Guibord v. Canada (T.D.) [1997] 2 F.C. 17
T-111-96
BETWEEN:
CLAUDETTE F. GUIBORD,
Applicant,
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by TREASURY BOARD,
Respondent.
REASONS FOR ORDER
NOËL, J.:
This is an application for judicial review of the decision of the Public Service Staff Relations Board rendered December 8, 1995 holding that the Respondent did not fail in its duty to accommodate the Applicant in refusing to allow her to return to her job on a part-time basis.
I THE FACTS1
A) The Applicant's Illness
The Applicant was employed by Transport Canada ["the Department" or "the employer"] as a Government Documents Cataloguer. Her duties required her to work in the library area of Tower C, Place de Ville, in Ottawa.
As a result of exposure to fumes resulting from the application of a chemical carpet cleanser in her work area in July of 1990, the Applicant became severely ill. Shortly after this initial exposure, the Applicant could no longer stay on the job. Her immediate reactions included a burning nose, stinging eyes and lungs, and difficulty breathing. When the Applicant reported for work the next day, she noted that her working area was deserted. That morning she had a spinning head and trouble breathing and felt so unwell that she was required to visit the nurse. The Applicant continued to work throughout the day and, in the evening, witnessed an actual carpet cleaning spill on the floor.
Although the Applicant attempted to continue to work, she found herself making errors and failing to properly input her computer. She also experienced smarting and stinging eyes, congested lungs, and ear aches. On August 22, 1990 she suffered a heavy nose bleed which was cauterized the next day. On the evening of August 23, 1990 the Applicant was unable to sleep and was constantly coughing up yellow mucous. From August 29 to September 21, 1990 she suffered from episodes of bleeding, coughing, vomiting, diarrhea and respiratory problems. Throughout the balance of the Fall of 1990, the Applicant received medical treatment both in Toronto and Ottawa.
In April of 1991, the Applicant began to consult a specialist, Dr. J. Molot. Dr. Molot testified before the Adjudicator as an expert witness in the area of environmental sensitivity. His qualifications as an expert witness were not challenged. The Adjudicator summarized Dr. Molot's testimony as follows:
| Dr. Molot saw Ms. Guibord in Ottawa on April 4, 1991. She had a whole variety of symptoms, including a respiratory disorder since her exposure to the chemical carpet cleanser in July, 1990. She was suffering from a cough, sore throat, nasal congestion and earaches. She has also experienced nosebleeds, diarrhea, vomiting and fever. He did a careful history and a physical examination which included the taking of blood samples which were sent to a laboratory in California for testing. The blood tests indicated an environmental sensitivity. Changes, including a failure in auto-immune antibody productions, had taken place in her body. The tests, in |
| combination with his physical examination and the history obtained from Ms. Guibord, lead him to conclude that she had suffered a significant chemical exposure.2 |
From July of 1990 until August of 1991, the Applicant was sporadically ill. She was deemed to be on sick leave without pay until August 21, 1991.
B) Efforts at Accommodation
1) Part-time work
In May of 1991 the Applicant underwent a bronchoscopy. In the result, her respiratory problems were much improved. By July of 1991 the Applicant was feeling much better. As a result, Dr. Molot advised her to attempt to return to work. Accordingly, on August 13, 1991 the Applicant contacted her supervisor, Mr. Ekins, by telephone to determine whether she would be able to return to work on a part-time basis.
On August 14, 1991 Mr. Ekins wrote the following memorandum to Karl Cornwall, Director of Information Management:
| I understand from a telephone conversation yesterday with Claudette Guibord that she is intending to return to work on Monday, August 19, 1991 and to work on a part-time basis until she is fit to work full-time. |
| On this basis I had a meeting with Y. Thouin and R. Malo of Staff Relations. |
| Mr. Thouin proposed that, in order to clarify her status with the Department, Claudette be required to go to her doctor and obtain a medical certificate from him stating: |
| 1. that Claudette is now fit to work; |
| 2. that she is able to work only part-time meaning a certain number of hours a week; |
| 3. that the duration of this period of part-time employment before full-time employment can resume is expected to last approximately how long. |
| Then when we examine the doctor's certificate, we can assess if its terms are acceptable to us. For example, if he states that the period of part-time employment is likely to last for a month or two, this would be acceptable. If, on the other hand, |
| the doctor's opinion is that the part-time work is likely to last indefinitely, then my view is that this would be unacceptable in terms of the library's operational requirements. |
| I think the value of Mr. Thouin's suggestion is that it turns the matter of Claudette's return into a medical decision and not a decision which Claudette herself has no competency to make.3 |
Shortly thereafter, the Applicant submitted a physician's certificate signed by Dr. Molot wherein the following was indicated:
| "1/2 days at work until Dec. 1/91 - will reevaluate at that time".4 |
The certificate is dated August 19, 1991 and the estimated date of return to duty is also identified as August 19, 1991. In addition to providing her with a certificate, Dr. Molot prescribed a mask for her to filter out gases. As was stated by the Adjudicator in her reasons:
| Dr. Molot felt that it would be best to try to have Ms. Guibord return to the workplace with a mask and on her initial return to work be exposed to the workplace for half days to allow her body to adapt through exposure to the toxins in the air. His tests, plus her willingness to return, showed a good long-term prognosis. This is why he supported part-time work for her. He chose the date of December 2 because he wanted to see how the grievor managed over several months.5 |
Dr. Molot conducted further blood tests on the Applicant in 1992 which confirmed the nature of the Applicant's illness and the benefit of part-time employment. He testified that:
| The multi-chemical sensitivity that Ms. Guibord suffers from improved with decreased levels of exposure. He concluded that she was capable of part-time employment with her condition being monitored and precautions taken. It was a matter of gradual re-adaptation to the workplace.6 |
The Adjudicator summarized Dr. Molot's other evidence on the Applicant's illness:
| The brain and the immune system interact to suppress or activate the immune system. Subtle changes occur in the immune system in reaction to stress on the brain. The result is something greater than the sum of the two parts. Not all people are subject to stress factors to the same degree. When the brain experiences stress, there is a release of energy. If the brain receives repeated low dosages of the stress causing substances, it will adapt. Exposure to chemicals can create such a stress on the brain, either a significant exposure or low dosage but repeated exposure. The brain can become sensitized to chemicals as a stressor.7 |
In accordance with her doctor's certificate, the Applicant reported for work at 1:30 p.m. on August 19, 1991. After 10 or 15 minutes, the Applicant was advised by her supervisor, Mr. Ekins, to return home. No reason was provided to her at that time for this refusal to accept a return to work on a part-time basis. The Applicant reported to work on the next day in the afternoon and was again told by her supervisor to leave and await further instructions. Ultimately, the Applicant was forced to take unpaid leave for nearly 2 years.
In a letter dated August 20, 1991 from the Acting Manager of Library and Information Services, the Department provided a written response to the Applicant's request to return to work on a part-time basis:
| We have reviewed the physician's certificate of Dr. J. Molot dated August 19, 1991, and have discussed the matter with TC Staff Relations. Please be advised that the operational requirements of your position make it unacceptable for it to be occupied on a half-time basis for a protracted and indefinite period. Furthermore, we are unable to staff this position with another part-time person with the requisite training and experience to make up the balance of a full-time position. Lastly, financial constraints do not permit us to have the work done by more than one person, ie. yourself and one full-time temporary employee. |
| For the above reasons, the Department can not accept this proposal for part-time employment. |
| Therefore, please advise me when you are able to fulfil the operational requirements of the position, that is, when your doctor indicates your are fit to work on a full-time or nearly full-time basis.8 |
Before the Adjudicator, Mr. Cornwall confirmed that he was aware of the Applicant's environmental sensitivity and her request to work part-time. However, Mr. Cornwall explained that the Department was downsizing such that, with the same workload, "the staff wasn't there". In his view, the Applicant's cataloguing duties were required to be performed on a full-time basis.9
Mr. Ekins also testified that hiring a person on a part-time basis to share Ms. Guibord's job would make the "management load" higher. While, in his view, part-time work for a limited period of time such as three months might have been acceptable, it could not have worked over an indefinite period.10
Given the Department's response, the Applicant presented a grievance, dated August 27, 1991 in which she grieved the
| refusal to allow me to return to my job on part-time basis as requested on August 19, 1991.11 |
2) Relocation to Another Site
Between 1991 and October of 1993 the employer was kept aware of the Applicant's willingness to work for half days. She also submitted requests for work at alternative locations, including 344 Slater Street in Ottawa, which was located just around the corner.12
In addition to the evidence summarized by the Adjudicator, Dr. Molot confirmed that, after developing environmental sensitivity due to an initial exposure to a certain substance, a person may also become sensitized to new and different substances upon exposure in the future, even though those substances did not affect the person in the first place. Accordingly, Dr. Molot expected that the Applicant's environmental sensitivity could cause her difficulties in another work environment. In fact, it was his view that exposing the Applicant to another environment in Place de Ville would be detrimental to her health.13
The relocation requests made by the Applicant were refused on the basis of "operational needs of the Department". In the words of the Adjudicator, Mr. Ekins testified that he "felt that she should not be allowed to work at another location because of the nature of her work, the requirement for supervision and the difficulty of consulting with her. She would also experience difficulty if she had questions."14
On cross-examination, Mr. Ekins testified that it would have been "inconvenient" to allow the Applicant to relocate and send documents she needed by government messenger. He did not provide an answer to the issue of whether she could be properly supervised at this other location.15
3) Alternative employment
The employer did offer to provide the Applicant with training in the Records Office and/or another position at the same classification level and rate of pay within the Department at another location. The Applicant refused this offer and made it clear that it was her own job she wanted back. The Adjudicator notes in her reasons that as her refusal was quite emotional the matter was never pursued further.16
II THE ISSUE
Did the Adjudicator err in fact or in law in determining that the employer had not failed in its duty to accommodate the Applicant?
III ANALYSIS
A) Duty to Accommodate
1) General definition and purpose
It is well established that employers have a duty to accommodate disabled employees to the point of undue hardship. The policy reason behind this duty is to:
| serve the overall objectives of human rights legislation, one of which is the protection of the equality of opportunity for all inhabitants of Canada to participate fully in a wide range of socio-economic fields such as employment, access to goods, services, facilities, housing, contracts and the like. These laws aim to ensure the maximum protection of the dignity and worth of the individual, by enabling him or her to feel like, and indeed to be, a full and equal participant in Canadian society.17 |
The Courts have recognized the existence of a general duty to protect individuals from the effects of adverse discrimination.18 In Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd.,19 the Supreme Court of Canada recognized the existence of this duty in the context of an employer-employee relationship:
| While no right can be regarded as absolute, a natural corollary to the recognition of a right must be the social acceptance of a general duty to respect and to act within reason to protect it. In any society the rights of one will inevitably come into conflict with the rights of others. It is obvious then that all rights must be limited in the interest of preserving a social structure in which each right may receive protection without undue interference with others. This will be especially important where special relationships exist, in the case at bar the relationship of employer and employee. In this case, consistent with the provisions and intent of the Ontario Human Rights Code, the employee's right requires reasonable steps towards an accommodation by the employer.20 |
2) Employer's obligations
The employer's obligation to accommodate is not limitless, and will vary from one case to the next. The Supreme Court has recognized these discrepancies and has set the boundary of accommodation at the point of undue hardship:
| The duty in a case of adverse effect discrimination on the basis of religion or creed is to take reasonable steps to accommodate the complainant, short of undue hardship: in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employer's business and without undue expense to the employer.21 |
What constitutes undue hardship? How does one determine if an employer has attempted to accommodate to the point where any further attempts at accommodation would result in undue hardship? In Alberta Human Rights Commission v. Central Alberta Dairy Pool,22 the Supreme Court answered these questions in part by establishing a list of factors to be considered in evaluating an employer's efforts to accommodate:
| I do not find it necessary to provide a comprehensive definition of what constitutes undue hardship but I believe it may be helpful to list some of the factors that may be relevant to such an appraisal. I begin by adopting those identified by the Board of Inquiry in the case at bar - financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case.23 |
The Court also noted that the burden of proving that legitimate efforts have been made to accommodate an employee to the point of undue hardship lies with the employer.24 More recently, the Supreme Court confirmed that it is up to the employer to search for suitable methods of accommodation and to propose these methods to the employee:
| While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business.25 |
3) Employee's obligations
As early as 1985 when the O'Malley decision was handed down, the Supreme Court recognized that the employer's duty to accommodate entailed a corresponding duty on the part of the employee to accept a reasonable compromise:
| The employer must take reasonable steps towards that end which may or may not result in full accommodation. Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment.26 |
This duty was reiterated in Renaud,27 where the Supreme Court outlined the role of the employee in arriving at a reasonable accommodation:
| To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered. |
| This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. 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 proposals to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre, J., in O'Malley. 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's obligations are therefore limited to informing the employer of the situation warranting attention, facilitating the accommodation process, and ultimately accepting what is viewed as reasonable accommodation.
| B) Decision |
After having reviewed the evidence, the Adjudicator concluded that the employer's offer of alternate employment at another location constituted a reasonable accommodation and proceeded to dismiss the Applicant's grievance. The essence of her reasoning is reflected in the following passage:
| When Mr. Cornwall offered to provide her with another position at the same level and money within the Department but at another location, the grievor refused to consider this option. Since the grievor's disability arose out of a chemical spill in the library, I am of the opinion that the offer constituted a reasonable offer of accommodation on the part of the employer. The grievor provided no reasonable explanation for her refusal to consider it. In light of these facts, I cannot find that there was a failure of the duty to accommodate on the part of the employer.28 |
According to the Applicant, the Adjudicator erred in law in dismissing the grievance on that basis. What the Applicant argues is that the solution which she advanced was the most appropriate in the circumstances. In so stating, the Applicant submits that her health should have been a major factor in determining whether the duty to accommodate had been met and that part-time work had been identified by her doctor as the appropriate solution. The Applicant further contends that at the onset, the accommodation should be aimed at reintegrating the employee in his or her own job. Only when such accommodation is not possible must the issue of alternate work be explored.29
I note in this regard that the possibility of reintegrating the Applicant in her original job under the two scenarios proposed by the Applicant was considered by the employer, but was not pursued for operational reasons. With respect to the proposal that she return to her job on a part-time basis for a trial period of three months,30 the operational objections were summarized as follows:
| Ms. Guibord's cataloguing duties were required to be performed on a full-time basis. If she were given half-day duties only, the Department would need to hire someone else for half days for an approximately three-month period [sic] and this was impossible. It would take one month of this period to train anyone they were able to hire. The general philosophy that he (Mr. Cornwall) as a manager was working with at the time was "do more with less". There was a tremendous backlog in work and restructuring of the Department was taking place. He noted that he "needed every hand to work as a team".31 |
With respect to the proposal that she return to her job at another location, the operational objections were summarized as follows:
| Ms. Guibord works with documents. She organizes them, catalogues and classifies them according to a set procedure. Mr. Ekins felt that she should not be allowed to work at another location because of the requirement of supervision and the difficulty of consulting with her.32 |
While the Applicant may disagree with the soundness of the reasons offered by the employer for not accepting her proposals, it cannot be said that these reasons do not reflect genuine operational concerns. The Applicant argues that having regard to the quickness with which the employer's response was given, it is "inconceivable" that the employer could have fully assessed its duty to accommodate before advancing its proposal.33 I do not believe that the time within which the response was given is inconsistent with it having been given in compliance with the duty to accommodate.
The Applicant further contends that the employer should have ignored its operational concerns in order to give effect to her proposal. According to her, these concerns were not sufficiently valid to allow the Adjudicator to hold, in effect, that in denying her request, the employer had nevertheless accommodated her to the point of undue hardship.34 However, as I read the decision of the Supreme Court in Central Alberta Dairy Pool,35 the concerns raised by the employer fell within the class of factors relevant to the determination of what constitutes undue hardship. That is the context in which the Adjudicator turned her mind to the employer's offer and found that the Applicant had a duty to at least consider the accommodation extended to her and that she failed to provide a reasonable explanation for refusing to consider it.
The Applicant attacks this last finding on the basis that it was not open to the Adjudicator on the evidence to conclude that she had failed to provide a reasonable explanation for the refusal. She maintains that her refusal was based on valid medical reasons. In so stating, the Applicant relies on the affidavit of Derek Dagger who attended at the hearing before the Adjudicator on her behalf and who states that Dr. Molot, in addition to the testimony summarized by the Adjudicator in her decision, testified as follows:
| 8. In addition to this evidence, Dr. Molot testified that the safest and best course for the Applicant was to gradually reintegrate into her previous work environment such that she would be able to tolerate that environment. Accordingly, he provided a medical certificate stating that she could return to work for half days, which was entered as Exhibit G-9. Dr. Molot stated that this offered the best chance of a successful return to work on a full-time basis. |
| 9. Dr. Molot testified that, after developing environmental sensitivity due to an initial exposure to a certain substance, a person may also become sensitized to new and different substances upon exposure in the future, even though those substances did not affect the person in the first place. Dr. Molot testified that he expected that the Applicant's environmental sensitivity would cause her difficulties in another work environment. He further testified that one could expect that exposing the Applicant to another environment in Place de Ville would be detrimental to the Applicant's health. |
10. Evidence before the Adjudicator confirmed the job which was offered by the Department was located in a different tower of Place de Ville. Evidence also confirmed that the Canada Building at 344 Slater Street is just around the corner from the location of Place de Ville.
More importantly, the Affiant states at paragraph 11 of the affidavit that:
11. The Applicant testified that the reason for her refusal of the Department's job offer was the advice she received from Dr. Molot as described in paragraphs 8 and 9 above.
Accordingly, the Applicant argues that there is no basis for the Adjudicator's conclusion that she provided no reasonable explanation for her refusal to consider the employer's attempt to accommodate her.
The problem with this contention is that while paragraph 11 of the Dagger affidavit is evidence that the Applicant had in mind the concerns expressed by Dr. Molot when she refused the employer's offer, it falls short of asserting that these concerns were conveyed to the employer. In this respect, the only evidence which specifically deals with the reasons conveyed by the Applicant to her employer at the relevant time is the affidavit of Don Johns who was also in attendance at the hearing and a memo drafted shortly after the Applicant's refusal. In his affidavit Don Johns states that Mr. Cornwall's testimony at the hearing was that:
"the only reason the Applicant provided to him for not accepting his offer... was that she wanted her own job back in the library and that she would not consider the other position at the registry."36 (Emphasis added.)
The subsequent memo which was drafted by Mr. Cornwall with the obvious view of recording the Applicant's stated justification for her refusal reads:
"You stated that you were not interested in being assigned other duties until such time that you were able to come back to work on a full-time basis. You also indicated to me that, in order to evaluate the effects of the workplace environment on your immune system, you had to gradually be exposed to the work milieu of the library"37
There is no evidence that the Applicant conveyed anything else to her employer at the relevant time, and specifically, there is no evidence that she conveyed any concerns of a medical nature insofar as the alternative work location proposed by the employer was concerned. It follows that contrary to what is asserted by the Applicant, it cannot be said that the Adjudicator ignored the evidence in concluding that she had not provided a reasonable explanation for her refusal.
The Adjudicator reasoned that as the offer put forth by the employer was, on the face of it, reasonable, it called for some response on the part of the Applicant. A job at a different location had the advantage of placing the Applicant in a different working environment thereby taking her out of the environment which caused her illness. Prima facie, it was a solution that was responsive to the Applicant's condition. If at the relevant time, the Applicant had reason to believe that exposing her to this new work location would not only be of no assistance but would actually be detrimental to her condition,38 she had a
duty to let that be known. On the basis of the record, it was open to the Adjudicator to hold that the Applicant failed in that duty thereby preventing the identification and development of a suitable accommodation.
For these reasons, the application is dismissed.
Marc Noël
Judge
Ottawa, Ontario
November 22, 1996
__________________1 The facts summarized under this heading are essentially as stated in the Applicant's Memorandum, Applicant's Application Record, Vol. II, at p. 152 et seq.
2 Reasons for Decision, Applicant's Application Record, Vol. I, p. 16.
3 Applicant's Application Record, Vol. I, p. 45.
4 Applicant's Application Record, Vol. I, p. 125.
5 Reasons for Decision, Applicant's Application Record, Vol. I, p. 22.
6 Reasons for Decision, Applicant's Application Record, p. 16.
7 Reasons for Decision, Applicant's Application Record, p. 15.
8 Applicant's Application Record, Vol. I, p. 130.
9 Reasons for Decision, Applicant's Application Record, Vol. I, p. 19 and 21; affidavit of Don Johns, Applicant's Application Record, Vol. I, p. 147.
10 Reasons for Decision, Applicant's Application Record, Vol. I, p. 18.
11 Grievance, Applicant's Application Record, Vol. I, p. 101.
12 Reasons for Decision, Applicant's Application Record, Vol. I, p. 14.
13 Affidavit of Derek Dagger, Applicant's Application Record, Vol. I, p. 7.
14 Reasons for Decision, Applicant's Application Record, Vol. I, p. 18.
15 Reasons for Decision, Applicant's Application Record, Vol. I, p. 18.
16 Reasons for Decision, Applicant's Application Record, Vol. I, p. 19.
17 David Lepofsky, "The Duty to Accommodate: A Purposive Approach", (1992) 1 CLLJ at pages 5 & 6.
18 In the case at bar, we are concerned with discrimination on the grounds of physical disability.
19 [1985] 2 S.C.R. 536 [hereinafter "O'Malley"].
22 [1990] 2 S.C.R. 489 [hereinafter "Central Alberta Dairy Pool"].
25 Renaud v. Board of Education of Central Okanagan No. 23 and Canadian Union of Public Employees, Local 523 (1992), 141 N.R. 185 at p. 210 (S.C.C.) [hereinafter "Renaud"].
26 O'Malley, supra note 19 at p. 555.
27 Renaud, supra note 25 at p. 210.
28 Reasons for Decision, Applicant's Application Record, p. 25.
29 See M. Ginsburg and Catherine Bickley, "Accommodating the Disabled: Emerging Issues under Human Rights Legislation", (1993) 1 C.L.L.J. 72 at D. 91.
30 Which period was then to be re-evaluated by Dr. Molot.
31 Reasons for Decision, Applicant's Application Record, Vol. I, p. 19.
32 Reasons for Decision, Applicant's Application Record, Vol. I, p. 18.
33 Applicant's Memorandum of Argument, paragraph 47.
34 Applicant's Memorandum of Argument, paragraph 42.
36 Applicant's Application Record, affidavit of Don Johns, paragraph 9, Vol. I, p. 147.
37 Memo from Karl Cornwall to Claudette Guibord dated November 28, 1991, Applicant's Application Record, Vol. I, p. 46.
38 As Dr. Molot suggested during his testimony, see affidavit of Derek Dagger, paragraph 9 in fine, Applicant's Application Record, Vol I, p. 147.