Clemente v. Air Canada

Clemente v. Air Canada
Collection
Canadian Human Rights Tribunal
Date
2024-09-17
Neutral citation
2024 CHRT 102
File number(s)
T2517/7420
Decision-maker(s)
Langlois, Marie
Decision type
Decision
Grounds
Disability
Summary:
Giuseppe Clemente began working for Air Canada in 1984. In 2005, Mr. Clemente hurt his back badly while working as a baggage ramp attendant. The resulting injury meant he couldn’t do that job anymore. He was off work until 2014.
When Mr. Clemente returned to work at Air Canada in 2014, there were limits on what he could do. For example, he couldn’t work too many hours due to pain. Air Canada accommodated Mr. Clemente by changing his hours and adjusting his physical workspace. It assigned him roles where he provided additional support to the staff.
Air Canada tried finding him jobs he could do. He tried working in both the Radio Room and Pillow Room at the Toronto Pearson International Airport. Air Canada did not find him jobs outside of Toronto.
Mr. Clemente slowly returned to work, but he often needed changing accommodations to his job. By December 2015, Air Canada seemed to have grown tired of accommodating Mr. Clemente. It wanted him to take a disability retirement. Mr. Clemente wanted to keep working, but he felt forced to retire. He believes Air Canada didn’t help him enough to keep working.
Mr. Clemente said Air Canada discriminated against him based on his disability.
Air Canada said it accommodated Mr. Clemente but could not keep him in non-essential jobs indefinitely. It said that it was too hard to keep accommodating Mr. Clemente and that doing so was too much to reasonably expect. Air Canada also said Mr. Clemente chose to retire on his own.
After looking at all the facts, the Tribunal found that Air Canada failed to show how continuing to employ Mr. Clemente would have been overly disruptive to Air Canada’s operations. The Tribunal decided that it wasn’t too hard for Air Canada to continue accommodating Mr. Clemente. The Tribunal decided that Air Canada discriminated against Mr. Clemente based on his disability.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2024 CHRT
102
Date:
September 17, 2024
File No.: T2517/7420
Between:
Giuseppe Clemente
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Air Canada
Respondent
Decision
Member:
Marie Langlois
Table of Contents
I. OVERVIEW 1
II. PRELIMINARY QUESTION 2
III. DECISION 6
IV. ISSUES 7
V. LEGAL FRAMEWORK 7
VI. ANALYSIS 13
A. Has Mr. Clemente established a prima facie case of discrimination? 13
i. Does Mr. Clemente have a characteristic protected under the CHRA? 13
ii. Did Mr. Clemente experience an adverse impact with respect to employment? 13
iii. Was Mr. Clemente’s protected characteristic a factor in the adverse impact? 14
B. Did Air Canada establish a valid justification for its discriminatory practice, and particularly a bona fide occupational requirement under section 15 of the CHRA based on health, safety or cost? 15
i. The Facts 2014 16
ii. The Facts 2015 18
iii. The Facts 2016 23
iv. Conclusion 33
VII. ORDER 38
I. OVERVIEW [1] Mr. Giuseppe Clemente, the Complainant, has been employed by Air Canada, the Respondent, since 2001. Air Canada has recognized his service seniority for another airline company, Canadian Airlines, since 1984 when the two companies merged in 2001.
[2] Mr. Clemente was injured at work on January 17, 2005, while working as a ramp attendant in the baggage department at the Toronto Pearson International Airport. He suffered a severe lower back injury and psycho-traumatic disability, which permanently prohibited him from performing the regular duties of a ramp attendant. Between December 2006 and December 2014, he went on a long-term disability leave approved by the Workplace Safety and Insurance Board of Ontario (WSIB). He received replacement income from the WSIB during that period.
[3] In January 2015, Mr. Clemente gradually returned to work with permanent restrictions and limitations. He was first assigned to the Radio Room, then continued in the Pillow Room, returned to the Radio Room, and eventually went back to the Pillow Room before finally taking his disability retirement on December 1, 2016. Air Canada had informed him that there was no longer a position available for him and that he could face administrative discharge without pay if he did not take the disability retirement.
[4] Mr. Clemente alleges that Air Canada forced him into disability retirement because of his disability and that it failed to provide him with reasonable accommodation to continue his employment. He claims that Air Canada could have continued to accommodate him in either the Radio Room or the Pillow Room, and he would have continued working.
[5] Air Canada disputes the discrimination claim and contends that it did accommodate all of Mr. Clemente’s work restrictions and limitations to the point of undue hardship and that he chose to take his disability retirement.
[6] Early in the case management of the file, Mr. Clemente filed a motion relating to the scope of the complaint. The Tribunal granted Mr. Clemente’s motion in a ruling in August 2021. It was convened at the time that more ample reasons would follow in the final decision. The Tribunal now issues those reasons in the following preliminary question section, which precedes its final decision.
II. PRELIMINARY QUESTION [7] On June 25, 2021, Mr. Clemente filed a motion to clarify the scope of the complaint. He requested that the Tribunal explore three factual determinations within the scope of the complaint: the bidding process connected to the Radio Room, the determination of whether the Radio Room was a supernumerary position and an incident involving Bonnie Hanson in the Pillow Room.
[8] On July 12, 2021, Air Canada filed its submissions on the motion. It argues that, firstly, the Tribunal lacks jurisdiction to adjudicate the incidents at issue and that, secondly, it would be inappropriate and prejudicial to the Respondent for the Tribunal to expand the scope of its mandate. Air Canada asked the Tribunal to dismiss the motion.
[9] On July 19, 2021, the Canadian Human Rights Commission (the “Commission”) informed the Tribunal and the parties that it was not making submissions on the Complainant’s motion.
[10] For the reasons that follow, on August 4, 2021, the Tribunal granted the Complainant’s motion. The bidding process connected to the Radio Room, the determination of whether the Radio Room was a supernumerary position and the incident involving Ms. Hanson in the Pillow Room were found to be within the scope of the complaint and part of the Tribunal’s inquiry.
[11] The Complainant asked the Tribunal to clarify the scope of the complaint. The case law is clear on the subject: the Tribunal has the jurisdiction to amend, clarify or determine the scope of the original discrimination complaint provided that no prejudice is caused to the other parties (see Casler v. Canadian National Railway, 2017 CHRT 6; Connors v. Canadian Armed Forces, 2019 CHRT 6 (CanLII); Torraville v. Jazz Aviation LP, 2020 CHRT 40; Canada (Human Rights Commission) v. Canadian Telephone Employees Assn., 2002 FCT 776). In the present case, no evidence was provided by Air Canada to support the argument that a prejudice would result by the decision on the scope of the complaint.
[12] Mr. Clemente filed a discrimination complaint, which the Commission received on October 4, 2017.
[13] On the “Summary of the Complaint” form completed by the Commission, the alleged discrimination is noted to have occurred between March and December 1, 2016.
[14] On the “Your Complaint” form, in response to the question, “When did the alleged discrimination take place?”, the start date is listed as January 17, 2005, and the last date as December 1, 2016. In the original complaint form, Mr. Clemente lists allegations of discrimination beginning in 2005.
[15] The Commission’s November 28, 2019, report recommends that the complaint be referred to the Tribunal for a hearing. An excerpt of the report states the following:
In the complaint form, the complainant lists allegations of discrimination beginning in 2005. It should be noted that the “date of discrimination” listed in the complaint summary is from March 2016 to December 2016. Therefore, only allegations from within the aforementioned timeframe will be addressed. Any allegations from before that time frame will only be considered as historical context, if necessary.
[16] Thus, for its report, the Commission indicated that it investigated only allegations of discrimination from March to December 2016.
[17] The Commission decided to refer the complaint to the Tribunal for further inquiry as it was satisfied that, considering all the circumstances of the complaint, a Tribunal inquiry was warranted under section 44 of the Canadian Human Rights Act, R.S.C. c. H-6 (the CHRA). On April 21, 2020, the Commission sent a letter to the Tribunal’s Chairperson requesting an inquiry into the complaint. The referral letter did not limit the timeframe as did the report.
[18] The Respondent submits that the events described in the complaint date more than one year before the complaint was filed and should be dismissed on that ground, given the reading of section 41(1) of the CHRA.
[19] Section 41(1)e) of the CHRA reads as follows:
41(1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
(…)
(e) the complaint is based on acts or omissions the last of which occurred more that one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint
41(1) Sous réserve de l’article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu’elle estime celle-ci irrecevable pour un des motifs suivants :
(…)
e) la plainte a été déposée après l’expiration d’un délai d’un an après le dernier des faits sur lesquels elle est fondée, ou de tout délai supérieur que la Commission estime indiqué dans les circonstances.
[20] It is the Commission’s prerogative to determine whether it will deal with a complaint. It is the Commission’s responsibility to establish whether the complaint is filed within one year of the last act or omission on which the complaint is based. It is the Commission’s discretion to extend the delay if it considers it appropriate in the circumstances.
[21] In Dumont v Transport Jeannot Gagnon, 2001 CanLII 38314 (CHRT), the Tribunal observed that:
[7] The Canadian Human Rights Tribunal does not have the power to review the way in which the Canadian Human Rights Commission chooses to exercise its discretion pursuant to Section 41 (1) e) of the Act. This is a matter within the exclusive purview of the Federal Court.
[22] In Torraville v. Jazz Aviation LP, 2020 CHRT 40, the Tribunal confirmed the distinct roles of the Commission and the Tribunal, emphasizing that the Tribunal does not have jurisdiction over the Commission’s statutory discretionary powers. It states:
[32] The Tribunal acquires its jurisdiction over human rights complaints when the Commission asks the Tribunal’s Chairperson to institute an inquiry into a complaint pursuant to subsection 49(1) of the Act. Once the Commission has made this request, the role of the Tribunal is not to review the Commission’s decision-making process, but rather to adjudicate the complaint:
[T]he Tribunal has no jurisdiction over the exercise of the Commission’s discretion under CHRA s 44(3) (rejecting or referring a complaint) … The proper way to challenge a Commission decision in respect of such matters is through judicial review by the Federal Court (Canada (Canadian Human Rights Commission c. Warman, 2012 FC 1162 (CanLII)
[23] The above-noted cases imply that the correct way to contest a Commission decision under section 41(1) of the CHRA is by seeking judicial review at the Federal Court. In this case, there is no document on record that suggests an application for judicial review by the Federal Court was filed. Therefore, the Commission has properly asked the Tribunal to institute an inquiry into the complaint under section 49(1) of the CHRA. Upon receipt of the Commission’s request, the Chairperson of the Tribunal must institute an inquiry into the complaint (section 49(2) of the CHRA).
[24] The Tribunal has the duty to inquire into the complaint itself, without limiting its scope to the Commission’s report or the period the Commission investigated. As explained in Mohamed v. Royal Bank of Canada, 2023 CHRT 20, at para. 24: “It is settled law that the Commission need not investigate every allegation to determine whether an inquiry by the Tribunal is appropriate.” It is important to add that the Tribunal has the duty to investigate the complaint in its entirety.
[25] Considering that the Tribunal must investigate the complaint itself, it has to decide the scope of Mr. Clemente’s complaint.
[26] Three incidents are raised in Mr. Clemente’s motion: the bidding process connected to the Radio Room, the determination of whether the Radio Room was a supernumerary position and the incident involving Ms. Hanson.
[27] Mr. Clemente’s original complaint includes references to the Radio Room and the alleged lack of accommodation for his permanent return to work. The bidding process and the qualification of a position as supernumerary are directly linked to the alleged lack of accommodation in the Radio Room. The Tribunal agrees with the Complainant; these factual determinations relate to the issues that constitute the essence of the accommodation that was sought by Mr. Clemente. Therefore, they must be included.
[28] In addition, in his original complaint, Mr. Clemente refers directly to the incidents involving his former manager, Ms. Hanson, in the Pillow Room.
[29] Considering that the original complaint refers to the three elements mentioned in Mr. Clemente’s motion regarding scope, the Tribunal is satisfied that the inquiry instituted by the Tribunal must include factual determinations on these issues.
[30] For these reasons, the Tribunal granted Mr. Clemente’s motion.
III. DECISION
[31] The Tribunal finds that Mr. Clemente’s complaint is substantiated. Air Canada differentiated adversely in the course of Mr. Clemente’s employment on the ground of disability by denying him accommodation and denying him a job opportunity after December 1, 2016, thereby forcing him into disability retirement contrary to section 7 of the CHRA. Moreover, Air Canada did not establish that it would have been impossible to accommodate Mr. Clemente without suffering undue hardship and did not justify its decision with a bona fide occupational requirement (BFOR) based on health, safety or cost under section 15 of the CHRA.
[32] Mr. Clemente is entitled to remedies. However, the Tribunal strongly urges the parties to attempt to settle the remedies portion through mediation prior to pursuing the claim with the Tribunal’s assistance.
IV. ISSUES [33] Paragraph 7(b) of the CHRA states that it is a discriminatory practice to differentiate adversely on a prohibited ground of discrimination in relation to an employee in the course of their employment.
[34] In paragraph 3(1) of the CHRA, “disability” is specifically listed as a prohibited ground of discrimination.
[35] Paragraph 15(1) of the CHRA says that it is not a discriminatory practice if any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to employment is based on a BFOR.
[36] The issues are as follows:
A) Has Mr. Clemente established a prima facie case of discrimination?
(i). Does Mr. Clemente have a protected characteristic under the CHRA?
(ii). Did Mr. Clemente experience an adverse impact with respect to employment?
(iii). Was Mr. Clemente’s protected characteristic a factor in the adverse impact?
B) If Mr. Clemente established a prima facie case of discrimination, did Air Canada establish a valid justification for the discriminatory practice (i.e., a BFOR) under section 15 of the CHRA?
V. LEGAL FRAMEWORK [37] Mr. Clemente alleges that he was discriminated against during the course of his employment based on his disability within the meaning of section 7 of the CHRA.
[38] Disability is one of the prohibited grounds of discrimination enumerated in section 3 of the CHRA. It is defined in section 25 of the CHRA as follows:
Disability means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.
[39] Paragraph 7(b) of the CHRA provides, among other things, that it is a discriminatory practice to differentiate adversely in the course of employment if the decision is based on a prohibited ground of discrimination under section 3 of the CHRA.
[40] The complainant has the burden of proving that the practice to which they were subjected was, on its face, discriminatory (what is known as a prima facie case). A prima facie case of discrimination is one that “covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent‐employer” (Ont. Human Rights Commission v. Simpsons-Sears, [1985] 2 SCR 536 at para 28 [Simpsons-Sears]).
[41] Specifically, a prima facie case is one where the complainant must prove, on a balance of probabilities, the required elements of their claim before the respondent presents evidence to refute an allegation of prima facie discrimination or puts forward a defence under section 15 of the CHRA or both (Christoforou v. John Grant Haulage Ltd., 2020 CHRT 33, at para 65 (Christoforou).
[42] The case law recognizes the difficulty in proving allegations of discrimination by direct evidence, given that discrimination is not a practice which one would expect to see displayed directly or overtly. The Tribunal’s role is therefore to consider all of the circumstances and to determine on a balance of probabilities whether there is discrimination or whether there is, as described in Basi (Basi v. Canadian National Railway, 1988 CanLII 108 (CHRT)), the “subtle scent of discrimination.” In short, the Tribunal can draw an inference of prima facie discrimination when the evidence before it renders such an inference more probable than the other possible inferences or hypotheses (Beatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987) at 142). See also Khiamal v. Canada (Human Rights Commission), 2009 FC 495 at para 60).
[43] Moreover, to discharge his burden, the complainant has to show, on a balance of probabilities (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39, at para 67 [Bombardier]) that they have a characteristic protected under the CHRA, that they experienced an adverse impact with respect to their employment and that the protected characteristic (referred to as a “prohibited ground of discrimination” by the CHRA) was a factor in the adverse impact (Moore v. British Columbia (Education), 2012 SCC 61 at para 33).
[44] In making his case, the complainant is not required to prove that the respondent intended to discriminate against them, given that, as the Supreme Court of Canada noted in Bombardier, some discriminatory conduct involves multiple factors or is unconscious (Bombardier at paras 40, 41). Thus, the intent to discriminate should not be a governing factor. It is the result, namely, the adverse effect, which is significant (Simpsons-Sears at paras 12, 14).
[45] In addition, the connection between the prohibited ground of discrimination and the impugned decision does not have to be an exclusive or a causal one. It is sufficient if the prohibited ground played a role in the decision or conduct being complained of. In short, the evidence must establish that the prohibited ground of discrimination was a factor in the impugned decision (Bombardier at paras 45-52).
[46] Further, it is sufficient that Mr. Clemente’s disability was one factor in Air Canada’s decision to determine that there was no other available position to which he could be assigned that would respect his restrictions and limitations (A.B. v. Eazy Express Inc., 2014 CHRT 35 (CanLII) at para 16).
[47] In that case, once proof of prima facie discrimination is established, the burden of proof shifts to the Respondent (Peel Law Association v Pieters, 2013 ONCA 396 (CanLII) at para 67). Air Canada could justify its decision by showing, also on a balance of probabilities, that it flowed from a bona fide operational requirement under section 15 of the CHRA.
[48] Sections 15(1) and 15 (2) of the CHRA read as follows:
15(1) It is not discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement.
15(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs considering health, safety and cost.
15(1) Ne constituent pas des actes discriminatoires :
a) Les refus, exclusions, suspensions, restrictions, conditions ou préférences de l’employeur qui démontre qu’ils découlent d’exigences professionnelles justifiées
15(2) Les faits prévus à l’alinéa (1)a) sont des exigences professionnelles justifiées ou un motif justifiable, au sens de l’alinéa (1)g), s’il est démontré que les mesures destinées à répondre aux besoins d’une personne ou d’une catégorie de personnes visées constituent, pour la personne qui doit les prendre, une contrainte excessive en matière de coûts, de santé et de sécurité.
[49] The Supreme Court of Canada developed a three-step test to determine whether there is a BFOR under sections 15(1) and 15(2) of the CHRA. The test is set out in Meiorin (British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3), at para 54, as follows:
54 Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR. An employer may justify the impugned standard by establishing on the balance of probabilities:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
(3) that 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 individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
[50] This case turns on the third branch of the Meiorin test; therefore, the focus of the decision is on whether Air Canada has properly shown that it could not accommodate Mr. Clemente’s need short of undue hardship.
[51] As stated in Air Canada Pilots Association v Kelly, 2011 FC 120, at para 356 to 358 [Kelly]:
[356] The first and second steps of the Meiorin test require an assessment of the legitimacy of the standard’s general purpose, and the employer’s intent in adopting it. This is to ensure that, when viewed both objectively and subjectively, the standard does not have a discriminatory foundation. The third element of the Meiorin test involves the determination of whether the standard is required to accomplish a legitimate purpose, and whether the employer can accommodate the complainant without suffering undue hardship: McGill University Health Centre v. Syndicat des employé-e-s de l’Hôpital général de Montréal, 2000 (SCFP-FTQ) 2007 SCC 4, 1 S.C.R 161, at para.14.
[357] As the Supreme Court of Canada observed in Hydro-Québec v Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP –FTQ), 2007 SCC 43, [2008] 2 S.C.R. 561, the use of the word “impossible” in connection with the third element of the Meiorin test had led to a certain amount of confusion. The Court clarified that what is required is “not proof that it is impossible to integrate an employee who does not meet a standard, but proof of undue hardship, which can take as many forms as there are circumstances”: at para.12.
[358] As to the scope of the duty to accommodate, the Supreme Court stated that “The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work”: Hydro Quebec, at para. 16.”
[52] Further, in commenting on subsection 15(2) of the CHRA, the Federal Court in Kelly stated that subsection 15(2) should be interpreted as limiting the factors to be considered in an accommodation analysis to health, safety and cost.
[53] The Supreme Court of Canada added in Québec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron, 2018 SCC 3 at paras 25, 26, 27) (Caron) that the concept of accommodation until undue hardship “implies that there may necessarily be some hardship in accommodating someone’s disability, but unless that hardship imposes an undue or unreasonable burden, it yields to the need to accommodate”. It adds that “[w]hat is really required is not proof that it is impossible to integrate an employee who does not meet a standard, but proof of undue hardship, which can take as many forms as there are circumstances.” The Supreme Court of Canada summarizes the concept as follows:
In short, the duty to accommodate requires accommodation to the point that an employer is able to demonstrate that it could not have done anything else reasonable or practical to avoid the negative impact on the individual.
[54] At para 29 of Caron, the Supreme Court of Canada endorses Justice Gascon’s summary of the principles underlying the undue hardship threshold, as described in Stewart v. Elk Valley Coal Corp., [2017] 1 S.C.R. 591 (S.C.C.):
“[…] summarized the operative principles: an employer is not required to establish that it is “impossible… to accommodate”, only that nothing else reasonable or practical could be offered; an individual analysis is require; the duty to accommodate includes both procedural and substantive duties; and the undue hardship thresholds means an employer will always bear some sort of hardship.”
[55] The Tribunal agrees that this is the correct interpretation: accommodating an employee requires substantive effort, which is the employer’s duty. In addition, as the Supreme Court of Canada stated in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, “[t]he search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation.”
[56] Lastly, under sections 15(1)(a) and 15(2) of the CHRA, an employer’s decision to refuse employment is not considered discriminatory if it is based on a BFOR. To show that their practice is justified as a valid BFOR, employers must prove, on a balance of probabilities, that accommodating the individual’s needs would result in undue hardship, taking into account health, safety and costs as factors.
VI. ANALYSIS A. Has Mr. Clemente established a prima facie case of discrimination? i. Does Mr. Clemente have a characteristic protected under the CHRA? [57] Yes. The Tribunal finds that there is no doubt that Mr. Clemente has a disability within the meaning of section 3 of the CHRA.
[58] The Federal Court of Appeal, in Desormeaux v. Ottawa (City), 2005 FCA 311 at para 15, elaborated on the notion of disability stating that “disability in a legal sense consists of a physical or mental impairment which results in a functional limitation or is associated with a perception of impairment.”
[59] In the present case, the evidence shows that Mr. Clemente suffered a work-related accident in 2005 that caused a severe back injury and a psychological trauma that left him with permanent work restrictions and limitations. Nobody disputes that Mr. Clemente has a disability as defined in the CHRA.
ii. Did Mr. Clemente experience an adverse impact with respect to employment? [60] Yes. The Tribunal finds that Mr. Clemente experienced an adverse impact with respect to his employment, as Air Canada did not provide a suitable job, which led to Mr. Clemente taking a disability retirement with an important decrease in pay against his will.
[61] Mr. Clemente testified that the amount for the disability pension is approximately 30% of his previous salary, which is not enough to support his family.
[62] The Tribunal considers that the adverse impact on Mr. Clemente’s employment includes a shorter career, which had repercussions on many aspects of his life, including a substantial financial impact that will affect the rest of his life.
[63] Even if the Tribunal does not analyze the exact financial impacts and does not address remedies in this decision, as mentioned previously, the Tribunal concludes that there is a financial adverse impact with respect to his employment.
iii. Was Mr. Clemente’s protected characteristic a factor in the adverse impact? [64] Yes. There is no dispute that Mr. Clemente’s disability was a factor in the decisions taken by Air Canada not to allow him to continue his work in the Radio Room, the Pillow Room or elsewhere after December 1, 2016.
[65] As stated previously, Mr. Clemente suffered a work-related accident on January 7, 2005, that caused a severe back injury and psychological trauma that left him with permanent work restrictions and limitations. Mr. Clemente went on long-term disability leave approved by the WSIB between December 2006 and December 2014.
[66] On January 12, 2015, Mr. Clemente returned to modified duties, which required accommodations on a progressive return-to-work plan in the Radio Room at the Toronto Pearson International Airport.
[67] Mr. Clemente stopped working for another long-term medical absence related to his work injury from June to December 2015.
[68] On January 6, 2016, he returned to work this time in the Pillow Room at the Toronto Pearson International Airport. A gradual return to work agreement was provided.
[69] The management notes state that, on February 16, 2016, Mr. Clemente expressed his interest in working full hours in the Radio Room.
[70] In April 2016, Air Canada proposed three options that did not include a position in the Pillow Room, the Radio Room or elsewhere. He was offered a labour market re-entry program through the WSIB, a disability retirement or his pension through the Canadian Pension Plan (CPP). Mr. Clemente wished to continue working for Air Canada as he had been for over 30 years, but continued employment was not offered by Air Canada. Instead, all three options presented to him included severing his employment with Air Canada.
[71] Mr. Clemente was not interested in the market re-entry program through the WSIB. He could take his disability retirement as of December 1, 2016, when he would satisfy the requirements. Financially, it was neither advantageous nor likely feasible to take a CPP retirement, as he was born on September 1962 and was only 54 years old in December 2016. He finally opted for disability retirement as of December 1, 2016.
[72] Air Canada’s options resulted from Mr. Clemente’s medical restrictions caused by his disability. Given this, Mr. Clemente’s disability was a factor in the decision to deny him a job opportunity after December 1, 2016.
[73] Mr. Clemente has established all three elements of a prima facie case of discrimination based on his disability. Air Canada made an admission to that effect.
B. Did Air Canada establish a valid justification for its discriminatory practice, and particularly a bona fide occupational requirement under section 15 of the CHRA based on health, safety or cost? [74] No. Air Canada did not establish a valid justification for its discriminatory practice under section 15 of the CHRA.
[75] As stated before, the burden of proof shifts to Air Canada because a prima facie case of discrimination has been substantiated.
[76] Air Canada had to prove, on the balance of probabilities, that continuing to accommodate Mr. Clemente beyond December 1, 2016, would have caused undue hardship based on health, safety or cost.
[77] Air Canada argued that Mr. Clemente was accommodated as a supernumerary, that is to say, in a role for which a worker was not actually required, to assist his return to work after being absent for almost 10 years. In December 2016, no permanent positions were available that Mr. Clemente could perform given his medical restrictions, limitations and qualifications. Air Canada argues that continuing to employ him in a supernumerary role would have constituted undue hardship.
[78] Mr. Clemente disputes these arguments from Air Canada.
[79] The Tribunal finds that Air Canada has not proven that it accommodated Mr. Clemente to the point of undue hardship based on health, safety and costs. First, health and safety were not truly at issue since proper accommodations had been made successfully in this regard. Second, Air Canada has argued that keeping unproductive positions (i.e., supernumerary positions) indefinitely constitutes undue hardship. However, the evidence has not borne out that only supernumerary positions were available for Mr. Clemente within the entirety of Air Canada, beyond the branch level. In fact, no efforts were made to accommodate Mr. Clemente beyond the Pillow Room and Radio Room, and insufficient efforts were made to secure a position for him in those two rooms. Lastly, Air Canada failed to prove, tangibly, how costs were at issue. Further reasons are explained below.
i. The Facts 2014 [80] After being absent from work since January 2005, at the time of Mr. Clemente’s return to work in 2014, the WSIB had identified work restrictions and limitations. Mr. Clemente had to self-pace and take microbreaks as needed. Permanent impairment included heavy lifting, bending, standing and sitting. His tolerances were sitting up to 30 minutes at a time, standing up to 60 minutes at a time, walking up to 10 minutes at a time, no lifting and climbing stairs up to 12 steps with the use of a rail. He was to start with 2 non-consecutive days of 3 hours per day for 4 weeks.
[81] Based on these restrictions, Air Canada offered Mr. Clemente a gradual return to work plan with modified duties in the Radio Room. The Radio Room services Air Canada’s employees such as ramp attendants, stewards or land employees and others with radios and other equipment. The employees would go to the Radio Room to get their equipment and return it at the end of their shift for the batteries to be recharged and prepared for the next need.
[82] On June 4, 2014, Domenica Geraghty, Case Manager-Disability Management for Air Canada, wrote to Ms. Heslop, Branch Rehabilitation Manager, concerning the case management update on Mr. Clemente’s case. She says: “In cases where an employee requires permanent accommodation, Air Canada is legally obligated to identify a suitable placement up to the point of undue hardship on the company. As such, you must contact your assigned HR Advisor to explore all suitable and available opportunities beyond the branch level and throughout the company.”
[83] On June 25, 2014, Mr. Clemente attempted a first return to work in the Radio Room as offered by Air Canada. He performed roughly one shift but could not continue because of his condition. He went off work again.
[84] On November 27, 2014, Mr. Clemente, his union representative, Air Canada’s representative and the WSIB’s representative attended a meeting. The WSIB’s representative identified the following restrictions and limitations:
A) Sedentary type work
B) Avoid repetitive bending and twisting of lower back
C) Avoid repetitive lifting
D) Avoid sustained flexions and awkward positions of low back
E) Micro breaks and positional changes as needed
F) All material handling should be self-paced
G) Moderate permanent psychological impairment (avoid situations of conflict and stress)
H) Lifting floor to waist up to 10 lbs occasionally, up to 25 minutes at a time for up to 2.75 hours total throughout the shift
I) Lifting waist to crown up to 5 lbs occasionally, up to 25 minutes at a time for up to 2.75 hours total throughout the shift
J) Lifting overhead occasionally at his own discretion
K) Carrying 10 lbs rarely for less than 25 minutes in total
L) Sitting up to 2.75 hours at a time and up to a total of 5.5 hours throughout the shift
M) Walking less than 25 minutes total at one time
N) Crouching for up to 2.75 hours at a time and up to a total of 5.5 hours throughout the shift
O) Stairs for up to 25 minutes at a time and up to a total of 2.75 hours throughout the shift
P) Forward bending and standing occasionally at his own discretion
Q) Pushing approximately 15 lbs; pulling approximately 21 lbs.
[85] Based on these new restrictions, Air Canada determined that the Radio Room position was still suitable.
[86] In a letter dated November 28, 2014, Heather Chorley-Gordon, Customer Service-Rehabilitation Manager at Air Canada, advised Mr. Clemente that his position in the Radio Room was supernumerary, meaning his position was not required, as it was above the normal complement of employees required for work. It was an accommodation measure.
[87] The WSIB, Air Canada, Mr. Clemente and his union agreed to a gradual return-to-work plan for the period between December 2, 2014, and January 29, 2015. Under this plan, he was to start working 2 days per week for 4-hour shifts.
[88] On December 2, 2014, Mr. Clemente started his second gradual return to work according to this plan. After a number of shifts, he asked for a bed to lie down in at work. Air Canada then contacted the WSIB to verify if this was an accommodation approved by the WSIB.
ii. The Facts 2015 [89] On January 5, 2015, a kinesiologist for the WSIB named Brandon Yim conducted a worksite visit. After his evaluation, he identified the need for further discussions regarding modifications to the physical workplace to provide Mr. Clemente a dedicated area for stretching and rest breaks. Mr. Yim believed that the duties associated with the Radio Room position were appropriate, but Mr. Clemente needed pain management strategies. Air Canada could adapt the work environment. It was adjusted accordingly.
[90] After Mr. Yim’s visit, Air Canada met with the WSIB, Mr. Clemente and his union representative. It was confirmed then that the position in the Radio Room was still suitable. A new gradual return-to-work plan started on January 12, 2015.
[91] Mr. Yim made two more visits on January 12 and 19, 2015. The modified workspace was deemed suitable, and a chair with back support was to be chosen by Mr. Clemente.
[92] On January 12, 2015, a revised gradual return-to-work plan was implemented, adjusting the shifts to 3 hours per day, 2 days per week, until February 20, 2015. Again, the position was supernumerary.
[93] Air Canada extended the gradual return-to-work plan until March 31, 2015. In a letter dated February 17, 2015, Air Canada confirmed that the position was still supernumerary.
[94] Mr. Clemente progressively worked more hou