llness and Absenteeism.com - May 2019 Newsletter
In this edition you will find:
A. Featured Case: The right to a fair hearing requires that parties be entitled to obtain copies of all documents that are arguably relevant to the matters at issue. [Click here]
B. Recent Decisions of General Interest
1. Where an employee’s entitlement to wages or benefits is dependent on the performance of work, and the employee is not working, no discrimination will result. Where there is a bona fide doubt as to the parties’ mutual intentions, an arbitrator may consider extrinsic evidence to clarify the intention of the parties. [Click here]
2. Where a course of conduct is said to be relevant, the general approach of the Ontario Grievance Settlement Board has been to limit the requirement to produce documents to a three year period prior to the grievance. [Click here]
3. A provision that enabled an employee to apply for a special leave to care for an immediate family member with a serious illness was found to extend to circumstances involving emotional rather than just physical care. [Click here]
4. A British Columbia human rights adjudicator has held that an employer-imposed requirement that an employee be absent from his wife and infant child for consecutive 24 hour periods for several months could constitute discrimination on the basis of family status. [Click here]
5. The termination of an employee with 19 years of service was upheld for having submitted 76 false claims for massage therapy over a period of 22 months. [Click here]
In Canada Revenue Agency, 2017 CHRT 33 (CanLII) (Lustig), the employer sought an order to compel the employee to consent to the employer’s use of confidential information for the purpose of an inquiry before the Canadian Human Rights Tribunal. That confidential information was contained in the employee’s Workplace Safety and Insurance Board files that arose under the Ontario Workers Compensation legislation.
The employer also sought an order that the employee “produce a list of all health care professionals she has attended for reason of symptoms or treatment of her visual impairment, chronic pain and psycho traumatic disability (post-traumatic stress disorder and depression) or any other health problems for which she is attributing blame to the [employer], and that she produce to the parties any arguably relevant documents in her possession or that come into her possession during the course of this inquiry.
The Tribunal summarized the applicable legal principles as follows:
The right to a fair hearing requires that the “… affected person be informed of the case against him or her, and be permitted to respond to that case …
Subsection 50(1) of the Act provides that the parties before the Tribunal must be given a full and ample opportunity to present their case. This right includes the disclosure of arguably relevant evidence between the parties … Along with the facts and issues presented by the parties, the disclosure of information allows each party to know the case they must meet and be adequately prepared for the hearing …
Where a rational connection exists between a document and the facts, issues or forms of relief identified by the parties in a matter, the information ought to be disclosed pursuant to paragraphs 6(1)(d) and 6(1)(e) of the Tribunal’s Rules … The burden of proving the rational connection rests with the moving party, but the threshold for the test of “arguable relevance” is low and the jurisprudence has acknowledged that the tendency is towards more rather than less disclosure …
However, there are a few limits to this rule. Notably, pursuant to subsection 50(4) of the Act, the Tribunal cannot admit or accept as evidence any information that is privileged. Moreover, a request for disclosure must not be speculative or amount to a “fishing expedition” …
In addition, the disclosure of arguably relevant information does not mean that this information will be admitted in evidence or that significant weight will be afforded to it …
Where medical documents are concerned, this Tribunal has held that where confidentiality or privacy is at issue, these issues are overridden by the Respondent’s right to “know the grounds and scope of the complaint against it … In human rights proceedings, justice requires that a Respondent be permitted to present a complete defence to a Complainant’s arguments. If a complainant bases the case on his/her medical condition, a respondent is entitled to relevant health information that may be pertinent to the claim.
The employer’s request for disclosure of existing documents was granted. The request that the employee produce a list of treating professionals was denied, with the adjudicator commenting that a party’s obligation to disclose is limited to documents that are “in the party’s possession”, so that in the absence of evidence that a list of health care professionals that attended to the employee’s visual impairment already existed, the employer’s request for such a list was denied.
Decisions addressing the issue of production of documents are considered in Chapter 10 of the Illness and Absenteeism manual and its supplement.
B. Recent Decisions of General Interest
1. Where an employee’s entitlement to wages or benefits is dependent on the performance of work, and the employee is not working, no discrimination will result. Where there is a bona fide doubt as to the parties’ mutual intentions, an arbitrator may consider extrinsic evidence to clarify the intention of the parties.
In Corporation of Township of Langley, 2018 CanLII 50186 (BC LA) (Nichols), the issue was entitlement to vacation pay for vacations and holidays for employees who were not actively at work.
The union contended that vacation pay was a status-driven benefit, that it flowed from being employed with the employer and that pro-rating it for employees on maternity or parental leave constituted prohibited discrimination. The employer asserted that vacation pay was a service or compensation-driven benefit and that it can be properly pro-rated for the time that employees do not receive wages while on unpaid leave.
The arbitrator commented that in terms of the general human rights framework,
the union must first show a prima facie case of discrimination. This involves the application of the following three part test:
1. Does the individual have a characteristic that is protected under the Human Rights Code;
2. Has the individual experienced an adverse impact with respect to their employment; and
3. Was the protected characteristic a factor in the adverse treatment.
If a prima facie case of discrimination is shown, then the burden shifts to the Employer to demonstrate a bona fide occupational requirement. To do so, it must show that:
1. the standard was adopted for a purpose rationally connected to the performance of the job;
2. the standard was adopted in an honest and good faith belief it was necessary in the fulfilment of that legitimate work-related purpose; and
3. the standard is reasonably necessary to the accomplishment of that work-related purpose. To be reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship on the employer.
(Meiorin et al)
Yet within that legal framework, the first question to determine is whether vacation pay is a status-driven or work-driven benefit. That is because, as the parties properly acknowledge, the law recognizes that a difference does not necessarily amount to discrimination. More specifically, where an entitlement is tied to the performance of work and is denied because an employee is not performing work, no discrimination will result. The fundamental assumption underlying that principle is that an employee will render services in exchange for compensation, subject to legislation and bargains to the contrary. If the employee is not performing work, the obligation to provide benefits that relate to the performance of work may be properly suspended …
Thus, the critical question is the characterization of the benefit. The analysis, then, is a contract interpretation exercise to determine the parties’ mutual intention with respect to the purpose of the entitlement …
After having exhausted that exercise, the arbitrator concluded that there was “a bona fide doubt as to the parties’ mutual intentions.” She then considered extrinsic evidence and ultimately concluded that, when considered with the language of the collective agreement, the extrinsic evidence provided sufficient clarity as as to the parties’ mutual intentions and supported the conclusion that the parties intended vacation pay to be work-driven. Consequently, a prima facie case of discrimination had not been shown.
The grievance was dismissed.
Decisions involving pay and benefits for accommodated employees are considered in s. 14:615 of the Illness and Absenteeism manual and its supplement.
2. Where a course of conduct is said to be relevant, the general approach of the Ontario Grievance Settlement Board has been to limit the requirement to produce documents to a three year period prior to the grievance.
In Ontario (Citizenship and Immigration), 2017 CanLII 85188 (ON GSB) (Harris), the Tribunal had directed that the employee provide the clinical notes and records of the employee’s medical practitioners. In support of its submission, the employer submitted that it met the standard tests for the production of the documents it sought:
It said that they were arguably relevant, were particularized, were not a fishing expedition, had a nexus to the dispute and provided no undue hardship to the [employee] or the union. It carefully reviewed the [employee’s] evidence and submitted that the union clearly put the [employee’s] purported health issues into the context of the employer’s management of the workplace as a central theme of its allegations that such management was contrary to the collective agreement and the Ontario Human Rights Code. The employer reserved its right to make a further production request for a decoded OHIP list that would catalogue her attendances for medical consultations, because of what it alleged to be inconclusive.
The union did not oppose the requested production, but it sought to limit the period of production and it sought to retain the right to redact portions of the documents that were not arguably relevant.
In addressing the temporal aspect of the production, the Tribunal set forth its general approach to the matter:
The general approach of the [Ontario Grievance Settlement] Board, in situations where a course of conduct is said to be relevant, is to permit a party to reach back three years from the date of the grievance to establish such a course of conduct.
… Applying the three year yardstick, which is not a hard and fast, immutable measure, the employer would be entitled to production of documents back to October 2010, which would not capture the pre-secondment period from her home unit. On her evidence, there was a marked difference between these two periods. In my view it would be unfair to the employer not to permit an exploration of the differences between these two periods as it relates to the [employee’s] mental health and the damages she is alleged to have suffered at the hands of the employer.
Fairness requires the inclusion of part of the period before her secondment in order to provide a basis of comparison for the pre and post secondment periods. However, there must be limits to how far back a hearing can reach into such an historical period. This case involves different managers in the two periods and an admitted significant reorganization of the workplace. In these circumstances, a one year reach-back before the secondment will provide a sufficient basis to assess the [employee’s] condition, before, during and after the secondment.
The adjudicator ordered production of the documents subject to “the union’s opportunity to redact any portions that are not arguably relevant. If there is any disagreement about the redactions, they may be brought back before me in an oral hearing for resolution.”
Decisions regarding the production of documents are considered in Chapter 10 of the Illness and Absenteeism manual and its supplement.
3. A provision that enabled an employee to apply for a special leave to care for an immediate family member with a serious illness was found to extend to circumstances involving emotional rather than just physical care.
In Fraser Health Authority (Surrey Memorial Hospital), 2017 CanLII 96685 (BC LA) (Hall), the employee grieved the denial of her special leave requests.
The clause in question provided that “special leave shall be granted … to provide care to an immediate family member who has a serious illness up to  hours at one time.”
The employee sought leave to care for her husband to assist him in advance of and after the performance of an in-hospital medical procedure. The preparation was quite harsh and her husband was quite frightened. The employer granted the leave but only for the latter portion of the employee’s shift. The remaining hours were approved as a leave of absence. The employee subsequently sought leave on the day of the surgery some two months later. That request was also denied. The employer’s rationale in denying the leaves was that the care that was envisaged by the article had to be therapeutic in nature.
The only question in arbitration was whether the employee provided “care” as contemplated by the provision.
In a previous award between the parties [Fraser Health Authority (Surrey Memorial Hospital),  BCWLD 5261, 111 CLAS 20 (Brown)], the arbitrator found that “the concept of ‘care’ under [the article was] not restricted to medical and therapeutic needs. Further, it should not be equated with “personal care” and may include “emotional care”. That award also commented that “emotional care is not confined to a parent attending to the needs of a child and may include the emotional care of an immediate family member who is an adult.”
The arbitrator here found, without hesitation, that the employee provided “care” to her husband within any reasonable interpretation of the word. That included periods when she was not with her husband while he was in the operating room.
Decisions addressing the issue of family leave are considered in Chapter 7 of the Illness and Absenteeism manual and its supplement.
4. A British Columbia human rights adjudicator has held that an employer-imposed requirement that an employee be absent from his wife and infant child for consecutive 24 hour periods for several months could constitute discrimination on the basis of family status.
In Envirocon Environmental Services (No. 2), 2017 BCHRT 226 (CanLII) (Ohler), the complaint alleged discrimination on the basis of family status.
The employee, who was based out of the employer’s Burnaby office, was directed to work out of its Winnipeg office for upwards of two to three months. Contrary to past arrangements, the employer directed that the employee report rather than sought his agreement to report. The employer did not offer, as it had previously done, additional time off or intermittent paid trips back to British Columbia so that the employee could visit with his wife and four month old child. The employee refused the employer’s direction and was terminated for alleged cause. The essence of the employee’s complaint was that the termination offended the family status prohibition against discrimination contained in the British Columbia Human Rights Code.
The adjudicator distinguished the underlying factual circumstances from those cases where the work condition at issue is not a question of flexibility in timing of a regular work schedule but rather a requirement to be physically absent for an extended period of time. The adjudicator commented that the employee’s required absence from his wife and four month old child for consecutive 24 hour periods over a number of weeks could be found to constitute serious interference with a substantial parental or other family duty or obligation. She denied the employer’s application to have the employee’s complaint dismissed on the basis that there was no reasonable prospect that the complaint would succeed.
The adjudicator commented that the law regarding discrimination on the basis of family status was somewhat unsettled. The employer relied on the British Columbia Court of Appeal decision in Campbell River and North Island Transition Society, 2004 BCCA 260 (CanLII), where the Court determined that in order to establish discrimination on the basis of family status, the complainant would have to show that there had been a unilateral change in a term or condition of employment that resulted in a serious interference with a substantial parental or other family duty or obligation (the “Campbell River” test.). The adjudicator commented that even if “Campbell River” was the test to be employed in British Columbia, the Complaint, on its face, alleged facts that could constitute a breach of the Code having regard to that test.
Although the adjudicator’s reasoning was sufficient to dismiss the employer’s application, the adjudicator commented that the Tribunal’s decision in Forensic Psychiatric Services Commission (No. 2), suggested that Campbell River may no longer be good law in light of the Supreme Court of Canada’s decision in Elk Valley Coal Corp., 2017 SCC 30 (CanLII).
The adjudicator also noted that the employer’s contention that the complainant father had “no special skill or ability” to make him indispensable in caring for his child so minimizes the role of a father in a child’s care “as to run counter to the purposes of the Code.”
The employer’s application to dismiss the complaint was itself dismissed.
Decisions addressing the issue of discrimination on the basis of family status are considered in Chapter 7 of the Illness and Absenteeism manual and its supplement.
In Calgary Laboratory Services, 2018 CanLII 37190 (AB GAA) (Moreau), a 19 year employee was terminated for having submitted 76 false claims for massage therapy treatments over a period of 22 months. The amount paid to the employee by the benefits carrier totalled $6,188.
The termination was upheld, with the arbitrator stating that what distinguished this case from others where employees were reinstated for similar offences was the fact that here the employee had not made an early admission of guilt, and that, coupled with her evasive testimony during the arbitration, reinforced the employer’s view that the trust relationship was incapable of repair.
Decisions involving fraudulent benefit claims are considered in s. 2:400 of the Illness and Absenteeism manual and its supplement.