Willoughby v. Canada Post Corporation

Willoughby v. Canada Post Corporation
Collection
Canadian Human Rights Tribunal
Date
2007-10-26
Neutral citation
2007 CHRT 45
File number(s)
T1076/5705
Decision-maker(s)
Lloyd, Julie C.
Decision type
Decision
Decision status
Final
Grounds
Disability
Decision Content
Between:
Guy Willoughby
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canada Post Corporation
Respondent
Decision
Member: Julie C. Lloyd
Date: October 26, 2007
Citation: 2007 CHRT 45
Table of Contents
I. Introduction
II. The Issues
III. The Evidence
A. Evidence of the Complainant
B. Evidence of the Respondent
IV. Analysis
A. Has the complainant demonstrated a prima facie case of discrimination on the basis of disability?
(i) Has a prima facie case been made out in respect of the first allegation: continuing the 3:30 a.m. shift assignment in March, 2002?
(ii) Has a prima facie case been made out on the second allegation: CP’s April, 2002 decision not to continue his employment
(iii) Has a prima facie case been made out on the second allegation: CP’s February 14, 2003 decision not to continue his employment?
B. Is CP able to justify its prima facie discriminatory conduct?
(i) Is CP able to justify its decision to continue the 3:30 a.m. assignment in March of 2002?
(ii) Is CP able to justify its decision not to continue Mr. Willoughby’s employment in April of 2002?
(a) Was CP sensitive to Mr. Willoughby’s skills, capabilities and potential contributions?
(b) Did CP carefully consider alternative approaches to Mr. Willoughby’s accommodation?
(c) Did CP conduct an adequate search for alternative employment?
(d) Was CP adequately flexible and creative?
(e) Did CP demonstrate that accommodating Mr. Willoughby would have created undue hardship?
(iii) Did CP demonstrate that its decision to refuse to continue Mr. Willoughby’s employment in February of 2003 was justified?
(iv) Finding of Discrimination
V. Remedies
A. Compensation for lost wages
B. Compensation for pain and suffering
C. Special Compensation
D. Legal Costs
E. Interestnone
F. Retention of jurisdiction
I. Introduction [1] The complainant, Guy Willoughby, alleges that his employer, Canada Post Corporation (CP) discriminated against him on the basis of his disabilities, both physical and mental, in breach of either or both sections 7(a) or 7(b) of the Canadian Human Rights Act (CHRA). He alleges that CP engaged in a discriminatory practice first by placing him on a 3:30 a.m. to 11:30 a.m. shift on or about March 12, 2002, notwithstanding a medical direction that he work a regular day shift. He alleges that CP engaged in further discriminatory practice by refusing to continue his employment in or about April 12, 2002 and on or about February 14, 2003 as a result of his disabilities.
[2] The hearing extended 5 days in May of 2007. Both the complainant and the respondent participated at the hearing and were represented by legal counsel. The Canadian Human Rights Commission did not participate.
II. The Issues [3] The issues for determination in this complaint are as follows:
Has the complainant made out a prima facie case that CP engaged in a discriminatory practice by directing that he remain assigned to a 3:30 a.m. to 11:30 shift notwithstanding that one of the medical restrictions enumerated by his doctor was that he should work only a regular day shift? Has the complainant made out a prima facie case that CP engaged in a discriminatory practice by refusing to continue his employment on or about April 12, 2002 as a result of his disabilities? Has the complainant made out a prima facie case that CP engaged in a discriminatory practice by refusing to continue his employment on or about February 14, 2003 as a result of his disabilities? If the complainant has made out a prima facie case of discrimination in respect of any or all of these allegations, has the respondent demonstrated that the decision or decisions made were the result of a bona fide occupational requirement under section 15 of the CHRA? If one or more of the complaints is found to have been a discriminatory practice contrary to the CHRA, what remedies are appropriate?
III. The Evidence A. Evidence of the Complainant [4] Mr. Willoughby commenced his employment with CP in April of 1977. He was a mail service courier for approximately 13 years and was in 1990 promoted to the position of letter carrier supervisor. He last worked for CP on April 15, 2002.
[5] In the fall of 1997, Mr. Willoughby was working as a letter carrier supervisor in Depot 11 and was assigned to a shift that commenced at 3:30 a.m. and ended at 11:30 a.m. He began to have difficulty performing his job and attended at his doctor for a medical assessment. Mr. Willoughby’s doctor advised CP that he suffered from an injury to his knees and for this reason Mr. Willoughby should not be required to do excessive walking, standing or lifting. The doctor also advised that Mr. Willoughby was suffering from a sleep disorder and that he should be working a regular day shift and not the 3:30 a.m. shift.
[6] After some weeks of delay, Mr. Willoughby’s medical requirements were accommodated by CP. He was assigned as the day shift supervisor in the Central Re-direction Centre (CRC). The CRC unit was described by several of CP’s witnesses as a rehabilitation unit as all of the employees working in the unit had some permanent work restrictions and were in need of accommodation. The employees in this unit processed and sorted mail that required re-direction because a customer had registered a change of address notice. The jobs in the CRC unit were largely sedentary and hence well suited for employees who had mobility restrictions. Mr. Willoughby’s placement in this unit was considered to be permanent.
[7] In the spring of 2000 the CRC unit was disbanded. The non-supervisory employees of the unit were re-deployed to the depots and performed their duties in those depots rather than in a single centralized location. As these employees were to report to the supervisors working in the depots to which they had been assigned, Mr. Willoughby’s supervisory position became redundant.
[8] After the CRC unit was disbanded, Mr. Willoughby was assigned to an administrative project for a few weeks on a day shift. After this project concluded, he was re-assigned to the training office, again, on a day shift. His job in the training office was to assign employees to job vacancies. At the time, job vacancies were posted in the different CP depots and any employee who might want any particular job would apply for it. Positions were filled according to seniority and Mr. Willoughby’s job was to fill the position by assigning the most senior applicant to the job.
[9] Mr. Willoughby testified that he was not consulted in advance about this assignment. He testified that he found the position to be difficult and that it did not suit either his experience or his abilities. He acknowledged that he made numerous mistakes. He testified that his workload was extremely heavy and that the position required that he work long hours. Mr. Willoughby testified that he advised his supervisor he thought his poor job performance might be the result of dyslexia. Many of his mistakes resulted because he would transpose digits in employee start dates, which dates defined an employee’s seniority. Mr. Willoughby had not been diagnosed with dyslexia, but the disorder ran in his family. Dyslexia is a learning disability that is typically manifested by difficulties in reading and writing experienced by persons of at least average intelligence.
[10] Mr. Willoughby received a poor performance evaluation from the supervisor in the training unit in April of 2001. He was sent for a medical assessment. Mr. Willoughby went to Dr. Dodd, a general practitioner and his family doctor. In a letter dated April 7, 2001, Dr. Dodd stated that Mr. Willoughby might suffer from dyslexia and recommended that he be assessed at the Glenrose Hospital in Edmonton, Alberta.
[11] Dr. Dodd wrote a further letter to CP dated July 19, 2001. The doctor stated that Mr. Willoughby had not received an assessment at the Glenrose Hospital, in part because of the cost involved and in part because he had been advised by Mr. Willoughby that his performance difficulties had resolved. He further advised that these difficulties had arisen as a result of the stress and fatigue he experienced as he learned a new job, and not from dyslexia.
[12] In July or August of 2001, Mr. Willoughby was removed from his position in the training department and was assigned back to the supervisor position in Depot 11. He was placed on the 3:30 a.m. to 11:30 a.m. shift; the shift he had before the 1997 medical direction that this shift was not appropriate in light of his medical condition. Mr. Willoughby testified that even though he knew that this assignment did not comply with his medical restrictions, he felt he had no choice but to accept the position or he would lose his job.
[13] Almost immediately upon returning to the Depot 11 position, Mr. Willoughby’s job performance became quite poor. He testified that the increased physical demands of this position and the return to a night shift caused his health, both mental and physical, to deteriorate rapidly and that as a result, his job performance suffered. It was Mr. Willoughby’s evidence that he had a meeting with his supervisor, Ms. Sample, in January of 2002. Ms. Sample had requested the meeting to discuss her concerns with his performance. It was Mr. Willoughby’s evidence that he told his supervisor at this meeting that he had been seeing a psychologist and had been diagnosed with post traumatic stress disorder (PTSD). This condition, he thought, might be causing his job performance problems. CP directed Mr. Willoughby to obtain a new medical report.
[14] Mr. Willoughby’s psychologist, Dr. Aprile Flickenger, wrote to CP in January, 2002. The psychologist confirmed that Mr. Willoughby suffered from PTSD and reported that he was making progress under her care. The psychologist described that the symptoms that Mr. Willoughby was experiencing as a result of this condition made daily functioning difficult. In particular, Mr. Willoughby suffered from nightmares and other sleep disturbances. He was also experiencing flashbacks of prior traumatic events in his life. The psychologist described that other symptoms experienced by Mr. Willoughby included feelings of isolation, low self-esteem and occasional paranoia. Dr. Flickenger identified that these symptoms were exacerbated by the shift to which he had been assigned, being the 3:30 a.m. shift, and directed that he was to be assigned to a day shift.
[15] Dr. Dodd also wrote to CP in January of 2002. He confirmed that Mr. Willoughby was seeing a registered psychologist for treatment of PTSD and further advised that he was himself imposing no medical restrictions in respect of Mr. Willoughby.
[16] Mr. Willoughby remained on the 3:30 a.m. shift after CP had received this information from the psychologist.
[17] Dr. Dodd wrote a further letter to CP dated March 5, 2002. This letter was written in response to correspondence received from CP advising him that it found that his January, 2002 letter appeared to contradict the letter received that same month from Dr. Flickenger. Dr. Flickenger, CP wrote, directed that Mr. Willoughby had medical restrictions, while his letter suggested that he had no restrictions. CP asked Dr. Dodd for clarification. Dr. Dodd, in his letter of March 5, confirmed that he supported the diagnosis and the medical restrictions imposed by the psychologist.
[18] Dr. Esmail of CP’s occupations health services department, wrote a memo dated March 12, 2002, advising that in light of Dr. Dodd’s most recent correspondence, the requirement of day shift only appeared to be reasonable in the circumstances. Dr. Esmail suggested that CP follow up with the psychologist in a month’s time to see whether the restriction was still necessary.
[19] On March 19, 2002, after having received this memorandum from Dr. Esmail, Bill Stevenson, zone manager for CP, advised Dr. Esmail that Mr. Willoughby would remain on the 3:30 a.m. shift.
[20] By letter dated April 11, 2002, Dr. Dodd again wrote to CP directing that Mr. Willoughby should be working only day shift.
[21] On or about April 15, 2002, Mr. Willoughby met with Tom Duncan, a labour relations officer with CP. Mr. Willoughby testified that Mr. Duncan advised him CP had no positions available to meet his medical restrictions and that he should go on disability leave. Mr. Willoughby went on sick leave for 95 days until his sick day credits had been exhausted. He then applied for and began to receive disability benefits from Sun Life Financial (Sun Life), CP’s medical and disability benefit provider. In his application for disability benefits, Mr. Willoughby wrote the following in response to a question asking why he could not return to work: I would have continued working. My doctor says, and Canada Post’s doctor says I should work a normal day shift, but Canada Post says that there are no day shift positions that are within my physical limitations.
[22] Mr. Willoughby testified that in April of 2002 there were numerous jobs at CP that would accommodate his restrictions and that he could do successfully. His evidence was that if put on day shift in one of the larger of CP’s depots, there were sedentary administrative tasks that could be bundled to afford him a productive position. He further testified that the day shift supervisor positions were already more sedentary as letter carriers left the building fairly early in the shift and so tasks that required a significant amount of walking, like monitoring the delivery and the processing of the mail and monitoring the attendance and the work of employees, would end early in the shift.
[23] Mr. Willoughby also testified that he could have performed the job held by the former CRC employees who had been re-assigned to individual depots. These positions were performed by members of the Canadian Union of Postal Workers (CUPW). Mr. Willoughby’s union was the Association of Postal Officials of Canada (APOC). He further testified that there were positions performed by employees in the Public Service Alliance of Canada (PSAC) bargaining unit, which employees did primarily administrative work. He could, he testified, have been accommodated with a position in this bargaining unit.
[24] Mr. Willoughby testified that when he learned that CP took the position that it could not accommodate him, he was devastated. He felt abandoned by CP. He felt betrayed to learn that after 24 years of service with this company it could not find a way to continue his employment and to accommodate his restrictions. Mr. Willoughby testified that he became extremely depressed, that the psychological symptoms described earlier by his psychologist as arising from PTSD worsened. He was unable to sleep, ate little and rarely left his home. He felt worthless, had no self-esteem and worried about his future ability to meet his financial needs. He continued to receive treatment from his psychologist.
[25] In October or November of 2002, Mr. Willoughby met with Sun Life to discuss a graduated back to work plan. Mr. Willoughby testified that he was anxious to get back to work. Sun Life had collected updated medical information from Mr. Willoughby’s doctor and psychologist in advance of preparing the back to work plan. His psychologist, Dr. Flickenger, reported that his condition was improving and that his prognosis was good. She indicated that he still required a day shift and should not be placed in a supervisory position for the time being. Mr. Willoughby’s family doctor, Dr. Dodd, confirmed that he was to be assigned only to a regular day shift and further, that he not be made to walk or stand excessively or lift repetitively. The plan arrived at by Sun Life and communicated to CP in November of 2002 was as follows:
That Mr. Willoughby start working four hour shifts, five days per week; That he work day shift; That he be placed in a non-supervisory position, at least for the time being; That he avoid excessive walking, standing and lifting.
[26] Mr. Willoughby testified that he did not hear anything from either Sun Life or CP in response to this proposal. He telephoned CP and asked that a meeting be set up to discuss the plan for his return to work. A meeting was held on February 14, 2003. At this meeting were Mr. Willoughby, Mr. Duncan, a CP payroll employee, a representative of CP’s occupational health services, and a representative of Sun Life. Mr. Willoughby testified that he was advised by Mr. Duncan at that meeting that there were no positions available to meet his medical restrictions. Mr. Willoughby never returned to CP.
[27] Mr. Willoughby obtained employment at a car dealership in July, 2004 and resigned from CP. He testified that he was at first unable to look for work because of the emotional and psychological distress that CP’s conduct had caused. He testified further that when he became able to look for work he was unable to find a job. Mr. Willoughby was using a cane during this period of time and testified that he believed this made prospective employers reluctant to hire him.
B. Evidence of the Respondent [28] Mr. Duncan had, at the time of the hearing, been a labour relations officer for CP for approximately ten years. Mr. Duncan confirmed that CP had assigned Mr. Willoughby to the CRC unit as a day shift supervisor in 1997 to accommodate his physical restrictions and the medical direction that he work only a regular day shift.
[29] Mr. Duncan also confirmed that upon the CRC unit being disbanded, CP continued to accommodate Mr. Willoughby’s requirements by assigning him first to a short term administrative project and then to the training office.
[30] Mr. Duncan did not know why Mr. Willoughby had been assigned back to Depot 11 on the 3:30 a.m. shift in July or August of 2001. The decision, he testified, was made by the zone manager, Mr. Bill Stevenson. He did not discuss the matter with Mr. Stevenson at any time. Mr. Stevenson died in or around 2003. Mr. Duncan also testified that Mr. Stevenson maintained a file on Mr. Willoughby that detailed the steps taken by CP to accommodate him since 1997. Mr. Duncan had never read the file and it had been lost by the time this hearing had commenced. Mr. Duncan speculated, however, that the 3:30 a.m. shift at Depot 11 was the only position available at the time.
[31] CP led no other evidence that would explain why Mr. Willoughby was assigned to the 3:30 a.m. shift and no evidence that would explain why he was not re-assigned to a day shift after CP received medical information in January and in March of 2002.
[32] Mr. Duncan testified that on or about April 15, 2002 he had a meeting with Mr. Willoughby and that at this meeting Mr. Willoughby expressed to him that he felt he was unable to work in any capacity at CP. He asked Mr. Duncan to help him obtain disability benefits. Mr. Duncan denied that he advised Mr. Willoughby that there were no positions available to accommodate him and so he should go on disability, as was Mr. Willoughby’s evidence.
[33] Mr. Duncan also testified that even had Mr. Willoughby wanted to remain actively employed with CP, there were no positions available in April of 2002. Mr. Duncan testified that all of the positions available within his bargaining unit, APOC, required either a significant amount of walking and standing, which Mr. Willoughby could not do, or required either or both of an acute attention to detail and competence with computers. Mr. Duncan testified that he was convinced that Mr. Willoughby could not do any of these more sedentary jobs in part because in his experience, Mr. Willoughby had demonstrated an inability to perform administrative and other more sedentary jobs since he had been promoted to the position of supervisor in 1990 and did not possess adequate computer skills. Further, Mr. Duncan testified that Mr. Willoughby’s poor performance in the training department was further evidence that he was unable to perform administrative jobs to an acceptable standard.
[34] Mr. Duncan testified that he was surprised to learn in 1990 that Mr. Willoughby had been promoted to letter carrier supervisor. He had worked with Mr. Willoughby before 1990 as a mail courier and testified that he had found his competence to be questionable in that position. In 1993 or 1994, Mr. Duncan and Mr. Willoughby worked together in the same depot. Mr. Duncan was the superintendent and superior to Mr. Willoughby, who was a supervisor. Mr. Duncan testified that Mr. Willoughby could not grasp even very simple concepts, that he was sloppy and neglectful at his duties, that he was unable to secure the necessary relationships with employees he was responsible for and that he made numerous administrative mistakes. He made, for example, numerous errors in vacation scheduling and would often fail to offer overtime to employees in the order dictated by the collective agreement. Under the collective agreement, if an employee is not offered overtime when it is his or her turn, CP was required to pay the employee anyway. Mr. Duncan testified that he took over some of Mr. Willoughby’s administrative tasks because of the number of errors he made.
[35] Mr. Duncan also testified that Mr. Willoughby was infamous for damaging and deleting important computer software while attempting to modify or improve it. Mr. Duncan described that while he and Mr. Willoughby were in adjacent depots, Mr. Willoughby would regularly run in to his office in great distress having erased important system and other software. Mr. Duncan described that he constantly needed to call in technical support to fix computers damaged by Mr. Willoughby. Mr. Duncan described that computers were irresistible to Mr. Willoughby. He described an incident that had occurred in 1993 or 1994 while he was Mr. Willoughby’s superintendent. Mr. Duncan had received a new laptop computer from CP for use at work. Mr. Duncan testified that he begged Mr. Willoughby not to touch his computer one day before leaving the depot. Mr. Duncan described that when he returned, the computer was black and that it never worked again: It is black to this day.
[36] Mr. Duncan testified that he was also aware that Mr. Willoughby was performing poorly in the training department in 2001. Mr. Willoughby, he testified, would often come into his office and would express increasing distress and concern that he was unable to perform the training department position adequately.
[37] Ms. Gavin, a team leader in CP’s training unit, gave further evidence of Mr. Willoughby’s performance difficulties in the training department. She testified that Mr. Willoughby was easily distracted and made many mistakes during his tenure in the department. Ms. Gavin testified that she, together with Ms. Acton, the manager of CP’s training unit, met with Mr. Willoughby in early April of 2001 to discuss their concerns about his performance. Ms. Acton also gave evidence at the hearing. She testified that during this meeting, Mr. Willoughby acknowledged that his performance was poor, but that he was unable to give any adequate reason for his many mistakes. Mr. Willoughby described that he was suffering from some personal problems of long standing, though he did not elaborate any further on the nature of these problems. Neither Ms. Gavin nor Ms. Acton recalled Mr. Willoughby advising them that he thought he might be suffering from dyslexia.
[38] Ms. Gavin testified that after this meeting, she and Ms. Acton decided that Mr. Willoughby should be sent for a medical examination and was later told that CP had received medical information advising that the difficulties giving rise to Mr. Willoughby’s poor job performance had resolved. She testified that she felt she had no choice but to ask that Mr. Willoughby be transferred, there being no medical explanation for his continuing poor performance.
[39] Mr. Duncan testified that he was aware that Mr. Willoughby was not performing well after he had been transferred back to Depot 11 in the summer of 2001 on the 3:30 a.m. shift. Mr. Willoughby continued to visit him in his office on a regular basis and expressed that he was unable to meet the demands of this position.
[40] Ms. Sample, superintendent of Depot 11 when Mr. Willoughby was re-assigned to that depot in July or August of 2001, gave further evidence of Mr. Willoughby’s performance problems in the depot. She testified that his job performance was well below the required standard almost immediately after he had been assigned to the depot. Ms. Sample testified that Mr. Willoughby was almost entirely unable to walk, and therefore could not adequately supervise the employees, and neither could he adequately supervise the delivery or the processing of mail. Further, he continued to make numerous mistakes in the administrative aspects of the position.
[41] Mr. Duncan testified that because of Mr. Willoughby’s poor job performance and because of his medical restrictions there were no positions available at CP to accommodate him. Mr. Duncan canvassed numerous positions at CP, but found none that Mr. Willoughby could perform adequately. He could not, Mr. Duncan testified, continue to be a letter carrier supervisor because that position required that a person walk around the depot for about 90% of an eight hour shift. Mr. Duncan also testified that it would not be possible to bundle administrative tasks that other supervisors were performing to create an accommodative position for Mr. Willoughby as there was very little administrative work done by any supervisors. Bundling these jobs would not fill a day.
[42] Mr. Duncan testified that positions in CP’s sales department also entailed a significant amount of walking. He also testified that the depot assistant positions, positions that he first described as being assigned as an accommodation for injured or aging employees, would be unsuitable for Mr. Willoughby because they entailed significant walking and lifting: They (the depot assistants) work harder than you and me put together. He described data entry and other administrative functions done by APOC employees such as those done in the route management and postal code maintenance departments as being highly skilled positions that demanded a highly tuned attention to detail. Mr. Willoughby, Mr. Duncan and others testified, had demonstrated that he was unable to attend adequately to detail and so could not perform these administrative assignments adequately.
[43] Mr. Duncan gave evidence that CP did not formally canvass suitable positions that might be available in other bargaining units. Some of the job functions at CP were performed by employees who were members of the CUPW bargaining unit. As an example, the long and short letter sortation unit was described as a sedentary position assigned to injured workers. Mr. Duncan described that CP did not consider placing Mr. Willoughby in one of the CUPW positions because serious consequences would be visited on CUPW members should Mr. Willoughby be parachuted in to one of the CUPW positions. Mr. Duncan testified that should Mr. Willoughby be placed in a job outside his collective agreement, someone else would get bumped out on to the street if there were no vacancies in any particular unit. The only alternative should there be a full complement of workers would be to create a position for Mr. Willoughby and that, Mr. Duncan testified, is beyond any employer’s obligation when accommodating an employee. He did not know if there were any vacancies at the relevant time in the CUPW bargaining unit that would have been suitable for Mr. Willoughby. He had not checked.
[44] Mr. Duncan also gave evidence that at the relevant time there were five employees in the PSAC bargaining unit who were surplus. Members of the PSAC bargaining unit did primarily administrative functions, many of which were sedentary. The positions formerly held by these surplus PSAC employees had become redundant as CP began to computerize more and more of its operations. Under the terms of a collective agreement, CP had agreed to keep these people on payroll. Mr. Duncan describes that these people were kept busy doing make-work projects, working on tasks like data entry. These employees were also used to backfill job vacancies when they arose. Mr. Kordoban testified that CP had at one time cancelled a contract that it had with a security company so that some of these PSAC employees could perform those functions while they remained surplus. Mr. Duncan testified that as CP was continuing to employ surplus workers, it was clear that there were no job vacancies in the PSAC bargaining unit.
[45] Mr. Duncan testified that in April of 2002, when he decided that accommodation was not possible, he had not reviewed any of the medical information contained in Mr. Willoughby’s employment file. His estimation of Mr. Willoughby’s medical restrictions came as a result of his observations of and his conversations with Mr. Willoughby. Mr. Duncan understood from these observations and conversations that Mr. Willoughby’s only medical restriction was that he could not walk or stand much. He was unaware that Mr. Willoughby had been diagnosed with a sleep disorder, had been later diagnosed with PTSD, or that his doctor directed that he should work only a regular day shift.
[46] Mr. Duncan testified that in advance of his meeting with Mr. Willoughby in February of 2003, ten months after he had last seen him, he had not consulted Mr. Willoughby’s employment file or read any medical reports. He was unaware of the Sun Life letter sent to CP in November of 2002 outlining Mr. Willoughby’s medical restrictions and its proposal by which Mr. Willoughby could return to work. He testified that his understanding that there had been no change in Mr. Willoughby’s restrictions came from the comments made at the meeting by a CP nurse.
[47] Mr. Duncan also testified that he had made no specific inquiries about available job positions at CP that might be available to accommodate Mr. Willoughby in advance of or after the February, 2003 meeting. It was his testimony that as he understood from the comments of the CP nurse that Mr. Willoughby’s restrictions had not changed, CP’s position had not changed: there was no work available.
IV. Analysis [48] Section 7(a) of the CHRA states that it is a discriminatory practice, whether directly or indirectly, to refuse to employ or to continue to employ any individual on a prohibited ground of discrimination. Section 7(b) states that it is also a discriminatory practice, whether directly or indirectly, in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground of discrimination. Disability is a prohibited ground of discrimination enumerated in section 3, and section 25 directs that this ground prohibits discrimination on the basis of either physical or mental disability.
[49] The onus is first on the complainant to establish a prima facie case of discrimination.
A. Has the complainant demonstrated a prima facie case of discrimination on the basis of disability? [50] A prima facie case of discrimination is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favor, in the absence of an answer from the respondent employer. The respondent’s answer is not to be considered when determining whether a prima facie case has been made out. (O’Malley v. Simpson-Sears Ltd. [1985], 2 S.C.R. 536 at para 28, see also Dhanjal v. Air Canada, (1997) 139 F.T.R. 37 at para. 6 and Moore v. Canada Post Corporation and Canadian Union of Postal Workers, 2007 CHRT 31 at para. 85). A complainant is not required to prove that discrimination was the only factor influencing the conduct which is the subject of the complaint. It is sufficient that a complainant make out a prima facie case that discrimination is a factor. (See Basi v. Canadian National Railway Company, (1988) 9 C.H.R.R. D/5029).
[51] Mr. Willoughby’s allegations of discrimination are first that on or about March 12, 2002, CP continued his assignment to the 3:30 a.m. shift after having received a letter from his doctor directing that he required day shift assignments, and second, that CP refused to continue his employment in both April of 2002 and February of 2003 as a result of his disabilities.
(i) Has a prima facie case been made out in respect of the first allegation: continuing the 3:30 a.m. shift assignment in March, 2002? [52] Mr. Willoughby alleges that when CP received the letter of Dr. Dodd in March of 2002, directing that he required a day shift assignment, its decision to continue his assignment to the 3:30 a.m. shift was a discriminatory practice. This allegation engages section 7(b) of the CHRA which directs that it is a discriminatory practice for an employer, in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground of discrimination.
[53] In Hutchinson v. Canada (Minister of the Environment, [2003] F.C.J. No. 439 (FCA), Pelletier JA, writing for a three member panel of the Court, directs that when considering a complaint of discrimination that arises as a result of a course of conduct between an employer and employee, rather than from a discrete and coherent employment policy, the appropriate question to ask when considering whether a complainant has made out a prima facie case of discrimination under section 7(b) is whether the transaction between the parties taken as a whole discloses adverse treatment on a prohibited ground (see paragraphs 75 and 76). There is no specific test or analysis that applies where one is considering whether a prima facie case is made under section 7(b). This Tribunal must be flexible, not overly legalistic in order to advance one of the broad purposes of the CHRA, being the elimination of discrimination in the workplace (Morris v. Canada Armed Forces [2005] F.C.A. 154 at paragraphs 27 to 30). Analyses made under section 7(b) must be made on a case by case basis and in a manner sensitive to the factual context.
[54] I find that Mr. Willoughby has made out a prima facie case of discrimination. CP had accommodated his medical restrictions continuously since 1997, including his need to work day shifts. Then, abruptly, in the summer of 2001, CP assigned Mr. Willoughby back to the 3:30 a.m. shift. When CP received medical information in March of 2002 that Mr. Willoughby could work only a day shift, CP kept him on the 3:30 a.m. shift. There can be no question that CP’s course of conduct visited an adverse effect on Mr. Willoughby on the basis of his disability: CP’s decision was directly contrary to the clear direction of his doctor and caused his medical condition to worsen. I also find that Mr. Willoughby made out a prima facie case that he was treated not just adversely, but differentially on the basis of his disability. There is no free-standing right to accommodation under the CHRA as was recently observed by this Tribunal in Moore v. Canada Post 2007 CHRT 31 (paragraph 86). However, I find that Mr. Willoughby’s evidence that his employer received medical direction identifying a work restriction and that the restriction was not accommodated, makes out a prima facie case of differential treatment. I find that Mr. Willoughby has made out a prima facie case that he was treated adversely and differentially by CP on the basis of his disabilities.
(ii) Has a prima facie case been made out on the second allegation: CP’s April, 2002 decision not to continue his employment? [55] Mr. Willoughby testified that in April of 2002, Mr. Duncan advised him that there were no positions available to accommodate him and that he should apply for disability benefits.
[56] I find that a prima facie case has been made out in respect of this second allegation. Mr. Willoughby’s evidence, if believed, would prove that CP’s refusal to continue his employment on April 12, 2002 arose, at least in part, as a result of his disabilities in breach of section 7(a) of the CHRA in the absence of an answer from CP.
(iii) Has a prima facie case been made out on the second allegation: CP’s February 14, 2003 decision not to continue his employment? [57] Sun Life wrote to CP in November of 2002 advising that Mr. Willoughby was ready to return to work and proposed a gradual return to work plan that included a discrete list of work restrictions. In February of 2003, Mr. Willoughby testified that he was advised that there were no positions available at CP to accommodate his restrictions.
[58] I find that a prima facie case has been made out. Mr. Willoughby’s evidence, if believed, would prove that CP’s refusal to continue his employment on February 14, 2003, arose as a result of his disabilities in breach of section 7(a) of the CHRA in the absence of an answer from CP.
B. Is CP able to justify its prima facie discriminatory conduct? [59] Section 15(1) of the CHRA directs that where an employer’s decision or course of conduct is established by the employer to have resulted from a bona fide occupational requirement, the decision is not a discriminatory practice.
[60] Section 15(2) of the CHRA clarifies that for a practice or a decision to be considered to be based on a bona fide occupational requirement, the employer must establish that accommodating the needs of the employee would impose undue hardship on the employer considering health, safety and cost.
[61] The Supreme Court of Canada decision in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) (Meiorin Grievance) [1999] 3 S.C.R. 3 (Meiorin), sets out the analysis by which a bona fide occupation requirement must be assessed.
[62] To establish that its conduct was justified, or that the conduct arose as the result of a bona fide occupational requirement, the employer must prove:
that the standard was adopted or a decision made for a purpose rationally connected to a legitimate work related purpose (Meiorin, supra at para. 58); that the standard adopted or the decision was made in an honest and good faith belief it was necessary to fulfill this work related purpose (Meiorin, supra at para. 60); that the standard adopted or decision made was on the evidence reasonably necessary to accomplish this work related purpose (Meiorin, supra at para. 62).
(i) Is CP able to justify its decision to continue the 3:30 a.m. assignment in March of 2002? [63] CP did not lead any direct evidence that would explain why Mr. Stevenson decided to keep Mr. Willoughby on the 3:30 a.m. shift after CP received medical information directing that he required day shift assignments. Mr. Stevenson was deceased at the time of the hearing and the personnel file he had maintained in respect of Mr. Willoughby could not be located. Mr. Duncan speculated that the 3:30 a.m. shift may have been the only position available at CP.
[64] Once a complainant has satisfied his or her evidentiary burden, the employer must then satisfy its evidentiary burden: the employer must lead evidence to establish, on a balance of probabilities, each step of the Meiorin analysis. CP is unable to discharge its evidentiary burden in respect of any of the three arms of the Meiorin test. Mr. Duncan in his evidence speculated as to the considerations that might have informed Mr. Stevenson’s decision to continue Mr. Willoughby’s assignment on the 3:30 a.m. shift. An employer cannot discharge the evidentiary burden established in Meiorin by speculation (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] S.C.J. No. 73 at para. 41).