Beauregard v. Canada Post Corp.

Beauregard v. Canada Post Corp.
Collection
Canadian Human Rights Tribunal
Date
2004-01-28
Neutral citation
2004 CHRT 4
File number(s)
T761/1103
Decision-maker(s)
Doucet, Michel
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
MICHEL BEAUREGARD
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
CANADA POST CORPORATION
Respondent
REASONS FOR DECISION
MEMBER: Michel Doucet
2004 CHRT 4
2004/01/28
[TRANSLATION]
I. INTRODUCTION
II. FACTS
A. Relationship between the Complainant and the Respondent
B. The visits with Dr. Allen Payne
C. The appointment with Dr. Marc Guérin
D. Dr. André Gamache's assessment
E. Dr. Gérard Cournoyer's examination
F. Dr. Jacques Gagnon's assessment
III. GENERAL OBSERVATIONS REGARDING MICHEL BEAUREGARD'S CREDIBILITY AS A WITNESS
IV. THE LAW
V. ANALYSIS
VI. DISPOSITION
I. INTRODUCTION [1] The complainant, Michel Beauregard (Beauregard), alleges he was discriminated against on the basis of a disability in that the Respondent, Canada Post Corporation (the Corporation), refused to accommodate him and terminated his employment, contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act).
II. FACTS A. Relationship between the Complainant and the Respondent [2] Beauregard started working for the Respondent in 1993. During his employment, he held various positions, including driver, letter carrier and clerk. On August 31, 1997, he applied for a position in the automated area of the St. Laurent letter processing plant (LPP)1. He obtained the position and was assigned to the evening shift with a schedule of 3:30 p.m. to 11:30 p.m.
[3] On September 7, 1997, he was temporarily assigned to the daytime swing shift at the bulk processing plant (BPP) in the same plant. His assignment was to last until the employee who normally held that position returned or until September 5, 1998 at the latest. In this position, he worked the day shift from 7:30 a.m. to 3:30 p.m.
[4] On July 2, 1998, he was loaned to the swing shift at the Retail Sales Operations Branch. The letter confirming his being loaned to this branch states, you are considered on loan and will retain your position [translation]. Beauregard stated that he understood he was keeping his position on the daytime swing shift, which is surprising because this was a temporary assignment and was to end on September 5, 1998 at the latest.
[5] On September 14, 1998, his employer asked him to return to his former position at the St. Laurent plant. Beauregard stated that when he returned, he was not put back into his position in the parcel area (BPP) but in the letter area (LPP) instead.
[6] He said that he came to work on the morning of September 14, 1998, to the BPP area at 7:30 a.m. and that the supervisors told him that he had no business [translation] being in that area but that since he was there, they would keep him for the day but that the next day he would have to return to his position at the LPP, on the evening shift.
[7] The next day, September 15, he appeared for work, at the LPP, at 3:30 p.m. but stated that he left work shortly after. He testified that, at the beginning of his shift on September 15, Réal Caron, the evening shift superintendent, came to see him and said, You are not here to make trouble. You are here to work, and I hope you're going to work so my numbers are good [translation].
[8] Réal Caron testified that he did not know the Complainant and that he never had to work with him before. He stated that he was not informed about his case until October 1, 1998, when Beauregard left a message on the answering machine saying that he would not be coming to work due to illness.
[9] Beauregard described his working conditions at the LPP as follows: They would watch over us constantly. They made little comments to me when they passed through my area. There was a very cold atmosphere, there were no windows, it was noisy, dusty, very hot near the machines where the letters are processed. There were a lot of problems and I did not feel very well starting... on the 14th, going back was difficult, but the 15th was even worse than what happened on the 14th [translation]. He added that he entered the plant backwards and that he did not feel well until he left in the evening, When I would leave in the evening after working in the plant, it was very relaxing to leave the plant [translation]. A little further on he added, It was such a relief. The employees had a term that they used that went, inside it's like a prison without bars. So, everyone used that expression and I think even a doctor said inside and outside. Also, that same expression can describe the difference in the work mentality between the plant areas and the postal stations. So, inside means the plants and outside means the postal stations. And they used the expression prison without bars. Everybody used that expression [translation]. In cross-examination, he explained, Obviously I would have preferred to stay at the stations. It's a career choice to work either at the stations or the plant. There are staff who love working in the plant. But I'm maybe someone who is better suited to the outside [translation].
[10] After leaving work on September 15, 1998, Beauregard did not return until October 7, 1998.
[11] According to Réal Caron, nothing particular was brought to his attention about the Complainant between September 15 and October 1, 1998. On October 5, 1998, while indicating he was still sick, his supervisor Renée D'Amours tried unsuccessfully to reach him.
[12] On October 6, 1998, the Complainant consulted a physician, Dr. Allen Payne, for a sinus problem and also, according to him, for lack of sleep, no appetite and stress.
[13] On October 7, 1998 he went to work. For part of that day, he received training outside of the automated area. Around 7:00 p.m., after finishing his training, he submitted a medical certificate to his supervisor. Caron stated that D'Amours contacted him in the 10 minutes that followed. Caron then went down to the floor to meet with Beauregard because the document he had submitted to D'Amours was an occupational injury document and that certain forms need to be filled out in such cases. The document was actually an official document from the Commission de la santé et de la sécurité du travail du Québec (the CSST). It is used for opening a claim file with the CSST.
[14] According to Caron, the employer must complete a report explaining in detail the occupational injury. He said that he had gone down to the floor with D'Amours for this purpose and that he had contacted the union to inform them of the situation. Richard Gagnon, a union representative, arrived on the premises. Beauregard did not show up. Caron, D'Amours and Gagnon were informed that Beauregard had gone home and that he had just called in sick.
[15] On October 13, 1998, Réal Caron sent Beauregard a letter by priority post with signature2, in which he requested that Beauregard contact him to provide more information about his medical certificate dated October 7, 1998.
[16] Beauregard said that he did not receive this letter until October 28, 1998. The letter was sent to him by priority post with signature and since nobody was home when the letter carrier tried to deliver it, it was returned to the postal depot. Beauregard added that he then had 15 days to pick it up.3
[17] On October 14 and 15, 1998, Caron said that he had tried several times to contact Beauregard by telephone. On the 14th, there was no answer. On the 15th, he said that he spoke with someone whom he assumed was Beauregard's father and that he left a message for Beauregard to contact him. On October 16, Beauregard contacted the administration and informed the receptionist that the employer should not phone him at home anymore.4
[18] On October 19, 1998, Caron sent Beauregard another letter, by priority post without signature. In that letter, Caron referred again to the medical certificate from October 6, 1998 and to a medical certificate from October 13, 1998. Caron indicated that Beauregard had to comply with the procedures regarding occupational injuries and explained that he was giving him 48 hours, from receipt of the letter, to contact him. Otherwise, disciplinary action would be considered.
[19] The Complainant states that he received this letter on November 4, 1998, exactly 15 days after it was sent.
[20] In a third letter dated October 23, sent by priority post with signature, which Beauregard stated he received on October 28, 19985, Caron informed him that he was being given a one-day suspension for not having obeyed to the request in the October 19 letter. He gave him an additional 48 hours to contact him.
[21] On October 23, 1998, the PPP's Occupational Health, Safety and Environment Department in St. Laurent sent Beauregard a letter by priority post with signature asking him to appear for a medical assessment on October 28 at the office of Dr. Marc Guérin. The letter carrier left a card in the mailbox on October 26. The letter was claimed at the retail postal outlet on November 10, one day before the 15-day period expired.
[22] On October 28, 1998, the employer sent Beauregard a fourth letter, this time by priority post without signature. It was left in Beauregard's mailbox, and he said he received it on October 29, 1998. In the letter, Caron indicated that since he did not show up for the appointment with Dr. Guérin, the employer was giving him a two-day suspension. Another medical assessment appointment was set for November 6, 1998.
[23] On November 3, 1998, Beauregard went to the employer to fill out the CSST document entitled Employer's Notice and Reimbursement Claim.
[24] In the meantime, he also received another letter on October 29, by priority post without signature. He said he received this letter on October 30. This letter informed him of a three-day suspension, from November 6 to 10. Therefore, when he went to the employer on November 3, he knew he was suspended for three days. It is surprising that he subsequently stated that he had been surprised to receive a November 4 letter indicating that he was suspended.
[25] The November 4 letter was an amendment to the October 29 letter. It simply changed the dates of the suspension from November 6 to 10 to November 9 to 12 because, according to the employer, Beauregard was to appear for a medical examination with Dr. Guérin on November 6.
[26] At the meeting on November 3, 1998, Caron indicated that he had asked Beauregard about the circumstances in which the injury occurred and that he had responded with it's written on the sheet [translation]. He then asked him where the injury occurred, and he responded, in the LPP [translation]. Caron asked him for clarification and he responded, I don't have to answer your questions. It's written on the sheet [translation].
[27] Beauregard reacted as follows to Caron's comments as I said earlier in the other document, he wanted me to specify a person involved in my problem. He didn't want me to specify a work location, but a person. He seemed to want me to pick a name and tell him that name. I told him that I did not have a name to provide, that it was a location and series of events [translation]. However, referring to Dr. Payne's notes regarding the medical consultation on October 6, 1998, he indicates noticed symptoms starting from the day of his transfer to the plant on 14-09-98, unpleasant, his supervisor causes him a great deal of stress [translation]. (My underlining.)
[28] The Complainant added that he could not be more precise because, in his words, I had no examples to give him [translation]. However, on December 9, 1998, in a letter to France Villeneuve of the CSST, he gave three pages of examples with names and dates of events. In this document, he did not mention any events occurring at the automated plant on September 14 or September 15, 1998. The only events he mentioned having occurred between September 14 and October 1 are as follows:
On the 24th, I applied as an AP-2, telemarketing representative, and I was informed that I had been selected.
On the 28th, for the position mentioned above, I was informed that I was not selected because I did not have all the requirements (bilingual imperative BBBB), which is false because I speak English fluently. [Translation]
[29] On November 6, 1998, Beauregard met with Dr. Guérin. I will discuss this appointment further on.
[30] On November 12, 1998, he received another letter from Réal Caron giving him another three-day suspension because of his attitude during the examination with Dr. Guérin.
[31] In a November 16 meeting, the employer informed Beauregard that it was still unaware of exactly what he wanted in terms of assignement or what his functional limitations were. Beauregard mentioned that he would be seeing his physician on November 19, 1998 and that, at that point, he would be better informed about his illness.
[32] On November 25, 1998, another meeting was held to discuss his redeployment. Caron offered Beauregard an assignment to Matane, in a full-time position as a clerk. Beauregard stated that he had never filled out a transfer request for Matane. When informed that he had filled out such a request on May 16, 1997, he responded that the request was no longer valid because, according to the collective agreement, a transfer request is only good for one year.
[33] Beauregard's refusal to accept the assignment to Matane is surprising in light of his statements to Dr. Payne and Dr. Gérard Cournoyer, psychiatrist.In Dr. Payne's case, during a visit on November 3, 1998, a few weeks before he was offered the assignment to Matane, he explained that due to a seniority problem, he could not get the type of assignment he wanted. He then stated that he wanted to go to Baie Comeau, that in the end he was prepared to go anywhere to get out of Montreal.
[34] He mentioned to Dr. Cournoyer that he was free to go where he wanted because he did not have a spouse or children. In the words of Dr. Cournoyer in his report, he went to great lengths in filling out, in the space of about two weeks, approximately 240 transfer requests to assure his employer that he was truly prepared to work anywhere in Quebec so that he would no longer have to be `inside', a jargon term used among Corporation employees to refer to the automated plant where the working environment is, in the eyes of many, much more difficult than `outside'[translation]. If that is the case, then why did he turn down the offer of the assignment to Matane? Why did he not refer to this offer during his visit with Dr. Cournoyer? At the hearing, he stated that, at the time, there were changes in his personal life, which was why he did not want to go to Matane. But why did he not talk about these changes with Dr. Cournoyer, leaving him instead with the impression that he was free to go anywhere?
[35] He stated that he did not remember those transfer requests because they were good only for one year and that he did not keep them after that. He said that he was unable to say if 240 was correct or whether it was he or Dr. Cournoyer who suggested that number. I personally do not see why or in whose interest Dr. Cournoyer would talk about 240 transfer requests if the Complainant had not brought up that figure.6
[36] As to the transfer requests, he added,
[Translation]
Q. Now, I see there are many locations, it's marked Trois-Rivières, Sept-Îles, Mont-Joli, Alma and we are going through the whole stack. There are some for Ontario.
A. There are some for Ontario, yes.
Q. And there is one for Matane at the top of the pile. After that I see Roberval, and all that.
A. Yes.
Q.And these are the locations that you were prepared to go to. Correct?
A. When I signed that transfer request, yes, because of my situation in 1997, but from the union's perspective, when someone puts in a transfer request, there is nothing requiring him/her to accept or not accept it because at times there are things in life that can change from day to day.
Q. I understand.
A. So there is nothing requiring him/her to accept. It's just a request to keep one's name on the list. So you put your name on the Matane list, for example, and then when someone offers you the job ... it's good for a year. So a year from May 16, 1997. But it is in no way an obligation. It's just to keep your option open in the event that you may need it.
[...]
Q. But let's say, Mr. Beauregard, that you make applications like that to Matane, Sept-Îles, Roberval, Guelph and that you are in fact not interested in going to any of those places, could it be said that those requests were made in bad faith?
A. It cannot be said that they were made in bad faith because you fill them out and wait to see if anything comes available there, whether it will serve your purpose. It's a way of improving your situation. So, if you look at the route presented to you at that time and that route does not suit you, you are entitled to turn it down.
Q. But for example, Mr. Beauregard, I understand for a Montreal letter carrier putting in a request for a letter carrier route in Matane, he can look at what route would be suitable in Matane, but for an employee at the automated plants in St. Laurent and who absolutely does not like being at the automated plants in St. Laurent, do you choose a letter carrier route based on the number of floors or the number of staircases?
A. Yes, exactly. You choose by number of floors and number of staircases and each step is counted. So, for example, if it is a route like the one I had in Youville, which has 230 staircases in a day, then you think about it.
Q. You would rather stay at the plant.
A. And the number of doors too. The number of doors varies greatly depending on the route and on the amount of sorting to do in the morning. So, if it's a route with a lot of sorting or not much sorting, these are all things you need to consider when the employer offers you a position.
[37] On November 20, 1998, after meeting with the psychologist Léoline Daigle7 on November 2, Dr. Luc Morin on November 18, and Dr. Payne on November 19, he sent a letter to Réal Caron in which he requested an assignment under paragraph 54.02(b) of the collective agreement.8 This paragraph provides that, where an employee becomes physically handicapped because of health reasons and that the need for an assignment is supported by a certificate issued by a qualified medical doctor, upon written application, the employee may be assigned to any appropriate vacant position in his or her group. According to Beauregard, Dr. Payne's results showed that he could not be reinstated in his position at either automated plant. I do not intend to deal here with the issue regarding assignment under section 54 of the collective agreement because the grievance arbitrator has already dealt with it9.
[38] On December 1, 1998, Georges Dolan, evening shift manager, gave Beauregard a copy of Dr. Guérin's medical assessment report. Dolan also asked him if Dr. Payne and Dr. Guérin could meet to discuss his case. Beauregard first answered yes to this request. However, when Dolan gave him the authorizations to sign, he asked if he could meet with his union representatives before signing the documents.
[39] He stated that he discussed the issue with his union and that it suggested that he not sign the authorizations. Therefore he refused to sign them.
[40] On December 3, 1998, he informed Georges Dolan, in a letter, that he had seen Dr. Payne again since the December 1 meeting and that Dr. Payne reconfirmed that he was able to go back to work outside of the two automated plants with no restrictions. The letter was countersigned by Dr. Payne.
[41] On December 9, 1998, Caron responded to the December 3 letter and indicated that there was nothing in it showing that Beauregard could not do the work in his own position. He therefore ordered Beauregard to appear for work on December 14, 1998, in his position on his own shift, otherwise disciplinary action, not excluding discharge, would be considered [translation]. Beauregard replied that this demand was contrary to Dr. Payne's recommendation and that in addition, the CSST has not [yet] rendered its decision [translation].10
[42] On December 16, 1998, Caron informed Beauregard that his employment with the Respondent was terminated as of December 17, 1998.11
B. The visits with Dr. Allen Payne [43] Dr. Allen Payne is a general practitioner. He has a general practice and, according to what he says, he has also been doing CSST medicine since 1995. When a patient comes to see him following an occupational injury, he becomes the attending physician for CSST purposes. He provides all medical follow-up. He has no particular specialty in psychology or psychiatry.
[44] In 1998, Dr. Payne was working out of both his general practice clinic and the Polyclinique Médicale Populaire on Sainte-Catherine St. in Montreal. People can drop in to the Polyclinique without an appointment. A large percentage of the Polyclinique's clients are workers. Dr. Payne indicated that the Polyclinique handles an industrial quantity [translation] of CSST cases.
[45] Dr. Payne said he saw Beauregard on October 6, 1998. Beauregard said he had gone to that clinic because he had to drive someone to the Papineau subway station that day near the clinic and that it was a union-recommended clinic. He stated that he felt comfortable going there.
[46] In cross-examination, he admitted that he had already consulted Dr. Payne. In fact, Dr. Payne remembered seeing the Complainant in 1997 for another problem. However, in the two medical reports filled out on the CSST forms during the 1997 visits, in the section entitled Diagnosis and progress of the pathology and treatment there is the expression situational depression [translation]. When questioned about these visits, the Complainant stated that he had no memory of these documents because the copies, he stated, were illegible. His responses about the events surrounding his visits to Dr. Payne in 1997 were vague and less than convincing. It is also surprising that, in his testimony, Dr. Payne did not draw a connection between the 1997 medical reports and the 1998 ones, considering that he was the attending physician in both cases
[47] In any event, the Complainant went to the Polyclinique on October 6, 1998, with what Dr. Payne described as sinus congestion, wakefulness at night, no recovery, poor appetite, low morale, wants to lie down after being up for only 2 hours; noticed symptoms since his transfer to the plant on 14-09-98, unpleasant, his supervisor causes him a great deal of stress, problem of `inside', slow of train and content of thought, will try to return to work in December, daily headaches, does not really like taking medication, appointment with Dr. Morin psychiatrist on 18-11-98 [translation]. (My underlining.)
[48] In cross-examination, when counsel for the Respondent asked Beauregard which supervisor he was referring to, he said he did not remember. He also added that he was speaking generally", that it was not one supervisor in particular who was causing him stress, but the workplace. However, according to Dr. Payne's notes, it was a supervisor who causes him a great deal of stress.
[49] Dr. Payne stated that he had spent 10 to 15 minutes with Beauregard during his October 6 visit. Beauregard said he explained the entire situation to Dr. Payne at that visit. However, he stated that he neglected to inform Dr. Payne that he had been on sick leave since October 1. Dr. Payne acknowledged that the consultation was short because there were other people waiting [translation].
[50] In his testimony, Dr. Jacques Gagnon, an expert witness in psychiatry, indicated that a proper psychiatric examination should take 40 to 50 minutes. He is of the view that a ten-minute examination is not thorough and that the resulting assessment is definitely not based on evidence. He added that the diagnosis should be based on a minimum number of significant symptoms. Another psychiatrist, Dr. Gérard Cournoyer, witness for the Commission and for Beauregard, added that he does not think that a psychiatric examination can be done in the space of a few minutes. He added that an examination of this sort should take at least an hour, sometimes longer. He stated that, before psychiatrists issue an opinion, they must be sure that they have truly gathered all the information on which to base that opinion. In his view, the first visit should last, on average, at least an hour or an hour and a half, because time must be taken to go through the person's entire background and medical history.
[51] Dr. Payne stated that he arrived at his diagnosis by asking Beauregard certain questions. He added that he was attempting to assess the patient's higher mental functions, the risk of suicide and what he referred to as the inside, in other words the patient's ability to have insight into his own situation. He stated that, at that time, he wanted to gather data on the circumstances and context surrounding the symptoms.
[52] He said he recalled Beauregard's condition when reviewing his notes, but added that there was nothing particular. You must understand that, at 50, 60, 70 patients a day...there was not necessarily anything more particular with Beauregard than with any other [translation]. He added that he had come to see him with a sinus problem first and that he then said, By the way, Doctor, I don't feel well, etc. [translation]. He stated that he was able to arrive at this conclusion by looking at his notes [b]ecause I marked down the reason for the consultation as congestion, then after I started talking. So, that means that logically he discussed his sinus problem with me, then it came out, when I questioned him a little further, that he did not feel well, that he had no appetite, etc., as I wrote in my notes [translation]. He added that the sinus problem was not connected with Beauregard's psychological state.
[53] Dr. Payne stated that he asked a series of thorough questions as required by the Régime d'assurance maladie du Québec (the RAMQ). He acknowledged that consultations carried out by psychiatrists are much different. He said that he asked Beauregard how he was feeling. Beauregard mentioned that he would wake up during the night, that he had difficulty recovering from that, that he lost his appetite, that his morale was flat, as he described it, that he was tired, that he wanted to lie down after a couple of hours. He said he had had those symptoms since September 14, 1998.
[54] The doctor acknowledged that it is important for a patient in a depressed state to be aware of his/her state of mind, his/her mental or psychological condition. In this regard, he noted that Beauregard was not crying and that he had not mentioned having cried at any point. He added that, to determine a state of mind, he looks at whether the information is delusional. Is the patient's speech normal or slow? Is the patient having trouble making connections?
[55] He stated that, after ten minutes of this type of questioning, he had enough information to arrive at the diagnosis that Beauregard appeared to have work-related depression.
[56] On the medical certificate12 from October 6, 1998, Dr. Payne wrote Reactive depression [translation] as the diagnosis. The date of the event is identified as September 14, 1998. Dr. Payne based this on what Beauregard told him: It is the worker who ultimately determines the date of the event [translation]. He added that, in a psychological case, the date of the event is usually based on the worker's memory of the date when symptoms began.
[57] On the medical certificate, Dr. Payne also wrote RT 71098, meaning return to work on October 7, 1998. In his notes he wrote, will try to return to work in December [translation]. He stated that Beauregard had said this. However, Dr. Payne had written in the medical report that the return to work was planned for the following day. He added that, since it was a situational problem and not major depression, there could be administrative adjustments. Therefore, a relatively speedy return to work was possible. In his examination, Beauregard stated that he was the one who insisted on returning to work on October 7. He indicated that he had told Dr. Payne, I've had a few days rest, now. So on the 7th I want to try to work and function normally [translation].
[58] I have no reason to challenge Dr. Payne's version, and I maintain that it was Dr. Payne, not Beauregard, who suggested going back to work the next day.
[59] When comparing the copies from the medical certificate that Dr. Payne issued on October 6, 1998, we see an annotation on the worker's and employer's copies that does not appear on the physician's copy. This annotation adds, we suggest a change in work location [translation]. Beauregard said he could not explain why this addition appeared on those copies but not on the physician's copy. The doctor could not provide a satisfactory explanation either.
[60] On October 6, 1998, Dr. Payne also issued another document entitled, Medical Report [translation], again on a CSST form. Dr. Payne explained that, because the medical certificate form in 1998 did not include a box for indicating whether the patient is referred to a specialist, physicians at that time would prepare a medical report that did have such a box. In this case, Beauregard was referred to Dr. Luc Morin, a psychiatrist.
[61] At the time, Dr. Morin was a psychiatrist at the Polyclinique. He left the Polyclinique in December 2001. Dr. Morin was not called upon to testify. According to Dr. Payne, it would appear that he has passed away or is very sick.
[62] Dr. Payne said he decided to refer Beauregard to Dr. Morin because he had a psychiatric problem. He also added that the fact that he suggested a change in work location also influenced him to make the referral because [it] could be a suggestion that the employer may or may not be happy with or may lead to problems, second opinions and all that. Therefore, at that time, it was also a question of specialist coverage, you could say. It is a standard procedure for generalists [translation]. (My underlining.)
[63] On October 13, 1998, Beauregard had another visit with Dr. Payne. During this visit, Dr. Payne prepared a Medical Progress Report [translation]. The diagnosis was still the same, situational depression, this time with the words (work) and (location) [translation] added to clarify, according to Dr. Payne, that the situation was work-related. Below these annotations, he added, appointment, sick leave, October 20, 1998 [translation]. He therefore extended the sick leave to October 20. This appointment lasted only five minutes. Dr. Payne acknowledged that he did not re-examine Beauregard.
[64] In his notes, Dr. Payne indicated, agrees to see psychologist, referred to Ms. Daigle, sinus X-ray13 [translation].
[65] Dr. Payne stated that, during this visit, he was not surprised to learn that he had not returned to work on October 7, 1998. Beauregard explained to him that his situation was complex and that resolving it required more time from an administrative perspective and that it could not be done in 24 hours. Dr. Payne said he extended his sick leave because the problem had not yet been resolved from an administrative perspective.
[66] Dr. Payne added that the adjustment disorder diagnosis was primarily an administrative management issue for which drugs are not prescribed. Instead, time is given to allow administrative management to resolve the problem.
[67] On October 13, 1998, Dr. Payne noted an ongoing unmanageable depression. This condition was characterized by the fact that Beauregard said he had no appetite, low morale, no energy-the same characteristics he had identified at the examination on October 6, 1998. However, he acknowledged in cross-examination that it was not Beauregard who described these symptoms to him, but that during the five-minute visit, he noted that he seemed a bit downcast. He appeared to have the same types of symptoms [translation].
[68] At the time of that visit, Beauregard was still waiting to see a psychiatrist, and Dr. Payne also invited him to make an appointment with the psychologist Léoline Daigle.
[69] Beauregard saw Dr. Payne again on October 20, 1998. He said he had had an appointment with the psychologist Daigle between October 13 and 20. However, no evidence of this visit or what was said during the visit was presented at the hearing. He stated that he had also made an appointment with Dr. Morin during this period for November 18. However, in his notes for October 20, 1998, Dr. Payne indicated will make an appointment with the psychiatrist Morin [translation]. It appears, then, that on October 20, 1998, there was still no appointment made with Dr. Morin.
[70] In the Medical Report that Dr. Payne filled out during the visit on October 20, 1998, the diagnosis was still the same, situational depression [translation]. The sick leave was extended to November 5, 1998.
[71] On November 3, 1998, Dr. Payne performed another examination, this time lasting nearly 10 minutes. According to Dr. Payne, Beauregard was in the same psychological state as he was during his first visit on October 6, 1998. The doctor said he arrived at this conclusion by watching his actions, from his tone, the way he described the events and the copious details he provided. He concluded that Beauregard was emotionally disturbed. He stated that he was not in a position to provide objective clinical signs of this emotional disturbance since psychiatry is, according to him, rarely objective. He also added that Beauregard was not suffering from major depression.
[72] He said that he was better able to identify subjective signs of an emotional disturbance. Among other things, he noted that Beauregard had what he described as circumstantiality. He added that his thinking was not delusional, but that it was not focused either. He was not obsessive. He went into copious detail to describe a situation that could have been summed up in a few words.
[73] Dr. Payne recommended a sick leave due to situational or reactive depression [translation], which are the same thing in his view. He added that he would now describe his diagnosis as adjustment disorder [translation]. Dr. Payne never used this expression in his diagnoses. It first appeared in Dr. Luc Morin's note.
[74] According to Dr. Payne, situational or reactive depression or adjustment disorder are equivalent, and the signs and symptoms are subtle as opposed to those of major depression. He added that drugs are not used to treat them.
[75] Dr. Gagnon testified that adjustment disorder is a reaction to a significant event in a person's life. Everything usually returns to normal relatively quickly when the stressor is removed. He added that, in Beauregard's case, as soon as he was removed from his work environment, he should have returned to normal functioning within a few days, not in six weeks as Dr. Payne indicated.
[76] Dr. Marc Guérin, another expert witness in psychiatry, mentioned that depression can take several forms but that it is characterized for the most part by a mood disorder, in other words the mood is sad. The sadness is generally accompanied by a relatively high level of anxiety. The main symptoms of depression are sadness and anxiety. Both of these lead to other symptoms such as difficulty concentrating. A person who is very anxious has difficulty concentrating. This results in a breakdown in emotional control. People who are sad often cry, they are less able to control themselves and are more sensitive. Anxiety generally leads to insomnia. With depression, what is seen most often is initial insomnia or early-morning insomnia: the person wakes up very early and cannot fall back to sleep. He finds that most people experience times when they wake up at night but manage to get back to sleep. It is not pathological in that case. What is more typical in depression is initial or terminal insomnia. Long-term insomnia will increase concentration problems because mental fatigue sets in, and the person will also complain of physical fatigue. Appetite problems are also involved. The person either loses his/her appetite, which is more common, or eats more and becomes bulimic. In severe cases, when it becomes incapacitating, agitation or psychomotor retardation problems can arise. The person is so anxious that he/she is disturbed, and is unable to stop moving or slows down mentally and physically. These are all pathological cases that can be considered major.
[77] Dr. Guérin continued, indicating that adjustment disorder is a lesser form of depression. In the U.S. classification, the symptoms of adjustment disorder are essentially the same as the ones just described but are somewhat less intense. Adjustment disorder is usually directly connected with something identifiable: financial or family worries or problems at work. It is something that is at the end limit of normality.
[78] When the pathology is self-sustaining, it is referred to as either situational or neurotic depressive disorder. In other words, the symptoms are out of proportion with what the person is experiencing in the external world. These people feel sad even if there is no real reason to feel sad. The pathology is more significant because it is out of proportion with or cannot be explained by the individual's normal or natural reactions. Dr. Guérin talked about extreme cases involving people on the verge of losing contact with reality. They are so sad that they start blaming themselves for everything bad. Their situation is virtually delusional.
[79] According to Dr. Guérin, there is a gradation in depression symptoms. When a patient goes to see the doctor and says, I have such and such a symptom, for example I'm not sleeping as well...I have less interest, I'm worried, I'm having difficulty concentrating, the physician should question him/her to determine if there are other symptoms associated with this condition. The physician should try to determine how great the symptoms are. Dr. Guérin stated that there are people who say, I'm having difficulty concentrating, but after a half-hour interview, the physician notices that they are concentrating well, not losing their train of thoughts, and answering questions well. If a person says, I don't have much appetite, the physician must determine if the person has lost weight. According to Dr. Guérin, the physician must take these steps in an attempt to objectify the pathology.
[80] On November 19, 1998, the Complainant saw Dr. Payne again. According to Dr. Payne this appointment lasted about five minutes. During this appointment, Dr. Payne prepared a final report. Such a document is issued when the patient has reached, in the CSST's words, a state of consolidation [translation]. The final report is different than the other documents because it asks different specific questions. For example, will there be a permanent injury? [translation] and if yes is checked, it continues, will there be functional limitations? [translation]. If yes", then, is this an aggravation of previous functional limitations [translation]. If the answer is yes, an assessment report must be prepared. In Beauregard's case, this assessment report was never prepared.
[81] When asked why he did not prepare this assessment report, Dr. Payne responded, Excellent question. Perhaps it has to do with not being able to reach Mr. Beauregard, lack of availability, or because Mr. Beauregard had an administrative process and I was waiting for that? I can't answer you. [translation].
[82] The consolidation date on the final report is indicated as November 23, 1998. Dr. Payne stated that he could not say for certain how he arrived at that date. According