HUMAN RIGHTS TRIBUNAL OF ONTARIO

______________________________________________________________________ B E T W E E N:

Marie Anne Pilon Applicant

-and-

Corporation of the City of Cornwall, Robert Menagh, David Dick and John Flannigan

Respondents

______________________________________________________________________

DECISION ______________________________________________________________________ Adjudicator: David Muir Date: September 14, 2011 File Number: TR-0465-09 Citation: 2011 HRTO 1695 Indexed as: Pilon v. Cornwall (City) ______________________________________________________________________

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APPEARANCES ) Marie Anne Pilon, Applicant ) Reg Pilon, Representative ) ) Corporation of the City of Cornwall, ) Robert Menagh, David Dick ) John Saunders, Counsel and John Flannigan, Respondents ) )

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[1] This is an Application filed on June 11, 2009, under section 53(5) of Part VI of the

Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

[2] The applicant has alleged in her human rights complaint filed with the Ontario

Human Rights Commission on January 29, 2007, that her rights to be free from

discrimination in employment on the basis of sex and disability were breached by the

respondents. The applicant also claimed that she was subject to reprisals for seeking to

vindicate her rights under the Code.

[3] A hearing was held in this case over a number of days in November and

December 2010. I heard from the applicant, the individual respondents, and Barb

Landry, a Labour Relations Coordinator employed by the respondent City. At the time

of the events giving rise to this Application, the applicant was employed as a customer

service representative in the respondent City’s Finance Department. The respondent

John Flannigan was her immediate supervisor and David Dick was the Director of

Finance and Mr. Flannigan’s supervisor. The respondent Robert Menagh became the

Manager of Human Resources in January 2005, partway through the narrative

described below. Throughout this Decision, I will refer to the respondents collectively

as the “respondents” unless a specific reference is required.

[4] A note on credibility. This case was somewhat unusual in that there are not

significant credibility issues despite the fact that the events described below occurred

five to six years prior to the hearing. The respondents argue that the applicant’s

evidence indicates a tendency to exaggerate her claims and, accordingly, where there

is conflict in the evidence I should prefer that of the respondents. However, I have

found, generally speaking, that the witnesses all attempted to relay their best

recollections of what occurred despite the passage of time. The respondents are

correct that the applicant made claims, in particular about her state of health at

particular points in time, which could not be corroborated by contemporaneous medical

records. The respondents also made claims that were not supported by

contemporaneous documentation. To my mind, these credibility issues concerns were

insubstantial and had no effect on any material issue to be determined.

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[5] At the conclusion of the evidence, the parties agreed to make final submissions

in writing. I have received those submissions. The applicant in her submissions alluded

to a number of facts and documents not in evidence. Much, but not all, of what the

applicant referred to in her submissions had been produced but had not been entered

into evidence for the most part because the material was no longer relevant as a

consequence of a prior interim decision in this case. The applicant also filed with her

closing submissions a statement made by an individual who was not tendered as a

witness. The respondents objected to any of this material being considered by me in my

deliberations. The respondents are correct in most respects. The new material was not

relied on in coming to any of the conclusions below, but even if it had been, it would not

have affected the result in any respect.

[6] For the reasons set out below the Application is allowed in part. The failures of

the respondents are both substantive and procedural. I have found that the

respondents, the City of Cornwall, John Flannigan and David Dick, discriminated

against the applicant in suggesting to her that she attempt to confine her washroom

use to her scheduled break times and failed to accommodate the applicant to the point

of undue hardship when requested to do so in May 2004.

[7] I have also concluded that the applicant was harassed by a fellow employee who

complained to management about her use of the washroom in April 2004. I find that the

respondents did not properly address the harassment of the applicant.

[8] I find as well that the failure of the respondents, the City of Cornwall, John

Flannigan and David Dick, to appropriately respond to the request for accommodation

and their related failure to respond to her complaint of harassment was an ongoing

issue in this workplace and affected the applicant’s reaction to events of September

2005, for which the respondents bear responsibility.

[9] Finally, I have found that the respondents failed again to investigate the

applicant’s concerns although requested to do so in the Fall of 2005, and that the

corporate respondent and Robert Menagh discriminated against the applicant in July

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2006, and failed again in their obligation to accommodate the applicant by terminating

her employment rather than make further inquiries of her health and need for

accommodation at that time.

[10] A number of other allegations of harassment and discrimination made by the

applicant have already been dismissed by the Tribunal in a prior decision (see 2010

HRTO 680). As a result, any claim of discrimination on the basis of sex has been

disposed of. I have also concluded that there is no evidence of a reprisal or reprisals by

any of the respondents for the applicant having sought to vindicate her rights under the

Code.

THE LEGAL FRAMEWORK

[11] The relevant provisions of the Code are set out here for convenience:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs,

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considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

[12] As can be seen from the language above, section 5(1) of the Code prohibits

discrimination in employment on the basis of disability. A question that arises from the

facts includes whether the applicant was a person with a disability who experienced

differential treatment linked to that disability which constitutes discrimination under the

Code. The differential treatment can be direct or indirect (see s. 24 of the Code). As

will be discussed in more detail below, I have concluded that the applicant was a person

with a disability at the material times contemplated by this Application.

[13] In this case another question is whether or not the applicant was unable to

comply with workplace requirements due to her disability. The Code provides in section

17(1) that if the individual with the disability is “incapable of performing or fulfilling the …

requirements attending the exercise of the right because of a disability,” then differential

treatment is not an infringement of that person’s rights. However, section 17(2) then

imports the duty to accommodate into the analysis providing that a person with a

disability will not be considered incapable of performing the essential duties of his or her

job if the needs of that person can be accommodated “without undue hardship on the

person responsible for accommodating those needs.” In determining whether there is

undue hardship, the Code specifically identifies two considerations: cost (including

outside sources of funding) and health and safety requirements.

[14] I have found for the reasons set out below that the applicant was unable to

comply with reasonable requirements of the employer on at least two occasions. The

next step in the analysis is when faced with a request for accommodation of a disability

that prevents the employee from complying with a workplace requirement, what

responsibility rests with the employer.

[15] The accommodation of a disability is a collaborative process but a significant

burden rests on the party providing the employment. An employer is required to

accommodate to the point of undue hardship. In some cases an appropriate

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accommodation may not be possible within that standard. However, the person with a

duty to accommodate must make a real and bona fide effort to accommodate Code-

related needs. The person requiring accommodation must also cooperate in the

attempt to find suitable accommodation by, amongst other things, making their needs

known and providing the information required.

[16] The Supreme Court of Canada in British Columbia (Public Service Employee

Relations Commission) v. BCGSEU, 1999 CanLII 652 (S.C.C.) (“Meiorin”), has

accepted that the duty to accommodate has both a substantive and a procedural

component. To meet the procedural part of the duty to accommodate, a respondent

must take adequate steps to explore what accommodation is needed, and to assess

accommodation options. That involves obtaining all relevant information about an

applicant’s situation, at least where it is readily available. See also ADGA Group

Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.). The substantive

component of the analysis considers the reasonableness of the accommodation offered

or a respondent's reasons for not providing accommodation. It is a respondent who

bears the onus of demonstrating what considerations, assessments, and steps were

undertaken to accommodate the employee to the point of undue hardship, see Meiorin.

For the reasons set out below I find that the respondents failed to accommodate the

applicant – both substantively and procedurally – to the point of undue hardship.

[17] In Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, the Tribunal

concluded that the failure to meet the procedural dimensions of the duty to

accommodate – the duty to inquire and assess – is a form of discrimination in itself

because it denies the affected person the benefit of the prohibition against

discrimination, and a proper search for accommodation. The ADGA decision was

confirmed on appeal: ADGA Group Consultants Inc. v. Lane, supra.

[17] The applicant has also alleged that she experienced harassment by the

respondents. In order to establish this, the applicant must show that she was subject to

a course of vexatious comment or conduct that the respondents knew or ought to have

known would be unwelcome (see section 10(1) of the Code). I find for the reasons set

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out below that the applicant was harassed by a co-worker(s) and the respondents failed

to properly address this issue as well.

[18] Finally the applicant has alleged that she was subject to reprisal. In order to

establish this element of her claim, the applicant must show that she was subject to

some action, or threat of action meant to threaten her for, or intended to prevent her in

some way, from seeking to vindicate her Code rights or her participation in a Code

proceeding. Unlike other provisions of the Code, where the intention of the respondent

is by and large irrelevant, under section 8 intention is important and an applicant must

establish that the respondent intended its action to be a reprisal for their seeking to

vindicate their rights under the Code. .

EVIDENCE AND ANALYSIS

[19] The applicant began her employment with the corporate respondent in 1982.

She worked in a number of city departments over the years but most recently held a

position in the Finance Department. She left her employment in September 2005 for

reasons which will be canvassed below. The applicant never returned to the workplace

and her employment was terminated on July 4, 2006.

[20] Much of the background to this Application is controversial and was the subject

of a prior interim decision in which I dismissed significant aspects of the Application

because they were out of time (see 2010 HRTO 680). Nonetheless it is important to

understand that the applicant had been engaged in a long debate with the respondent

employer about her job classification and work duties. The applicant believes that she

was improperly compensated as a consequence of her sex since 1988. Related to this

issue is the fact that the applicant was concerned that over time, her job duties were

being diluted and, as a consequence, her classification and compensation might be

affected. These underlying concerns engendered some level of workplace conflict over

job duties with one of her work colleagues. This individual also had a role to play in

relation to the Code issues that revolved around this workplace dispute.

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[21] The allegations in this Application flow from what the applicant has characterized

as harassment and discrimination related to her disability. The applicant has been

diagnosed with colitis for some time. It was not disputed by the respondents that one

of the effects of this condition is that she has an unpredictable need to use the

washroom sometimes on an urgent and frequent basis. In order to accommodate this

disability the applicant has required essentially unrestricted access to the washroom

during work hours. This issue has never been adequately responded to by the

respondent employer.

[22] The applicant’s need for an accommodation around her use of the washroom

unfortunately became an element of the discord in the workplace. The applicant

believes that she was harassed by a co-worker in 2002 in the form of heightened

scrutiny and complaints to management about her use of the washroom outside of

scheduled break times. Management appears to have left it to the applicant to deal with

it at the time. It was not dealt with except by the co-worker in question leaving the

workplace.

[23] This issue was a recurring one. There is no dispute that one or more of her work

colleagues complained to management about the applicant’s use of the washroom

outside of formal break times. These complaints were overtly expressed by one of the

applicant’s co-workers but there were also subtle suggestions by others which took the

form of complaints that the applicant was not at her desk, or that she disappeared

during the work day or that she took too long breaks. The failure of the respondents to

properly address these issues, in particular management’s failure to manage the other

employees in the unit, became interwoven with other workplace disputes in what

appears at times to have been significantly dysfunctional workplace.

[24] While for the applicant what she experienced and describes as harassment was

an ongoing issue, in fact it was not truly continuous but it was also never satisfactorily

resolved. Moreover, to describe the actions and inactions of the respondents as

harassment mischaracterizes much of what went wrong in this employment relationship.

Although the behaviour of the co-workers who scrutinized the applicant’s washroom use

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and/or complained about her to management was reasonably perceived by the

applicant as harassment, as I pointed out in 2010 HRTO 680, in addition to the

harassing behaviour of some of her work colleagues, the other thread that runs through

all of her allegations was an ongoing failure on the part of the respondent employer to

appropriately acknowledge and respond to the applicant’s request for accommodation.

Inextricably linked with this failure is, as suggested earlier, the failure of the respondents

to adequately respond to the complaint of harassment, which had ongoing

consequences.

[25] The issues in this workplace, both Code-related and otherwise, played out in

three different episodes beginning in April 2004. Following that logic I have organized

these reasons around these three episodes culminating in the applicant’s dismissal by

the employer in July 2006.

[26] Although raising similar concerns to what followed, I have previously ruled that

the incident of alleged harassment of the applicant by a fellow employee in 2002 was

out of time. The first incidents I will deal with occurred in April and May 2004 when the

issue of the applicant’s need to use the washroom at times other then formal break

times came to a head again. The second period relates to the Summer 2005

culminating in the applicant’s leaving the workplace on September 15, 2005, due to

illness. Finally, there is the period after the applicant left the workplace as a

consequence of her illness until her termination on July 4, 2006.

Spring and Summer 2004

[27] On April 28, 2004, the applicant’s supervisor, John Flannigan, had a

conversation with the applicant about her use of the washroom. There is little dispute

about what was said. It is agreed that the applicant was not explicitly told that she could

not use the washroom outside of her break times. However, it is also clear that she was

being advised by her employer that her use of the washroom outside of her regular

breaks was inappropriate. The discussion included other issues, such as the

applicant’s alleged lateness and other workplace issues including the conflict between

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the applicant and a colleague, Ms. O.

[28] Mr. Flannigan told the applicant that if she was using the washroom either

before or after her scheduled break it gave her work colleagues the impression she was

taking longer breaks than were allowed. Mr. Flannigan agreed that he told the applicant

that by her use of the washroom at other than scheduled break times she “was sending

the wrong message”. The applicant was given the same message on April 30, 2004. It

is also agreed that Mr. Flannigan told the applicant at that time that a fellow employee,

Ms. O, had complained that she was using the washroom at times other than her

scheduled breaks.

[29] Mr. David Dick, the Finance Manager and Mr. Flannigan’s direct report, had

heard similar complaints from unnamed individuals. It was clearly an issue in this

workplace. The applicant testified that she went home early from work on April 30,

2004. She testified that she felt that these events were a repeat of what she perceived

to have been harassment by a co-worker in 2002 and that the associated stress

exacerbated her colitis symptoms. In fact, the applicant was advised to go home by Ms.

Dumoulin, Health and Safety Coordinator in Human Resources, because of the

emotional state she appeared to be in. There was a dispute about her entitlement to

sick pay for the day which was later resolved in the applicant’s favour.

[30] The applicant saw her family physician on May 4, 2004, and was advised to take

four weeks off work for medical reasons related to her exacerbated colitis symptoms,

which she did.

[31] The applicant wrote a letter of complaint to the employer on May 4, 2004, and

made a formal written request for accommodation of her disability. The letter was

addressed to John Flannigan with copies to Cecil Vincent, Acting CEO; David Dick;

Diane Dumoulin, and Mellissa Morgan, President, CUPE Local 3251. The letter

begins:

I am writing this letter to express my anger and stress over your

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unreasonable request to expect me to only go to the washroom during my breaks.

And concludes, after outlining the applicant’s version of the events of the Spring 2002

as well as April 28 and 30, 2004, as follows:

You are aware that I have a medical condition called Colitis and obviously do not respect my needs. I have enclosed a letter from my doctor defining my medical condition.

Under the Human Rights Code, the City of Cornwall has an obligation to accommodate me by allowing me to go to the washroom.

I am requesting that the City of Cornwall accommodate me due to my medical condition and provide me with a written confirmation that it will honour the Human Rights Code and grant me the right to use the washroom whenever the need arises.

Should the problem arise again, I will not hesitate to file a harassment charge.

[32] The applicant attached a letter from her family physician, which advised the

respondent employer that the applicant had a medical condition that required her to

have essentially unrestricted access to the washroom:

Marie-Anne suffers from a specific medical condition, which affects her intestine. As a result, she has unpredictable need to visit the washroom. There is an urgency to do so when the need arrives and she has no control over the number of visits or timing of the visits daily. Anxiety and stress will at times increase the frequency. As a result she will always need unrestricted access to a washroom.

[33] The respondents’ position in this proceeding is that its response to the applicant’s

complaint and request for accommodation was confined to a letter dated May 19, 2004,

signed by David Dick, which reads in its entirety as follows:

Dear Ms. Pilon:

The City has never refused your requests for washroom breaks.

[34] Despite the respondents’ position that their only response to the applicant was

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the letter above, on May 18, 2004, the respondent employer advised the applicant that

an investigation of her complaint would be conducted and that she would be interviewed

as part of the investigation. The applicant wrote to the respondents on May 18, 2004,

acknowledging the invitation to be interviewed but asked for a delay in order to see her

family physician again before the interview took place. This request was

accommodated. The applicant also put the respondent employer on notice that their

failure to respond to her May 4th request for accommodation was increasing her stress

and worsening her medical condition. There was back and forth between the

respondent, the applicant and her bargaining agent about the process and the applicant

was finally interviewed on June 16, 2004.

[35] The investigation was conducted by Barbara Landry, a Labour Relations

Coordinator in Human Resources and Ms. Dumoulin. At the applicant’s request, a

union official attended her interview. Six other individuals had been interviewed prior to

the applicant. These interviews were apparently taped. The applicant requested a copy

of the tape of her interview but the respondent declined to provide it. The respondent

stated at the time that they would have to consult counsel. This issue was never

resolved. When the question of the tapes arose during these proceedings, the

respondents stated that the tapes have been lost.

[36] The result of the investigation, a report entitled Informal Review on Allegations of

Harassment in the Finance Department (the “Report”), is dated July 16, 2004. The

respondents take the position that according to its policy at the time there was a

distinction made between a formal and informal review. A formal review according to

the respondents is undertaken when an employee makes a “specific” complaint. The

respondents take the position that no such complaint was made in this case and

accordingly there was no obligation on their part to conduct a formal investigation.

[37] Despite the respondents’ position on the genesis of the investigation, the Report

references the applicant’s letter of May 4th, and despite its title, suggests something

other than an informal review. The following background is set out in the Report:

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On Friday April 30th, 2004 at 9:30 a.m. Marie-Anne Champagne-Pilon came to Diane Dumoulin’s office very upset. She discussed a conversation she had with Mr. John Flanagan, Supervisor, regarding bathroom breaks and her job duties. At the time, she felt she was being harassed over her bathroom breaks, Due to her emotional state, Diane Dumoulin advised her to go home and also the see her physician.

On May 4, 2004 Marie-Anne Champagne-Pilon had delivered a letter to Diane Dumoulin with copies for Mr. Cecil Vincent, CAO, Mr. David Dick, Manager, Financial Services, and Mr. John Flanagan, Supervisor. These letters were hand-delivered to the interested parties by Diane Dumoulin.

The letter stated that she felt anger and stress over the unreasonable request, in her opinion related to the use of the washroom.

As per the Corporation of the City of Cornwall’s Harassment in the Workplace Policy, CSIHR03-17, the Corporation conducted a thorough investigation into the complaint and endeavoured to effect a settlement. (emphasis added)

[38] The Report contains a number of findings that capture what appear to have

been the critical points of conflict in the workplace. The Report acknowledges that her

supervisor had spoken to the applicant about her use of the washroom and “the

perception from her co-workers”. The Report goes on to conclude that the respondents

had never “directly denied” the applicant access to the washroom “but in conversations

with her supervisor, have led her to believe that her washroom breaks are inappropriate

when taken around regular break times”.

[39] The Report also speaks to the workplace conflict around job duties:

4. Tasks within Marie-Anne’s job Description have been an issue with a co-worker and her Supervisor for a period of time. Job tasks have been reassigned to the co-worker which has resulted in Marie-Anne being very protective of all of her job tasks.

…

6. With the exception of one (1) co-worker, all have said they have a good working relationship with Marie-Anne. She is very friendly, chatty and willing to help out. There clearly is a personality conflict with the other employee and Marie-Anne. The other employee constantly competes through the Supervisor for job tasks in Marie-Anne’s job description.

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[40] The Report reframes the issues underlying the applicant’s May 4th letter as, in

addition to the specific concern about washroom use, conflict between the applicant and

one co-worker, Ms O. who competes for the applicant’s job duties. It is significant that

the co-worker in question is the primary source of employee complaints about the

applicant’s washroom use at this time. Clearly, the issues of workload distribution and

complaints about double standards as regards to break times were interwoven and the

respondents were aware of this as early as July 2004.

[41] The Report makes seven recommendations as follows:

1. Supervisor meet with both employees (Marie-Anne and [Ms. O.]) separately, reviewing their job descriptions and ensuring that both employees clearly understand what their duties are.

2. Ensure that the proper protocol is followed if it is necessary to change duties on a job description. All affected employees should be aware of any change to their job duties.

3. When dealing with sensitive issues the employee be offered Union Representation at the meeting. There should also be one (1) additional non-union employee present who will take minutes/notes.

4. Explore the possibility of cross-training the other individuals in the department to cover absenteeism and vacation of the Customer Service Representative.

5. The Corporation needs to provide Supervisory Level training within six (6) months, with on-going refresher courses to ensure consistency throughout the Corporation. All employees, including Supervisors need to review the Harassment in the Workplace Policy on a regular basis to ensure compliance of the Ontario Human Rights Code.

6. Ms. Diane Dumoulin, Health & Safety, W.S.I.B. & Training Officer meet with Marie-Anne to promote the Corporation's commitment to provide support services to assist a therapeutic process to enhance physiological and psychological well-being.

7. In future should Ms. Champagne-Pilon have any unsolved issues within the department, she should follow the appropriate ·chain of command".

[42] It is clear from the evidence that none of the recommendations was

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implemented. Mr. Dick testified that he received the Report, reviewed it and, being

satisfied that there had been no violations of the Code, decided that nothing would be

done with the Report.

[43] Despite Mr. Dick’s views that all was well, the conclusion of the Report reads as

follows:

The Corporation’s findings do not clearly define a Harassment issue, however several incidents, if not dealt with immediately, may result in a poisoned atmosphere being created which could be considered harassment under the provisions of the Human Rights Code.

[44] A significant issue for the applicant was the fact that she was never provided a

copy of the Report and heard nothing about the results of the investigation. The

applicant testified that had she seen the Report at the time it might have given her some

comfort that her concerns were being taken seriously at least. The applicant takes the

position in her final submissions that the failure to provide her the Report or implement

any of its recommendations was a reprisal. Despite these concerns the applicant did not

formally request a copy of the Report until December 2005. These allegations of reprisal

were not included in the complaint underlying this Application and therefore I can not

deal with them in this Decision.

[45] As a consequence of not ever being provided with the Report or any follow up on

the investigation, the applicant stated that she was never sure that her request for

appropriate accommodation had been acknowledged by the respondents. The applicant

testified that although she was not directly confronted with reports of complaints from

other employees, there were indications that the issue from her perspective had not

been resolved in the months following. The applicant testified that there were remarks

about her not being at her desk. The applicant also testified that her supervisor, Mr.

Flannigan, did note on one or more occasions that she was taking too long breaks. As

will be seen below, the respondents acknowledge that complaints continued to be made

about the applicant that in my view appear to have been related in part to the applicant’s

need for unpredictable, unrestricted use of the washroom during the day, which would

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have had an impact on her availability at her work station.

[46] As indicated earlier, the respondents take the position that the investigation and

Report were the result of an informal review requested by Mr. Dick and not a response

to the applicant’s complaint and request for accommodation. Accordingly, the

respondents claim that there was no obligation to disclose the Report or any follow up

on it to the applicant. The position was essentially that they could put the Report on the

shelf if they chose to, and that is precisely what was done with it.

[47] On this point Mr. Dick testified that he wanted to ensure that there were no

violations of the Code in his department and consequently requested an informal

investigation from Human Resources. Ms. Landry, who actually conducted the

investigation with Ms. Dumoulin gave a slightly, but in an important way, different

version of how the investigation was initiated. Ms. Landry testified that she was

contacted by Cecil Vincent, acting CAO of the Corporation, who reported that Mr. Dick

was upset by the allegations of harassment made against Mr. Flannigan and that Mr.

Dick wanted an informal investigation.

[48] Ms. Landry also testified that in her view the applicant was merely a witness like

everyone else who was interviewed as part of the process. Both Ms. Landry and Mr.

Dick testified that because there was no specific complaint, the City was not required to

conduct a formal review pursuant to its policy. Neither witness could point to any policy

document which drew this kind of distinction.

[49] Mr. Dick’s evidence that there was no complaint is contradicted by the Report

itself which refers to a “complaint” as well as a subsequent statement he made in a

memo to Ms. Landry dated September 15, 2005. More importantly, in the passage

below from that memo Mr. Dick discusses his understanding of the 2004 episode:

… We have dealt with a number of complaints from staff within the Tax Department over the last number of years and all have some relationship to Marie-Anne. You will recall that an employee claimed that she [applicant] was taking excessive breaks which subsequently led to Marie-

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Anne filing an harassment charge against John and taking six weeks of stress leave. In light of the recent developments it would appear that there may be a constant here and the problems over the past number of years may be the responsibility of one employee.

[50] The respondents’ position on the investigation and subsequent Report was news

to the applicant. When asked by me how the applicant would have known that the

investigation was “informal” and that its results would not be shared with her, Ms.

Landry testified that the applicant should have known this. When asked how the

applicant should have known this, Ms. Landry testified that it was described as such in

the email exchange about the interviews conducted as part of the process. Ms. Landry

could not point to any such email. I have reviewed the email exchange produced and

there is nothing in the various emails that suggests such a description. Ms Landry also

testified that she had conducted eight investigations up to that point and in none of them

had the final report been provided to the complainant.

[51] The position of the respondents on this point is difficult to understand. Despite

the respondents’ evidence, it is clear that the applicant was making a complaint in her

letters of May 4 and 18, 2004. I do not find their reliance on her statement that if the

issues were not resolved she would “file a harassment charge” persuasive. Despite the

respondents’ assertions, I am not persuaded that the employer’s policy made a

distinction between a formal and an informal review at the time. More importantly, I find

that the applicant would have no way of knowing that the investigation she participated

in was not in response to her complaint and request for accommodation and would have

reasonably expected a response to her concerns.

[52] In any case, and most importantly for the purposes of the Code, the applicant’s

letters of May 4 and 18, in addition to being a formal request for accommodation, also

constitute a complaint which the respondents had an obligation to investigate. In my

view, it may not always be necessary to provide a copy of a report prepared after an

investigation and one can imagine situations where it would be entirely appropriate to

not do so. However, in this case, where an employee has made a formal request for

accommodation and there has been an investigation leading to a report, it was

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appropriate and required under the Code’s duty to accommodate for the respondents to

share the results of their investigation with the applicant. Instead of doing so, the

respondents simply shelved the Report and did not share it in any way with the person

who instigated the investigation. Given these facts, I find that the respondent City, Mr.

Flannigan and Mr. Dick failed in the Spring and Summer of 2004 to appropriately

investigate the applicant’s human rights concerns.

[53] As regards the applicant’s May 4th request for the accommodation of unrestricted

access to the washroom and written confirmation of same, the response of the

respondents was said to be the one-line May 19th letter set out above. In the

respondents’ view this was a complete answer to the applicant’s request for

accommodation.

[54] Mr. Flannigan agreed that he had raised the issue of washroom breaks with the

applicant in response to complaints made by Ms. O. Mr. Dick testified that he had

heard similar complaints. Mr. Flannigan knew that this had been an issue between the

applicant and another employee in 2002. The Report endorses the applicant’s view that

Mr. Flannigan’s interventions created the impression that her using the washroom

outside of the formal break time was inappropriate. Instead of taking steps to insulate

the applicant from the perceptions of her co-workers, the respondents made it Ms

Pilon’s problem and asked her to in effect defer to her co-workers’ concerns about

“double standards”. To his credit Mr. Flannigan did tell Ms. O., the primary, if not the

only, person complaining, that he could not restrict the applicant’s use of the washroom.

However, there is no evidence that Mr. Flanagan or Mr. Dick indicated to the applicant

that they understood the nature of the accommodation she required and would

endeavour to ensure that what she experienced as harassment would stop. There is

also no evidence that Mr. Flannigan or Mr. Dick told Ms. O. that it was inappropriate for

her to complain about this issue with the applicant or that anyone in management took

any other steps to deal with the problem.

[55] In the end, the result of the applicant’s May 4th complaint and request for

accommodation was an informal investigation into one aspect of the issue that

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vindicated her concerns to a considerable degree but was not shared with her, and a

one-line letter that completely misses the mark to the point of trivializing her request.

Because the respondents chose to treat this as a problem of workplace relationships

and not what it was, i.e. a human rights problem, the applicant had no idea what the

employer’s response to her concerns was and consequently, she testified, she was

uncertain as to whether or when the issue would arise again. This uncertainty, which I

find rests entirely at the feet of the respondent City and her supervisors Mr. Flannigan

and Mr. Dick, informed to some degree what happened a few months later when this

employment relationship unravelled.

[56] The respondents take the position that there is no evidence of discrimination or

harassment in these events. The respondents state that the City had never refused the

applicant permission to use the washroom and that once they provided the May 19th

letter the issue had been put to rest. I do not agree. Following the legal framework set

out above I find that the suggestion that her washroom use was “sending the wrong

message” was discrimination within the meaning of section 5(1) of the Code in that the

applicant could not comply with this otherwise reasonable workplace requirement as a

consequence of her medical condition. Although the employer’s “rule” was a

reasonable one, section 17(2) imposed the obligation on the respondents to

accommodate the applicant to the point of undue hardship.

[57] In my view, the respondent City, Mr. Flannigan and Mr. Dick did not take any

steps to respond to the applicant’s need for accommodation although explicitly

requested to do so by her and provided with medical information setting out her needs.

The respondents state that their letter of May 19, 2004 was a complete and appropriate

response. I do not agree. Mr. Dick’s letter simply does not address the issue of

concern to the applicant. The nature of the applicant’s request was that the respondents

acknowledge her need for essentially unrestricted access to the washroom when the

need arose. The issue was not that the employer had ever refused a request for a

washroom break; the applicant does not claim she was ever refused. Rather it was that

her need for unrestricted access be acknowledged, and not constrained by concerns

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that people were watching her and/or complaining about her to management. In my

view, the May 19th letter completely failed to respond to this issue.

[58] There can be no dispute that the applicant was a person with a disability at the

material times. She advised the employer of this in a formal way in May 2004. As a

consequence of her disability she was unable to comply with a workplace requirement

that she be at her desk and engaged in her duties at all times during the work day other

than the breaks to which she was entitled. She required an accommodation and

formally asked for such accommodation in May 2004. For all of the reasons set out

above, I find that the respondent City, Mr. Flannigan and Mr. Dick failed in their

procedural obligations in the accommodation process in failing to investigate the

applicant’s May 2004 complaints and request for accommodation. I also find that these

respondents failed to take any steps to accommodate the applicant to the point of

undue hardship. This is discrimination under the Code.

[59] The respondents did not claim that they could not accommodate the applicant or

that it would cause them undue hardship to do so.

[60] The applicant’s harassment claim is somewhat less clear. However, I accept the

applicant’s point that Mr. Flannigan, having been the supervisor in 2002 when another

employee was engaging in what was likely harassing behaviours around the applicant’s

use of the washroom, ought to have been aware of the import of Ms. O.’s behaviour in

the spring of 2004. Similarly, Mr. Dick was aware of complaints about the applicant’s

use of the washroom. The problematic nature of Ms. O.’s behaviour, and the

consequence of management’s failing to deal with it appropriately, was acknowledged

in the Report. I find that Mr. Flannigan’s acting on Ms. O.’s complaints and

communicating to the applicant the fact that an employee or employees was (or were)

complaining about her use of the washroom outside of formal break times, in addition to

the respondent City’s, Mr. Dick’s and Mr. Flannigan’s failure to respond either

procedurally or substantively to her request for accommodate, was harassment under

the Code and created a poisoned work environment for the applicant.

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Summer 2005

[61] There were no express reports from management to the applicant of complaints

about her washroom use subsequent to the events described above in the spring and

summer of 2004. However, I have accepted the applicant’s evidence, as described

above, that because the respondent employer, Mr. Dick and Mr. Flannigan did not

adequately respond to her concerns and request for accommodation the issue

remained unresolved. Accordingly, she was sensitive to the fact that the issue might

arise again. I also accept her evidence that there were oblique references to her being

away from her desk, or taking too long breaks etc. that raised the spectre that her

washroom use was being scrutinized by workplace colleagues and noted by

management. In the context of a broader workplace conflict about workload and work

distribution, this issue did re-emerge to some degree in the later Summer of 2005.

[62] In the spring of 2005, Ms. O. requested a leave of absence for health reasons.

She was expected to return in October 2005. The employer hired two summer students

to help out with the extra work that Ms. O. would have done. The students completed

their employment on September 2, 2005. The applicant claims that she was asked to

do both her work and Ms. O.’s. The respondents dispute that this was the case.

[63] The applicant testified that as the summer came to an end she became

concerned about how the work would get done after the summer students were gone. In

her view she would not be able to cope with the workload if any significant part of Ms.

O.’s job were given to her. The applicant raised these concerns with Mr. Flannigan, on

more than one occasion. The applicant testified that she raised with Mr. Flannigan her

concerns about how the work would get done if she got sick, or if anyone else in the

department took ill or left for other reasons.

[64] The applicant’s claim that there was too much work for her in particular and the

department in general was, according to the respondents, disputed by both her

workplace colleagues and management. As well, her workplace colleagues had

apparently begun to complain about the applicant to management beginning in the

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Spring of 2005. The nature of the complaints about the applicant are somewhat vague,

but were described by the respondents as being performance-related. As indicated

above, some of the complaints by co-workers were about the applicant not being at her

desk when she should have been, taking too long breaks, disappearing during the day,

or leaving work early. In this regard, I note that when asked what performance issues

of the applicant’s had been identified, Mr. Flannigan offered as the first example

complaints about the amount of time the applicant was away from her desk, which he

conceded might have been, in part, washroom breaks. In addition to these kinds of

issues being raised, there were also complaints about the applicant taking too much

time with personal phone calls. Some of these alleged shortcomings were abandoned

by the respondents when challenged at the hearing. For example, Mr. Flannigan

conceded that he never had any problems with the applicant leaving work early. There

was no evidence of what the work quality issues were.

[65] The triggering event for the impending events leading to the applicant’s leaving

the workplace was a report by a co-worker about the applicant’s use of the telephone.

On September 6, 2005, Ms. Pilon approached Mr. Flannigan with her concerns about

workload as described above. These concerns were communicated to Mr. Dick by Mr.

Flannigan. Two days, later Mr. Dick was approached by one of the applicant’s

colleagues, who told him that the applicant had spent approximately two hours on the

telephone trying to secure a doctor's appointment for her son. The applicant denies that

she spent two hours on the phone but acknowledges that she had received a call from

the hospital about scheduling an appointment for her son. She testified that she was

on hold for much of the time but that the total length of the call was about 20 minutes.

In any event, in light of her expressed concerns about workload, Mr. Dick told Mr.

Flannigan that this amount of time on the telephone was not appropriate.

[66] On September 13, 2005 Mr. Flannigan talked to the applicant about the amount

of time she was spending on the telephone and away from her desk. After this

discussion, the applicant spoke to Mr. Dick about the issue. Mr. Dick testified that he

told the applicant that there were concerns about her ability to get her work done. He

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told her that there were complaints that she was often away from her desk and that she

made too many personal calls. He agreed that the conversation included the

applicant’s concerns about workload and the need to replace Ms. O. He testified that

he confirmed that Ms. O. would not be replaced if she did not return to work in the Fall.

Mr. Dick testified that the applicant “was incensed” by this decision.

[67] Mr. Dick testified that he asked that the applicant provide him with a detailed time

study of her day so he could try and determine if in fact there was too much work for her

or if there were opportunities for efficiencies which would make it easier for her to

complete her tasks. The applicant declined to perform this task. Mr. Dick stated that he

cautioned her about the position she was taking and informed her that he would hold

her accountable for the completion of her job duties.

[68] The applicant agrees that she and Mr. Dick spoke about these issues on

September 13, after receiving no satisfaction from Mr. Flannigan. The applicant

testified that she reiterated her concerns that there needed to be someone to cover for

Ms. O. until she returned. The applicant stated that she told Mr. Dick that she was very

stressed out and told him that if she fell ill there would be no one left. The applicant

testified that his response to this information was to ask her to record her daily duties

over a three-day period. It is agreed that the applicant refused to take on this task. In

her view it would be impossible to do so and keep up with her work. The applicant was

clear that she did not tell the respondents that she was becoming ill or that the workload

or workplace stress would make her ill and unable to perform her regular duties.

[69] Subsequent to this discussion with the applicant, Mr. Dick asked Mr. Flannigan to

organize a meeting of the Tax Department employees to address these issues. The

purpose of the meeting, according to Mr. Dick and Mr. Flannigan, was to discuss the

related issues of the applicant’s workload, how the work of Ms. O. would be dealt with

now that the summer students were gone, and the other issues affecting the applicant’s

efficiency. The meeting did not go well. Various options about redistributing work in the

department were discussed; however, as was acknowledged by the respondents later,

the meeting was largely concerned with the applicant’s perceived shortcomings.

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[70] The situation continued to escalate. On the morning of September 14, 2005, Mr.

Dick was told by Mr. Flannigan that he had spoken with Ms. Landry. Ms Landry in turn

had received information from the union that the applicant was saying that Mr. Dick and

Mr. Flannigan had told her that she was going to be required to perform her own duties,

as well as those of the Cashier position which had been performed by Ms. O. The

applicant was also alleged to have stated that she had been told that she had a

deadline of the end of October to have all of this work up to date.

[71] Mr. Dick and Mr. Flannigan believed that this version of events was a wilful

fabrication on the part of the applicant. Mr. Dick testified that he decided that he would

make her job much easier by removing her telephone from her desk. Arrangements

were made on September 14, 2005, to have the telephone removed and placed away

from the applicant’s desk.

[72] Very shortly after this decision was made, but before the applicant would have

been aware of it, she spoke with Mr. Dick and told him she would not attend a meeting

like the one the day before without union representation; that she was actively seeking

to leave the department; and that once out of the department she would tell the mayor

her story.

[73] First thing the following day, September 15, 2005, the applicant went into Mr.

Flannigan’s office and told him that she would be filing harassment charges as a result

of the staff meeting on September 13th. She also advised Mr. Flannigan of the advice

the union had given her with respect to what she believed to be a request by the

employer that she perform the work of Ms. O. as well as her own.

[74] Moments later a technician arrived to move her phone. It is agreed that the

applicant became upset by this, locked up her cash box and left the workplace. She

has not returned to work with the respondent employer.

[75] The applicant alleges that she experienced harassment by Mr. Flannigan and Mr.

Dick. For example, the applicant believes that the request by Mr. Dick that she conduct

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a time study of her job was harassment. It is not clear how this would be the case. The

request may have made little sense to the applicant given her circumstances at the time

but that does not make it harassment under the Code. More generally, the applicant

believes that the failure on the part of the employer to re-distribute work and take steps

to replace Ms. O. was harassment of her by the respondents.

[76] I asked the applicant what she meant by harassment, and she responded that it

meant continuous ongoing differential treatment of one person compared to another,

particularly when they know that the differential treatment will aggravate the individual’s

medical condition. I also asked the applicant how she felt the treatment of her by the

respondents was harassment. The applicant responded that she was again being told

by management that co-workers were going behind her back and complaining about

her. She also testified that her co-workers had noted that she was using the washroom

more often. The applicant stated that they had never responded to her earlier complaint

and request for accommodation, and now she was being told that people were

complaining about her regarding, amongst other issues, not being at her desk.

[77] I find on a balance of probabilities that the events over the summer months 2005,

culminating in the applicant’s departure from the workplace, were in part a consequence

of the respondents’ failure to appropriately respond to her complaint and request for

accommodation in 2004. As discussed above, the employer mishandled the issues the

applicant raised in May 2004 and accordingly, the issues around her washroom use

were never resolved so far as the applicant was concerned. I also find that the applicant

reasonably perceived that the issue had not been dealt with and consequently remained

an issue in the workplace, as evidenced by the complaints about her being away from

her desk, disappearing during the work day, etc. The applicant’s use of the washroom

may not have been front and centre as it had been in May 2004, in that it was not the

only issue in the workplace. Also, her supervisors did not expressly tell her that her

washroom use was sending the wrong message or was inappropriate; nonetheless, the

issue remained unresolved and I find there is evidence that suggests it remained a

source of some of the complaints about the applicant which began to surface for her in

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the context of the workplace conflict in September 2005.

[78] I find that while there were several other issues unrelated to the applicant’s

disabilities that gave rise to complaints about her work habits, some of the concerns

expressed are more likely than not linked to her need for unpredictable and at times

frequent use of the washroom. I accept the applicant’s evidence that her colitis

symptoms were exacerbated by the stress associated with her workload concerns and

consequently she was likely away from her desk unpredictably and more often than at

earlier times. I find that to the extent that the complaints about the applicant were

linked to her washroom use these complaints constitute harassment of the applicant by

those who complained.

[79] In this regard the comments of Mr. Dick above, to the effect that there was a

constant in the workplace conflict, are revealing of the respondents’ understanding of

the issues. He is clearly suggesting that the applicant is the constant but in the same

memo references her complaints from 2004 as being part of the problem. However, the

problem was not the applicant’s complaint and request for accommodation– the material

problem was the respondents’ failure to adequately respond to the applicant’s complaint

and need for accommodation.

[80] Consequently, I find for the reasons set out earlier that to the extent that this

underlying unresolved issue was the source of complaints about the applicant,

management’s failure to properly respond to it in 2005 constitutes discrimination. As

noted by the corporate respondent’s own Report, the failure to adequately deal with the

issue could (and did) create a poisoned environment. The respondent City, Mr.

Flannigan and Mr. Dick were responsible for the applicant’s perception that the

complaints about her use of the washroom were occurring again because the issue had

come to a head in 2002 and again in 2004 and was never resolved. The respondent

City, Mr. Flannigan and Mr. Dick had not appropriately dealt with it in the past, and the

non-resolution of the issue continued to affect this employment relationship.

[81] At the same time, complaints about the applicant’s washroom use were clearly

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not the predominant issue in the workplace in September 2005. The workplace

disputes about workload and taking of too much personal time for phone calls and

internet use do not engage the Code. Being talked about behind your back and an

alleged lack of teamwork do not necessarily engage the Code. Neither does

management’s decision to not replace Ms. O., potentially resulting in an increased work

load for the applicant. Describing the employer’s efforts at performance management

as harassment, while understandable from the applicant’s perspective, was not helpful

in describing what her Code issues were at the time.

[82] As I understand the applicant’s evidence, she was worried that unless Ms. O.

was replaced the work would not get done. She was concerned about this and it

caused her stress. The stress exacerbated her colitis symptoms, which likely affected

her productivity. She was away from her desk unpredictably and more often. She

approached the respondents, Mr. Flannigan and then Mr. Dick, about her workload

concerns. They were not sympathetic and engaged in a management process that they

acknowledged in their evidence may have made things worse. The applicant called

their response, in the form of some performance management measures, harassment,

which included, in her view, the respondents’ differential treatment of her.

[83] However, the applicant never made explicit the fact that she was ill or that the

issues in the workplace were making her ill. The applicant states that everyone knew

about her medical condition. She states that Mr. Dick knew that stress would aggravate

her condition because his sister had a similar diagnosis and they had discussed her

condition from time to time. Mr. Dick, when asked whether he understood that stress

would aggravate her condition, indicated that stress affects many things. Despite Mr.

Dick’s evidence, the respondents had been made aware both by the applicant and her

physician in 2004 that stress and anxiety could aggravate her colitis symptoms. While I

am not prepared to infer that they had actual knowledge that the workplace issues were

exacerbating her medical condition, it seems to me that the circumstances required the

respondents to make enquiries. They did not do so.

[84] The applicant also states that the respondent Mr. Dick’s decision to remove her

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telephone was a reprisal. The applicant does not state what this action was a reprisal

for or how it might relate to any Code issues. Based on the evidence I find that the

respondent Mr. Dick made the decision in response to what he perceived to be the

applicant having made up a story about what Mr. Flannigan had asked of her after the

meeting of September 13th. Whether the appropriate response or not, the employer is

entitled to manage the workplace and I can find nothing in these circumstances that

would cause me to conclude that this decision was made because the applicant had

asserted her Code rights.

September 15, 2005 to Dismissal

[85] The events after September 15, 2005, raise somewhat different issues. The

respondents state that there is no evidence that the applicant was ill at any time over

the summer and fall 2005 and therefore no Code issue arose. I do not agree. As

discussed further below, I find that by the time the applicant left the workplace she was

quite ill. If there was any question about the respondents’ obligations to make enquiries

about the effect of the workplace on her health, these should have been resolved

shortly after the applicant departed the workplace.

[86] The respondents take the position that the applicant was simply angry with their

efforts at performance management and abandoned her employment. While she may

have been angry about some of the steps the respondents took, the reality is more

complex than that. The fact is that while she was likely angry about all of these things,

she was also ill and could not work.

[87] The applicant’s evidence was that she was under considerable stress and that

this had exacerbated her colitis symptoms. The only available medical evidence is that

her colitis symptoms had worsened significantly and were preventing her from working

at least for a period of time. As such, as of September 15, 2005, and almost certainly for

some period of time before that, the applicant’s health issues were impacting her ability

to work and the respondents had actual notice of this subsequent to September 15,

2005. The cause of her inability to work at that point was the effect on her medical

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condition of a number of the unresolved issues in this workplace. This situation

changed to some degree over the following months. The applicant at first was unable to

work at all. Later she was able to work but her family physician recommended that she

not return to this workplace because of the unresolved workplace issues.

[88] The applicant’s emotional state when she left the workplace on September 15

was noticeable to everyone. The respondents appear to have appreciated at the time

that her emotional reaction was not entirely unjustified. In notes of a meeting held on

September 20, 2005, involving Mr. Dick, Ms. Landry, Mr. Menagh, Manager of Human

Resources, and others, it was acknowledged that the September 13th department

meeting became about the applicant’s “incompetence and inefficiency” and that her

reaction to it was understandable. Mr. Dick is said to have suggested that the applicant

was “crucified” by her colleagues and management at the meeting, a situation he

regretted.

[89] The applicant also believes that her treatment by the respondents subsequent to

her departure from the workplace on September 15, 2005, constitutes harassment

within the meaning of the Code. In this regard, the applicant relied upon a series of

actions by the respondents between September 2005 and January 2006. Although it

appears that the respondents were treating the applicant as a labour relations problem

and were prepared to play “hard ball” with her, I would not characterize the applicant’s

treatment during this period as harassment. However, I have concluded that the

respondent City and Mr. Menagh failed in their procedural obligation to accommodate

the applicant after her departure from the workplace on September 15, 2005. Because

of these failures, which are largely failures to make enquiries or seek information from

the applicant, the respondent City and Mr. Menagh never got to the point of considering

whether or not the applicant could be accommodated in the workplace.

[90] After leaving the workplace the applicant saw her family physician at her first

opportunity. The applicant filed a claim with the respondent employer for short term

sickness benefits (“STD”). The applicant’s family physician reported to the respondent

employer on the application for STD on or about September 20, 2005, that the applicant

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was experiencing “exacerbation of colitis, insomnia, [illegible], emotional distress due to

psychologically unhealthy work environment and harassment”. The respondent

employer was also advised at that time that the applicant’s absence from work might be

affected by “long standing issues that have never been addressed/resolved at work, not

able to function in current work assignment”. The physician further advised the

employer that the applicant had experienced a similar job-related stress reaction in May

2004.

[91] Despite the reminder of the possible (and in this case actual) effects of stress on

the applicant’s medical condition and ability to perform her normal job duties, there were

no positive steps taken by the respondent City and Mr. Menagh to accommodate the

applicant in the workplace. No enquires were made of the applicant. Instead the

employer took a standard labour relations approach to an employee who they believed

was rebelling in the face of their performance management measures. I find that in

doing so the respondent City again failed in its procedural obligations under the Code to

accommodate the applicant.

[92] The applicant’s claim for short term disability benefits was not paid. It does not

appear as if the respondent City or Mr. Menagh, who administered this plan, ever

informed the applicant of the denial or the reasons for it; it was simply not paid. Mr.

Menagh testified that he denied the short term disability claim because the applicant’s

physician had indicated on the form that it was a workplace injury. Accordingly, he

testified that he believed the applicant should have made the claim of the WSIB.

[93] The applicant, on the advice of the union, later made an application for WSIB

benefits, which was denied in mid-December 2005. Mr. Menagh testified that he did not

re-consider or even think about his decision on her claim for short term disability

benefits. He testified that the collective agreement provided that workplace-related

injuries were not compensable under STD whether or not the WSIB allowed a claim.

When asked to point out where in the collective agreement it said that, it became

evident that the agreement in place from 2004 to 2007 did not say that. Mr. Menagh

then modified his evidence somewhat to state that although the collective agreement

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did not say that at the time, that is how he interpreted and administered it.

[94] The applicant also applied for employment insurance (EI) sick benefits. Mr.

Menagh, on behalf of the City, challenged her application for benefits. The City of

Cornwall had never done so before this case. The Board of Referees held a hearing in

January 2006 and concluded that the applicant had just cause for not being at work

largely based on her physician’s statements set out above. The Board of Referees

rejected the respondent employer’s position that the applicant had left work because

she was upset with its attempts to performance manage her.

[95] When asked about his decision to appeal the applicant’s entitlement to EI

benefits, Mr. Menagh testified that as a taxpayer he felt it was his obligation to do so

because in his view the applicant had quit her employment. When asked by me, Mr.

Menagh conceded that he did not consider the fact that the only medical information he

had was that the applicant was unable to work due to illness at the time her application

for benefits was made.

[96] The applicant also relied upon a summons to witness in relation to a tax

prosecution served on her by a member of the Cornwall Police Services in January

2006. The applicant testified that this was very stressful for her and she believes that

the respondents selected her deliberately as a reprisal. The summons was sworn and

endorsed by a Justice of the Peace in April 2005. There is no evidence about who

caused it to be served on the applicant. The individual respondents all testified that

they had no knowledge of how it came to be served on the applicant. Despite the

applicant’s suspicions - which are not entirely unreasonable - there is no evidence that

anyone at the City had anything to do with the summons being served on her.

[97] Can these actions by the City and Mr. Menagh be considered harassment of the

applicant – that is, a course of vexatious conduct that they knew or ought to have known

would be unwelcome? Having considered this issue at length, I have determined that in

these circumstances they cannot. Although perhaps not fair, I cannot conclude that Mr.

Menagh’s aggressive approach to limiting short term sick claims can be considered as

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vexatious conduct within the meaning of section 5(2) of the Code. Although I heard

limited evidence, not allowing the applicant to call evidence on the application of the

policy to others, it does appear to be agreed that it is the corporate respondent’s policy

to deny these benefits to individuals who may be in need of them. It may not be fair but

it is not an incident of harassing behaviour that can be seen to be an element of a

course of vexatious conduct. I have also found, as discussed above, that the applicant

has not established on a balance of probabilities that the respondents were responsible

for the service of the summons on her in January 2006. As regards the respondents’

challenge to the applicant’s EI claim, while baseless and from the applicant’s

perspective vexatious, I am unable to conclude this one incident can be considered a

course of vexatious conduct within the meaning of section 5(2). One of the questions

which the respondents asked was how can the exercise of a statutory right to appeal be

considered a harassing event? I did not hear submissions on this point but the

respondents ask a good question. Another concern is that this incident is a single

incident. The language of section 5(2) refers to a “course” of conduct suggesting more

than one event. Without foreclosing the possibility that a discrete event or action might

be found to be harassment in some other case, I am not persuaded that in these

circumstances this one incident can be considered to be a course of vexatious conduct.

[98] The applicant asked the respondent employer for an investigation of what she

described as harassment by her supervisor in September 2005 on October 17, 2005.

She repeated the request in writing on December 5, 2005. The respondent employer

wrote to the applicant on December 14, 2005, and advised her that it would not conduct

any further investigation of her complaints because she had failed to attend the step 3

meeting concerning her harassment grievance. The applicant had not attended the

step 3 meeting on the advice of her union. The respondent Mr. Menagh gave a different

reason for not conducting an investigation. He testified that he felt no obligation to

conduct an investigation because the applicant had filed a grievance on the same

issues. He felt that the applicant was only entitled to one process and in his view the

grievance process was preferable. Consistent with the respondent employer’s letter of

December 14, 2005, the employer did not conduct an investigation, although Mr.

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Menagh later represented to the applicant that it had.

[99] As noted elsewhere in this and in 2010 HRTO 680, there were grievances filed

by the applicant. The grievances related to events in September 2005, which were

denied by the employer and ultimately withdrawn by the union along with a number of

others related to other unresolved issues in the workplace. The union’s role in these

disputes is somewhat unclear although it appears to me, based on the results of an

investigation said to have been conducted by the union, that it had no better grasp of

the human rights issues than the employer had.

[100] As indicated, the union is said to have conducted an investigation of the

applicant’s concerns and the employer did not. The union is not a party to this

proceeding and I heard no evidence from anyone other than the applicant regarding this

investigation. The applicant knows nothing of the content of the union’s investigation. It

does not appear that there was extensive discussion with the applicant about the issues

she had raised. It is clear that this investigation was nowhere as thorough as the

“informal” review undertaken by the employer in May and June 2004.

[101] The resulting report of the union’s investigation dated June 26, 2006, is not

particularly insightful. In particular, I note the union’s response to the applicant’s

concern that the employer had questioned her use of the washroom outside of her

break times. The union took the view that the employer’s request that she restrict her

use of the washroom to her breaks was silly but was not harassment. The union’s

position was wrong and completely missed the point..

[102] To the extent that the respondent employer relied on the union’s conclusions to

justify taking steps to terminate the applicant’s employment, it did so at its peril.

[103] The day after the union’s report was sent to the applicant she received a letter

from Mr. Menagh:

It has come to my attention that you have been continuously absent from work since September 15, 2005. Your absence was precipitated by what

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you claimed was harassment in the workplace.

Your claims were investigated by both your employer and your union. These reviews concluded that your claims were without merit.

Accordingly, I am writing to instruct you to report for work in the Financial Department on Tuesday, July 4, 2006 at 8:30 a.m.

[104] The applicant responded:

I will be unable to report to work on July 4th, 2006 at 8:30 a.m. as indicated in your registered letter dated June 27th 2006, due to health issues.

Please refer to my previously submitted medical letters of assessment from my family physician doctor M J Randlett for any clarification.

[105] Mr. Menagh replied:

We are in receipt of your letter of June 30th 2006 responding to ours of June 27, 2006 which had requested that you report for work on July 4th.

You have indicated that you will not/cannot report as directed due to “health issues”.

You direct that I refer to your previously submitted “medical letters of assessment” for clarification of your position. In this regard, the last medical information we received was dated November 14, 2005. It was in the form of a copy of an HRDC form which we presume you had submitted in support of a claim for E.I. benefits. The bottom half of that form contains an “Attending Physician’s statement signed by Dr. Randlett.

The form which indicates that your expected date of recovery is November 14, 2005 also contains the following statement from Dr. Randlett:

Marie-Anne is able to return to work but cannot return to her previous (emphasis hers) employer. The harassing and unprofessional treatment she received there caused her illness and I recommend that she leave that placement. She is fully capable of returning to any other employment.

Dr. Randlett’s opinion not withstanding, absolutely no evidence has been uncovered by either your employer or your union to support your claim that you have been harassed in the workplace.

Consequently, I am writing to inform you that should you fail to report for

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work on Tuesday July 4, 2006 as directed, the City will deem you to have abandoned your employment with it.

[106] The applicant responded the same day stating that she was not abandoning her

employment but would not be reporting to work for health reasons. The applicant again

referred Mr. Menagh to the previously provided medical information.

[107] There appears to have been no formal contact between the respondents and the

applicant after this correspondence. The applicant never returned to work. A grievance

regarding the applicant’s dismissal but was filed and eventually withdrawn.

[108] After carefully considering the submissions of the parties, the viva voce evidence

and the documents entered into evidence, I have concluded that the respondent City

and Mr. Menagh failed in their obligations to accommodate the applicant to the point of

undue hardship in their failure to investigate her complaints of harassment, and in failing

to make further inquiries of her with respect to her state of health and need for

accommodation at the time of her termination.

[109] I find that Mr. Menagh failed to investigate the applicant’s claim of harassment

although requested to do so on October 17, 2005, and December 5, 2005. The various

explanations for not doing so are not persuasive and even more so, after the applicant

did not attend the step 3 grievance meeting on the advice of the trade union, there was

simply no basis for the employer to not conduct an investigation either on its own or, as

can happen, jointly with the union. It is further troubling that although the City was quite

candid that it declined to investigate her concerns, Mr. Menagh represented to the

applicant on two occasions that the employer had conducted an investigation and had

found nothing to substantiate her claims of harassment.

[110] I also find that in deciding to end the applicant’s employment in July 2006, the

respondent City and Mr. Menagh failed in their obligation to accommodate her. I find

that the employer was entitled to expect that the applicant return to her duties and they

were equally entitled to tell her so. The applicant responded to the employer’s

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requirement by claiming an inability to do so due to an ongoing medical issue. When

provided with that response the respondent City and Mr. Menagh should have

considered their obligations under section 17(2) of the Code; they did not.

[111] The respondents have consistently taken the position that the applicant was

unhappy with the performance management measures they had taken and in effect quit

her job. As a consequence, Mr. Menagh failed to consider the fact that the applicant’s

physician was advising that the applicant was made ill by the workplace and could not

safely return until the workplace issues were addressed. It is significant that the

respondent employer took the same position in its attempt to defeat the applicant’s

claim to EI benefits and was told by the Board of Referees that she had just cause to

leave the workplace on the basis of the medical evidence the applicant had provided.

Despite the Board of Referee’s conclusions, Mr. Menagh continued to disregard the

applicant’s claim of illness. I note as well that when Mr. Menagh responded to my

question above about his reasoning in challenging her EI claim in light of the only

medical evidence available to him, he conceded that he had never considered that

issue.

[112] In the absence of a good faith investigation of her claims or any further inquiry of

her health status, the City and Mr. Menagh were limited in its understanding of what the

applicant’s issues were. However, the respondents had been made aware both in May

2004 as well as in September and November 2005 that workplace stress could

exacerbate her colitis symptoms requiring extended leaves of absence from the

workplace. In my view, at the time of the employer’s decision to dismiss the applicant,

the primary question should not have been whether the applicant’s claims of

harassment had been vindicated but rather how to accommodate her medical inability to

return to the workplace. Whatever the precise causes of the applicant’s alleged inability

to work for medical reasons, the respondent City and Mr. Menagh had an obligation to

make further inquiries and take steps to accommodate her to the point of undue

hardship.

[113] We of course do not know what the outcome of the accommodation process

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might have been. Given the applicant’s views of the causes of her medical issues –

harassment by the respondents Mr. Flannigan and Mr. Dick– it is possible that the

issues could not have been resolved. However, the respondent employer took no such

steps because it and its employees involved in this matter did not understand their

responsibilities under the Code.

[114] As a consequence, in June 2006 all that Mr. Menagh knew was that the applicant

could not return to work at the City because of a stress reaction exacerbating her colitis

symptoms, which was said to have its source in unresolved workplace issues. Mr.

Menagh might have reasonably believed that the medical information was dated and

more was required. However, if further medical information was needed in June 2006 to

substantiate a medically-required continuing leave of absence, Mr. Menagh should have

asked for it. The City and Mr. Menagh did not tell the applicant that in their view the

medical information was insufficient or dated; instead they focussed on their claim that

their investigations had disclosed no harassment. I note again that the respondent City

conducted no such investigation and if it had it might have resulted, as the 2004

investigation appears to have done, in some greater understanding of the underlying

issues. Instead of asking the applicant for further information and engaging in the

proper enquiry (namely, could the applicant be accommodated to the point of undue

hardship). the respondent employer chose to terminate her employment. The

respondent City did so in large part because the employees involved never turned their

minds to her disability and the claimed effects of workplace stress on her, although

advised on two separate occasions of the connection between stress and her medical

condition.

[115] The respondents state that it was up to the applicant to cooperate in the

accommodation process by providing further information. I agree that the applicant had

an obligation to cooperate, but note again that Mr. Menagh did not ask for any further

information. Mr. Menagh did not question the medical information that was provided

because, as I have indicated above, he did not consider it. Instead he chose to focus on

his view that there was no basis to the harassment claims of the applicant and that the

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applicant was simply a disgruntled employee unhappy with the respondents’

performance management of her. In doing so he ignored what he should have been

considering – namely, the limitation on the applicant’s ability to return to work as a result

of her medical issues and what accommodations might be required in order to facilitate

her return. The respondents did not claim that they could not accommodate the

applicant or that to maintain her leave of absence would cause undue hardship to the

City.

SUMMARY AND CONCLUSIONS

[116] For the reasons set out above, I have concluded that the respondents were in

violation of their procedural obligations to accommodate the applicant on several

occasions. First, there was their failure to properly investigate her complaint of May 4,

2004. The respondent City and Mr. Menagh similarly failed to do so when requested by

the applicant in October and December 2005, for reasons that I have found does not

excuse them from their obligation under the Code. Similarly, when provided with

evidence that the applicant was ill due to the unresolved workplace issues, Mr. Menagh

failed to make enquiries. Finally, the corporate respondent and Mr. Menagh failed in

their procedural obligations in the manner in which the applicant’s employment was

terminated.

[117] I have also found that the respondent City and Mr. Dick failed in their

substantive obligation to accommodate the applicant to the point of undue hardship

when requested to do so in the letter of May 4, 2004. This issue remained unresolved

throughout the remaining months of the applicant’s employment and played some role

in the unravelling of the employment relationship in September 2005. The respondents

did not claim that they were unable to accommodate the applicant as requested. .

[118] I have also concluded that the respondent employer and Mr. Menagh failed in

their duty to accommodate the applicant to the point of undue hardship when they

terminated her employment in the face of medical evidence that she could not return to

work, without making any further inquiries of her. I find that the respondent employer

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and Mr. Menagh did not consider the disability issues and never turned their minds to

their obligation to accommodate the applicant to the point of undue hardship. The

respondents never claimed that the applicant‘s disability related needs at any point in

this narrative could not be accommodated. .

[119] Finally, I also find that the respondent City, Mr. Flannigan and Mr. Dick condoned

harassment of her by their failure to insulate her from the complaints of other employees

that were related to her use of the washroom at times other than her formal break times.

This was most acutely the case in May 2004 when she was told that an employee had

made a complaint(s) about her washroom use, but was also present to a more limited

degree in September 2005.

[120] I have largely rejected the claim of the applicant that she was harassed by the

respondents Mr. Flannigan and Mr. Dick throughout the time frame of this Application,

except to the extent that both of these individuals communicated and vindicated the

complaints of others about the applicant’s washroom use. In particular, I have

concluded that the efforts to manage the applicant in September 2005, while

unsuccessful, were not harassment under the Code. Similarly the applicant’s claim that

it was harassment to assign her extra duties and ignore her pleas for a replacement for

an absent co-worker, whether fair or not, do not engage the Code and were not

harassment. I have also concluded that the manner in which the employer and Mr.

Menagh managed the applicant through the fall and winter of 2005-06 was not

harassment under the Code.

[121] Similarly I have concluded that the evidence does not support the view of the

applicant that various acts of the respondents, such as the removal of her telephone,

the service of a summons, denial of short term sick pay and the other matters discussed

above, were reprisals for her seeking to vindicate her Code rights. .

[122] At the outset of this proceeding the parties had agreed to bifurcate the

proceeding, dealing first with liability and then if necessary, remedy. If the parties wish

to engage in mediation of the remedies issues they may make a request to do so within

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20 days of this Decision, failing which the Tribunal will contact the parties to schedule a

one-day hearing on remedy.

[123] I am seized of this matter.

Dated at Toronto, this 14th day of September, 2011.

“Signed by” _________________________________ David Muir Vice-chair

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