order with respect to any medical evidence about himself and his immediate family submitted during the inquiry. The Respondent did not object. The terms of the confidentiality order were not then specified, and are particularized in this decision (Decision).
[5] The parties also agreed that during the hearing, when there was testimony regarding medical or other sensitive evidence about the Complainant’s children, the hearing recording would be confidential, and described as such by the Registry Officer. This was done.
[6] At the end of the hearing, the Complainant again raised the issue of confidentiality with respect to one of his children, and applied for a confidentiality order to govern this Decision. Respondent counsel suggested anonymizing the Decision. Anonymizing the Decision would mean it would not contain the Complainant’s or his family members’ names, while at the same time protecting the precedential value of the Decision. The Complainant and Commission agreed. I agreed to anonymize the Decision by not naming the Complainant or his family members.
[7] After the hearing, the Complainant made written submissions that the Decision be further anonymized by not naming the two cities involved, nor many of the witnesses, to protect the Decision’s confidentiality. He submitted that by naming the cities and most of the witnesses, it would be easy for any co-workers and others in the industry to identify the Complainant and his family. He further requested that the Tribunal omit from the Decision the disability and self-harming behaviour of one of his children.
B. The Respondent’s position on further anonymization
[8] The Respondent objected to further anonymizing the Complaint, on the grounds that not referring to the disability and self-harming of the child in question had the potential to create procedural unfairness, and to undermine the Tribunal’s statutory mandate. The Respondent submitted that the Tribunal’s mandate was to apply the Act fairly, and through its public decisions, provide guidelines for Canadian society on what constitutes a discriminatory practice. Further, if the Tribunal did not adequately identify the facts of the Complaint, the Decision would have little or no precedential value. Also, if a party wished to apply for judicial review of the Decision, the Decision would be hard or impossible to review without adequate facts, thus prejudicing the appealing party.
[9] The Respondent acknowledged that some of the facts in the Complaint are sensitive, and had suggested and consented to anonymization at the hearing. The Respondent argues that this provides reasonable protection of the Complainant’s privacy, considering that the Complainant decided to take his Complaint to the Tribunal, which is a public forum.
C. The Commission’s position
[10] The Commission submitted that section 52 of the Act authorizes the Tribunal to issue a confidentiality order “…if the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public.” This provision acknowledges that this need can arise if there is a “real and substantial risk that the disclosure of personal or other matters will cause undue hardship to the persons involved”.
[11] The Commission submitted that the facts about the Complainant’s child’s self-harming and psychology are in themselves of a sensitive nature, and justify an order of anonymization pursuant to section 52 of the Act.
[12] The Commission also stated that after the Tribunal “fully assesses” the evidence, the Tribunal can determine the appropriate balance between the public’s right to know and the Complainant’s privacy concerns.
D. Analysis
[13] Pursuant to section 52(1) of the Act, the Tribunal is a venue of public record, and hearings are generally public. Tribunal cases are meant not only to provide a place for an individual to have his allegations of discrimination heard and decided, but also to educate the Canadian public and serve as precedents to potential parties on issues of human rights at the federal level and sometimes the provincial level as well.
[14] The question before me is whether the circumstances are sufficient to justify a departure from the general rule that an inquiry is to be held in public.
[15] In making this determination, I must consider section 52(1) of the Act, which states:
“…the member or panel conducting the inquiry may, on application, take any measures and make any order that the member or panel considers necessary to ensure the confidentiality of the inquiry if the member or panel is satisfied, during the inquiry or as a result of the inquiry being conducted in public, that
(c) there is a real and substantial risk that the disclosure of personal or other matters will cause undue hardship to the persons involved, such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; or
(d) there is a serious possibility that the life, liberty or security of a person will be endangered.”
[16] My main concern with respect to confidentiality was and is that this Decision not negatively impact the Complainant’s child, whose situation was material and relevant to this inquiry. That child (and the sibling) was neither a party to the Complaint nor a witness at the hearing. The child did not ask to be involved in this proceeding, but nevertheless, in a substantive law and practical sense, the child is in fact a person “involved” in the inquiry.
[17] Although the child is an adult in age, there was credible evidence at the hearing that the child is very sensitive, vulnerable and private about the child’s own disability and its impact. Further, the child has suffered bullying and behaviour harmful to the child’s psychological state, on account of the child’s disability. Of significance is that there was also credible evidence that the child had exhibited self-harming, possibly suicidal behaviour.
[18] I have assessed the evidence with respect to the child’s sensitivity, psychological state and self-harming, specifically:
the testimony of the child’s family doctor (GP) and those of his reports which refer to the child;
the Complainant’s and his wife’s testimony; and
a January 12, 2011 psychiatrist’s report which, while it assessed the Complainant, referred to the child’s self-harming behaviour.
[19] I did not give the January 12, 2011 report as much weight as I did the aforementioned evidence because that psychiatrist did not testify and because that psychiatrist relied on the Complainant’s self-reporting of the child’s self-harming. However, the report contained additional undisputed information that the child had exhibited what the Complainant had characterized as an attempt at suicide.
[20] Further, during the hearing the Complainant testified that the child refused to consent to the Respondent’s request that the child’s psychologist release information to the Respondent regarding the child’s situation for the purposes of family status accommodation. The Complainant and his wife both testified that the child’s refusal was because the child did not want information about the child’s psychological counselling sessions released. Although this was hearsay evidence, I found it credible because the Complainant’s wife confirmed the Complainant’s testimony on this point, and no party submitted the child’s consent to release the information from the psychologist.
[21] The totality of the aforementioned evidence establishes that it is necessary to take confidentiality measures with regards to this Complaint and the written Decision, to the point of anonymity, because I am satisfied that as a result of the inquiry being conducted in public, there is a real and substantial risk that the disclosure of the names of many of the witnesses and individuals named in the documentary evidence, and the naming of the cities involved in this Complaint, would reasonably lead to the identification of the Complainant and his family. This in turn would cause undue hardship to the Complainant’s child and the child’s sibling, each as a “person involved”, such that the need to prevent disclosure of their names outweighs the societal interest that the inquiry be held in public, pursuant to subsection 52(1)(c) of the Act.
[22] In addition, and in accordance with subsection 52(1)(d) of the Act, I am satisfied there was credible evidence at the hearing that the Complainant’s child had exhibited self-harming, possibly suicidal behaviour. I therefore conclude that publication of the Complainant’s name and that of his family, the names of the aforementioned witnesses or the names of individuals who did not testify but whose documents were in evidence, would reasonably lead to the identification of the Complainant and his family. Identification would negatively impact the Complainant’s child to a degree that there is a serious risk of self-harm, including a risk to the child’s life. Therefore, I conclude that it is necessary to take confidentiality measures, including anonymizing of parts of the Decision.
[23] However, the Decision’s anonymization shall not extend to the Complainant’s child’s disability and reasonably necessary descriptions of its impact, including physical, cognitive and psychological. I find that doing so would exclude material facts from the Decision. Excluding this information would not only gut the rationale of, at the very least, a significant portion of this Decision, but would also negate whatever precedential and educational value the Decision may have. Further, any party wishing to apply for judicial review of this Decision is entitled to have a complete record of what the Tribunal considered in coming to its Decision.
[24] I acknowledge that the Tribunal’s approach to anonymity does not fully satisfy the Complainant’s requests. I have done my best to balance the potential undue hardship and safety of the Complainant’s child with the Tribunal’s general mandate to hold hearings in public. It must also be kept in mind that, as is his right, the Complainant has chosen to bring his Complaint to a public forum.
[25] Therefore, in addition to making the Decision anonymous, the Decision does the following:
refers to the two cities involved as the “Larger Hub” and the “Smaller Hub”;
calls the Complainant’s younger child the “Adult Child” because during the relevant period, the child was at least the age of majority, and “Child” because the Adult Child lives with their parents; no disrespect whatsoever is intended by this designation;
omits any pronoun identifying the Adult Child’s gender;
sometimes, in order to avoid identifying the Adult Child’s gender, the Decision uses the pronoun “their”, notwithstanding that “their” is plural;
calls the Complainant’s other child “the Older Sibling” and omits any pronouns identifying the Older Sibling’s gender;
refers by their initial to various witnesses and others named in the evidence, whether oral or documentary, because I find there is a reasonable likelihood that naming these individuals would lead to the identification of the Complainant and his family;
only names one of the Respondent’s managers who was a witness, because she works out of the Respondent’s Canadian head office in Calgary and not in the Larger or Smaller Hub and deals with employee matters from all across Canada;
refers by an initial (“Dr. C”) to the Respondent’s expert witness, and to the Complainant’s two expert witnesses as “the GP” and “the Psychologist”;
refers by name to CP’s Dr. Cutbill, then Chief Medical Officer of CP’s Occupational Health Services (OHS), who did not testify; he dealt with employees’ health issues from all across Canada; and
refers by their initial, and in one case, to “Dr. OK”, to those doctors who did not testify but whose reports were in evidence, because I find there is a reasonable likelihood that naming them would lead to the identification of the Complainant and his family.
[26] As previously noted, the Tribunal’s mandate is to have open proceedings. This extends to the Tribunal’s records. However, if a member of the public could request the Tribunal’s record, even if medical documents are kept confidential, the Complainant’s name will likely be on other documents, thus negating the purpose of the other orders. As such, given the circumstances of this particular case and the serious prejudice which could result if anonymity of the Complainant’s Adult Child is not maintained, I order that the Tribunal’s record of this Complaint be kept confidential. The only documents available to the public, with anonymization, shall be the Complaint and the Statements of Particulars of the parties. Please note that the Statement of Particulars will not include a witness list or a document list.
[27] In this way, I have tried to both fulfill the Tribunal’s mandate of open proceedings in section 52(1) of the Act, which includes the accessibility of Decisions to the public which can provide guidance and precedents on human rights law by naming and describing what I find are the relevant and material facts and issues in the Complaint, while at the same time doing as much as reasonably possible within the confines of the Act and natural justice to avoid undue hardship and risk of harm to the Adult Child.
III. DECISION ON THE MERITS
A. POSITIONS OF THE PARTIES
(i) Complainant & Commission’s position
[28] The Complainant alleges that he has a disability: anxiety disorder not otherwise specified (referred to in this Decision as “anxiety” or “anxiety disorder”). He and the Commission allege that the Respondent discriminated against him on the ground of this disability when on April 30, 2010, the Respondent removed the Complainant’s medical restrictions, which provided he work only during the day, and in a yard (“Work Restrictions”). Until then, the Respondent had been accommodating the Complainant.
[29] The evidence established that the Complainant also has other health issues, including a diagnosed back problem, which the Respondent accommodated. None of the foregoing health issues are the disability on which the allegation of discrimination is based. Unless it is relevant, this Decision will not describe or make findings on evidence about conditions other than the anxiety disorder.
[30] The Complainant and the Commission allege that the lifting of the Work Restrictions constituted adverse differential treatment because of the Complainant’s anxiety disorder.
[31] The Commission argues that the Respondent discriminated against the Complainant on the basis of his disability and/or family status by forcing him to work an irregular schedule on the Spareboard, which is one of the ways the Respondent assigns positions, and is described later. The Commission specifically argues that intersectionality, pursuant to section 3.1 of the Act, is at issue in this Complaint.
[32] The Commission submits that the Complainant suffered from anxiety which had a functional limitation and medical diagnoses that were specific and substantive. As such, it argues, the Complainant established a disability within the meaning of the Act.
[33] The Commission further submits that “Family Status” in the Act would include parental obligations towards an Adult Child with disabilities, and that the Complainant meets the current legal test for discrimination based on family status.
[34] The Complainant argues that the Respondent committed several acts of retaliation, contrary to the Act. The Commission took no position on retaliation except to provide cases on the correct legal test to apply.
(ii) Respondent’s position
[35] The Respondent takes the position that the Complainant has not proven a prima facie case of discrimination with respect to either disability or family status grounds. The Respondent also suggests that the nature of this case suggests an intersection of two grounds, disability and family status. The Respondent argues that the family status test ought to apply to the intersecting grounds because, in the Respondent’ opinion, the Complainant’s family situation is impacting his disability.
[36] Further, the Respondent submits that the Complainant has failed to participate in the accommodation process in respect of his request for family status accommodation.
[37] Lastly, the Respondent submits that the complaints of retaliation are unfounded.
IV. CREDIBILITY OF WITNESSES
[38] Overall, I found all of the witnesses to be credible and reliable. At times, I have found the evidence of some witnesses preferable over that of others and will explain why in the Decision.
A. Credibility of Complainant
[39] When examined in chief, the Complainant seemed to be a straight-forward and reasonably forthcoming witness. However, he had significant difficulty independently recollecting many events, even during direct examination, and often had to consult notes either he or his wife had made. He often read verbatim from documents which he or the Commission put into evidence. Part of this I attribute to a bit of nervousness, but certainly not all. He had no problem describing railway operations, which he seemed to know well.
[40] The Complainant also had no trouble remembering that the Respondent had denied him a request for time off to take his father on a canoe trip when his father had terminal cancer. However, the Complainant had a lot of trouble remembering that the Respondent had provided him a family status accommodation in 2004 or 2005, for at least 2 months, in order to spend more time with his sick father. In other words, sometimes his memory seemed selective. Many times, he was reluctant to testify about something specific, such as a date, unless he could look at a confirming document.
[41] During cross-examination, the Complainant was at times evasive, indirect, would exaggerate (for example, regarding timelines) and lacked answers until pressed several times, once by me. Also, he was sometimes overly concerned with trying to think two steps ahead of Respondent counsel. He said at one point, “I’m wondering what the next question is going to be”. I think this was partly a reflection of his significant and general mistrust of most, but definitely not all, of the Respondent’s managers, and by extension, the Respondent’s counsel.
[42] Generally, my review of his testimony, particularly his cross-examination, altered my impression of the reliability of his testimony. In spite of this, I did not assess the Complainant’s testimony as being deliberately untruthful. Rather, his testimony was provided to a material degree through the lens of his own views and feelings that the Respondent’s management has treated him badly in the last few years and asked for too much private information.
V. ISSUES
[43] This Decision addresses the following issues:
Did the Respondent discriminate against the Complainant based on a disability?
(i) If so, did the Complainant fail to participate in the accommodation process?
(i) if so, did the Complainant fail to participate in the accommodation process?
(ii) Should the Respondent have notified the Complainant he could apply for family status accommodation?
Did the Respondent discriminate against the Complainant based on family status?
Does intersectionality apply in this Complaint, pursuant to s. 3.1 of the Act?
Did the Respondent retaliate against the Complainant, contrary to the Act?
What remedies should the Tribunal award, if any?
VI. DISCRIMINATION BASED ON A DISABILITY
[44] All parties presented arguments pertaining to discrimination based on a disability, separately from their arguments regarding discrimination based on family status. As such, the Tribunal will proceed with to examine each alleged ground of discrimination separately, and will subsequently examine the issue of intersectionality.
A. FACTS
(i) Complainant’s employment history
[45] The Complainant lives in the Smaller Hub, and has worked for the Respondent since 1981. The Complainant belongs to a union. For the first three years, he worked shift work, but with predictable hours. He then occupied various positions, including safety critical positions, while working for the Respondent.
[46] The Complainant testified that from 1985 to 2005, including after his children were born, he worked mainly on the Spareboard. The Complainant and the Respondent’s Mr. P testified that the Spareboard is a revolving roster of employees who are to be available 24 hours a day, 7 days a week, only subject to mandatory rest periods. They are “on call”. At any time of the day or night, on any day, on a minimum of two hours’ notice, a CP crew clerk can call a Spareboard employee to come to work. The days and hours of work on the Spareboard are irregular and unpredictable. The Spareboard’s purpose is to have a pool of conductors, engineers and trainmen available around the clock, every day, to fill in for employees who are absent, on vacation, ill, or to fill any voids.
[47] The Respondent’s Mr. P described the “Road” as the actual movement of the trains on their routes in various directions, and are the rail lines outside a Yard. The Complainant testified that an employee on the Spareboard who comes in from finishing a job (a trip on the Road) can book up to 24 hours’ rest. As soon as the 24 hours’ rest is finished, the employee is subject to a 2-hour lead time to be called for work.
[48] The Complainant described working on the Spareboard as a “hectic lifestyle”, not knowing “when you’re coming and going or if you’re coming and going”. But during the period up until 2005 when he was on the Spareboard, he testified that managers were more understanding and flexible. If the trip didn’t work for the Complainant, he could trade for a trip of a more suitable length with another Spareboard employee. He could also ask the crew clerk to book him off work. If the crew clerk couldn’t do so because of a shortage of employees, he would permit the Complainant to miss a call. To the Complainant, the complicated part of being on the Spareboard was that he didn’t know when the call to work would come, which meant he didn’t know if the trip would work for his schedule until he got the call.
[49] In 2005, the Respondent disciplined the Complainant with demerit points for absenteeism between November 1, 2004 and March 24, 2005. The Complainant testified his back and sometimes family issues caused the absenteeism.
[50] The Complainant testified that to his recollection, starting around 2005, management became sterner and required employees to attain their maximum mileage on the Spareboard. The Complainant characterized the change as “rule changes”, but acknowledged there were no written changes, and also conceded that there were no written rules before 2005 either. The Respondent was emphasizing better attendance by employees working the Spareboard.
[51] He continued on the Spareboard until October, 2005. He testified that at the time he wanted to continue on the Spareboard because he made more money than in the Yard. The “Yard” is where individual rail cars are lifted on and off the train; trains are moved in the Yard by locomotive engineers, but only in the Yard area; switches are also operated in the Yard. Both the Smaller and Larger Hubs have Yards attached. However, because of the 2005 discipline for absenteeism, his Union advised him to bid the Yard to avoid further problems with management. In October, 2005, pursuant to a successful bid, he went to the Larger Hub’s Yard on the day shift as a Locomotive Engineer. The Complainant testified that Yard work, although also shift work, is predictable. He was on a regular shift, with 2 consecutive days off each week.
[52] The Complainant held his position in the Larger Hub’s day Yard shift for 3 years, until the last week of November, 2008, when another employee “bumped” him from the position. Being bumped meant the Complainant had to go on the Spareboard. The Complainant testified that he became so anxious that he could not return to the Spareboard. He therefore did not go to work and called in sick.
[53] The Complainant’s family doctor (GP) completed CP’s medical forms and diagnosed the Complainant as having anxiety, and recommended that he work days and in a Yard. Dr. A of CP’s Occupational Health Services (OHS) then issued work restrictions that the Complainant work day shift, in a Yard. Dr. A characterized these as temporary restrictions pending further medical information. On November 28, 2008, the Complainant went to work in a day Yard position pursuant to this accommodation by the Respondent.
[54] The Complainant continued in a day Yard position for most of the period from November 28, 2008 to April 30, 2010, with some sick leave for foot issues.
[55] On April 30, 2010, OHS removed the Work Restrictions, which meant the Complainant had to take Spareboard duties. He testified that his anxiety made him unable to work the Spareboard. He did not work from May 1, 2010 to November 6, 2011. He returned to work on November 7,
2011 in a day Yard, without accommodation from CP.
(ii) OHS and Return to Work Rules (“RTW” rules)
[56] The Complainant testified that when he booked himself off sick for 72 hours or more, CP’s standard process was that he could not return to work in a Safety Critical position unless OHS cleared him as fit to work (72 Hour Illness Policy). He felt he needed a manager to help him have the OHS clearance timed correctly – so that it was not received mid-week. Mid-week OHS clearance meant being placed temporarily on the Spareboard, until he could hold be placed in a Yard position in his own seniority the following week pursuant to the Sunday night weekly crew change. The Spareboard placement caused him to book off sick because of his anxiety, and the process would repeat itself after 72 hours off sick.
[57] The Respondent’s Ms. Giddings of Employee Relations (ER) testified that the Return to Work (RTW) process is outlined in the March 2009 document entitled “Role of Occupational Health Services”. OHS has protocols on the protection of employee health information and OHS personnel are very conscious to ensure they are meeting the confidentiality requirements. When returning an employee to work who has been off sick or injured, OHS’ role is to provide the workplace or manager with the returning employee’s clearance and any medical restrictions which the manager needs to know for the employee. OHS focuses on employees who hold safety critical and safety sensitive positions, and deals only with medical issues.
[58] Ms. Giddings explained that while OHS deals with medical issues, ER deals with all other accommodation requests, including family status. Ms. Giddings also detailed the relevant policies and privacy measures in place with regards to family status accommodation requests dealt with by ER.
[59] The Respondent argued that the Complainant, in November 2008, could have asked for more leniency on the Spareboard as an accommodation. That is, he could have asked the Respondent to accommodate him by permitting him to use the same methods he had used to make the Spareboard assignments work for him in the past – for example, by missing a call, or trading places with another employee, or booking off, and so on. The Complainant felt that this was not the tone he perceived from what was then happening in the workplace, and further, his anxiety about going on the Spareboard was being handled as a medical issue. Given the Complainant’s and the Respondent’s Mr. P’s testimony, it is doubtful the Complainant would have received such an accommodation given the Authorized Leave of Absence Policy (ALOA Policy) and the Respondent’s focus on improving the attendance problem.
[60] In any event, this Tribunal does not need to assess whether the above suggested accommodation was realistic, because the Respondent denied accommodation based on a disability. The Complainant provided the medical information related to his disability whenever it was requested and saw a psychiatrist at the Respondent’s request. Given the Respondent denied the Complainant’s request for accommodation and lifted the temporary work restrictions in April 2010, the parties did not proceed to determine appropriate accommodation and the Tribunal will not assess whether the Complainant ought to have or could have requested leniency.
(iii) Overview of Medical witnesses
[61] The evidence throughout the hearing referred to several medical practitioners and correspondence, reports, notes and in some cases, testimony. For confidentiality, the Decision identifies them as follows:
Complainant’s family doctor:“GP”;
the Respondent’s OHS doctor who first dealt with the Complainant in 2008:“Dr. A” or “OHS Dr. A”;
the Respondent’s then Chief Medical Officer, Dr. Cutbill;
the psychiatrist who on September 1, 2009 conducted an independent medical evaluation of the Complainant:“the IME Psychiatrist”;
a psychiatrist who the Complainant saw once in 2010 : “the 2nd Psychiatrist”;
the psychiatrist who conducted a psychiatric evaluation of the Complainant in January, 2011:“Psychiatrist Dr. OK” or “Dr. OK”;
the Respondent’s former occupational health specialist who testified:“OHS Dr. C” (not the same person as Dr. Cutbill above);
the Complainant’s treating psychologist, who testified at the hearing: “the Psychologist”.
General Practitioner (GP)
[62] The Commission tendered the GP as an expert in family medicine. The Respondent had no objection. The Tribunal qualified the GP as an expert in family medicine and he testified at the hearing.
[63] The GP has been the family physician for the Complainant and the Adult Child, as well as the Older Sibling, since 2001. Briefly, the GP’s position is that the Complainant suffered from generalized anxiety disorder and the Respondent should have accommodated the Complainant with a day Yard position.
OHS Dr
. A
[64] Dr. A did not testify at the hearing. Several of his emails and notes were in the Respondent’s OHS file. Dr. A was the first OHS physician assigned to the Complainant’s file and had granted temporary accommodation by way of the Work Restrictions.
[65] The Complainant’s testimony, which notes in the OHS file confirmed, was that there had been several phone calls between the Complainant and Dr. A regarding the Complainant’s anxiety. There were also some notations that the Complainant was having family issues because of an Adult Child with a disability.
[66] Dr. A granted a temporary accommodation to the Complainant in 2008 and later indicated that the Complainant would need to see a psychiatrist for an independent medical evaluation, in order for the Respondent to obtain additional information regarding the Complainant’s anxiety.
[67] The temporary accommodation remained in effect for the duration that Dr. A was assigned to the Complainant’s file.
IME Psychiatrist - 2009
[68] In September, 2009, the Respondent sent the Complainant for an independent medical examination (IME) with a psychiatrist (IME Psychiatrist), who rendered his report to the Respondent (Psychiatric IME Report). The IME Psychiatrist did not testify at the hearing.
[69] The Psychiatric IME Report diagnosed the Complainant with anxiety disorder, not otherwise specified, pursuant to the Diagnostic and Statistical Manual of Psychiatric Disorders, Fourth Edition (DSM-IV). In it, the IME Psychiatrist opined that if the Complainant “has to take the spareboard responsibility, it is my opinion that he may develop more anxiety symptoms and anxiety attacks”.
[70] This IME Psychiatrist was retained by the Respondent, for its purposes of gaining additional information. At no time did an employee from OHS follow up with the IME Psychiatrist to clarify the Psychiatric IME Report or obtain additional information.
Treating Psychologist
[71] The Respondent did not object when the Commission tendered the treating Psychologist as an expert in treating people with anxiety. Having heard his testimony on his education, background, practice and work, and having reviewed the “Background” section in his Expert Report, I qualified him as such.
[72] The Psychologist saw the Complainant on multiple occasions and prepared a report dated November 13, 2009 which was provided to the Respondent. The Psychologist testified that he agreed with the IME Psychiatrist’s diagnosis of anxiety, and that this occurred when the Complainant was assigned to the Spareboard, and related to his concern about being away and not knowing when he would work, for how long, or where.
[73] At the hearing the Psychologist maintained his position that the Complainant had anxiety symptoms which prevented him from working the Spareboard.
Respondent Occupational Health Specialist Dr. C
[74] Dr. C is a physician, specializing in occupational medicine. He worked for CP on contract on a regular part-time basis to provide fitness to work assessments from 2001 to 2011. He provided assessments to OHS on the Complainant’s case. Dr. C never spoke with or met with the Complainant.
[75] He described the field of occupational medicine as dealing with the effects of the workplace on health, and conversely, how a person’s state of health might limit or impact his work. Fitness and return to work (RTW) is one aspect of the field.
[76] The Respondent tendered Dr. C as an expert witness in the field of occupational medicine. Neither the Complainant nor the Commission objected. After reviewing Dr. C’s extensive Curriculum Vitae and hearing his testimony about his qualifications, the Tribunal qualified Dr. C as an expert witness in the field of occupational medicine.
[77] Dr. C accepted that the Complainant was diagnosed with anxiety. However, Dr. C’s position, which was maintained throughout his time dealing with the Complainant’s file and at the hearing, was that the Complainant’s anxiety did not prevent the Complainant from working the Spareboard. Rather, Dr. C’s opinion was that if the Complainant could manage his scheduling conflict arising from his work obligations and care obligations for the Adult Child, he would be living “a largely anxiety-free life”.
Psychiatrist Dr. OK
[78] Psychiatrist Dr. OK did not testify at the hearing. However, all parties referred to Dr. OK’s Initial Assessment dated January 12, 2011, and no one contested its validity.
[79] The GP had referred the Complainant to Psychiatrist Dr. OK, who confirmed the diagnosis of anxiety disorder, and also diagnosed the Complainant with adjustment disorder with depressed mood, both pursuant to the DSM-IV.
Respondent’s Chief Medical Officer Dr. Cutbill
[80] Dr. Cutbill did not testify at the hearing. He never met with or spoke to the Complainant. His involvement was limited to a paper review of the Complainant’s file. He thought the issue in the Complainant’s case was whether he had a mental disorder that could reasonably impair his ability to perform his duties, and suggested that OHS might wish to obtain a psychiatric assessment.
OHS Case Notes
[81] The Respondent’s Ms. Kari Giddings testified that the contributors to OHS Individual Case Notes (OHS Case Notes) are only OHS staff: the Chief Medical Officer, the Director, the nurses and doctors. Other employees are not entitled to access the OHS Notes, unless the employee signs a release.
[82] The Respondent objected to witnesses other than the authors testifying as to the truth of the contents of the OHS Case Notes. Respondent counsel submitted that the OHS Case Notes were akin to business records, and should have been introduced by their authors, including Dr. A and OHS Nurses C and E, none of whom testified.
[83] The Complainant, the GP, and Dr. C. testified about Dr. A’s various emails, letters, and OHS Case Notes. Unless a recipient of a letter or participant in a documented phone call testified about them, the Tribunal did not admit these