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Illness & Absenteeism - November 2020 Newsletter

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

A. Featured Case: A proposed witness (an Occupational Hygienist) was not qualified to testify as an expert on matters involving COVID-19 transmission and control, personal protective equipment, appropriate occupational health and safety measures and the “precautionary principle”. [click here to read more ]

B. Other Decisions of General Interest

  1. An arbitrator determined that it was not reasonable for an employer to have relied on an employee’s representation that she had a drug problem and would seek treatment to deal with it. Her assertion that she had a drug problem was not a medical diagnosis, and the employer ought not to have placed so much reliance on it, particularly after having received contrary information from two medical professionals. [click here to read more]
  2. Evidence of similar acts or a pattern of similar conduct will not necessarily be admissible to demonstrate that the employee is the person who committed the act at issue which is the subject of the immediate arbitration. [click here to read more]
  3. An arbitrator ordered a grieving employee to provide the employer with authorization to obtain a copy of her educational qualifications directly from the issuing entity. [click here to read more]
  4. An employer was denied a preliminary order to compel a grieving employee to submit to an Independent Medical Examination in a matter alleging improper denial of disability benefits. [click here to read more]
  5. When considering whether to grant an order to compel an Independent Medical Examination, an arbitrator should distinguish between those cases dealing with a return to work, accommodation and sick benefit issues, and those cases where unfairness would arise if the employer was unable to have the employee examined by its medical expert. In that regard, natural justice and a fair arbitration process require that the employer be permitted to select its own medical expert to advise counsel, and if desired, to call that expert as a witness in the matter. [click here to read more]
  6. An employer had not acted improperly when it failed to consult with the union before directing an accommodation that met all of the restrictions that were identified in the employee’s medical documentation. Although her physician had suggested that the employee be permitted to work from home, that was a matter that was best left to the employer, for the role of doctors in the accommodation process flows from the scope of their professional expertise in identifying the employee’s medical restrictions and limitations. The identification of appropriate workplace accommodation is to be left to employers who know the operation of their workplace and their own operational needs. [click here to read more]
  7. An arbitrator found that the employer had not failed to accommodate a disabled teacher when it refused to accommodate her by transferring her to a school closer to her home. [click here to read more]

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A. Featured Case

A proposed witness (an Occupational Hygienist) was not qualified to testify as an expert on matters involving COVID-19 transmission and control, personal protective equipment, appropriate occupational health and safety measures and the “precautionary principle”.

In Almonte General Hospital, 2020 CanLII 57334 (ON LA) (Kaplan), the union’s grievance contended that the employer had failed to equip its health care workers with fit-tested and seal-checked N95 respirators for routine patient care interactions. The employer defended its approach to limiting the use of the N95 respirators to other specific procedures on the basis that its approach followed the latest guidelines from Public Health Ontario (PHO) and the latest in Infection Prevention and Control Practices. The Union submitted a report by an Occupational Hygienist. The employer objected, and a hearing via video conference was held to determine whether the witness could be qualified as an expert on COVID-19 transmission and control, personal protective equipment (PPE), appropriate occupational health and safety measures and the “precautionary principle”.

The arbitrator summarized the law regarding the admission of expert evidence:

It is well established that the admission of expert evidence depends first on the application of four criteria: (i) relevance; (ii) necessity in assisting the trier of facts; (iii) the absence of any exclusionary rule, and, (iv) a properly qualified expert.

The arbitrator ruled that the Occupational Hygienist was not a properly qualified expert on the matters that were to be the subject of his testimony.  Accordingly, he could not testify in that capacity.

The witness’ report examined and critiqued some of the evidence relied on by PHO. Although the witness had a considerable amount of credible experience, he was not a clinical epidemiologist. He had experience and expertise in epidemiology as practiced in the field, but he acknowledged that he had no training in infectious disease transmission or control. He was not a member of the Board of Infection Control and Epidemiology. He had “decades of experience in providing expert advice on appropriate precautions including in prior pandemics and in health care settings”

The employer readily conceded that the proposed witness was an expert in Industrial Hygiene, but it took issue with the assertion that he could provide an expert opinion regarding modes of transmission and appropriate source control.

The witness had reviewed epidemiological literature, but as the arbitrator commented “that does not make him an epidemiologist and qualified to opine on infectious disease transmission and control”. He stated that:

Having access to, reviewing and summarizing the literature does not confer expert status … There is no factual basis to accept as expert evidence [the witness’s] interpretation of conclusions reached by others. This is the defining feature of his report. Put somewhat differently, [the witness] has not participated in any of the studies; he is just reading them, summarizing them and criticizing or endorsing them. That is valuable work, but it is not an expert opinion on modes of transmission, infection control and appropriate PPE. The truth is that parts of the report read more like advocacy for a desired outcome – uniform provision of the N95 – rather than the offering up of dispassionate expert advice to assist in a most serious task … I cannot and do not conclude that his evidence is fair, objective and non-partisan. This is not a proper case to exercise my statutory authority and discretion to admit the report whether admissible in a court of law, or not.

Arbitrator Kaplan stated that:

The precautionary principle needs to be applied, and part of that task requires the best possible expert evidence – but what has been offered in the proposed expert and his report does not meet the established and governing admissibility test.

The report was held to be inadmissible.

B. Other Decisions of General Interest

1. An arbitrator determined that it was not reasonable for an employer to have relied on an employee’s representation that she had a drug problem and would seek treatment to deal with it. Her assertion that she had a drug problem was not a medical diagnosis, and the employer ought not to have placed so much reliance on it, particularly after having received contrary information from two medical professionals.

In Sherwood Park Manor, 2020 CanLII 13550 (ON LA) (Tremayne), the employee had met with the employer and her union representative to discuss several medication errors and performance deficiencies. It was the employer’s evidence that the employee had admitted that she had a drug problem and that she agreed to seek treatment for her substance use disorder. Following the meeting, the employer advised her, by letter, that “you will be placed on sick leave with pay while you seek and receive appropriate medical treatment for your drug dependency.” It also advised that she would be reported to the College of Nurses of Ontario.

Almost two years later, the union grieved that the employer had failed to return the employee to work after her absence on medical leave. The employer contended that it had no obligation to do so until such time as the employee had sought treatment. Sometime later, the employee provided letters from two of her doctors. Both stated that she did not and had not had a substance use disorder or addiction.

The employee, her union representative, and the employer’s administrator testified at the hearing. The employee’s evidence was found to lack credibility. In that regard, the arbitrator stated:

Arbitrators have the sometimes difficult task of determining what evidence is reliable. Although I have considered the demeanour of the witnesses when they gave their evidence as well as the firmness of their professed recollections, I am mindful of the passage of time since the relevant events took place. The Courts have also made it increasingly clear that demeanour is easily and frequently misinterpreted, and that as a sign of credibility and reliability, it is fraught with problems. As a result, I have given very little weight to these somewhat more traditional considerations.

I have placed much greater evidence on the clarity, consistency and overall objective plausibility of every witness’ evidence when compared to the evidence of other witnesses. I have also carefully considered the ability of all witnesses to resist the influence of self-interest and self-justification when providing evidence and framing their answers. I have taken into account the consistency of the witness’ evidence with other objective evidence, particularly incontrovertible documentary evidence when available. Finally, I must consider what seems to be the most likely in all the circumstances established by the reliable evidence.

The arbitrator commented that the testimony of both the union representative and the employer’s administrator were clear, consistent and plausible. They were frank and did not attempt to embellish their evidence. And on almost every important point, their evidence aligned with that of the other.

Considered overall, he found that the grieving employee was unable to avoid the tug of self-interest and self-justification when she gave evidence. Where the employee’s evidence conflicted with that of the other two, he preferred their evidence. The arbitrator also placed weight on the contemporaneous and detailed notes of the union representative.

The employer argued that the employee’s comments immediately before she was placed on paid sick leave led the employer to believe that the employee had a substance use disorder. The arbitrator found that:

the employee “honestly believed she had a substance use disorder or she strongly suspected that she did; either way, in the [employee’s] own words, she had “a problem with drugs”. However, this does not mean that what the [employee] said about her own condition was a medical diagnosis, and it was not reasonable for the employer to have relied on it as such. In particular, the employer ought not to have placed so much reliance on it, and for as long as it did, in the face of different information which came later from [the two] qualified medical professionals … Leaving aside the employee’s dishonesty, the employer ought to have given this medical information more weight.

The employee had not been honest or forthright with the employer about her medical condition. The evidence established that she was trying to rewrite history by saying that she did not say what she had said in the initial meeting. Her actions “undermined the entire basis upon which the employer and the union had been proceeding …”

When the [employee] found out that she did not have a substance use disorder, “it was up to her to set the record straight, but she did not.”  Instead, she started to deny what she had said in the [initial meeting].

In dismissing the grievance, the arbitrator stated:

The employee had done very significant damage to her working relationship with the employer. She has nobody to blame but herself because she undermined the entire basis upon which the employer and the union had been proceeding … [She] is employed in a Long Term Care Home. She helps care for aging and very vulnerable patients, and she is in a position of trust and responsibility. The employer must have complete trust and confidence in her ability to discharge her responsibilities, and its decision to not return the [employee] to work is reasonable and justified. As a result, the employer has not violated the parties’ collective agreement by failing to return the [employee] to work”.

For the same reason, the employer’s response was not contrary to the Ontario Human Rights Code, because its decision to not return [the employee] to work was based on [her] dishonest attempt to rewrite history. This is not a ground of discrimination that is prohibited by the Code.

The arbitrator concluded that:

By challenging the foundation upon which the parties had been operating ever since the [employee] left the workplace on medical leave, the [employee] completely undermined the basis upon which the employer had believed that its working relationship with the [employee] remained viable. The employer did not breach the parties’ collective agreement or the Ontario Human Rights Code when it did not return the [employee] to work and the employer has no obligation to compensate the [employee] for any losses, pecuniary or non-pecuniary, that she has incurred to date. As a result, the grievance is dismissed.

2. Evidence of similar acts or a pattern of similar conduct will not necessarily be admissible to demonstrate that the employee is the person who committed the act at issue which is the subject of the immediate arbitration.

In Toronto Transit Commission, 2020 CanLII 42291 (ON LA) (Slotnick), the arbitrator held that similar fact evidence would not be admissible for the purpose of proving a complaint of sexual harassment. Arbitrator Slotnick stated:

In summary, I find that the similar fact evidence proposed by the [employer] will have minimal probative value. Its probative value is outweighed by the prejudicial effect on the [grieving employee], portraying him as a bad person with a propensity to attempt to extract sexual favours in return for work assignments, when the focus in this hearing should be the interactions between him and [the complainant]. In this regard, I note again that the [employer] was aware of [the earlier] complaint at the time that it discharged the [grieving employee], but did not make that issue part of the discharge. The use of similar facts that did not attract discipline was raised in [an earlier TTC case: TTC (2015) 262 L.A.C. (4th) 187 (Shime)], where the arbitrator admitted similar fact evidence but made the following comment (at paragraph 69):

In a collective bargaining context there is a continuing relationship between employees and members of management with the likelihood that many incidents may occur over a person’s employment. If these incidents are of sufficient seriousness, the better approach is to discipline the employee in a timely fashion so that the employee may have the opportunity to grieve. In that case, a disciplinary record is admissible more for the purpose of showing whether progressive discipline was imposed which is a significant factor in determining remedy. A disciplinary record should not be used to determine that the employee is a bad person and therefore has committed the act that is the subject of the proceedings. Nor should random non-disciplinary matters be introduced to show that an employee is a bad person who most likely committed the act in issue. However, where similar acts or a similar pattern of behavior has occurred, whether disciplinary or non-disciplinary, evidence of those similar acts or pattern of similar conduct may be introduced to demonstrate that the employee is the person who committed the act at issue which is the subject of the immediate arbitration.

The arbitrator stated that in the present case, it would be unduly prejudicial to the union and the grieving employee to permit the employer to dress up the much earlier allegations as similar fact evidence for the purpose of proving the allegations in this case, particularly given the minimal probative value of the evidence. “Evidence aimed at proving the truth of [the earlier complaint] is not admissible [as] similar fact evidence in this case.”

3. An arbitrator ordered a grieving employee to provide the employer with authorization to obtain a copy of her educational qualifications directly from the issuing entity.

In Trillium Health Partners, 2020 CanLII 57285 (ON LA) (Parmar), the employee had been disciplined for issues involving her alleged incompetence. She had provided the employer with a copy of her Critical Care Certificate from Humber College. The employer, having concerns regarding the veracity of that certificate, sought the employee’s authorization to confirm its validity. When the employee refused to provide such authorization, the employer sought a pre-hearing order for production of the [employee’s] Critical Care Certificate from Humber College.

The arbitrator granted an order that the employee provide the employer with the necessary authorization for it to obtain verification of the [employee’s] Critical Care Certificate. In doing so, he stated:

The [employee’s] nursing competency is clearly an issue in this matter. The [employee’s] educational qualifications form a foundational part of her skill set and, as such, are arguably relevant to the underlying issues in dispute in this case …

[However], even if the documents at issue were not relevant to the issues in dispute in respect of the merits of the grievances, the [employee’s] Critical Care Certificate is arguably relevant to the issue of remedy …

4. An employer was denied a preliminary order to compel a grieving employee to submit to an Independent Medical Examination in a matter alleging improper denial of disability benefits.

In Halton Regional Police Service, 2020 CanLII 55858 (ON LA) (Jesin), the grievance alleged that the employer, through the administrator of its insurance plan, had improperly denied the employee long term disability benefits contrary to the provisions of the collective agreement and the Ontario Human Rights Code.

Prior to the commencement of the proceedings, the employer sought a preliminary order compelling the employee to submit to a medical assessment by a doctor of the employer’s choosing.. The arbitrator refused to grant that order at that time, stating in part that he did not think it was ‘fair’, “in the circumstances of this case, to turn a disability claim into a medical contest between the [employee’s] doctors and [the] doctor chosen by the employer.”

5. When considering whether to grant an order to compel an Independent Medical Examination, an arbitrator should distinguish between those cases dealing with a return to work, accommodation and sick benefit issues, and those cases where unfairness would arise if the employer was unable to have the employee examined by its medical expert. In that regard, natural justice and a fair arbitration process require that the employer be permitted to select its own medical expert to advise counsel, and if desired, to call that expert as a witness in the matter.

In St. Joseph's Healthcare Hamilton, 2020 CanLII 57218 (ON LA) (Misra), the employer sought an order to compel the grieving employee to undergo an independent medical examination (an IME) with a forensic psychiatrist of the employer’s choosing and at the employer’s cost.

In this case, the grieving employee had allegedly stolen narcotics, including fentanyl, from the ICU medication rooms on several occasions during a one year period. The employee had been diagnosed with an addiction. It was expected that the union would be relying on expert evidence in an effort to establish a causal connection between the employee’s addiction and her theft of medications.

The employer contended that the union, in opposing the application for an IME, was approaching this case in the same manner as those that dealt with administering the employment relationship (as for example return to work and sick benefit cases).  Here however, the employer was seeking an IME “in order to protect its right to due process and fairness in the legal process”. The employer distinguished its application from those involving “requests by employers for IMEs in the context of a return to work, accommodation or sick benefit issues”.[The union maintained] that an IME is a tool of last resort, and since it is highly invasive, there is a strong onus on an employer to justify the requirement that an employee submit to such an examination. It argued that the employer must show that it has exhausted less intrusive means of finding evidence, and that there must be a significant problem with the union or employee’s medical evidence to justify ordering an employee to attend at an IME.

The employer asserted that the IME was necessary to enable it to “prepare its defence to the union’s expert’s assertions through its own expert who will have had the benefit of assessing the [employee] personally … [It submitted that] the issue here is one of natural justice, not of inconsistences in medical information.”

The arbitrator stated that she was satisfied that “in the interests of natural justice and in order to ensure a fair arbitration process, the employer should be permitted to have the [grieving employee] assessed by a forensic psychiatrist of its own choosing.” Several Ontario cases were cited as establishing that an arbitrator had jurisdiction to make the order sought. She further stated that she agreed with the UBC decision [1984] [McColl] and that she was satisfied that she had jurisdiction to grant the requested order “to ensure a fair hearing”.

Arbitrator Misra also relied on Canada Post Corp. [1998], where arbitrator Burkett found that it was not material whether the union’s evidence was clear and unambiguous. That arbitrator stated:

Given the nature of the issue (whether in the interests of a fair hearing the [employee] should be required to undergo an assessment by a psychiatrist of the employer’s choosing) these submissions are misguided. The unfairness that must be addressed stems from the nature of the evidence pertaining to the [employee’s] mental health. If one side has access to experts who have examined the [employee] and the other side does not, an unfairness manifests itself in an inability to adequately understand the medical evidence as it relates to the individual, an inability to adequately  cross examine on critical points and an inability to call contradictory evidence. This unfairness manifests itself regardless of whether or not the expert called by the union was retained by it and it manifests itself regardless of whether the evidence called by the union is in some way equivocal … [Here], if the employer’s request is refused, the union will have conferred with and called evidence from both a physician and a psychiatrist who have examined the [employee], while the company will be required to conduct its case without benefit of firsthand knowledge related to the [employee]. The result is an unfairness that must be redressed to whatever extent possible.

… Where a union puts a grievor’s physical or mental health in issue and seeks to rely on the evidence of its own experts to ground its arguments, it is difficult to see how the curtailment of an employer’s ability to question or counter the union’s medical evidence would serve the fair hearing process.

The union’s concern with respect to privacy was also addressed in the Canada Post decision, where the arbitrator commented that the grieving employee had put her mental state in issue and that the union would be calling evidence of a very private nature. Therefore, “the resolution of the issue in dispute overrides the [employee’s] privacy interests”.

The union had suggested that if such an examination should be ordered, it should be involved in choosing the forensic psychiatrist. In rejecting that contention, the arbitrator relied on Pharma Plus Drugmarts [(1995) (Stanley)], where arbitrator Stanley discussed why it would not be appropriate to do so:

The method proposed by the union to select a psychiatrist to examine the [employee] would have validity if we were selecting an expert who would have the final word on her condition. However, what the employer wants is an expert they can rely on to probe and counter whatever expert evidence the [employee] intends to put forward. The union, in proposing its selection method, is not foregoing their right to present and rely on their own expert evidence. This is an adversarial process founded on the assumption that truth is best discerned through this sort of evidentiary contest. It stands in contrast to an inquisitorial system where we might be comfortable with the proposition that what we ought to do is mutually select one independent expert and accept his or her opinion on the issue. In the end, it is the arbitrator who has to make the decision about the [employee’s] ability to return to work, based on the expert testimony presented ...

The union should not be involved in the selection, for

the union has already made its choice of expert, and has received its medical reports from that expert. The point of the employer’s motion is for it to engage its own medical expert, one who it may wish to call as an expert witness, and upon whom it may rely for other aspects of the case besides an expert report.

The arbitrator stated that the union’s experts have had the benefit of meeting with the employee over an extended period of time, and she commented that the employer’s expert “should at least have the benefit of a two hour in-person assessment before rendering an opinion to the [employer].”

The employee was directed to attend an examination by a forensic psychiatrist of the employer’s choosing. As well, she was directed to make available to that psychiatrist any medical documentation necessary to ensure that the forensic psychiatrist would be able to provide the employer with expert assistance necessary to the conduct of this case. Furthermore, she was directed to authorize the forensic psychiatrist to engage in discussion with [her] treating physician regarding her compliance with treatment and sobriety.

The cost of the examination was to be borne by the employer. The employee was to be compensated for her reasonable expenses associated with attending at the examination, and a copy of the forensic psychiatrist’s  report was to be provided to the union as soon as reasonably possible following receipt by the employer.

6. An employer had not acted improperly when it failed to consult with the union before directing an accommodation that met all of the restrictions that were identified in the employee’s medical documentation. Although her physician had suggested that the employee be permitted to work from home, that was a matter that was best left to the employer, for the role of doctors in the accommodation process flows from the scope of their professional expertise in identifying the employee’s medical restrictions and limitations. The identification of appropriate workplace accommodation is to be left to employers who know the operation of their workplace and their own operational needs.

In Ontario Energy Board, 2020 CanLII 64845 (ON LA) (Parmar), the employee sought accommodation after having suffered a head injury. Although the employer had offered to accommodate her in the workplace, the employee deemed that offer to be unsuitable. Instead, she sought to work from home.

The note from her doctor stated only “head concussion, please accommodate patient for 1-2 days per week (work from home). On cross-examination, the employee “acknowledged that working from home may have been something that she had indicated to her doctor that she preferred.”

The employer advised the employee that it could accommodate her identified needs and that she could use the sick room to rest when needed. The letter also advised that if she did not accept this accommodation, the employee could book off sick until her health improved. At a meeting convened to consider the matter, the employee was invited to explain how she thought that working from home would work. The employee provided additional information concerning her duties and needs. With this additional information, “it became obvious that working in the office was not going to be feasible and the question was raised as to whether the [employee] should be working at all.” The employee was concerned about possible negative implications of having been on sick leave, but the employer assured her that her concerns were unfounded. After the meeting, the employee sent an email stating that although it was her preference to work from home with modified hours, she would follow the employer’s suggestion of taking sick leave. She testified that she did so because “she could see that there was no middle ground.” She then went off on sick leave and remained off for upwards of six weeks.

The arbitrator stated that doctors sometimes suggest certain methods of accommodation, but

The provision of such suggestions by doctors can be confusing to employees, as employees sometimes think that anything a doctor says must be followed. Simply put, that is not the case. The role of doctors in the accommodation process flows from the scope of their professional expertise, which is about identifying an individual’s medical restrictions and limitations. The identification of the appropriate workplace accommodation is left to employers, who know best the operation of the workplace and their own operational needs.

The arbitrator stated that there was little need for the employee to be consulted before the accommodation was offered, for the employer was offering an accommodation that met all of the identified restrictions in the medical documentation. Similarly, in respect of the union’s role in the process,

This role does not mean that an employer cannot communicate directly with an employee in any manner on the issue of accommodation, subject of course to any specific collective agreement requirements … Given that the employer was offering the [employee] accommodation addressing all the disability-related limitations identified in the medical document, and given that the proposed accommodation could be implemented without any modification of the collective agreement and without intruding on the collective rights of any other employees, there was little need to involve the [union] prior to or when issuing [the employer’s letter].

The union had suggested that the employer’s letter had a “take it or leave it character which failed to reflect the flexible and collaborative approach that should be followed in accommodation.” The arbitrator saw nothing inherently objectionable in the letter. He also saw nothing unreasonable in the employer’s offer that the employee could take sick leave.

The arbitrator also commented that he had not addressed any of the evidence concerning the feasibility of working from home because once he found that the employer’s offer of accommodation was reasonable, “whether or not working at home was feasible is immaterial... As long as the employer can establish that its proposed accommodation is reasonable, it will have met its duty to accommodate.”

7. An arbitrator found that the employer had not failed to accommodate a disabled teacher when it refused to accommodate her by transferring her to a school closer to her home.

The arbitrator’s analysis in Toronto District School Board, 2020 CanLII 673 (ON LA) (Nyman), serves to clarify the application of the Meiorin decision in disability cases that do not involve formal standards or policies or even settled practices.

Arbitrator Nyman engaged in an extensive review of Canadian and American authorities and concluded that “the conditions of an employee’s commute to work may amount to discrimination that requires accommodation under the Code. He stated that Meiorin established a three-step test for determining whether a prima facie discriminatory standard is a BFOR  (a bona fide occupational requirement). The test provides that an employer may justify an impugned standard by establishing on a balance of probabilities:

(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

… It is only once an employer rule or standard is found to be prima facie discriminatory that the Meiorin test is employed to determine if [the rule or standard] is justified as a BFOR.

In his analysis of  Meiorin, arbitrator Nyman acknowledged that not all employment discrimination cases involving disability involve formal standards or policies or even settled practices. Some of them – and this case is one - “involve ad hoc decision-making which is responding to particular events or issues.” He stated:

What I take from these cases is that Meiorin … does not require the analysis of every claim of discrimination in employment to be distilled down to a single employer rule or standard. Rather, there will be some cases where, in the words of the Federal Court of Appeal, it would be very difficult to extricate from the factual matrix of the parties conduct a discrete coherent policy which one could subject to an orderly analysis as in Meiorin. Instead what a decision maker must do in such cases is look at all of the facts of the parties’ conduct and determine if those facts establish that the claimant suffered adverse treatment and that their disability (or other protected ground) was a factor in that adverse treatment. If the claimant establishes that it was, the claimant will have established that the parties’ course of conduct resulted in prima facie discrimination. It will then fall to the employer to rebut the prima facie discrimination by establishing that it accommodated the complainant or by establishing some other defence under the Code. In other words, the Meiorin analysis applies but the analysis takes into account the contextual facts of the parties’ dealing.

In this case, arbitrator Nyman found that the union had not established a prima facie case of discrimination. He stated that if such had been established, he would have found that the employer fulfilled its accommodation obligations on the facts of the case. The employer offered to meet the employee’s in-school accommodation requests and provide most, if not all of the in-school accommodations. The union and the employee however refused to consider this as a possible solution. The arbitrator stated that from an accommodation standpoint, the union’s position brought the process to a standstill. He referenced the Supreme Court of Canada’s decision in Renaud, where the Court stated:

When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation … The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer’s duty is discharged.

The employee and the union had frustrated the accommodation process. It was an all or nothing proposition from their perspective. The grievance was dismissed.