Welcome to the August, 2020 issue of the Illness and Absenteeism newsletter. In this issue, you will find:

A. Featured Case: The duty to accommodate to the point of undue hardship has not required an employer to create a position to accommodate a disabled employee, nor has it obligated an employer to accommodate by creating a “shadow position” to assist the employee. Modified work that can be made available must be productive in nature.

Despite the foregoing, a school division that had a lengthy history of accommodating its disabled teachers by placing them in above-complement positions was found to have failed to accommodate a returning teacher when it did not establish why it would have amounted to an undue hardship to treat him in a similar fashion.   [click here to read more ]

B. Other Decisions of General Interest

1. An employee who is seeking to be absolved of improper conduct on the basis of an alcohol or drug addiction must generally establish, by way of cogent medical evidence, that she was suffering from a disability that was responsible for her misconduct. An employee’s self-declaration will not be sufficient. [click here to read more]
2. An employee’s entitlement to a special leave to care for a seriously-ill dependent is not to be addressed in the abstract but rather should be determined by asking whether it was necessary for the employee to be in attendance to care for her dependent.  [click here to read more]
3. The arbitral presumption is that arbitration hearings will proceed by teleconference during the currency of the COVID-19 pandemic. Recent awards dealing with proposed “pandemic adjournments” have for the most part denied an adjournment except where the party resisting the adjournment can establish that a very short delay is justified in order to enable it to properly prepare for the hearing. Where adjournments have been granted, the hearing will then proceed by videoconference. [click here to read more]

B. Other Decisions of General Interest

1.  An employee who is seeking to be absolved of improper conduct on the basis of an alcohol or drug addiction must generally establish, by way of cogent medical evidence, that she was suffering from a disability that was responsible for her misconduct. An employee’s self-declaration will not be sufficient.

In Algoma Steel Inc., 2020 CanLII 35300 (ON LA) (Randall), a probationary employee was terminated after he was found to be sleeping in an overhead crane while on duty. The union alleged, inter alia, that the employee was an alcoholic and that his termination amounted to a breach of the employer’s obligation to accommodate. However, during the investigation, the employee had denied that he had suffered from any substance abuse issues.

Following his termination, the employee entered a 21 day out of town residential treatment program for a substance disorder.

The employer contended that the union had not established a case of prima facie discrimination, in that it had not proven that the employee actually suffered from any disability at the relevant time, nor had it established that the alleged disability [alcoholism] played any part in the misconduct (sleeping on the job) which led to his termination.

The arbitrator agreed with the employer’s contention that because a claim of discrimination is so consequential, “the evidence of the [employee’s] alleged disability needs to be made out with clear and cogent evidence”.  That was not done.

Neither the employee’s self-declaration nor the fact that he was admitted into a residential treatment program proved either his disability or the existence of a nexus between that disability and the sleeping which had led to his termination.

In terms of the self-declaration, it was not enough. Arbitrator Randall relied on the decision of arbitrator Hinnegan in National Steel Car Ltd., where he had rejected a claim of drug addiction on the basis that there was no objective medical evidence of such a disability:

The arbitrator stated:

Even relatively excessive drug use is no more evidence of drug addiction than relatively heavy drinking is of alcoholism … Claims of alcoholism or drug addiction after an employee has been terminated are looked at by arbitrators with some degree of skepticism. The case law establishes that the [employee] must meet a relatively heavy onus and prove, by way of cogent, objective evidence, other than subjective, self-serving declarations, that he suffers from a drug addiction. The onus is discharged by producing medical evidence establishing an addiction or compulsive, long-standing drug use as opposed to mere recreational use. That is generally done by calling a credible medical practitioner who has a professional understanding of drug dependency and who has treated the [employee] at the relevant time. Self-serving declarations of drug addiction have, almost universally, been rejected as proof of drug dependency. Even in cases where competent medical professionals have purported to support [employees] in their claims of drug dependency, arbitrators have rejected the evidence as having little probative value where the professional opinions were based solely on the [employee’s] declaration and nothing else.

Arbitrator Hinnegan had in turn relied on the decision of arbitrator Newman in A&P, (1997) 65 L.A.C. (4^th) 306, wherein that arbitrator stated:

Excessive drug or alcohol use does not necessarily imply that the individual is an addict, in whom volition has given way to physical and emotional need for the use. Medical evidence of addiction is mandatory in order for the situation to be viewed as one in which the employee suffers from an illness or a disease. Addiction must be clearly established by the evidence if the union seeks to rely upon illness or disease [as at] the root of the problem.

Arbitrator Randall stated that given the weakness of the self-declaration evidence, the requirement for objective, medical evidence became even more paramount. “But the evidence was not forth coming.” The arbitrator also stated that he was not satisfied that the employee’s acceptance into a residential treatment program amounted to a finding that he was an alcoholic. A physician’s admitting letter that stated that the employee had been diagnosed as having an Alcohol Use Disorder (DSM-5) did not advance his situation, for the physician was not called to testify, there was no evidence regarding the term “alcohol use disorder”; nor was there any evidence  with respect to how the diagnosis was arrived at. In the absence of such evidence, it was difficult to conclude that the employee was suffering from an alcohol-related disability, especially at the relevant time, which had been two months prior to the letter. Moreover, the letter did not establish any nexus between the employee falling asleep and his “Alcohol Use Disorder”.

The grievance was dismissed on the basis that the union had failed to establish that the employee had a disability at the relevant time.

2.  An employee’s entitlement to a special leave to care for a seriously-ill dependent is not to be addressed in the abstract but rather should be determined by asking whether it was necessary for the employee to be in attendance to care for her dependent.

In Vancouver Coastal Health Authority (Vancouver General Hospital), 2020 CanLII 34516 (BC LA) (Nichols), the collective agreement provided that an employee would earn special leave entitlements with pay to a maximum of 150 hours. That leave was to be granted …

(c) to provide care to an immediate family member who has a serious illness – up to 15 hours at one time;

The employee had been denied special leave to take her 18 month old son to an appointment with a pediatric allergist.

The employee’s infant son had earlier experienced an anaphylactic reaction to peanut butter. He was rushed to an emergency department. There, the emergency doctor administered steroids and two doses of epinephrine. After six hours of monitoring, the child was released with a referral to a pediatrician, who, in turn, referred him to a pediatric allergist. The first appointment with the allergist occurred one month later. At that time the allergist conducted skin testing for common allergens and counselled the mother as to the ongoing monitoring and treatment of the child’s condition. A follow-up appointment was scheduled for one year later. It was that appointment for which the employee sought special leave.

The employee anticipated that the appointment would equip her with the knowledge required to prevent further anaphylactic shock and to administer care should such a reaction re-occur.

The employer resisted granting such leave, and suggested that the employee use vacation time, or alternatively that her husband take the child to the appointment. The husband could not because he was working, and the employee did not want to use vacation time because that would reduce the amount of time available for a family vacation. The employer ultimately granted the employee one half day of unpaid leave, and the employee then grieved.

The arbitrator stated that the employee bore the onus to establish that her circumstances fell within the scope of the benefit. She stated that the employer’s decision as to whether the employee qualified for the benefit must be correct and not simply reasonable.

The arbitrator stated that the article set forth three criteria to qualify for special leave:

1. the leave must be to provide care;
2. the care must be provided to an immediate family member; and
3. the immediate family member must have a serious illness.

The terms “care” and “serious illness” were not defined in the agreement.

The arbitrator noted that the term “care” had not been qualified by words such as “emergent” or “urgent”. She stated:

On the authorities, care can be therapeutic, medical, physical, emotional and/or logistical. Whether an employee is providing “care” may also depend on the family members and situation, including: the individual’s age and maturity; their ability to communicate and understand what is occurring around them; their ability to make decisions; the severity and complexities of the illness; their ability to be mobile or to travel; their ability to assist themselves; the urgency of the circumstances etc. There is a myriad of scenarios that could arise. This is by no means an exhaustive list of the potential considerations.

The arbitrator concluded that when the circumstances were considered in their entirety, the employee had provided care to her son at the appointment:

A 19 month old child is not independent or mature enough to attend the appointment and understand the testing procedure or the information and recommendations provided by the allergist. [The mother] drove him; attended to his emotional needs during an uncomfortable skin testing procedure; received information and communicated on his behalf; and participated in medical decisions relating to treatment and prevention … On these specific facts, I conclude that [the mother’s] actions fell well within the intended scope of “care” as reflected in the language and interpreted by the authorities.

Was the child suffering from a “serious illness”? In finding that he was, arbitrator Nichols relied on the comments of arbitrator Munroe in Sunnyhill Hospital for Children, [1994] BCAAA No. 453 (Munroe):

Whether an illness is “serious” is not properly decided in the abstract. First of all, “seriousness” in this context is not in relation to medical science generally; rather it is in relation to this question: Was the illness being suffered by the spouse or child sufficiently “serious” that it was necessary for someone to be in attendance to care for the ill person?

Secondly, as a matter of common sense, an illness that is “serious in one domestic situation might not be serious in another. For example, influenza being suffered by a spouse or teenager, even a fairly nasty bout of influenza, may not be a sufficiently serious illness to require the presence of a care giver, whereas the same degree of influenza in a young child more obviously will require such presence.

Nor should the “seriousness” of the illness be determined solely in detached hindsight. An illness which can be viewed after-the-fact as a commonplace childhood ailment may not confidently have been so regarded by the typical parent at the height of the symptoms being suffered by the child.

It strikes me that in the application of [the article], the “seriousness” of an illness should be judged asking these two questions:

Did the employee genuinely believe that the illness was sufficiently serious as to require the presence of a care giver? If so, was that honest belief reasonable in the circumstances then being confronted?

The answer to the first question requires an appraisal of subjective belief. The answer to the second question requires a testing of the subjective belief against the objective facts …

The arbitrator concluded that the employee’s request for special leave met the criteria set out in the agreement.

3.  The arbitral presumption is that arbitration hearings will proceed by teleconference during the currency of the COVID-19 pandemic. Recent awards dealing with proposed “pandemic adjournments” have for the most part denied an adjournment except where the party resisting the adjournment can establish that a very short delay is justified in order to enable it to properly prepare for the hearing. Where adjournments have been granted, the hearing will then proceed by videoconference.

In Extendicare, 2020 CanLII 36854 (ON LA) (Newman), the employer sought a “pandemic adjournment” for a hearing scheduled on June 11, 2020. The hearing was adjourned to July 30, 2020.

The hearing was to consider the wage rate to be paid for the position of “Resident Assistant” at the employer’s long term care facility. The adjournment was sought to prepare for the hearing at a “challenging time”. The Administrator and the Director of Care, both of whom were required for the hearing, were involved in “urgent and time-consuming issues in the interests of patient, staff and public safety”.

Arbitrator Newman stated:

The factors to be considered in cases of adjournment request[s] during the COVID-19 pandemic crisis have been addressed in a number of recent awards. There is no debate about those. I consider the nature of the grievance, the timing involved, the reasons for the adjournment request, the length of the delay sought, and ultimately, the balance of convenience. Is there prejudice that cannot be adequately compensated? Are there other considerations …?

The arbitrator stated:

It is critical, in my view, that the collective bargaining rights of employees, and in particular, the rights of essential frontline workers, be protected. Grievance arbitration hearings will not be adjourned pending resolution of this pandemic. In fact they will, as can be seen from the recent awards in the field, only be adjourned to very close dates – only long enough to ensure that those required for hearings have sufficient time and opportunity to prepare for [the] hearing without putting resident, staff or public safety in jeopardy. However [as has been noted], the providers of long-term care facilities are facing what is no less than an existential threat. The proper balancing of interests in such a case must recognize the demands under which they have been, and continue to be, operating.

The union is justified in its drive to ensure swift process of grievances. It is still too early, however, for full adoption of a new normal. Management staff of health care facilities have been working under extreme pressures for the past ten weeks, and it is easily understood that the time they might have spent gathering data and preparing for grievance arbitration hearings has been spent on critical patient, staff and public safety issues. Even in important cases, such as the present one, brief adjournments should be granted where the consideration of relevant factors and present circumstances continue to support that decision.

The hearing was to proceed by video conference. However, the employer was to retain the right to argue in favour of in-person hearings in the unlikely event that significant credibility issues should arise.

In Cancoil Thermal Corporation, 2020 CanLII 34521 (ON LA) (Bernhardt), COVID-19 mandatory prohibitions on gatherings had been imposed, making it impossible to proceed with an in-person hearing. The employer sought an adjournment of a termination grievance, while the union sought to have the arbitration proceed by way of videoconference.

The employer contended that even if there were not restrictions preventing an in-person hearing, they would request an adjournment as they needed to focus their attention on maintaining a healthy workplace during the pandemic and producing essential products (in this case refrigeration and cooling products, including finned tube coils, all of which had been deemed to form part of an essential service). The employer’s primary argument against proceeding by videoconference was that they were neither accustomed to nor comfortable with the forum and that it would be unfair and a breach of natural justice for them to be forced into such a position. The arbitrator ultimately rejected that contention.

The union argued that in the current circumstances, the presumption should be that hearings will proceed as scheduled, through the use of videoconferencing; and that in this case, the employer’s “preference” and status as an essential business were not compelling reasons to rebut that presumption.

The union relied on the test and principles (but not the result) set out by arbitrator Luborsky in Southampton Nursing Home, 2020 CanLII 26933 (ON LA) (Luborsky). In the case of an ongoing issue addressing bargaining unit scope at a nursing home, the arbitrator reviewed the jurisprudence regarding videoconferencing and in particular the recent cases that had arisen due to the impact of the COVID-19 restrictions. The union cited the following test outlined in paragraph 41:

The foregoing review of general principles and my assessment of the recent cases decided under conditions where in-person hearings are not possible due to the pandemic, leads me to the following conclusions:

a) In the face of the present health crisis the “new norm” is that the hearing will presumptively proceed as scheduled utilizing a form of remote attendance through videoconferencing or other technologies agreed upon or determined appropriate:

b) [This presumption] is subject to rebuttal or limitation by an objecting party that must show compelling reasons justifying a contrary result;

c) [The issue is to be resolved] by the arbitrator, if necessary, balancing the interests of the parties, including the need to maintain the essential integrity and fairness of the hearing process; and

d) [The resolution is to have] regard to the particular facts and circumstances of each case.

Arbitrator Bernhardt accepted “the framework” set out by arbitrator Luborsky and then went on to state:

 Although in-person hearings are preferred, during this unprecedented time of pandemic-related restrictions, the presumption must be that labour arbitrations proceed via videoconference as required. We are headed into our third month of this crisis, with no anticipated change in the coming months. As recognized by other tribunals and courts, the work needs to proceed through alternative methods such as videoconferencing.

While I have great sympathy and respect for the employer’s role in continuing to provide essential services during this crisis, there was little indication that his absence from the workplace for a one day hearing would result … in direct and severe consequences …

The arbitrator concluded that the employer had not shown a compelling reason to rebut the presumption that the hearing should proceed as scheduled. Nevertheless, while the hearing was to proceed as scheduled, the arbitrator recognized the employer’s concern regarding preparation for a hearing in the midst of a pandemic environment. She therefore ordered that the scheduled date would be used for purposes other than presenting evidence:

In consideration of the employer’s concern about the time required to prepare for a full hearing, the [date as scheduled] will not involve the presentation of evidence. The parties agreed that they could use the date to explore the possibility of settlement, and if not successful at resolving the matter, discuss the administration of the hearing, and provide opening statements (reserving the right to amend or add to their opening positions, if necessary) …

The arbitrator stated that if further dates were required, they would be set in a reasonable timeframe (sometime during the next four months) and the hearing would be held via videoconference, if necessary.

Finally, in Toronto District School Board, 2020 CanLII 32260 (ON LA) (Flaherty), the issue was whether the scheduled hearing should proceed with testimony via videoconference. Both parties agreed that credibility would be in issue. The union was opposed to proceeding by videoconference because of the credibility concern. The arbitrator stated:

 A number of arbitral decisions have concluded that credibility can be assessed by videoconference and that proceeding in this manner is generally consistent with procedural fairness principles: See

Re Toronto Transit Commission, unreported, April 20, 2020 (Harris)

Lakeridge Health Corporation, 2020 CanLII 31785 (ON LA) (Abramsky)

Re Toronto Transit Commission, unreported, April 20, 2020 (Goodfellow)

The union submitted that procedural fairness entitlements were heightened in this case because the matter involved a discharge and because of the extent to which the witnesses’ evidence will likely differ. In essence, the union submitted that the employee’s procedural rights would be compromised if widely differing viva voce evidence was presented and assessed by videoconference.

Arbitrator Flaherty rejected the union’s argument, stating:

I am not satisfied that the anticipated difference in witnesses’ testimony materially distinguishes this case from those mentioned above. The ability to assess credibility over videoconference is not a matter of degrees. It does not depend on whether the witnesses’ evidence is expected to be very different or merely somewhat different. For the reasons expressed in the cases cited above, I find that hearing viva voce evidence by videoconference will not prejudice the [employee] in these circumstances, nor will it breach his procedural fairness rights.

The union submits that we should not deviate from the “gold standard” of in person testimony in the circumstances of this case. An in-person hearing may be the preferred option. However, it does not follow that it is the only fair option, particularly in circumstances where it may not be possible to proceed in person for some time and where there will be scheduling backlogs and delays when activities do return to normal.

The employer, in particular, may be prejudiced by a delay in the hearing of this matter. A number of its witnesses are students or former students, many of whom are now in grade 12. It may become increasingly difficult for the employer to convene those witnesses should the hearing be delayed.

The arbitrator directed that the hearing proceed as scheduled with viva voce evidence being presented at that time.