In this edition you will find:
In Resort Municipality of Whistler, 2014 BCIPC 32 (CanLII) (Lemiski), the employer retained a lawyer to investigate the employee’s workplace harassment complaint. The employee subsequently requested a copy of the resulting report, but the employer withheld it pursuant to s. 14 of FIPPA (“solicitor-client privilege”). The adjudicator concluded that the report was privileged and that it could properly be withheld pursuant to s. 14.
The complaint would normally have been investigated by the employer’s Director of Human Resources, but a lawyer was retained in this instance because the complaint as initially filed involved an allegation that the Director had also been involved in the harassment. The lawyer concluded that the employee’s complaint was unsubstantiated.
The adjudicator noted that the law recognizes two kinds of privilege, litigation privilege and legal advice privilege. Here, the employer claimed legal advice privilege in respect of the report.
Having regard to the four part test (considered in Vancouver Island Health Authority, 2014 BCIPC 30 (CanLII) (Alexander)), the adjudicator concluded that the investigating lawyer had been given a clear mandate to provide legal advice in the context of a confidential report between the employer and the lawyer. The adjudicator stated:
Previous decisions have determined that if a client hires a lawyer to do the work of an investigator only, then records produced in those circumstances are not privileged. However, when a client hires a lawyer to investigate and provide legal advice, the records are privileged so long as they meet the other parts of the test for either legal advice privilege or litigation privilege. This includes the legal advice a lawyer provides as well as the information the lawyer uses to prepare the advice.
The entire investigation report was found to be privileged.
The issue of litigation privilege, including whether such privilege attaches to interview notes and investigation reports of legal counsel, is considered in section 10:405 of the Illness and Absenteeeism manual and its supplement
Recent Decisions of General Interest:
In Alberta (Government), 2014 CanLII 50662 (AB GAA) (Kanee), the employer delayed a prison guard’s return to work on the basis that the employee had not fully recovered from knee surgery.
Shortly after his return, the employee was sent by the employer for an Independent Medical Examination. The employee sought compensation for the delay in returning to work along with compensation for premiums or overtime pay that he did not receive while awaiting the examination and its results.
On the question of the employer’s refusal to permit the employee to return, the arbitrator quoted extensively from Thompson General Hospital (1991), 20 L.A.C. (4th) (Steel), where arbitrator Steel stated:
In summary, once an employee produces a medical certificate stating unequivocally that he is fit to return to work, the onus shifts onto the employer to establish that he is not fit to return to work. If the employer has reasonable grounds on the facts of the case to question the validity or the completeness of the opinion stated in the medical certificate, then it must explain clearly to its employee the reason the medical certificate is not acceptable and what specific information is requested so that the employee can return to [his] treating physician and obtain the proper information. If the explanation is not satisfactory, the company may, after consultation with the concerned employee, require that a medical examination preferably by an independent doctor, be undertaken …
The employer had not told the employee that the medical information that he provided was insufficient. The arbitrator stated that “if the story ended here, I would have found that the employer had unreasonably denied the [employee] permission to return to work … However, the story did not end there …,” for the employer’s consultant subsequently conducted a telephone interview with the employee, at which time the employee acknowledged that he was uncertain how much his knee would tolerate. The arbitrator stated:
On the basis of the information [the employee] provided to the consultant during their initial interview, it was reasonable for the consultant to conclude that further inquiries and assessments should be made before sending the [employee] back into a prison environment that could require the [employee] to restrain prisoners and defend himself and other staff members. Similarly, on the basis of the information that he provided to the therapist and the objective finding from the testing, it was reasonable for the therapist to come to the conclusion that some rehabilitation and conditioning was necessary before the [employee] could safely return to work.
The arbitrator found that the employer had sufficient evidence to conclude, within two months after the employee provided prima facie proof of his fitness to return to duty, that the employee was not fit to return to duty based upon his own self-reports and the assessment performed by the therapist. The employer had however taken too long in initiating the further assessment. For instance, after the employee first presented himself as fit to return to work, it took one month for the consultant to contact him and a further month before he was assessed by the consultant. It then took a further month for the employee to be assessed for rehabilitation. The arbitrator concluded that “there is every reason to believe that had the [employee] been assessed [when he sought to return], he could have entered rehabilitation immediately and returned to work much sooner.”
The arbitrator here relied on Canada Post,  C.L.A.D. No. 233 (Shime), where arbitrator Shime had noted that employers, in assessing an employee’s fitness to return to work, have “an obligation to act expeditiously in obtaining further medical evidence as to the employee’s condition and failure to do so will result in the employer compensating the employee for time lost.” In this case, the arbitrator considered that two weeks (rather than the eight it took), would have been a reasonable amount of time to assess the information provided by the employee and to determine if he needed further treatment. The employee was awarded the difference between what he received on long-term disability and what he would have received had he worked during this six week period.
The issue of medical fitness to return to work, including the need for an employer to act promptly when seeking reasonably required medical information, is considered in chapters 6 and 7 of the Illness and Absenteeism manual and its supplement.
In University of British Columbia (No. 3), 2014 BCHRT 157 (CanLII) (McCreary), the employee complained of harassment by his co-workers. During the course of a harassment investigation meeting, he became stressed and extremely emotional. He was sent home with pay and told to take the next day off. He never did return to work.
The employer, after investigating the allegations of harassment, concluded that the employee could not work in his current environment, and it identified what it considered to be a suitable position in a different area of its electrical work force. The employee, having raised a number of concerns about the proposed assignment, suggested other positions that he thought would be more suitable. The employer challenged the suitability of those positions. The employer had copied the union on all correspondence with the employee. The union subsequently confirmed to the employer that the proposed assignment was a reasonable accommodation. The employee refused directives to return to work, and was subsequently terminated for job abandonment.
The adjudicator began his analysis by concluding that the employee had established a prima facie case:
… the employee has established that he has a prima facie case. He has shown he has a disability, he has shown that he has suffered the adverse consequences of termination of employment and that there is a nexus between that disability and the termination of employment. The onus shifts to the [employer] to provide justification for its actions.
That justification flows from the employer’s duty to accommodate protected differences up to the point of undue hardship.
The adjudicator commented that the employer investigated every alternative suggested by the employee and reasonably rejected them all for unsuitability. The employee had made up his mind that the suggested accommodation was not appropriate. He refused to get the facts about the position, and he refused to attend at work to discuss and be oriented for the position. He operated on the basis of suppositions, and it was those suppositions, communicated to his doctor, that formed the basis for the doctor’s mistaken opinions.
The employer was justified in terminating the employee for his continued refusal to attend work. The employer “made reasonable efforts to accommodate the employee and he refused that accommodation without justification. [The employer] was entitled to consider [the employee’s] job to be abandoned.” The complaint was dismissed.
An employee’s obligation to accept a reasonable accommodation is considered in section 14:432 of the Illness and Absenteeism manual and its supplement.
Where a party requests information pursuant to a statutory requirement to disclose, the responding party, in the absence of an exempting provision, must provide the entire document containing the information that was requested.
In Vancouver Island Health Authority, 2014 BCIPC 30 (CanLII) (Alexander), the applicant had requested that the Authority provide records related to its decision making process concerning fixed site needle exchange services in Greater Victoria. While disclosing some records, the Authority withheld others under ss. 12(3)(b), 13 and 22 of the Freedom of Information and Protection of Privacy Act (“FIPPA”).
The Authority withheld information that it stated was outside of the scope of the applicant’s request. Most of these were excerpts of parts of pages that had otherwise been disclosed to the applicant.
The adjudicator stated that the Authority could not properly withhold information on the basis that it is “out of scope”, for the information is contained in records that are responsive to the applicant’s request. In that regard, s. 4(2) of the Act provides that:
The right of access to a record does not extend to information excepted from disclosure under Division 2 of this Part, but if that information can reasonably be severed from a record an applicant has the right of access to the remainder of the record.
The adjudicator commented that “even if only a portion of a record is responsive to an applicant’s request, the public body is required to disclose all of the information in that responsive record unless an exception to disclosure applies.”
The requirement for a public body to disclose an entire responsive record to an applicant, as opposed to only the responsive information in that record, may result in the public body disclosing more information than if it was only required to disclose responsive “information.” This broader disclosure makes it less likely that there will be a misunderstanding about the real weight or meaning of the disclosed information due to it being out of context. It also helps prevent access requests from being interpreted too narrowly. This more fulsome disclosure is consistent with the stated purpose of s. 2 of FIPPA to make public bodies more accountable, as well as the requirement in s. 6 of FIPPA that public bodies must respond to applicants openly, accurately and completely.
The issue of disclosure of records and documents is considered in section 12:500 of the Illness and Absenteeism manual and its supplement.
In Lekkas, 2014 HRTO 1095 (CanLII) (Overend), the employee was a restaurant waitress who suffered from fibromyalgia. She was required to undergo minor treatments every two weeks, and major treatments every two months. The major treatments involved sedation and a second day off work.
The adjudicator accepted that the employee was terminated because she required time off from work for treatments. The termination therefore amounted to discrimination on the basis of disability.
After noting that the requirement had an adverse impact on the employee, the adjudicator commented:
A requirement that has an adverse effect on persons identified by a prohibited ground is not discriminatory if the Tribunal finds that it is reasonable and bona fide in the circumstances. It cannot find s requirement reasonable and bona fide if the needs of the [employee] (or rather the group to which she belonged) could be accommodated without creating undue hardship on the [employer].
There was no evidence to establish undue hardship. The employee was awarded $7380 to represent wage loss during her fifteen week period of unemployment following her termination, plus $15,000 as compensation for injury to dignity, feelings and self-respect, along with prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990 c. C. 43.
The issue of adverse effect and the duty to accommodate is considered in chapter 14 of the Illness and Absenteeism manual and its supplement. Damages arising from a breach of the employer’s obligations are specifically addressed in section 14:700.
An employer’s excessive delay in forwarding a medical file to be used as part of an employee’s medical assessment did not justify the employee’s refusal to execute a medical consent. The refusal to execute the consent effectively stymied the accommodation process.
In City of Toronto, 2014 HRTO 1187 (CanLII) (Bhattacharjee), the employee alleged that the employer failed to properly accommodate his disability-related needs and then subjected him to an act of reprisal for claiming that the employer had failed to do so.
The employee had injured one of his knees when he slipped at work. He was cleared by his doctor to return to work but the condition of his knee deteriorated, and he was required to undergo surgery. Following further surgery and related absences, the employer and the union agreed that the employee should be referred to the employer’s Employee Health and Rehabilitation Services (“EHTS”) unit for an assessment.
Despite more than one request, the employee’s Division management did not send the employee’s injury file to the EHTS unit for several months. Thereafter, the employee failed to execute a consent that would have allowed the unit to obtain updated medical evidence.
Each of the complainant’s allegations were dismissed. In doing so, the adjudicator made the following points:
The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test …
…In order to establish a case of discrimination, the applicant must prove that (1) he had, or was perceived to have, a disability, (2) he received adverse treatment, and (3) his disability was a factor in the adverse treatment …
… Once the duty to accommodate has been triggered, the employer must meet both its procedural and substantive obligations … However, this does not mean that there is a reverse onus. The ultimate issue is whether the applicant has proven, on a balance of probabilities, that discrimination because of disability has occurred. Although an evidentiary burden to rebut discrimination may shift to the respondent, the onus of proving discrimination remains on the applicant throughout …
… The applicant did not prove, on a balance of probabilities, that the respondent discriminated against him by failing to accommodate his disability-related needs up to the point of undue hardship because, on the whole, the respondent’s evidence was far more credible and reliable than the applicant’s. … The applicant’s testimony was generally vague, and unsupported by any other evidence. By contrast, the supervisor’s testimony was fairly detailed, and supported by written notes and documents, which they identified, and which I accept were made at or near the time that the incidents at issue arose. I have admitted these notes and documents, not for the truth of their contents, but rather because they show that the supervisor’s testimony was not a recent invention, as suggested by the applicant. For the most part, I have found the supervisor’s testimony to be more in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions than the applicant’s.
The adjudicator found that the Division’s unexplained four month delay in forwarding the applicant’s injury file on to the EHRS unit was completely unacceptable, but that delay did not justify the applicant’s refusal to sign and return a medical consent form to the unit. “By refusing to sign and return a consent form, the applicant effectively stymied the accommodation process.”
The matter of accommodation, including the requirement that an employer must act promptly when seeking reasonably required medical evidence, is considered in chapters 6, 7 and 14 of the Illness and Absenteeism manual and its supplement.