Human Rights and Equity Office

Human Rights and Equity Office
Human Rights and Equity Office

Meeting 24: Accessible Education

This meeting explored cases related to accessible education, given the importance of the new policy and recommendations released by the Ontario Human Rights Commission. Our guest speaker was Jennifer Dods, Executive Director Student Wellness Services at Queen’s University.

Accessibility Cases

Andruski v. Coquitlam School District and another, 2015 BCHRT 74

Andruski v. Coquitlam School District and another, 2015 BCHRT 74

Summary

Heather Andruski complains under s. 13 of the BC Human Rights Code that her employer, the Coquitlam School District #43 (“SD 43”) and Kathleen Ponsart, discriminated against her in her employment on the basis of physical disability.

Ms. Andruski has been employed as a teacher by SD 43 since 1995. In 2009, she provided medical evidence that she had a severe allergy to scents and dust. Ms. Andruski claims that the respondents failed to accommodate her physical disability by:

(a) not providing a scent-free work environment;

(b) not enforcing a scent-free work environment;

(c) subjecting her to psychological harassment.

By August 2010, with the collaboration of multiple parties, an accommodation plan was put in place for Ms. Andruski, referred to as the “Exposure Control Plan,” and Ms. Andruski agreed to it. This plan was updated several times after Ms. Andruski relocated to a different school.

One of the most prominent incidents happened in April 2013, when Ms. Andruski claimed that a particular student was continuing to attend school with scents, even though the parent of the child was doing everything she could to prevent the issue. Andruski and her union representative suggested moving the child out of the classroom for the rest of the year. Ms. Ponsart and the Vice-Principal disagreed, and the child stayed in the classroom.

The same month, Ms. Andruski had another reaction to scent. She moved her class, including all of their desks, to outside the classroom when it was cold. The Vice-Principal was concerned about the children’s needs and health and Ms. Andruski inappropriate response.

Ms. Andruski stated that just opening the door of her classroom was enough to get an allergic reaction, and she recognized she could not expect never to have any exposure in the workplace. However, Ms. Andruski’s position is that the agreed accommodation had not gone far enough because exposures still occurred, and she wanted more control in her environment over individuals.

By April 13, 2013, in the 2012/2013 school year, Ms. Andruski had 23 absences, and after those episodes, Ms. Andruski took medical leave on October 31, 2013. She went on long-term disability and had no expected return date.
 

Questions to be Determined and Findings

1. Is there a reasonable prospect for the complaint to succeed? (NO)
 

Reasoning

1. According to the Supreme Court of Canada in Moore v. British Columbia 2012 SCC 61, to demonstrate prima facie discrimination, complainants must show that they have a characteristic protected from discrimination; that they have experienced an adverse impact in a protected area; and that the protected characteristic was a factor in the adverse impact.

Ms. Andruski provided support for what could amount to a prima facie case of discrimination. She is in a protected group, and she has experienced an adverse impact of not being able to work. Depending on whether the respondent has fulfilled the obligation to accommodate her disability, there may be a relationship between those factors. If prima facie discrimination is proven, the respondent has the burden of proving, on a balance of probabilities, any applicable defence. Therefore, in this case, the respondents must be able to justify their conduct, including that all reasonable and practical steps were taken to accommodate Ms. Andruski’s disability.

Ms. Andruski and her union met with the respondents to develop an Exposure Control Plan and amended it as necessary. Ms. Ponsart says that she worked with Ms. Andruski to accommodate her in the following manner:  

(a) removed the carpet from Ms. Andruski’s classroom and replaced with linoleum;

(b) in October 2013, on the recommendation of the union representative, she authorized an order for computer equipment;

(c) used school funds to replace all of the soap dispensers in the school with unscented soap;

(d) advised the Vice-Principal on how to accommodate Ms. Andruski;

(e) communicated with the union about resolving Ms. Andruski’s scent issues as they arose; and

(f) spoke with staff and parents about being scent-free.

The Vice-Principal says that the staff were aware of Ms. Andruski’s sensitivity to scents. They would tell him that they bought unscented products and that if they thought they were scented, they would avoid Ms. Andruski so that she would not react to them. He says that they were making every reasonable effort to accommodate Ms. Andruski.

“The evidence is that, once the Exposure Control Plan was put in place, Ms. Andruski’s attendance improved and the plan appeared to be working reasonably well. The respondents argue, and I agree, that the process of reaching an accommodation or working within it once agreed cannot itself constitute a breach of the Code or adverse impact.” (p. 32)

The Tribunal then determined that the respondents took significant steps to accommodate Ms. Andruski’s disability. Her union was appropriately involved, and it helped negotiate and adjust the Exposure Control Plan.

“It appears to me that, due to the accommodation efforts, the respondents have shown that Ms. Andruski has no reasonable prospect of success with her complaint.” (p. 34)

Outcome

The complaint was dismissed.

Gamache v. York University, 2013 HRTO 693 (CanLII)

Gamache v. York University, 2013 HRTO 693 (CanLII)

Summary

The applicant has a visual impairment such that she is legally blind in one eye. The applicant alleges that she was denied accommodations required because of her visual impairment and that she was treated adversely and ultimately removed from the program because of her disability.

The applicant was admitted into the York University Faculty of Education for the 2005-06 academic year in the Primary/Junior Consecutive Education Program. The course involved in-class work and written assignments, and two practicum placements at host schools, where the student teacher is supervised by a host teacher and an adjunct professor at the host school.

The Applicant applied under the Access Initiative, which is available to students who self-identify on their applications as having a disability. The University suggested her to contact the Office for Persons with Disabilities (OPD) that could provide her with the support she needed. The Applicant arranged a meeting with Karen Swartz, Director of the Office for Persons with Disabilities at York University, and Kathy LeBlanc, Practicum Coordinator for the Primary/Junior Consecutive Education Program. During this meeting, the parties discussed the accommodations needed and the possibility of a bursary. They all agreed with providing the applicant with the course materials in an alternative format.

The applicant took his coursework in a space rented by York University from Georgian College. However, the two institutions did not have an agreement regarding the services provided to students. The applicant’s first practicum placement was with a junior grade at Forest Hill Public School. This placement was not successfully completed by the applicant and was terminated by the host school on November 16, 2005. The applicant was placed in her second placement at Russell Goodfellow School teaching a Grade 1 class. This placement was not successful either and ended in late February 2006.

The applicant was not able to complete her coursework and as a result, received failing grades in three courses. The applicant was sent a letter dated June 28, 2006, advising her that she had failed these courses and as a result would need to file a petition to continue in the program. The applicant did not do so, and accordingly did not successfully complete the program.
 

Questions to be Determined and Findings

1. Did the respondents’ failure to provide the applicant with an accommodations letter amounts to discrimination because of the applicant’s disability in violation of her rights under the Code? (NO)

2. Did the failure to file a bursary application in a more timely manner amount to discrimination? (NO)

3. Did the failure to provide the applicant with textbooks and course materials in an accessible format in a more timely manner amounts to discrimination by the respondents against the applicant? (YES)

4. Did the events leading to the ultimate discontinuation by the applicant in the program amount to discrimination? (NO)
 

Reasoning

1. Regarding the assessment of credibility, the Tribunal detected in the applicant a tendency to overstate, amplify or exaggerate her allegations. The evidence pointed to problems with the applicant’s memory, and a plagiarism incident. Therefore, the applicant was meant as a non-credible witness when there was a conflict with the evidence of the respondents or other witnesses.

During the first meeting between the applicant and representatives from York University, the need for an accommodations letter was identified. The letter should have presented the following requests: extra time on tests or exams; that readings be provided ahead of time to in an accessible format; and preferential seating.

“Ms. Swartz’s evidence is that the process at York University for obtaining an accommodations letter is for there to be an initial intake meeting, at which the nature of the student’s disability and need for accommodation is discussed. Then, once the names of the specific course instructors are known, the student is to get back in touch with Ms. Swartz’s office, the OPD, and arrange a meeting at which accommodations letters addressed to each course instructor would be prepared, setting out the specific accommodations required. Once the accommodations letters had been prepared, it is then the student’s responsibility to provide these letters to each course instructor.” (p. 54)

The applicant did not know that she had the onus of ensuring that the accommodation letters were created and delivered, and relied on the PDO to do so.  The Tribunal considered the incident as a misunderstanding, given the fact that the accommodation letter is simply a tool to ensure that accommodation is provided when needed. The tribunal found that most of the accommodation requests were fulfilled regardless of having the letter.

2. At the meeting on May 24, 2005, there was a discussion about an application for a bursary to pay for the cost of scanning the materials, since Georgian College was charging a fee for doing it. There was also confusion about what steps needed to be taken to apply for this funding, and who would be taking them. The applicant believed that she did not need to take any steps until she discovered differently much later in the fall term. Whereas, the PDO always wait for applicants to take the lead in these processes.

When the application was submitted, it was done outside of the regular schedule and lacked medical evidence linking the applicant’s disability to her need for the equipment sought. Therefore, the bursary application was not successful.

To amount to a violation of the Code, there needs to be evidence to establish that the equipment sought in the bursary application relates to a need arising from her visual disability, and the Tribunal did not have sufficient evidence to support such a conclusion.

3. Since the first meeting, it was understood by York University that the applicant would require the course readings ahead of time in an accessible format.

“The evidence indicates that following the May 24, 2005 meeting, Ms. Swartz discussed the applicant’s need for accessible materials with Ms. McColl, the Assistant Manager of Library Accessibility Services. This prompted Ms. McColl to send an e-mail to the applicant on June 6, 2005, stating that she had been advised by Ms. Swartz that the applicant’s alternate format materials were going to be supplied by Access Services at Georgian College and that the cost would be covered by a bursary.” (p. 98)

As discussed previously, there was considerable confusion about the nature of this bursary and who was responsible for applying for it, which resulted in the delayed for the applicant to receive the material in an accessible format.

The applicant raised the concern when she still had not received course materials in accessible format by late September 2005, and Ms. Judy Blaney, Course Director for the Primary/Junior Consecutive Education Program, followed up with Tina McColl, who is the Manager of Library Accessibility Services at York University, to determine if there was any step missed in the process.

“Ms. McColl corresponded with the applicant on October 4, 2005, ‘to apologize for the very long delay in responding to [the applicant’s] inquiries regarding [her] transcription requests.’ Ms. McColl indicated that in that particular year, her office ‘has been absolutely overwhelmed by the number of requests for alternate format material and was ‘struggling with a record number” of requests.” (p. 105)

However, it still took a month a half for York University to deliver the material in an accessible format, on November 20, 2005. Therefore, the Tribunal found that the delay in providing the applicant with textual materials in accessible format amounts to discrimination against the applicant because of her visual disability, in violation of s. 1 of the Code.

4. During the course of the Applicant’s academic year, Ms. Blaney sent several e-mails to Ms. LeBlanc, Associate Dean Pitt, and others to express concern about the applicant’s lack of success in the program and to request a meeting to seek guidance.

The applicant alleges that she was unfairly assessed and graded by Ms. Blaney and Ms. Hamilton about her work in the winter term which resulted in her inability to continue in the program and that her disability was a factor in the unfair assessment of her work. The Tribunal determined that this allegation was unfounded.

“Ms. Hamilton met with the applicant for a considerable period of time in order to review expectations for the upcoming teaching block. Ms. Hamilton also provided the applicant with specific suggestions and guidance in terms of how to improve her preparation of lesson plans and her teaching practice. Ms. Hamilton also met with the host teacher and the adjunct professor at the host school in order to review expectations and areas for improvement for the applicant.” (p. 154)

The applicant also made several critical mistakes regarding lesson plans, spelling and grammatical, and failure to meet deadlines. Then, the respondent requested that the applicant’s placement at the host school be terminated for the following reasons:

“Inability to demonstrate an understanding of concepts and knowledge required for teaching; inability to plan or write up coherent lesson plans; inability to teach a successful lesson; missed meetings; and being completely unprepared for the March teaching block.” (p. 165)

The Tribunal considered that respondents had provided rational and non-discriminatory explanations to support the applicant’s inability to continue in the consecutive education program, accordingly, it found no violation of the Code.
 

Remedy

Due to the violation of the Code in relation to the failure of York University to provide reading materials to the applicant in an accessible format promptly, the Tribunal directed the parties to file their written submissions on the remedy.

Hutchinson v. Queen’s University, 2017 HRTO 326 (CanLII)

Hutchinson v. Queen’s University, 2017 HRTO 326 (CanLII)

Summary

The applicant, Shirley Hutchinson, alleged that Queen’s discriminated against her because of disability when it refused to renew her contract for the 2015-2016 academic year. She also alleged that Queen’s discriminated against her when the University refused to assist her to transfer to another university in Ontario.

Applicant’s residency status from 2007 – 2013 is as follows: The applicant began her medical residency at Queen’s on July 1, 2007, until 2013. In addition to registering with the University, residents must also be granted privileges at a hospital, which means they are also employees of the hospital and the collective agreement covers them. The applicant’s status at Queen’s after June 2013 is a matter in dispute between the parties.

Every year, residents must register with the University, pay the annual fees, and are issued an appointment letter that must be modified every time the resident change their status. Dr. Ross Walker, Associate Dean of Postgraduate Medical Education at Queen’s, testified that letters of appointment are issued to residents whether their status in the program is active, suspended, or on leave. The University did not issue any letters of appointment to the applicant after June 30, 2013.

The University suspended the applicant in the Fall of 2011 after Hutchinson went on a leave of absence as of November 2011. An Academic Review Board (ARB) review the circumstances around the Applicant’s performance and status, and in February 2012 recommended that she be assessed by the Physician Health Program (PHP) of the Ontario Medical Association.  Lois Ross, a representative of the Professional Association of Residents of Ontario (PARO) who engaged in these conversations on the applicant's behalf, recommended Dr. Walker to reconsider the ARB recommendation. But on March 2012, the Applicant ultimately agreed to undergo the assessment by the PHP recommended by the ARB.

At the beginning of 2013 the PHP indicated that the assessors believed that the applicant would never be ready to return to her training program at Queen’s nor, in its view, would she be able to become fit for residency training in most sub-specialties of medicine and surgery. After these findings, Ms. Ross indicated that it was her understanding that the applicant would be applying for Long Terms Disability benefits since her disability precluded her from returning to Queen’s.

On March 2013, the ARB then recommended that the applicant’s suspension to be lifted if Hutchinson voluntarily withdrew from the residency program and went on an unpaid leave of absence for a maximum of six months, then after that period, she would be required to withdraw from the University. During this period, Ms. Hutchinson was insisting in transferring to another program, but Ms. Ross was very clear that the chances of getting support from Dr. Walker were very slim.

Dr. Walker and Ms. Ross met on March 18, 2013, to discuss the PHP report and the next steps for the applicant. They agreed that Hutchinson would not receive another appointment as of July 1, 2013, and she would apply for LTD benefits. Also, the University would permit the applicant to remain eligible for the group health insurance benefits. To do so, the applicant had to continue to enroll with the University to remain eligible for the group health benefits under her collective agreement with Kingston General Hospital. Regarding the transfer request, Dr. Walker said he did not have the authority to transfer or appoint residents to programs, and that due to a full disclosure policy, if another program contacted him, he would be obliged to share all information relating to the applicant’s experience in her residency program at Queen’s.

Ms. Ross reported back to the applicant about the results of the meeting, and the applicant never expressed any disagreement with what she and Dr. Walker agreed to in their meeting.

The applicant kept registering and paying tuition fees with the University for two more academic years. And on December 2014, she wrote to Dr. Walker asking to meet with him to discuss her options for finding a residency transfer position. Dr. Walker reviewed her resident file and refused to meet with her.

In June 2015, the applicant attempted to register online for the 2015-2016 year but was unable to log into the Queen’s registration page. The Postgraduate Medical Education Office decided to wave the registration fee for her and reiterate that the Applicant did not have a contract and that her connection to the University since 2013 has been for the sole purpose of ensuring continued access to her benefits.

The applicant’s understanding was that by maintaining her registration, Queen’s would negotiate a transfer for her to another residency program when she was ready to come off LTD.
 

Questions to be Determined and Findings

1. Should the Tribunal dismiss the Application as an abuse of process due to the agreement between Dr. Walker and Ms. Ross in March 2013? (YES)

2. Should the Tribunal dismiss the Application as untimely? (YES)
 

Reasoning

1. There is no need to address whether the Application should be dismissed on the basis of abuse of process because the applicant’s allegations from 2013 are untimely or, if they are timely, they do not amount to discrimination under the Code.

“Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident to which the application relates or a series of incidents, within one year after the last incident in the series. The Tribunal has found that there must be some thematic connection or nexus between incidents in order for them to be considered a ‘series of incidents’ within the meaning of s. 34(1) of the Code. A series cannot be comprised of incidents relating to discrete and separate issues. Generally, the Tribunal has not considered incidents to form part of a ‘series of incidents’ if there is a break of one year or more between incidents. Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9.” (p. 53)

The applicant’s allegations relating to events that occurred more than one year before she filed her Application in September 2015 do not constitute a series of events with any timely allegations. And, ultimately, the University did not make any changes to the applicant’s status in 2015.

“As noted above, as of the 2015-2016 academic year, the University ceased charging the applicant a registration fee. However, it was clear from the evidence at the hearing that nothing else changed with respect to the applicant’s registration. The applicant ceased to be a resident at Queen’s on June 30, 2013.” (p. 57)

2. The applicant was aware that her residency ended on June 30, 2013, for the following reasons:

(a) She had not received a letter of appointment since 2013.

(b) Ms. Ross had e-mailed the applicant following her meeting with Dr. Walker and confirmed that she would not be seeking to return to Queen’s. It also informed the applicant that she would have the option of continuing to register solely to maintain eligibility for group health benefits.

(c) In one of her e-mails to the Post Graduate Resident’s Office, the applicant herself referred to having “stopped being a resident” in 2013.

The University had no ongoing duty to accommodate the applicant since her residency with the University ended at the end of the 2012-13 academic year. Therefore, Dr. Walker was not obligated to provide assistance or meet with her. This refusal was not a breach of the Code.
 

Order

Application dismissed

“I have considerable sympathy for the applicant’s circumstances in this case. It is clear that the applicant has put considerable effort into moving forward with her career.” (p. 67)

Kelly v University of British Columbia [2012] BCHRTD no. 32

Kelly v University of British Columbia [2012] BCHRTD no. 32

Summary

The complainant, Dr. Carl Kelly, has four documented disabilities: Attention deficit disorder, inattentive type (ADHD), Non-Verbal Learning Disability (NVLD), and intermittent anxiety/depression. 

He was a resident in the UBC Family Practice Residency Program and an employee of its affiliate, the Providence Health Care Society from 2005 to 2007 when he was terminated from the program and dismissed from employment on the basis of unsuitability.   

The complainant’s academic trajectory is as follows: he failed his first two rotations in Pediatrics (Nov 1, 2005 – Dec 18, 2005) and Family Medicine (December 19 – April 30, 2006). Accommodations (increased supervision and feedback) were put in place, and his performance improved.  He passed his remediated rotation in Pediatrics (May-June 2006).  He neither passed nor failed his remediated rotation in Family Practice (July 1-24, 2006) but passed his rotations in Clinical Training Unit-Internal Medicine (July 31-August 27, 2006) and Emergency medicine (August 28th – September 24th2006).

In September fellow residents came forward with a concern about an inappropriate email Dr. Kelly had sent to the resident group. It was a satirical account of taking a patient’s sexual history. The concern was handled informally, Dr. Kelly apologized to his peers, who forgave him and who asked the program not to terminate his residency on account of the email. The program directors were concerned, based on their knowledge of Dr. Kelly’s performance difficulties, that he was psychotic and dangerous.  The Tribunal determined that while the email incident was never investigated or resolved formally, it was the factor that led the Program to dismiss the complainant, first by granting him an involuntary leave of absence, then by rejecting as unfeasible the recommendations for accommodation put forth in a subsequent psycho-neurological assessment (that it had ordered him to take) and a professional assessment of that assessment (that it had agreed to read upon the request of Dr. Kelly’s union).  The Program dismissed Dr. Kelly as unsuitable on account of the life-long nature of his disability (ADHD) and the unfeasibility of implementing the psychiatrist’s recommended accommodation.
 

Questions to be Determined and Findings

1. Did UBC (the Program) discriminate against Dr. Kelly on the basis of disability? (YES)
 

Reasoning

1. It made stereotypical assumptions about Dr. Kelly’s disability (he is probably psychotic and dangerous) based on one inappropriate email which was never investigated formally and for which he was never disciplined.

They failed to take into consideration that his academic trajectory was positive and that with accommodation he was able to succeed.

They provided no proof that the accommodations would cause any legitimate undue hardship except inconvenience and morale problems amongst the residents who would have to shoulder extra responsibility due to re-bundling of tasks

They had an exaggerated interpretation of many of the recommended accommodations (what they involved and how often they would have to be implemented) and failed to see that in his last two rotations he had succeeded without most of them.
 

Remedy

UBC terminated Kelly on 23 August 2007 and reinstated him on 1 February 2013, almost six years later.  The Tribunal compensated Kelly for the six-year delayed entry into medical practice under the rubric of future wage loss.

The Tribunal ordered UBC to pay to Dr. Kelly the following:

a) $385,194.70 as damages for lost wages;

b) compensation for expenses incurred as a result of the discrimination as set out earlier in this decision;

c) a tax gross-up;

d) $75,000 as damages for injury to dignity, feelings and self-respect; and

e) Pre-and post-judgment interest in accordance with the provisions of the Court Order Interest Act.

Ontario Public Service Employees Union, Local 110 v. Fanshawe College

Ontario Public Service Employees Union, Local 110 v. Fanshawe College

Summary

This is a dispute over a workload assignment between the Ontario Public Service Employees Union, representing the Grievor, and Fanshawe College, by the provisions of Article 11.02 of the collective agreement governing the parties

On October 31, 2013, the Grievor received an e-mail from the College advising him that he would be required to complete two training modules relating to Accessibility Awareness. The College was obliged by Ontario Regulation 191/11 under the AODA to provide such training to all “educators.”

The time required to complete the training was a one-half hour for each module for a total of one hour. In response to the e-mail, the Grievor requested that his SWF be amended to include the time spent on this training. This request was refused.
 

Questions to be Determined and Findings

1. Should the Grievor’s standard workload form (SWF) be credited with one hour for training that he was required by the College to undertake according to regulations under the Accessibility for Ontarians With Disability Act? (NO)
 

Reasoning

1. Article 11.01 of the collective agreement establishes an elaborate and detailed mechanism for attributing the number of hours that a professor is credited for on an SWF on a weekly basis in each semester. This article determines that a college teacher should not exceed 44 hours in any week for up to 36 weeks and that the rest of the academic year should be reserved for complementary functions and professional development. The article further establishes that complementary duties “appropriate to the role of the teacher” may be assigned.

Article 11.03 establishes a ten-month academic year from September 1 to June 30. The year is divided into teaching and non-teaching periods, and the SWF only sets out the hours assigned and attributed during the teaching period, one for each semester. The periods within the academic year outside the periods described in the SWF’s are considered as the “non-teaching period.”

The Union alleges that the requirement to complete the modules should be treated either as an assignment in “atypical circumstances” as contemplated under article 11.01 G 2, or as an assignment of a complementary function as contemplated under article 11.01 F 1; but that the assignment should not be covered by the allowance for “normal administrative tasks”.

It is the position of the College that the training should be treated as professional development following article 11.08. Therefore, the training could have been completed between December 6 and January 1, during the Grievor’s non-teaching period. Alternatively, counsel argued that the completion of the training should fall under the allowance for complementary functions under article 11.01 F 1.

The Tribunal used the Shime decision to conduct its analysis. In this decision

“The majority recognizes that there are circumstances in which the College may unilaterally assign appropriate tasks as contemplated by Article 11.08 absent the teacher’s consent where it would be unreasonable to withhold consent.” (p. 11)

The tribunal also acknowledges the requirement in s. 16 that educational institutions must provide “educators with accessibility awareness training related to accessible program or course delivery and instruction.” Also, that, given the nature of the training, the assignment contributed to the quality of education and professional development.

Finally, the Tribunal proceeded to determine if it was reasonable for the institution to request the completion of the training without the teacher’s consent.

“I have concluded that the assignment was reasonable. The entire assignment was of one hour’s duration. It was designed to enhance the teacher’s ability to deliver instruction to all students. There was no reason put forward as to why the Grievor should refuse consent during the non-teaching period.” (p. 14)
 

Outcome

The grievance was dismissed.

Wells v. Langley Senior Resources Society, 2018 BCHRT 59

Wells v. Langley Senior Resources Society, 2018 BCHRT 59

Summary

On July 28, 2015, the Applicant, Shelley Wells filed a discrimination complaint alleging that Langley Senior Resources Society discriminated against her in the area of employment on the basis of her mental disability, and a retaliation complaint against the Society. The Society said that it terminated Ms. Wells’ employment because of problems with her management style, errors in administration, and several mistakes.

The Society is a non‐profit volunteer organization providing services to approximately

2,000 members and it is governed by a volunteer board. An Executive Director, overseen by the Board, manages the Society's activities and the centre. The Applicant applied for this position in 2014 after the previous Director abruptly resigned due to several problems. Ms. Wells, who has an extensive background in community development and management, got the position and relocated her family from Vancouver to Langley. She was not told that they Society had several issues.

After her arrival in September 2014, Ms. Wells found that the Society had severe issues: administratively, financially, and personnel related. She also discovered a core group of activist members who were very angry with the Board. Ms. Wells also said that the employee handbook was outdated and lacked policies, including a policy regarding bullying and harassment.

The arrival of Ms. Wells brought new systems and policies, and staff turnover, which created a group of angry ex-employees and emboldened the actions of the Activist Members that were already difficult. These two groups started spreading rumours about Ms. Wells that quickly developed into bullying and harassment, in particular coming from a Problem Member. The Applicant reported this situation to the Board several times.

By February 2015, Ms. Wells managed to solve many of the financial, administrative, and personnel issues, so the Board prepared a performance evaluation showing positive assessments for Ms. Wells against all criteria. However, the incidents with Activist Members had worsened. The episodes of bullying and harassment increased dramatically, as often as 20 times per day, and now included what Ms. Wells perceived to be threats against her and her family. She told the Board she was near mental burnout; the Board still did nothing to stop it and advised her not to involve the police. The Applicant had lost some weight due to the stress, was having panic attacks, and panicked every time someone approached her at the Centre.

In March 2015, when Ms. Wells was near a mental breakdown after several meeting where she was verbally abused and spat at, two other staff members told her that the Problem Member had accosted and sexually harassed them. After all the incidents, the Applicant was shocked that the Board would not do anything to manage the bullying and harassment. She went on medical leave the next day.

The Board alleges that Ms. Wells left few management issues unresolved and that the situation was so chaotic that they had to find someone on a temporary basis to help get things in order while Ms. Wells was on leave. When Ms. Wells went on leave, the Board brought the Workers’ Compensation Board (WCB) in to talk about bullying and harassment, and the Board also developed a policy to deal with it and removed and banned the Problem Member.

On April 27, 2015, Paul Goldberg started in the role as temporary Executive Director. He did not experience bullying or harassment, nor did he hear of the allegations of performance issues involving Ms. Wells.

On June 2, 2015, WCB denied Ms. Wells’ claim for health care and wage‐loss benefits related to “a mental health disorder” linked to the bullying and harassment at the Centre.

On the morning of July 13, 2015, Ms. Wells’ scheduled return to work date, she was met by Board members at the front door and was told that there was no need to enter the building as her employment had been terminated, alleging performance issues and faulty management style.
 

Questions to be Determined and Findings

1. Was Ms. Wells’ disability a factor in the Society’s decision to terminate her employment? (YES)

2. Did the Society take retaliatory actions against Ms. Wells? (NO)
 

Reasoning

1. In a human rights complaint, the burden to establish that discrimination has taken place rests with the complainant. In this case, Ms. Wells had to prove that she had a mental disability, that she experienced an adverse impact regarding her employment, and that it is reasonable to think that her mental disability was a factor in that adverse impact.

Ms. Wells gave sufficient evidence about the symptoms she experienced immediately before and during her medical leave, together with the lasting impact of her conditions. Additionally, she provided medical evidence to the Workers Compensation Board that she was diagnosed with DSM-5 psychological disorder caused by work‐related stressors resulting in her inability to attend work as of March 5, 2015.

Regarding the adverse impact on her employment, the Tribunal establishes that

“Whether in the probationary period or not, it is difficult to conceive of a situation in which losing one’s employment would not constitute an adverse impact regarding employment within the meaning of s. 13 of the Code. That the Society opted to deliver the news of the termination in such a perfunctory way, surprising Ms. Wells at the moment of her return to work after a lengthy medical leave, adds to the adverse impact suffered by Ms. Wells.” (p. 170)

The Board knew ms. Wells' situation regarding the bullying and harassment she was experiencing, and her medical leave lasted months; this should have signalled that the Applicant had a mental disability.

“In Gardiner v. Ministry of Attorney General, 2003 BCHRT 41, the Tribunal stated at para. 164 that a respondent has a duty to inquire “where it has reason to believe that there is some question regarding a possible adverse effect of an employee’s medical condition on his ability to do the work prior to taking any action which would adversely impact on the employee.” (p. 177)

The Board even required a medical note stating that Ms. Wells was fit to return to work, which proves that they were aware of the Applicant’s mental disability. Therefore, they knew the issues that arose after the continual bullying and harassment that she experienced.

Regarding Ms. Wells professional decisions, the evidence showed that no performance issues were rising to the level of concern that the Board considered as justification for its dismissal decision.

“Mr. McGregor said that the Board worried that if Ms. Wells came back, the Centre would revert to the state it had been in December. Yet, according to Ms. Sailer, after Ms. Wells took leave and before July 3, 2015, the Board addressed the bullying issue in order to ensure Ms. Well’s successful return to a less poisoned environment, and Ms. Sailer expressed her expectation that Ms. Wells would be returning.” (p. 208)

In addition, the Board perceived the new Director as not being fragile like Ms. Wells, and not having any psychological issues that would make him susceptible to harassment and bullying:

“I find this draws a direct line between Ms. Wells’ known or perceived fragile mental state and the reason why the Board did not want her back.” (p. 209)

The Tribunal found the Society’s explanation constantly shifting and filled with inconsistencies, and decided that Ms. Wells’ disability was a factor in her dismissal, breaching the Code.

2. Ms. Wells says that two actions of the Society constitute retaliation. The first is the Society’s statements to its members and the public at an annual general meeting that Ms. Wells’ employment had been terminated and that she had filed a complaint WCB. The second is the new Executive Director’s threat that the Society would make sure she received nothing as she was “ungrateful.”

The tribunal found that her claims did not constitute retaliation because the Society did not have the power to impose a penalty on or deny a right or benefit to Ms. Wells in the settings in which Ms. Wells pursued her claims.
 

Remedy

Society must pay $30,000 for injury to dignity.

Cannabis Cases

Airport Terminal Services Canadian Company v Unifor, Local 2002, 2018 CanLII 34078 (CA LA)

Airport Terminal Services Canadian Company v Unifor, Local 2002, 2018 CanLII 34078 (CA LA)

Summary

ATS provides airport services to various airlines in designated airports throughout North America. At Toronto Pearson International Airport, ATS is contracted with several airlines to provide service and ramp operations. Throughout his nine years with ATS and at the time of his discharge, the Grievor was employed as a ramp agent, with an impeccable disciplinary record.

The Grievor’s job was performed at or around the aircraft that are in the process of landing and disembarking and those aircraft which are in the process of loading and departing. Once the aircraft has landed, one ramp agent, usually the lead hand or chief, will marshal the aircraft into position while the two remaining ramp agents observe the movement of the aircraft to ensure that there are no obstructions while it is moving into place. The ramp agents are responsible for a visual inspection of the aircraft, and if any damage or concerns are observed, they are reported to the pilot.

On a different occasion, the Grievor was found by the airport authorities to have a joint in his possession and that this event was communicated to Mr. Baines. Although Mr. Baines would have become aware of the Grievor’s conduct, this incident was not reported to the managerial levels above.

On July 7, 2016, the Grievor was assigned to a three-person ramp crew. On the day in question, they had previously landed, offloaded and serviced two aircraft. On the third aircraft, a United Airlines flight, once landed, marshalled in and chalked, the Grievor took the tow bar in hand, walked the tow bar towards his co-worker and then “rolled” it towards his co-worker. It seemed that the co-worker attempted to grab it but missed, and as a result, the tow bar struck the aircraft damaging one of its lamps. The damage was immediately reported and repaired, but as a result, the flight got 45 minutes delayed.

The Grievor and his co-worker were then met by Mr. Manni Baines, the Duty Manager and directed to file a written statement of the events leading to the aircraft's damage. Then, during a conference call, it was determined that the Grievor and his co-worker did not follow the standard operating procedures and as a result, the Grievor was given a two-day suspension, pending the outcome of the urine analysis.

On or about July 13, 2016, ATS was informed that the Grievor’s urine sample came back positive for marijuana metabolites. Then, on July 20, 2016, the Grievor’s was questioned by human resources and the administration regarding his knowledge about the Zero Tolerance Drug and Alcohol Policy, and he disclosed his use of medical marijuana, 5 mg. per day, as prescribed by his doctor.

At the same meeting, the Union advised ATS that it was their opinion that the Grievor’s urine test did not indicate impairment, the test indicated small traces of THC-COOC in the Grievor system which can, in a regular user, be present for upwards of sixty days. This outcome was consistent with the Grievor's medical prescription of marijuana. The Grievor was asked to explore alternatives to using medicinal marijuana; to acknowledge that he had a substance abuse problem; to enter an Employee Assistance Program, meet with a counsellor, remain drug and alcohol-free; and to agree to random drug testing to avoid termination. The Grievor did not sign the Final Warning nor agree to its terms, did not explore alternatives to medicinal marijuana, and as a result, the Grievor was terminated.
 

Questions to be Determined and Findings

1. Did the Grievor’s use of medically authorized marijuana violate the drug and alcohol policy? (NO)

2. Does an immediate or automatic discharge (subject to mitigating circumstances) following a positive test result violate the Collective Agreement and applicable legislation? (YES)

3. Did the termination violate the Grievor’s rights under the Canadian Human Rights Act? (YES)
 

Reasoning

1. In his evidence, the Grievor stated that he suffers from a lower lumbar related workplace injury caused by excessive twisting and turning. And from a sports-related knee injury. He had been prescribed medicinal marijuana for three years. His prescription was for 5 grams per day and had a duration of twelve months. But, in cross-examination, the Grievor acknowledged that he was unaware of the strain or strength of the marijuana that he purchased and was using in July 2016.

The Tribunal took testimony from two medical experts. ATS called doctor Mathew Burnstein, and he described the impairment effect of marijuana as initially acute causing a temporary reduction in concentration, motor skills, situational awareness and learning. Dr. Burnstein placed greater value in Health Canada recommendations that the ability to drive or perform activities requiring alertness may be impaired for up to twenty-four hours.

On the other hand, Dr. Caroline MacCallum, a licenced physician in British Columbia called by the Union, was of the opinion that four to six hours was the likely window of impairment. Dr. MacCallum disagreed with Dr. Bornstein’s conclusion that the Grievor could have been impaired from marijuana use on July 7, 2016, when the accident occurred.

The Tribunal found that the evidence does not support a finding that the Grievor was impaired at the time of the incident on July 7, 2016.

“The Grievor was not impaired and as such did not violate the ATS Drug and Alcohol Policy by reporting for work or working while impaired.” (p. 57)

2. The ATS Corporate Drug and Alcohol Policy mandates drug and alcohol testing after an accident or incident regardless of its significance, which is overly broad and unreasonable. The evidence demonstrates that ATS determined that a post-incident drug and alcohol test was required without a review of any of the surrounding circumstances and there was no concern for or balancing of the Grievor’s privacy interests, breaching the proper application on the ATS Drug and Alcohol Policy. However, the Grievor in his testimony admitted to possessing marijuana in the workplace before the incident, which did not result in disciplinary action, breaching the ATS Drug and Alcohol Policy again. Therefore,

“…following a significant incident, such as damage to an aircraft resulting in a lengthy delay in the departure of that aircraft, a previous breach of the drug and alcohol policy and having been in possession of marijuana in the workplace would establish a reasonable basis to require the Grievor to undergo a post-incident drug and alcohol test immediately. Although the process followed by ATS was flawed, the result, the ordering of the drug and alcohol test, was ultimately correct. In these circumstances, it would not be appropriate to void or invalidate the results of the drug and alcohol policy.” (p. 48)

The ATS Drug and Alcohol Policy mandates automatic discharge if an employee test positive for drugs or alcohol following a reasonable cause test or a post-incident cause test. The automatic discharge is subject to mitigating circumstances, which are specifically limited to situations where the employee suffers from an addiction. The policy does not provide for a meaningful process or accommodation for those who are prescribed or authorized to use narcotics or other controlled substances, such as marijuana, to treat physical or mental health issues. This process does not comply with the Employer’s obligations under the Canadian Human Rights Act (CHRA) which requires an Employer to accommodate an employee’s disability to the point of undue hardship.

“The ATS Drug and Alcohol Policy contemplates the accommodation of an employee suffering from addiction but does not, in its application, contemplate the Employer’s duty to accommodate an individual who suffers from a physical ailment which requires the individual to take pain medication, which includes an authorization to take medicinal marijuana. For this reason, I find that the ATS Drug and Alcohol Policy does not comply with the CHRA.” (p. 52)

3. Once informed of the Grievor’s medical authorization for marijuana, ATS had both a procedural and substantive duty to accommodate the Grievor. There were two attempts to accommodate the Grievor: the first attempt was for the Medical Review Officer (MRO) to review the Grievor’s medical authorization. The MRO failed to make the necessary inquiries concerning the Grievor’s authorization for medical marijuana. This process, yet again, was not in compliance with the ATS Drug and Alcohol Policy and was a breach of the procedural duty to accommodate. The second attempt to accommodate the Grievor occurred when ATS suggested and gave the Grievor an opportunity to find or obtain alternate pain medication. Since the Grievor rejected this opportunity, ATS has argued that the Grievor had failed in his duty to cooperate.

“It is the impairing effects of drugs while working that ATS is attempting to address. Their concern of avoiding or eliminating the potentially impairing effects of medicinal marijuana is a legitimate and paramount concern for ATS. This concern, however, is not addressed by the having the Grievor use a different pain medication which may have the same or similar impairing effects. ATS’s suggestion to change medication was more form than substance and was not, in all the circumstances, reasonable. The Grievor’s rejection of this proposal did not discharge the Employer’s duty to accommodate the Grievor.” (p. 61)

The Tribunal argues that what should have occurred is, once informed that the positive test was the result of legally authorized medication, in this case, medicinal marijuana, it was required upon ATS to attempt to accommodate the Grievor. ATS was very hesitant in accommodating the Grievor in his safety-sensitive position as ramp agent or accommodating the Grievor with conditions, given the fact that the Grievor was authorized the maximum daily dose of marijuana and was unaware of the strain or strength of the marijuana. Even though the accommodation process, in this case, was not simple, these issues do not justify the termination of the Grievor.

“The evidence establishes that ATS failed in its duty to attempt to accommodate the Grievor, terminated the Grievor without just cause and in doing so, violated both the CHRA as well as its obligations under the Collective Agreement.” (p. 66)
 

Remedy

Reinstatement that could include conditions such as an analysis of the Grievor’s restrictions and limitations regarding the dosage, strain/strength of any medicinally authorized marijuana, any workplace accommodations, and compensation, if any.

Aitchison v. L & L Painting and Decorating Ltd., 2018 HRTO 238 (CanLII)

Aitchison v. L & L Painting and Decorating Ltd., 2018 HRTO 238 (CanLII)

Summary

The Applicant, James Aitchison, alleges discrimination with respect to employment because of

Disability when his employment was terminated after he was found smoking medicinal cannabis at work. The applicant asserts that the real reason he was terminated was that he requested an accommodation to limit his use of an electric sander.

The applicant suffers from degenerative disc disease which causes chronic pain in both his back and neck. The applicant has worked as a painter for over 30 years. He began working for the respondent in 2011, and his job was performed on a swing stage that was suspended on the outside of the building, 37 floors above the ground. He started to smoke medicinal marijuana in March 2015, that same year, he began to experience pain after prolonged use of the electric sander.

He spoke to both his site supervisor, Mr. Peter Ujka and the owner of the company, Mr. Radim Raskin, and asked to limit his use to less than one hour per day. Initially, the respondent agreed to the accommodation, but this changed when co-workers began to complain that the applicant was receiving special treatment. The applicant decided to go to his family doctor on June 14, 2015, to obtain a doctor’s note to support his request for accommodation. The applicant alleges that despite providing the doctor’s note, his supervisor chose to ignore his restrictions.  Then the Applicant decided to get a second doctor’s note. On the other hand, Mr. Ujka denies being asked for accommodation or receiving any doctor’s notes.

The applicant does not dispute that he used marijuana at work but rather asserts that he did so for medicinal purposes and with the full knowledge and consent of Mr. Ujka, his supervisor; and that he could medicate in a designated spot on the floor away from the crew. The applicant acknowledged the zero-tolerance policy of the company and understood that if General Contractor ever caught him smoking marijuana on the work-site, there would be serious consequences.

Mr. Ujka denied any knowledge that the applicant used medicinal marijuana at work before the incident.

According to the Applicant, on the morning of June 17, 2015, he was using the electric sander for just over an hour when Mr. Ujka came down to inspect his work and asked him to continue, ignoring the Applicants protest for being working beyond his medical restrictions. The applicant complied with the order but shortly, after that, his back seized up, and he fell to the floor of the swing stage screaming in pain. The applicant decided to leave the work site early and seek medical attention. He saw his family doctor later that day.

There is a conflict on whether the workplace injury occurred on the 17 or 18 of June.  The applicant saw his family doctor on June 17, but the doctor’s note makes no reference to a workplace injury.

According to the respondent, the accident described by the applicant occurred on June 18, not June 17 as claimed by the applicant. Mr. Ujka recounted that the applicant was assigned to work on the swing stage and early in the morning he heard a scream from the swing stage. According to Mr. Ujka, he offered to take the applicant to the hospital, but he declined and said that he was okay and wanted to go back to work. Later that morning, Mr. Ujka observed the applicant come off work on his first break, take off his work clothes, and put his harness back on. He followed him and saw him smoking what appeared to be a joint on the swing stage. He was not tethered to the stage and not wearing his hard hat. According to Mr. Ujka, he then called the owner, Mr. Raskin and told him what had happened. Mr. Raskin instructed him to send the applicant home and not to let him back on site until the owner returned from vacation.

On the other hand, the applicant claims that he arrived at work on June 18 and tried to give a copy of his doctor’s note to Mr. Ujka. His supervisor refused to accept the note and instead sent him home that morning.

The applicant was ultimately terminated on July 6 following a telephone call with the owner. It was on July 6 that the owner returned from vacation and review the documentation that he had sent and found out more details surrounding the cannabis incident.
 

Questions to be Determined and Findings

1. Did Mr. Ujka condone the Applicant’s marijuana use? (NO)

2. Did the Respondent Fail to Accommodate the Applicant re: Use of Medical Marijuana? (NO)

3. Did Respondent Discriminate Against the Applicant When it Terminated His Employment for Smoking Marijuana at Work? (NO)
 

Reasoning

1. As there are no corroborating witnesses or evidence to support either side’s claim, the dispute, in this case, comes down to a determination of credibility. The applicant’s evidence was found to be difficult to follow and contradictory. On the other hand, Mr. Ujka could have lost his job if he condoned the medical use of cannabis in the workplace, which was found hard to believe.

“If I were to adopt the applicant’s version of events then I am accepting that his supervisor was okay with the applicant smoking cannabis on a swing stage by himself on the outside of a high rise building, some 37 floors above the ground. Does this seem reasonable in the context of this workplace?” (p. 135)

2. There is no evidence that the applicant requested accommodation concerning his marijuana use. Rather, the Applicant unilaterally decided to use marijuana at work without authorization from either his employer or his treating physician

It was clear that Dr. Price did not know the true nature of the applicant’s work. Otherwise, he would have never authorized the applicant to medicate at work in these circumstances.

“Dr. Price testified that had he known the applicant’s job involved working on the outside of a high rise building, he would have discussed refraining from medicating at work.” (p. 157)

Moreover, even if the respondent had been made aware of the applicant’s chronic pain disability and his medical marijuana use, the preference for medicating at work would not have been part of any reasonable accommodation due to the high safety risks.

“The applicant submitted that the respondent breached its procedural duty to investigate the possibility of accommodating his marijuana use before it terminated his employment. I respectfully disagree. The applicant had already committed a serious health and safety breach that was in violation of violated the zero-tolerance policy before the respondent was ever made aware of any accommodation needs. The respondent was under no obligation to consider whether it could reasonably accommodate the applicant after the fact, that is after he provided the grounds for his own termination.” (p. 160)

3. The found that the applicant does not have an absolute right to smoke marijuana at work regardless of whether it is used for medicinal purposes. His actions represented a genuine health and safety risk given the safety-sensitive nature of the job site, and The fact that the respondent relied on a zero tolerance policy to support its termination does not equate to discrimination under the Code in the circumstances of this case.

The applicant’s decision to use marijuana at work was his own, and the employer had no opportunity to consider whether it might have been part of some reasonable accommodation plan. The applicant, through his own actions, provided the respondent grounds to terminate his employment
 

Order

The application was dismissed.