In this edition you will find:
A. Feature Case: An employer who unilaterally withdrew a pregnant employee’s accommodation plan was ordered to pay the employee 14 weeks lost wages along with $100 per day to compensate for lost gratuities. The employer was also ordered to pay the employee $15,000 in general damages for injury to dignity, feelings and self-respect. [Click here]
B. Recent Decisions of General interest
1. Natural justice requires that an employee who is relying on a medical opinion concerning the need for accommodation must produce the author of that report for cross-examination. [Click here]
2. A party seeking production of arguably relevant documents must establish a nexus between the documents sought and the subject of the application. A nexus may be established if the sought after documents go to prove or disprove a fact or issue in dispute or provide an inferential link to support a theory of the case or the line of defence. [Click here]
3. An employer who maintained a searchable medical data base was ordered to conduct a search of that data base and identify the number of employees who were being accommodated by being permitted to work from home. [Click here]
4. An application alleging discrimination must contain particulars of the evidence that allegedly supports such application. [Click here]
5. The provisions of the Ontario Human Rights Code enable an adjudicator to compel non-parties to provide written statements regarding facts in issue. [Click here]
6. Medical Documents relating to an employee’s earlier disability while in the employ of a prior employer were not required to be produced on the basis that they did not meet the test of arguable relevance. [Click here]
7. Documents relating to grievance discussions between the parties, but not the grievance reply itself, were inadmissible (and therefore non-compellable) on the grounds of privilege. [Click here]
Feature Case: An employer who unilaterally withdrew a pregnant employee’s accommodation plan was ordered to pay the employee 14 weeks lost wages along with $100 per day to compensate for lost gratuities. The employer was also ordered to pay the employee $15,000 in general damages for injury to dignity, feelings and self-respect.
In Tosh Steakhouse and Bar, 2016 HRTO 403 (CanLII) (Randazzo), the employee alleged that the employer had discriminated against her by terminating an accommodation plan, failing to accommodate her pregnancy and failing to schedule her for any shifts following her request for accommodation.
The employer operated a bar and restaurant, with the restaurant being on the second floor. The employee, who was then working in the restaurant, advised the General Manager that her pregnancy made it difficult for her to continually climb the stairs to the second floor. The then General Manager made arrangements for her to work in the main floor bar. As a result of an injury to the General Manager, the female co-owner took over the scheduling responsibilities and re-scheduled the employee to work in the second floor dining area. The employee advised the co-owner that she had a doctor’s note confirming her pregnancy and her need for accommodation but she was told by the co-owner that she did not need to see it.
The co-owner testified that she advised the employee that the reasons for taking the action that she did included operational concerns, the employee’s intractions with bar patrons approximately one and a half-years prior, and an unwritten company policy addressing scheduling.
The adjudicator concluded that the employer unilaterally and without notice withdrew the accommodation plan that had been put into place by the General Manager, failed to accommodate the employee’s pregnancy and then failed to schedule the employee for any shifts following the withdrawal of the accommodation plan.
In terms of the accommodation plan, the evidence established that “the General Manager had the responsibility and authority to provide shift accommodations and did so after learning of the employee’s pregnancy … The fact that the General Manager failed to record the accommodation plan or failed to inform the [co-owners] of the accommodation plan [did not] lessen the corporate respondent’s duty or alleviate the corporate respondent of its duty to accommodate the [employee’s] pregnancy and to maintain the accommodation plan.”
The adjudicator commented that “accommodation plans should be flexible and responsive to changing circumstances and may, in some circumstances, be changed or altered by the employer. However, in the matter before me, the [employer] did not provide sufficient cause or justification for the decision to terminate the accommodation plan … Simply put, the reasons put forth by the [employer] for terminating the accommodation plan do not amount to undue hardship.”
The alleged policy reasons were not supported by the evidence. The unwritten policies were said to prohibit employees from working in both areas and to require them to work a minimum of three shifts per week in their area. The adjudicator stated that he had serious doubts regarding the employer’s enforcement of those policies. He further stated:
… it is important to consider the implication if in fact the “three shift per week policy … was an employment policy applied or enforced by the [employer]. Under section 11 [of the Code], where an otherwise neutral policy exists that results in an exclusion, restriction or preference of a group of persons identified by a prohibited ground (e.g pregnancy), then a member of that group may be entitled to some form of accommodation of that otherwise neutral requirement to ensure effective equality of treatment. It is the [employer’s] onus to establish that the otherwise neutral policy is a bona fide requirement by establishing that the individual cannot be accommodated to the point of undue hardship. In the matter before me, the [the employer carries] the burden to establish that the “three shift per week policy” is “reasonable and bona fide.” If accepted that the policy is reasonable and bona fide, the [employer] must then establish that [it] couldn’t accommodate outside the policy without undue hardship.
In this case, the employer had failed to call sufficient evidence to establish that the policy was bona fide or that it could not have accommodated the employee, to the point of undue hardship, in respect of this policy.
The employee had resisted the employer’s rather minimal efforts to meet with her once the accommodation plan was withdrawn. The adjudicator concluded that while the failure was not ideal, the employee’s actions did not frustrate the accommodation process.
The employee’s pregnancy and request for accommodation were found to be a factor in the employer’s decision. Lost wages and gratuities were awarded for the shifts that the employee would have worked during the fourteen week period prior to when she would have ceased to work because of her pregnancy. Based on the employee’s estimate of average gratuities received, she was awarded $100 per shift for this loss.
The adjudicator awarded $15,000 in general damages for injury to dignity feelings and self-respect. Management and corporate directors were ordered to complete the Commission’s basic on line training 101 course.
Recent Decisions of General Interest
In York Region District School Board, 2016 HRTO 435 (CanLII) (Cook), the employee alleged harassment and discrimination due to disability, and further, that the employer had failed to accommodate his disabilities to the extent he considered necessary. He alleged that the harassment contributed to his having to take a medical leave.
In an interim application, the employer submitted that if the employee wished to rely on a medical opinion concerning the nature of accommodations required, he should be obligated to produce the doctor for cross examination. The employer submitted that the adjudicator’s direction should specify that the employee’s failure to do so should result in no weight being given to those portions of the medical report regarding accommodation. The adjudicator concluded that the requests were premature. In doing so, he relied on Baber v. York District School Board, 2010 HRTO 538 (CanLII), where the adjudicator stated:
The contents of the doctor’s reports are very much in dispute and relate to a central issue in the Application. Natural justice requires that the [employer] be given the opportunity to test the reliability and veracity of the [employee’s] evidence by cross-examination. To permit the [employee] to rely on the medical reports in question without making her doctor’s available for cross-examination would be unfair to the [employer] because it would restrict and prejudice the [employer’s] ability to test the case against it.
Accordingly, I ruled during the conference call that I would give no weight to those portions of the medical reports regarding accommodation of the [employee] unless the doctors who wrote the reports were made available for cross-examination.
On the other hand, I was not prepared to exclude the medical reports from evidence altogether. When [an employee] comes before the Tribunal alleging that the [employer] breached its duty to accommodate her under the Code, she must establish that she asked the [employer] for accommodation or otherwise triggered the procedural and substantive aspects of the duty to accommodate. If nothing else, the medical reports which were submitted to the [employer] at various points by or on behalf of the [employee], are relevant evidence on this issue. Accordingly, they are properly admitted into evidence for that purpose, even though I will give no weight to those portions of the reports regarding what, if any, accommodation was required by the [employee], unless she makes the doctors who wrote the reports available for cross-examination.
In this case, the adjudicator concluded that the request for orders addressing the doctor’s evidence, including issues of cross-examination and weight, should be considered at the time of the hearing.
2. A party seeking production of arguably relevant documents must establish a nexus between the documents sought and the subject of the application. A nexus may be established if the sought after documents go to prove or disprove a fact or issue in dispute or provide an inferential link to support a theory of the case or the line of defence.
In Extendicare West End Villa, 2016 HRTO 394 (CanLII) (Kershaw), the employee sought an order requesting production of two emails, the first of which was sent by her previous employer to her then current employer and the second being the reply that was sent in response.
The adjudicator summarized the legal principles relating to production requests:
The test for document production is whether the documents sought are “arguably relevant” to the issues in dispute in the proceeding. At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220 (CanLII) (“McKay”). The requesting party bears the onus of establishing that the documents are arguably relevant. While “arguable relevance” may not be a high onus for the requesting party to satisfy, there must be a nexus between the sought-after materials and the subject-matter of the Application. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. See McKay, above, at para. 13.
In declining to order production, the adjudicator stated that arguable relevance had not been established. Further, the request was premature for the matter had not yet been set for a hearing. Although the request was denied at this stage, the employee would be able to renew her request after the exchange of arguably relevant documents.
3. An employer who maintained a searchable medical data base was ordered to conduct a search of that data base and identify the number of employees who were being accommodated by being permitted to work from home.
In Toronto Hydro-Electric System Limited, 2016 HRTO 150 (CanLII) (Hart), the primary issue related to the denial of a “work from home” accommodation for the applicant and the requirement for her to return to modified work at the workplace. The employee alleged discrimination with respect to employment because of disability, gender, race and ethnic origin.
The employee sought particulars regarding a male supervisor who was granted a work from home accommodation at essentially the same time such accommodation was denied her. The employer utilized a computer data system, known as “Parklane”, to record medical records and in-person or telephone discussions with an employee and his or her medical practitioners. The system was searchable, particularly given that the employer had used the terms “home accommodation” and “home based accommodation” in cases where an employee was accommodated by being permitted to work from home.
In respect of this and another request for all home based accommodations that were granted during a specified time period, the adjudicator ordered that the employer disclose the Parklane notes from its Occupational Health file in relation to the supervisor and his absence from work and/or or accommodations leading up to a specified point along with any medical notes or records provided by that employee to the employer for the purpose of accommodation of his disability-related needs. Privacy concerns were to be met by redacting the employee’s name and by not referring to that employee by name in the resulting decision. The adjudicator also ordered that the employer conduct a search of its Parklane system using the terms “home accommodation” and “home-based accommodation” for the purpose of identifying the number of employees who were accommodated by being permitted to work from home in each year of a three year period.
A request dealing with internal reports and statistical information prepared in connection with the employer’s annual Corporate Responsibility Report was denied on the basis that it was overly broad and of little probative value to the matters at issue.
The employer had not produced documents over which it asserted privilege. The employee requested that the employer be required to list the nature and dates of such documents. That request was denied, for the employer stated that it had produced all relevant documents but for correspondence with legal counsel. That advice was considered to be sufficient to ground the assertion of privilege.
In Riley’s Valu-Mart, 2016 HRTO 162 (CanLII) (Brennenstuhl), the adjudicator directed that the employee’s application be dismissed on the basis that it was devoid of any real or cogent particulars.
The application had alleged that the employee had been discriminated against because of disability, sex, gender identity, gender expression, age and that he had been subject to reprisal contrary to the Ontario Code. In support of the application, the employee alleged that he was “pushed” harder than other employees and that he felt and believed that he was treated in that fashion because of the grounds enumerated in his application. The adjudicator stated;
Other than his feeling and belief that he was adversely treated by his employer because of the grounds enumerated in his Application, he does not provide evidence in his possession or that may be reasonably available to him upon which the Tribunal could rely on to draw such an inference. The lack of particulars render these allegations so vague as to make it of little use to the Tribunal in determining whether the [employer’s] actions were due to the grounds identified in the Application.
Expectations that an individual will work hard, perform the duties of his position, and only take breaks when allowed to do so, do not constitute a violation of the Code. The [employee] may perceive such requirements as unfair, however, the Tribunal does not deal with allegations of unfairness, but only with treatment that is discriminatory on an enumerated ground under the Code.
The [employee] alleges that he was “talked down to” and told to “get back to work.” Even if true, the Tribunal has indicated that even “a demeaning tone” … or “rudeness” … are not, in and of themselves, evidence of discrimination as opposed to frustration at the [employee].
In short, the [employee] provides bald allegations of discrimination devoid of any real or cogent particulars. There is no evidence that any one concerned ever said anything directly or indirectly about his alleged disability, sex, gender identity, gender expression or age or any evidence that would allow the Tribunal to draw an inference of discrimination. There is no evidence that the [employee] has or that is reasonably available to him that would show a link between the events he alleges and the grounds enumerated in the Application.
The purpose of the summary hearing [under the Ontario Code] is to determine if there is evidence available to support the applicant’s belief that the disadvantageous treatment he experienced arises from discrimination under the Code. In order to warrant proceeding to a full hearing of the merits the applicant must have evidence in his possession or that may be reasonably available to him, which goes beyond the applicant’s feelings or belief that a prohibited ground of discrimination played a role in what he experienced.
The application was dismissed.
In LifeLabs LP, 2016 HRTO 174 (CanLII) (Hart), the employee signed a release in favour of the employer following termination of her employment. She later applied for employment with another employer and was offered the position subject to a reference check. The offer was subsequently rescinded based on the reference subsequently given by the former employer.
The employee alleged that the reference that was given by her former employer was negative and unfair and that the employee’s race, colour, place of origin and/or ethnic origin was a factor in that reference. Following a teleconference hearing to address the impact of the full and final release and the issue of whether the allegations had a reasonable prospect of success, the adjudicator issued a Case Assessment Direction which directed that the employee should obtain a statement from the “reference-seeking prospective employer” as to what it had been told by the former employer. The adjudicator stated that an order would issue if the information was not provided voluntarily. The information was not received, and an order issued, with the adjudicator stating:
Pursuant to Rule 1.7(p) [of the Ontario Code], this Tribunal has the power to require a party or “other person” to produce any document, information or thing. In addition, pursuant to Rule 1.7(q), the Tribunal has the power, on the request of a party, to require another party or “other person” to provide a report, statement, or oral or affidavit evidence. These provisions of the Tribunal’s Rules empower me to make the order requested by the [employee] as against [the reference-seeking prospective employer.]
The adjudicator ordered that the statement be in the words of the person who had received the reference, and that it be accompanied by any records, documents or notes regarding the matter.
6. Medical Documents relating to an employee’s earlier disability while in the employ of a prior employer were not required to be produced on the basis that they did not meet the test of arguable relevance.
In CAA South Central Ontario, 2016 HRTO 186 (CanLII) (Pickel), the employee had, many years ago, filed a pregnancy-related complaint against a prior employer. During her testimony in this matter, she referred to documents that revealed that she had been disabled for some three months approximately five years earlier. Consequently, the employer sought production of her medical records from that time period. That testimony appeared to relate to one or more settlements that she entered into with her prior employer.
The adjudicator began by considering whether the documents were arguably relevant in this hearing. He concluded that they were not:
In my view, any evidence regarding previous workplace complaints made by the [employee] would only lead me into a situation of having to determine whether there was a reasonable basis for such complaints … That is an issue that extends far beyond the scope of this application which is focused on whether the [employee] has made out her onus of proving the allegations in this Application against the respondents in this case.
While I allowed the [employee] to testify regarding her complaints against previous employers on the last hearing day, having heard this testimony, I am not persuaded that these complaints fall within the category of similar fact evidence. The Tribunal described its approach to similar fact evidence in London (City), 2008 HRTO 48 CanLII … Applying the principles set out in [that case], I find that the benefits of any further evidence relating to previous complaints in terms of assisting me in determining the issues before me is outweighed by the potential prejudice to the hearing process and the party whose character is placed into question through such evidence. I fail to see how any further evidence relating to complaints the [employee] made against previous employers 8-10 years ago will assist me in determining whether the respondents breached the Code in this case.
… it bears repeating that the issues I have to decide in this case are very specific. I do not consider that any document relating to any settlements entered into with previous employers are arguably relevant to the issues I have to decide in this case. For the reasons set out in the previous section, any further evidence regarding the complaints filed by the [employee] - many years ago – against previous employers would only raise the issue of whether there was a reasonable basis for those complaints. Any inquiry into this question extends beyond the scope of this proceeding.
In Chrysler Canada Inc., 2016 HRTO 194 (CanLII) (Cook), the employee alleged that he experienced discrimination because of disability as a result of differential approaches to accommodation of disability by the employer as between employees who had a work-related disability and employees who had a non-work-related disability. This decision dealt with the employee’s request for disclosure of the employer’s grievance reply along with the employer’s meeting notes that were compiled at meetings between the parties to consider the grievance.
The employer resisted disclosure on the grounds that documents relating to grievance discussions were privileged and not subject to disclosure.
The adjudicator found that documents relating to discussions between the parties were inadmissible on the basis of privilege, but he directed the employer to disclose a copy of the employer’s response to the grievance
In coming to this conclusion, the adjudicator commented that there are exceptions to the general approach that grievance documents are not admissible (and therefore, not compellable). Such exceptions would include certain grievance documents relating to the violation of a human rights code, as for example documents setting forth an offer of accommodation, and documents which are part of the formal grievance record, as for example an employer’s reply to an employee’s grievance.