BETWEEN:

ONTARIO ENGLISH CATHOLIC TEACHERS' ASSOCIATION ("the Union")

and

HAMILTON-WENTWORTH CATHOLIC DISTRICT SCHOOL BOARD ("the Employer")

Grievances (#6779-HWS-VH and #10134-HWS-BM) of Phil Aref

Before: Larry Steinberg, Sole Arbitrator

Appearances:

For the Employer Margot Blight, Counsel Angelo Romano, Manager Labour and Employee Relations Mary Cipolla, Superintendent of Education

For the Union: David Bloom, Counsel Bruno Muzzi, OECTA Provincial Staff Representative Sergio Cacoilo, President, OECTA Hamilton Secondary Unit Phil Aref, Grievor

("the Grievor")

Hearings held in Hamilton Ontario on September 15, 2011, November 22, 2012, December 7, 2012, December 6, 2013, December 17, 18, 2014, March 31, April 1, 14, 15, 2015, September 26, November 21, 22, 2016, April 28, June 13, September 20 and December 1, 2017

Overview

[1] This case is about an accommodation process that did not go well. More

specifically, it is about the delay in returning the grievor to his full-time position as a

secondary school teacher after a very long period of time off work due to disability and

whether and to what extent the grievor is entitled to compensation.

[2] After carefully reviewing the evidence and argument of the parties, the grievance

is allowed. The employer failed to accommodate the grievor in a timely fashion. I find that

this is an appropriate case to apportion responsibility and find that the employer is

responsible for 80% of the delay in returning the grievor to work. The grievor is entitled to

damages for lost wages from February 15, 2009 plus interest to be grossed up to account

for the income tax consequences of the lump sum payment. The grievor is also entitled

to damages in the amount of $7 ,500.00 for injury to dignity, feelings and self-respect

pursuant to s 45.2(12) of the Human Rights Code ("HRC"). The issue of possible losses

in the context of the Ontario Teachers' Pension Plan is remitted back to the parties.

Facts

[3] The evidence in this case was extensive. There were 85 exhibits. There were three

witnesses for the union (the grievor, Sergio Cacoilo ("Cacoilo"), President of the OECTA

Secondary Unit and Bruno Muzzi ("Muzzi"), OECTA Provincial Staff Representative) and

four witnesses for the employer (Angelo Romano ("Romano"), Manager Labour and

Employee Relations, Jim LoPresti ("LoPresti"), Executive Officer, Human Resources,

Emidio Piccioni ("Piccioni"), Principal, and Michael Gravina ("Gravina"), Principal.

[4] The witnesses were testifying about events that occurred many years prior to

giving evidence. In most cases, the witnesses did not have the benefit of notes taken

contemporaneously with the events about which they were testifying. It is therefore not

surprising that memories faded with the passage of time resulting in different recollections

of various events. Fortunately, these differences are not, in most cases, material to the

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outcome of the case and the extensive documentary record is sufficient for me to make '

the factual determinations necessary to resolve this matter.

Events prior to February 2009

[5] The union claims damages in this matter from February 2009. The following facts

are relevant and inform the facts as matters unfolded in February 2009.

[6] The griever went on a leave for medical reasons on September 15, 2000 and was

involved in a motor vehicle accident in 2002 in which he was injured. Prior to taking

medical leave he taught History and Geography.

[7] In September 2007, the union contacted the employer about arranging a return to

work ("RTW") for the griever. The request included a letter from the griever's family doctor,

Dr. Gillian Stevens ("Stevens") supporting a gradual return to work to a low stimulation

environment, a short work day, low student numbers and an environment without

excessive stress and demands. Cognitive testing and occupational therapy assessments

were recommended if placement issues arose.

[8] On January 16, 2008, the union provided a further medical report from the griever's

treating neurologist, Dr. Rose Giammarco ("Giammarco"), to the employer which the

union had received on November 26, 2007. The limitations on a RTW were single

classroom, no more than 3-4 students at a time, working one-on-one with the children,

gradual RTW building up from one hour or two at a time every day, doubt about whether

he could tolerate bright lights or excessive stimulation and the possible need for a

cognitive evaluation.

[9] Following a RTW meeting on March 6, 2008, the union facilitated a cognitive

assessment with Dr. William Parkinson ("Parkinson") who provided a report dated

September 15, 2008. This report was provided to Dr. Clinton Davis ("Davis"), the

employer's medical consultant, on November 12, 2008. In a letter to the employer dated

November 20, 2008, Davis outlined Parkinson's recommendations (avoid for 2 years

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moving into new subject matter, reduced work hours or grading the return to full-time

work, minimize the student-teacher ratio, increase frequency of one-on-one encounters

and minimize complex decisions under tight deadlines). Davis advised the employer that

he agreed with these recommendations.

[1 O] On January 23, 2009, just five days before a scheduled January 28, 2009 RTW

meeting, Romano wrote to Davis and asked him, for the first time, for his opinion of the

2007 Stevens and 2007 (received 2008) Giammarco letters and asked him to consider

the information "as it pertains to this individuals [sic] ability to return." There was no

explanation for the delay in seeking Davis' opinion which he provided in a letter to Lo Presti

dated January 23, 2009. He agreed with the recommendations of Stevens and

Giammarco. Notwithstanding that the employer had the medical reports of Stevens,

Giammarco and Parkinson well in advance of the January 28, 2009 meeting, the

employer made no effort to search for positions that would satisfy the griever's limitations.

[11] It is clear that the griever's medical restrictions were significant and presented

difficult challenges for the employer in its effort to accommodate the griever.

Nevertheless, the employer had ample information concerning the griever's medical

restrictions prior to the meeting on January 28, 2009.

RTW Meeting on January 28, 2009

[12] This meeting was attended by the griever, Cacoilo and Marni Daly, an OECTA

Representative, for the union and LoPresti, Romano and Debbie Pollice ("Pollice"),

Manager, HR, Administrative Services, for the employer.

[13] The union prepared a draft RTW plan which was presented to the employer. It

presumed the griever would RTW on February 2, 2009 consistent with his limitations

taken from the various medical reports. In terms of placement, the parties focused on

various alternative education ("Alt Ed") environments. The only notes taken at the meeting

that were in evidence were those of Romano. The notes indicate that the meeting ended

with LoPresti indicating the employer was prepared to accommodate the griever and a

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commitment to review the situation quickly (a couple of weeks was mentioned) and

contact Cacoilo with a proposal. 1

[14] LoPresti testified that after reviewing possible placements he concluded, in

consultation with the Director of Education, that there were no positions within the

complement that were within the grievor's limitations.

[15] One of the possible placements he testified about was Notre Dame House (which

was not discussed at the RTW meeting) which conducted a program for at risk youth. He

testified that the grievor could not be accommodated within the complement there

because the students were most at risk, the number of students in the program was more

than five which was greater than the grievor's restriction of no more than 3 or 4 students

and he would have had to teach the full range of the curriculum which was not within his

restriction of no new courses for two years.

[16] In cross-examination, he agreed that he and the Director of Education decided not

to seek approval for a placement in addition to complement notwithstanding that the

employer has a lengthy history of accommodating employees in such placements and

that there were positions in Alt Ed within the grievor's limitations.

[17] LoPresti contacted Cacoilo and advised him that the matter had been taken

forward to Senior Administration and that the employer was unable to provide the grievor

with a position within complement that was consistent with his restrictions.

[18] In response to this decision, the union filed the present grievance on March 13,

2009 and the griever submitted an application to the Human Rights Tribunal of Ontario

("HRTO") on March 31, 2009.2 From this point, matters proceeded quite quickly.

1 There was a dispute in the evidence regarding what LoPresti promised to do. The union witnesses testified that the employer committed to place the grievor in a suitable position within two weeks. The employer's witnesses testified that this meeting was preliminary only and no commitment was or could be made at that time because further approvals were required. The only commitment was to review the situation. In my view, the union witnesses interpreted LoPresti's positive comments as conveying more than what was intended. 2 The grievor testified that when Cacoilo spoke to him about the employer's decision he advised him that he was being terminated by the employer for failure to stay up to date with the curriculum. Caciolo testified

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[19] The employer responded at length to the grievance on April 8, 2009. The employer

stated that the griever did not have the skill set or expertise to handle himself in any of

the roles that had been suggested by the union (which did not include Notre Dame House)

and indicated that it was prepared to discuss a non-academic position. In a later.

conversation, LoPresti indicated to Cacoilo that this might be a janitor's position. This

suggestion justifiably upset the griever very much.

[20] On May 14, 2009 Romano sent an email to the Superintendent responsible for Alt

Ed and secondary school staffing, Mary Cipolla, inquiring whether there were any work

assignments or positions that were within the griever's restrictions. LoPresti testified that

this email was sent in response to the HRTO application and that he was not aware of .

any prior communications with her about the issue.

[21] At a Step 2 grievance meeting on June 1, 2009, the employer offered to place the

griever in an above-complement position at Notre Dame House commencing on

September 2, 2009 subject to a number of conditions that were discussed.3 LoPresti's

evidence was that the matter had been discussed by the Director's Council4 and approval

to fund an above-complement assignment was given on May 25, 2009.

[22] While the employer had put forward a number of reasons why the griever could

not be accommodated at Notre Dame House or elsewhere, such as the requirement that

he not be assigned new subject matter for 2 years, LoPresti testified that the only thing

that had changed between the failure to even consider an above-complement assignment

that LoPresti told him that the grievor was not coming back to work and that the decision came "from higher up". Cacoilo testified that when LoPresti told him that the grievor was not coming back, he understood it to mean he was being terminated. The grievor was understandably shocked and upset. In the context of the discussions to that point in time, it was not reasonable for Cacoilo to conclude that the grievor was being terminated. 3 These included that the grievor would return to work under a work hardening program at one-third work load and progress to two thirds as recommended by his physician but not before one full semester had been completed and would similarly move to a full work load but not before a semester had passed. In addition, the employer was to provide supports and in-service as required to familiarize the grievor with curriculum/policy changes, the union was to provide assistance in that regard as well, no changes were to be made to the placement without the agreement of the union and the griever was to be exempt from the Teacher Performance Appraisal process in Semester I of the 2009-2010 school year. 4 This consists of all the Superintendents. LoPresti as the Executive Officer and the Senior Superintendent of Administrative and Financial Affairs.

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for the grievor following the R1W meeting in January and the offer of the assignment at

Notre Dame House in an above-complement position in June was, the filing of the

grievance and the HRTO application.

[23] In addition, the evidence was that the employer had a history of accommodating

employees in above-complement positions for lengthy periods of time (8+ years, 6-7

years, 4-5 years, among others) and sometimes at the same time. LoPresti could not

recall a situation where a request for accommodation in an above-complement position

was denied.

Negotiations for a Formal Memorandum of Agreement ("MOA")

[24] Given the relatively simple conditions under which the grievor would return to work,

it is surprising that the parties entered into an 11-month process of attempting to prepare

a MOA. From June 2009 until November 2009 negotiations took place between Romano

and Cacoilo. From November 2009 until March 2010 there were no negotiations. From

March 201 O until June 15, 2010 when the employer unilaterally, and without a formal

MOA, assigned the grievor to a one third work load at Notre Dame House, negotiations

were conducted by Romano and Muzzi.

[25] During the period of the Romano/Cacoilo negotiations, the evidence indicates that

a number of matters that are typical in such discussions were addressed-the identity of

the doctors who would be consulted about the griever's limitations, obtaining a report from

a third-party physician, etc. Draft MOAs were prepared by Romano and Cacoilo

responded with comments.

[26] The application to the HRTO was not mentioned except on two occasions. First, in

a telephone call on September 18, 2009, Cacoilo advised Romano that the grievor was

concerned about it. Second, in a draft MOA sent by Romano on November 3, 2009, the

application was mentioned for the first time in a way which, arguably, could be interpreted

that the MOA settled both the grievance and the application. Romano could not explain

why he referred to the application for the first time in this draft of the MOA. In view of the

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fact that it followed the telephone call on September 18, I am of the opinion that the call

triggered its inclusion in the draft MOA.

[27] Following the November 3, 2009 MOA, there was no further discussion regarding

the MOA or the grievor's return to work until March 3, 2010 when Romano mentioned the

status of the outstanding settlement to Muzzi who had been assigned to service the

bargaining unit. The evidence was that there was no explanation provided to the employer

for the union's four-month delay in responding to Romano's last draft of the MOA sent to

Cacoilo. During the course of the hearing it was revealed that the griever had been

involved in two motor vehicle accidents during this time frame (October 2009 and

February 2010).

[28] Following the resumption of negotiations, there was, once again, a number of

proposals exchanged between the employer and the union most of which concerned

which doctors would be consulted regarding the grievor's medical condition.

[29] On April 8, 2010, Muzzi emailed Romano and advised him that he had discussed

Romano's last suggested amendment with both the griever and Cacoilo and advised that

the amendment was agreeable to all parties. Muzzi asked Romano to re-draft the

agreement, to email a copy to him and Cacoilo who would. call the griever "to get his

signature on the document."

[30] Romano attached the amended document in an email to Muzzi on April 12, 2010.

He testified that he believed that the parties had finally achieved a settlement which

included, as did all versions from November 3, 2009 onwards, a reference to the HRTO

application. Unfortunately, Romano's view proved to be overly optimistic.

[31] Sometime near the end of April 2010, Muzzi advised Romano that there was a

problem with the settlement. They met on May 3, 2010 and Muzzi outlined a number of

significant issues that the union wanted to address. He promised to forward a revised

settlement document to Romano by May 4, 2010. It was not in fact delivered until May

13, 2010.

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[32] The revised document contained several fundamental changes from the document

as it existed on April 12, 2010 including a provision outlining when medical information

could be requested and a provision regarding how disputes about the administration,

application, interpretation or alleged violation of the document were to be resolved. For

the first time, there was a provision providing for compensation to be paid to the griever

in the amount of $200,000.00 "for the lost opportunity to earn an income." Needless to

say, all settlement discussions came to a halt at this time.

[33] Muzzi testified that it was the union that was responsible for the significant changes

made to the April 12, 2010 settlement document. With respect to the significant monetary

provision, he testified that in cases where both a grievance and a HRTO application are

made, it was the policy of the union that any settlement of the grievance must also include

a settlement of the HRTO application. The monetary aspect of the settlement document

was reflective of the fact that compensation was part of the HRTO application. The

evidence was that this was never explained to Romano.

[34] There was some further discussion and an email exchange about the possibility of

settling the grievance and permitting the HRTO application to proceed to deal with, among

other things, the compensation issue but nothing came of it.

[35] At no time during this lengthy process of negotiation did the employer suggest or

the union or the griever insist that the assignment to Notre Dame House be made pending

the negotiation of a settlement document satisfactory to the parties.

[36] On June 15, 2010 the employer unilaterally assigned the griever to a one-third

assignment at Notre Dame House as of the beginning of the 2010-2011 school year which

it called a work trial. There were a number of conditions including meeting regularly with

the Principal of Continuing Education to discuss the griever's progress and a requirement

that the griever meet as required with a Rehabilitation Committee to review his progress,

any changes to his medical restrictions and to update his rehabilitation plan. Neither of

these conditions was satisfied, and in fact, no such Rehabilitation Committee ever

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existed. In addition, the evidence was that the employer did not even have a policy to

guide it on matters pertaining to RTW or accommodation.

[37] On the other hand, the letter also required the griever to review certain material,

.both hard copy and on-line, in order to become familiar with the current program. The

grievor failed to do so.

[38] The griever began his assignment at Notre Dame House in September 2010.

Request for two-thirds Assignment

[39] On November 8, 2010, just two months after commencing work after a very lengthy

absence, the griever wrote to LoPresti requesting an increase in workload to two-thirds

to start on February 3, 2011 which was supported by a letter from his family physician

dated November 15, 2010.

[40] In response, on November 26, 2010, Romano wrote to Cacoilo with a perfectly

normal request for a medical note from Giammarco, one of the griever's treating

specialists (and who the union and the griever fought so hard to have specifically named

in the settlement document). But the letter was quite remarkable in another respect. It

referred to the non-existent Rehabilitation Committee and stated that "[A]ny amendment

to the current work trial requires the above-mentioned committee to meet and discuss the

possibility of whether an update to the current work trial is appropriate."

[41] There was no evidence of any activity by either side for more than six months until

June 6, 2011, when Cacoilo delivered a letter to Romano dated May 27, 2011 from

Doctors Parkinson and Giammarco. There was no evidence to explain the delay.

[42] The letter was curious in several respects. First, it states it is in response to a letter

from Romano dated in November 2010. Romano testified that he did not write such a

letter. Second, the letter refers to the fact that the grievor was already at two thirds work.

load when, of course, he was seeking to go that level from the initial one third that he

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started at. Third, it was not explained why the letter was written jointly on behalf of the

two doctors.

[43] The employer also asked for input from the Principal of Continuing Education on

the griever's performance (which was positive). This request was not made until July 4,

2011. There was no evidence to explain the delay.

[44] Approval to place the grievor in a two-thirds assignment was given on August 23,

2011 consisting of one period at Notre Dame House and one period at the PASS program

(a program for students were under suspension), effective in September 2011.

[45] The grievor commenced his two-thirds assignment as scheduled. Due to an

administrative error, the students were required to be elsewhere when the grievor was

scheduled to teach them at Notre Dame House. His uncontroverted evidence was that he

advised the Manager, Human Resources who told him she would get back to him. There

is no evidence that the grievor took any other steps to bring the issue forward.

[46] The grievor continued to report to Notre Dame House for approximately two weeks

after his call and stopped reporting there in late September. He testified that he reported

to PASS as scheduled and, in addition, remained there for another period. There is no

evidence that he advised the employer or received permission to make either change to

his schedule.

[47] This was one example of the tendency of the grievor to self-accommodate which

contributed to a less than ideal accommodation process.

[48] His schedule was amended effective November 21, 2011 to coordinate with the

schedule of the students. The evidence was that LoPresti was upset and embarrassed

by this error.

Request to Go to Full Time from Two-thirds.

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[49] On October 20, 2011, six weeks after he was formally on a two-thirds workload

and only a few weeks after he self-accommodated at PASS, the griever made a request

to increase his workload to full-time.

[50] The request was accompanied by another joint letter from Parkinson and

Giammarco dated October 14, 2011 supporting the request. The union faxed the letter to

the employer on October 20, 2011. That letter was based on some questionable facts. It

stated that the griever had coped well at a two-thirds workload and schedule. As of the

date of the letter, the griever had not worked a two-thirds workload during the month of

September. Arguably, at best, he only worked such a workload for the two weeks prior to

the date of the letter if his self-extended hours at the PASS programme are credited.

[51] There was a brief discussion of the request at a meeting on November 16, 2011

regarding the timetable issue. Cacoilo testified that LoPresti made it clear that the griever

would not be assigned to a full:-time assignment during the second semester bec.ause of

costing and timetable issues. Specifically, it would mean that another teacher assigned

to modified duties at the PASS program and the griever would have to be assigned at the

same time at the PASS program. The griever's self accommodation was not mentioned.

[52] In addition, LoPresti testified that the employer had not had an opportunity to

assess the griever's ability to work a two-thirds timetable and there were no full -time

teaching jobs within the griever's restrictions at that time.

[53] On June 13, 2012, the griever was advised that he would be assigned to Bishop

Ryan Catholic Secondary School on a two-thirds assignment commencing in September

2012 even though his request to go to a full-time assignment was still outstanding.

LoPresti testified that this was a preliminary assignment identified through the employer's

transfer and annual staffing process. The union and the griever were not consulted before

the decision was made. In cross-examination, LoPresti agreed that this was sloppy and

a deficiency in the employer's process.

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[54] On June 25, 2012, the employer's disability management group wrote to Parkinson

and Giammarco seeking an update on the griever's functional abilities and information

regarding his treatment plan and prognosis. No reference was made to their October 14,

2011 report; rather, the letter to them only referred to reports from 2007 and May 2011.

It is not clear why the employer did not make these inquiries prior to this time.

[55] On June 26, 2012 the disability management group wrote to the griever advising

that his physicians had been contacted requesting additional information and that a

Functional Abilities Form ("FAF") had been faxed to them. The griever was asked to

contact his physicians so that the FAF would be returned by July 6, 2012.

[56] The FAF was not received as requested. Further letters were sent to the griever

on July 27 (with an amended return date of August 3) and August 24, 2012 requesting

the document. On July 27, Parkinson's office advised the employer that the griever had

indicated to them that the form need not be completed at that time. Shortly thereafter, on

August 1, Cacoilo advised Romano that the griever agreed to provide the documentation.

Notwithstanding that assurance, the document was not returned necessitating the August

24 letter to the griever.

[57] Romano testified that he called the griever on July 27 to remind him of his

obligation to cooperate with the employer by providing the medical documentation and

that failing to do so could jeopardize his placement. Romano testified that the griever

hung up on him.

[58] In cross-examination, the griever testified that Romano "threatened" him. This

consisted of advising the griever that without the medical documentation, his placement

might be compromised. He denied hanging up on Romano and testified "I said goodbye

and hung up. Isn't that what you would normally do counsellor [a reference to counsel for

the employer]"?

[59] By letter dated August 29, 2012 (received by the employer on August 30, 2012),

Giammarco provided a report which did not include the FAF or the answers to some of

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the specific questions previously requested. This was followed by additional

correspondence with her and the grievor seeking the additional information and

completion of the FAF.

[60] The FAF was finally returned on September 10, 2012 but not the additional

information requested. The employer was advised by its Disability Management Group

that Giammarco's office advised them that the grievor had instructed her to only provide

the FAF. The grievor testified that this was not correct but he did agree he told Giammarco

to provide the answers, which she did by letter dated September 10, 2012 and received

by the employer on September 28, 2012.

[61] In view of the grievor's lack of cooperation during this period of time and the timing

of the receipt of the information, I think it is more likely than not the he did advise his

physician to withhold the requested information.

[62] On September 19, 2012, the grievor contacted the employer and advised that if it

wanted the FAF, the employer should contact the lawyer acting for him in a motor vehicle

matter. This was consistent with the grievor's lack of cooperation in having his physicians

provide the requested information in a timely manner.

[63] On the same day, the union filed a second grievance regarding the requests for

medical information and a transfer of the grievor to a different work site without

consultation with the unioh.5

[64] All of the information initially requested by the employer on June 26, 2012 was not

received until September 28, 2012. The two-month delay is attributable in large part to

the grievor's lack of cooperation.

5 This grievance received almost no attention during the hearing and argument was entirely based on the duty to accommodate issue identified in the earlier grievance.

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[65] On October 5, 2012, in its reply to the grievance, the employer requested an

immediate meeting to discuss a RTW. There was no response by the union to this

request.

[66] At a meeting held on October 29, 2012, the griever was offered and accepted a

full-time assignment within the complement at St. Mary Catholic Secdndary School

("SMCSS") commencing on October 31, 2012. His assignment included sections of

Student Success, Guidance and Special Education which were within his restrictions.

[67] On December 9, 2015 the employer and the griever entered into an

accommodation plan in which his start time was 9:10 a.m. and the hours missed from

work were deducted from the griever's available sick bank. The employer calculated that

the accommodated work hours resulted in the griever working 82.5% of a full assignment

and that any damages for the employer's failure to assign the griever to full-time from two­

thirds should be limited to 82.5%.

Other Issues

[68] The employer raised a number of other issues, most of which were the subject of

objections from the union. I allowed the evidence to be led over those objections.

However, in the result, I give little or no weight to the evidence.

Attendance and Reporting of Absence Issues at Notre Dame House

[69] The employer led evidence that it alleged showed that the griever struggled with

attendance, punctuality and reporting in the second semester of 2011-2012. The

employer asserted that this evidence showed that the griever was struggling in his return

to work. The griever denied most of the allegations and had an explanation for some of

them.

[70] Romano wrote to the griever on March 2, 2102 regarding the issues. The letter

treated the absences as partly disciplinary and partly impacting on his placement at Notre

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Dame House, and in respect of the latter, a meeting was to be convened with the union

and the griever "to discuss this matter and that of an appropriate placement."

[71] In fact, no discipline was imposed and, not only was there no meeting at which

these issues were raised in connection with placement issues, there was no evidence

that such issues were relied on by the employer in making its decisions about appropriate

placements for the griever or that the employer sought an opinion from the griever's

physicians about these issues.

[72] In my view, the employer, having failed to act on these issues at the relevant time,

cannot now seek to rely on them as a reason for the failure to advance the griever

incrementally and in a timely way to full-time duties.

Request from Director, Youth Services, Good Shepherd Centre to Remove Grievor

[73] On March 12, 2012, the employer received an email from the Director, Youth

Services, Good Shepherd Centre, the charitable organization that partnered with the

employer to provide education to homeless and other youth at Notre Dame House,

requesting that the griever be removed from the school program for a number of reasons.

[74] Neither the union nor the griever were made aware of the email. The griever was

not removed from Notre Dame House, was not disciplined and there is no evidence that

the employer relied on the email in determining the appropriate placements for the

griever.

[75] This evidence is not relevant to the issues before me.

2012-2013 and 2013-2014 School Years

[76] Piccioni, who was the principal at SMCSS, testified he became aware in November

2012 that the griever regularly reported to work at the school about one hour and fifteen

minutes late. This continued during the 2012-2013 and 2013-2014 school years.

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[77] Piccioni testified that he did not discuss this issue with either the griever or the

employer's administrators. In fact, he gave the griever a satisfactory performance

appraisal on May 30, 2014. He testified that the reason he did not do so was that he felt

that the griever was vulnerable and he wanted to be supportive of the griever's return to

work.

[78] The employer relies on this evidence to indicate that, to the extent the griever

claims the loss of full-time wages for the period of time he was working two-thirds at

SMCSS, the grievor was not even working the two-thirds assigned to him.

[79] In view of the available medical reports, this evidence does not indicate that the

grievor was medically incapable of working greater hours but, if accepted, indicates that

the grievor was not complying with his schedule. This was a matter that might have

attracted discipline.

[80] However, the employer, through Piccioni, decided not to do anything in response.

The allegations against the grievor are not relevant to the issue before me.

2014-2015 and 2015-2016 School Years

[81] Gravina replaced Piccioni as principal at SMCSS in September 2014. The issue of

_when the grievor reported for work continued. In addition, issues about the reporting of

absences arose. Unlike the lack of action by Piccioni, Gravina did take steps to address

the situation.

[82] He responded to concerns that the grievor was arriving late by making enquires to

determine if late arrival was part of the griever's accommodation. He was advised that it

was not. This resulted in Romano advising the grievor he was to report as required by the

collective agreement and to follow the reporting procedures for absences and partial

absences.

[83] Once again, it was apparent that the griever was self-accommodating. This

appears most clearly from his email dated February 18, 2015 to the employer's

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attendance monitor in which he stated "Given my medical needs, I have been allowed to

have a teaching scheduled [sic] which allows me a later starting time ... ". He apparently

relied on the lack of action by Piccioni as permission for his late starts since no such

permission had been given by LoPresti, Romano or other employer officials involved in

accommodating the grievor.

[84] The grievor knew or should have known that this was never part of his

accommodation plan and he was aware of the steps that would be required for it become

part of that plan as it eventually was in December 2015.

[85] On June 8, 2015 the griever was disciplined for failing to report several partial

absences which is subject to a grievance.

[86] At the time of these events the griever was assigned to a full-time position. The

grievance before me has to do with events prior to this time. While perhaps relevant to

the outstanding disciplinary grievance, these facts are not relevant to the case before me.

Submissions of the Parties

[87] The submissions of the parties were lengthy and complex and made over two and

one-half days of hearing.

Union

[88] The union submitted that from 2009 until 2012; the employer violated both the HRC

(duty to accommodate) and the collective agreement (discriminatory and unreasonable

exercise of management rights) by failing to support the grievor in his efforts to return to

work on a partial and then full workload basis.

[89] The union argued that the employer violated both the procedural and substantive

aspects of the duty to accommodate in the manner in which it considered the grievor's

request to return to work.

18

[90] In addition, the union argued that the employer unreasonably exercised its

management rights by refusing to consider and place the grievor in an above-complement

position when the evidence demonstrated that the employer had a well-established

practice of placing employees in such positions in similar circumstances.

[91] The union argued that the employer unreasonably and unjustifiably delayed the

grievor's return to work in the various partial load assignments and the full load

assignment that he ultimately obtained in 2012.

[92] The union relied on the fact that the employer had full medical reports clearing the

grievor to return to work with limitations which it asserted should have occurred in

February 2009. However, the employer delayed returning the grievor to work, ostensibly

because there were no positions within the complement that were within the grievor's

restrictions and there was no evidence of undue hardship to support that approach. The

union noted that the employer had a long history of accommodating disabled employees

above-complement and only considered doing so for the grievor at Notre Dame House

following the filing of the grievance and the HRTO application.

[93] The union noted that the employer advised the HRTO in its reply to the application

that the assignment was to commence in September 2009 however the grievor was not

placed in the work trial until September 2010. The union asserted that the employer

violated the HRC and the collective agreement by delaying the grievor's placement until

the grievance was settled and a signed agreement was in effect. The union asserted that

the employer's obligation under the HRC is quasi-constitutional and it was a violation of

the duty to accommodate to require a signed memorandum regarding the terms of the

return to work or settlement of the grievance and HRTO application, including a claim for

compensation, before assigning the grievor to Notre Dame House.

[94] The union argued that the failure of the employer to follow its own protocol

regarding the increase in the grievor's workload, the failure to constitute the Rehabilitation

Committee and the failure to hold regular meetings with the principal, contributed to the

on-going delays in accommodating the grievor.

19

[95] For example, the union noted on November 10, 2010, the griever requested an

increase in workload commencing on February 3, 2011 to two-thirds which was

accompanied by medical evidence of his ability to do so but that it took until September

2011 to make the change. The union noted that the employer did not even seek input

from the principal until July 2011.

[96] The union argued that the griever's request to go to full-time was made on October

20, 2011 but was not implemented until October 31, 2012. The union argued that the

griever's request was accompanied by a report from Parkinson and Giammarco but the

employer did not even begin to follow up with them for clarification of various issues until

June 2012.

[97] The union argued that the duty to accommodate requires the employer to grant

accommodation in a timely manner to the point of undue hardship which contemplates

that some hardship is permissible.

[98] The union relied on the following observations of Arbitrator Starkman as the

approach to determine whether the employer has accommodated an employee in a timely

fashion.

In assessing whether the Employer has violated its obligation to provide accommodations in a timely fashion, I believe it appropriate to look at factors which include, the nature of the job being performed by the griever prior to the onset of her disability, the nature of the disability, the availability of information concerning work restrictions, the cooperativeness of the injured worker, the nature of the Employer's business, its size, the sophistication of the Employer in dealing with accommodation issues, the availability of suitable accommodation, and the number of accommodations required.6

[99] The union argued that the employer failed in its duty to reasonably accommodate

the griever by not allowing him to return to work in February 2009 having regard to the

medical evidence, the employer's practice of accommodating employees in above-

6 Toronto (City) and CUPE, Local 79 (Wilson), 2001CarswellOnt10096 at para. 70.

20

complement assignments, the grievor's success at Notre Dame House and the absence

of evidence of undue hardship.

[100] The union argued that if the grievor returned to work in February 2009, he would

have achieved full-time status no later than February 2011 rather than October 2012. The

union's argument is premised on the fact that he would increase his workload by one­

third every second semester. The union requests that the grievor be compensated for lost

wages and benefits plus interest.

[101] The union also sought an order requiring the employer to make all Ontario Teacher

Pension Plan contributions to reflect service during the periods for which compensation

is sought and any additional costs (if any) related to the buyback of pension service.

[102] The union also seeks to compensate the grievor for any increased tax· liability

related to lump sum payments resulting from this award.

[103] In addition, the union seeks damages in the amount of $20,000.00 under section

45.2(1) of the HRC for injury to dignity, feelings and self-respect based on the employer's

ongoing violation of the HRC, the offer of a custodial position, the necessity for the grievor

to take legal action to protect his rights, the delay in retuning him to wok without the

resolution of his grievance and the employer's failure to comply with the procedural aspect

of the duty to accommodate in regard to his requests to increase his workload.

[104] Finally, the union seeks an award of $10,000.00 for punitive damages based on

the employer's ongoing violation of the HRC and collective agreement.

[105] The union referred to numerous authorities, some of which will be referred to

below.

Employer

[106] The employer argued that there were no jobs within the complement that would

meet the grievor's medical restrictions. The employer argued that the cases are

21

consistent that the employer is not required to create a job or to provide an over­

complement position in order to fulfill its duty to accommodate. Accordingly, the employer

argued that the duty to accommodate simply did not arise from the outset. The employer

noted that there were cases where it was held that removal of a disabled employee from

an above-complement position did not violate the duty to accommodate and argued that

this was further support for its position that there was no duty to accommodate the grievor

in an above-complement position from the outset.

[107] The employer did acknowledge that once the grievor was placed in an above­

complement assignment the duty to accommodate was engaged and he was entitled to

be treated without discrimination which, the employer argued, was how he was treated.

[108] The employer also argued that contrary to the position of the union, it did not delay

in providing accommodation which it was not required to provide to the grievor in any

event. Nevertheless, the employer argued that the nature of the accommodation

necessarily required that changes in workload had to be staged over a period of time

which it asserted was two years. The employer argued that it acted reasonably based on

all the circumstances of the case in responding to the grievor's requests to increase his

workload.

[109] For example, the grievor's request to go to two-thirds was made on November 8,

2010 and its request for an updated medical which was made on November 26, 201 O was

not received until June 11, 2011 and he was placed in a two-thirds assignment in

September 2011.

[11 O] With respect to the delay from October 20, 2011 when the grievor requested to be

assigned a full load to October 31, 2012 when he was so assigned, the employer argued

its actions were reasonable. It noted that during the meeting on November 3, 2011 the

grievor was advised that his assignment would not increase, that when the employer

requested a medical report and FAF on June 25, 2012, .the grievor was not cooperative

and that all the required information was not received until September 2012 and the

--------·-····------ ---

22

griever was struggling with his attendance while he was on two-thirds which did not

support an increase in workload.

[111] In the alternative, the employer argued if the duty to accommodate did apply from

the outset, then a significant part of the one-year delay (June 2009 to June 2010) in

assigning the griever to his one-third assignment at Notre Dame House was attributable

to the union. The employer relies on the events following June 1, 2009 and the actions of

the union in the manner and timing of the negotiations regarding the RTW protocol.

[112] The employer notes that at no time during these extended negotiations did the

union request that the griever be returned to work while negotiations were ongoing.

[113] The employer argued that the cases are clear that the employer is entitled to and

the griever is required to provide reasonable medical information. The employer noted

that the griever was not compliant with his obligations at the time of his request to go to

a full workload and the employer absolutely required the information it was seeking if for

no other reason than to know if the griever was under any permanent restrictions.

[114] The employer argued that the fact that many employees were accommodated in

positions above-complement is irrelevant since each case is and must be evaluated on

its own merits since accommodation is an individualized process.

[115] The employer argued that since it had no duty to accommodate in an above­

complement position then no damages can be awarded. Once an above-complement

position was found in June 2009, the one-year delay in the griever actually returning to

work was due entirely to the union's actions. The union's claim for cumulative losses

resulting for any delays in placing the griever was, the employer argued, entirely

speculative.

[116] In the alternative, the employer argued that if damages are owing and if each of

the employer, union and griever are responsible, then damages should be apportioned

among them.

23

[117] In the further alternative, the employer argues that any award for lost wages must

take into account the griever's inability to ever do full hours. The employer calculated that

at best the griever could only do 82.5% of full-time hours after his assignment was

increased.

Union Reply

[118] The union argued that the employer's argument focused on only the human rights

aspect of the union's argument to the exclusion of its argument the employer violated its

duty of reasonable contract administration of its management rights by the unreasonable

way in which it addressed the RTW and increases in assignments.

[119] The union argued that the employer did not lead any evidence of undue hardship

if it placed the griever in an above-complement position and noted that the historical

evidence of the number of employees accommodated in such positions for lengthy

periods of time refutes any suggestion of undue hardship. There was no evidence why

the griever was treated differently.

[120] With respect to the employer's argument that it is not required to create a job for

the griever, the union noted that there is authority for different treatment in cases, like

this, of temporary work hardening positions and noted that the cases relied on by the

employer largely do not deal with such positions.

[121] With respect to the employer's argument that it had no human rights obligation to

increase the workload once the griever was placed in an above-complement position, the

union argued that this was inconsistent with the employer's acknowledgement that once

the griever was back to work the employer had such obligations to him.

[122] With regard to the employer's argument about the speculative nature of the

damages, the union argued that in a case of this nature speculation is normative and that

it a matter of exercising the best judgment as to what most likely would have occurred.

24

Decision

[123] The union argues that the facts in this case support the conclusion that the

employer violated sections 5 and 17(1 )(2) of the HRC as well as the duty of the employer

to reasonably exercise its discretion in the exercise of its management rights.

[124] The HRC prohibits discrimination in employment on the basis of disability if the

person's disability-related needs can be accommodated without causing undue hardship

to the employer. The employer does not dispute that at the relevant time the griever was

disabled within the meaning of the HRC.

[125] The sole issue before me is whether the griever was accommodated as and when

required. This requires the appli,cation to the facts of a number of well-established

principles.

[126] The case law has clearly delineated two aspects of the duty to accommodate in

cases such as this. The first is the procedural duty to accommodate which has been

described as follows:

The procedural duty to accommodate involves obtaining all relevant information about the employee's disability ... lt could include information about the employee's current medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work. The term undue hardship requires respondents in human rights cases to seriously consider how complainants could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the 'procedural' duty to accommodate.7

[127] The second aspect of the duty to accommodate is the substantive duty to

accommodate. It has been described as follows:

The substantive duty to accommodate requires the employer to show that it could not have accommodated the employee's disability short of undue hardship. 'Accommodation' refers to what is required in the circumstances to avoid

7 Lane v, ADGA Group Consultants Inc., 2008 CarswellOnt 4677 (Div. Ct). at para. 106 ("Lane")

25

discrimination. The factors causing 'undue hardship' will depend on the particular circumstances of every case. For example, undue hardship could arise due to excessive cost or safety concerns. 8

[128] There are other important principles that are well established in the jurisprudence

and which apply in every case where the duty to accommodate is engaged. These

include:

• the duty to accommodate rests primarily on the employer9

• the union also has a duty to accommodate which, in a case such as this, consists

of not impeding the reasonable efforts of the employer to accommodate10

• the griever also has a duty to facilitate the implementation of reasonable

accommodation which includes, among other things, providing sufficient

information to the employer so it can fulfill its duty to accommodate11

• the onus of proving undue hardship rests on the employer12

• some hardship is acceptable and more than mere negligible effort is required to

satisfy the duty to accommodate; only undue hardship provides the employer with

a reason not to accommodate13

8 Lane at para. 112. 9 Renaud v. Central Okanogan School District No. 23, 1992 Carswell BC 257 (SCC) ("Renaud") at para. 23 and HRC s.

17(2) 10 Renaud at paras. 39 to 49 11 Renaud at paras. 50-51 and Toronto {City) and CUPE, Local 79 (Meghie), 2014Carswe!Ont 12300 (Luborsky) at para.74 ("Toronto {City)") quoting Toronto Board of Education and CUPE, Local 4400, 2000 Carswell Ont 9531 (Davie) 12British Columbia {Public Service Employee Relations Commission v B.C.G.E.U., 1999 Carswell BC 1907 (S.C.C,) at para.

62 13 Renaud at para. 26

26

• the employer is not required to create a job for the sole purpose of accommodating

a disabled employee nor is it required to create a non-productive above­

complement position or incur the cost of providing unproductive work14

• if an employer offers an above-complement job it must implement it in a manner

that respects the employee's dignity and self-respect15

[129] There is also case law that supports the apportionment of damages in cases such

as this. In Toronto (City), Arbitrator Luborsky put it this way:

In a case of this nature, where there is mixed contribution to delays in the process and many 'what ifs' in an evolving give-and-take fact situation making it very difficult if not impossible to pinpoint a specific date when a reasonable accommodation should have occurred but for the action or inaction of both parties, a proportionate approach that ascribes relative responsibility for unreasonable delay having regard to all of the circumstances revealed by the evidence is, in my opinion, the appropriate methodology to adopt in arriving at a fitting remedy, recognizing that the exercise is an inexact science. 16

[130] This approach is applicable in this case. In arriving at the appropriate global

apportionment of responsibility for delay, I have had regard to the fact that the duty to

accommodate is that of the employer, that the union's duty in these cases is not to impede

reasonable attempts by the employer to accommodate and that the griever has a duty to

facilitate the implementation of reasonable accommodation as well as the length of time

attributable to the failure of each party to discharge their duty.

[131] With these principles in mind, I will now consider how they apply at the various

stages of the accommodation process in this case.

14 Dominion Colour Corp. v. Teamsters Chemical, Energy & Allied Workers, Local 1880, 1999 Carswell Ont 5422 (Ellis) ("Dominion Colour Corp.) at paras. 223 and 226; Revera Long Term Care lnc.,o/a Fenelon Court Long Term Care and Service Employees International Union, Local 1 Canada, 2016 Can Lil 78549 (ON LA) (Chauvin) at para. 42ff; Toronto District School Board and Ontario Secondary School Teachers' Federation District 12, 2015 Canlll 50987 (ON LA) (Gray) at paras. Para 170 to 187; London Catholic District School Board and Ontario English Catholic Teachers' Association, unreported decision of Arbitrator Richard Brown, dated August 2, 2013 (" LCDSB") at pp.24-25. 15 LCDSB at p. 25 16 Toronto (City) at para. 108.

27

February 2009 to June 2009

[132] The griever had very significant restrictions which everyone agreed would preclude

his return to a regular classroom setting. This presented the employer with significant

challenges in identifying an appropriate placement for the griever.

[133] At the RTW meeting in January 2009 the parties canvassed a number of possible

assignments that could possibly be within the griever's restrictions. After the meeting, the

evidence is that the employer, through LoPresti and the Director of Education, restricted

its search for available assignments only to assignments within the complement.

[134] LoPresti testified that he did consider placing the griever in an above- complement

position because the employer was not, at that time, prepared to fund it. No other reason

was given. LoPresti made this decision without any consultation with the Directors Council

which was the body which would make such decisions.

[135] As noted above, there is caselaw on which the employer relies, that employers are

not obliged to create above-complement positions as part of the duty to accommodate.

For the most part, this line of authority proceeds on the basis that above-complement

assignments are presumed to impose undue hardship on the employer because of the

cost and inefficiency of such assignments. The employer argues that the fact that griever

was not accommodated in such a position in February 2009 and following is, therefore,

not a breach of the duty to accommodate.

[136] As a general matter, I do not disagree with the cases on which the employer relies

and its argument on this issue. However, as part of an undue hardship analysis, the issue

is whether, as a matter of fact, the creation of a new position or an assignment above­

complement amounts to undue hardship.This point was clearly made in Dominion Colour

Corp. by Arbitrator Ellis where he stated (at para. 230):

In any event, it is not consistent with the principles in play to conclude that, in either disability cases-whether they be permanent or temporary disabilities - or in

-- ------- ·---------------·-·. -----------·-- -· ·-------------- -------------------- -------

28

pregnancy cases, an employer's duty to accommodate can never, as a matter of law, extend to include the creation of a new position. It is a question of where the line short of undue hardship is to be found in a particular case. And, as we have seen, that is a question of fact not a question of law.

[137] In my opinion, there are facts in this case that compel a different result than that

argued by the employer.

[138] First, the employer has a long history of accommodating employees, sometimes

simultaneously and some for very long periods of time, in above-complement positions.

In fact, LoPresti could not recall a request for an above-complement accommodation

request that was denied. This is evidence that, as a general matter, the simple fact of an

above-complement-assignment has not historically resulted in undue hardship on the

employer.

[139] In view of the fact that the onus is on the employer to demonstrate undue hardship

resulting from a specific, individualized accommodation, this history requires some

explanation from the employer why such an assignment could not have been made for

the griever in this case.

[140] The only explanation was from LoPresti who justified the decision on the basis of

cost. However, there was no supporting evidence of what the impact would be on the

employer of providing an additional above-complement position. For example, there was

no evidence of the financial impact on the employer of the existing above-complement

assignments and whether the employer could financially absorb another such position for

the griever.

[141] Second, and related to the first, LoPresti's evidence was that an above­

complement position was not even considered for the griever prior to the filing of the

HRTO application and grievance. In fact, Romano did not contact the relevant

Superintendent about assignments within the griever's limitations until May 14, 2009, after

both the HRTO application and grievance had been filed. LoPresti testified that the filing

of the HRTO application was the impetus for the contact.

29

[142] There was no analysis why such an assignment was not appropriate or any

analysis why such assignments were appropriate for others but not the griever. In my

view, this amounts to a violation of the procedural duty of accommodation by failing to

give any thought or consideration to an accommodation which has been made for others.

This also, in my view, amounts to a violation of the duty of fair contract administration

since it amounts to an arbitrary exercise of management's rights.

[143] Third, on June 1, 2009, the employer agreed to place the griever in an above­

complement position at Notre Dame House. LoPresti's evidence was that the only thing

that had changed since February, when he failed to even consider such an assignment,

was the filing of the HRTO application and the grievance. In my view, this is conclusive

evidence that an appropriate accommodation without undue hardship existed in February

2009.

[144] For all of the above reasons, the employer's duty to accommodate the griever was

breached in February 2009. The employer should have considered offering to

accommodate the griever in an above-complement position following the January 28,

2009 RTW meeting. Given the challenges faced in placing the griever due to his

significant restrictions, the employer would be entitled to a reasonable period of time to

identify a placement above-complement. In my opinion, given the information available to

the employer prior to the RTW meeting, the griever should have been placed at Notre

Dame House on or about February 15, 2009.

June 2009 to June 2010

[145] During this time frame, the parties engaged in an extended period of negotiation

regarding the griever's return to work. The union claims that the employer breached its

duty to accommodate during this time since it insisted on a settlement of the grievance

and HRTO complaint as a condition of returning the griever to work.

[146] Cacoilo and Romano negotiated from June 2009 until November 2009. The idea

of the settlement of the grievance as part of the griever's RTW was raised by Cacoilo in

30

his letter dated June 19, 2009 to LoPresti. Romano drafted the various MOAs with that in

mind and the union responded accordingly. The evidence was that the union never

requested that the griever be returned to work while the MOA was being negotiated. The

evidence does not support the conclusion that the employer insisted that the grievance

be settled before the griever returned to work but that both parties simply assumed that

to be the case.

[14 7] Moreover, both parties negotiated in good faith and with respect to matters that

are typically the subject of such negotiations. If anything, during this part of the

negotiations, it was the union and the griever who delayed the finalization of the matter

with uncertainty about which physician should be part of the evaluation process.

[148] There was then a four-month delay from November 3, 2009, when Romano sent

a draft MOA to Cacoilo until March 3, 2010 when Muzzi discussed the matter with

Romano. There was no explanation for the delay. Equally, Romano did not follow up to

determine the status of the matter.

[149] From March 2010 until April 2010, Muzzi and Romano again negotiated in good

faith culminating in agreement on all of the terms of the MOA. However, on May 13 2010,

the union fundamentally altered its terms, including for the first time a request for payment

to the griever of $200,000.00. Part of the reason for this was a policy of the union, which

it never explained to the employer, that in cases of this sort, both the grievance and the

HRTO application must be settled. This had the effect of ending the negotiations and

caused the employer on June 15 to unilaterally assign the griever to Notre Dame House

commencing in September 2010.

[150] The union argued that the duty to accommodate required that the griever be

reinstated to work on a one-third workload while the parties negotiated the MOA. In view

of the issues the parties were negotiating and, considering all of the circumstances, I

agree.

31

[151] The parties engaged in good faith negotiations from June 2009 until November

2009 and from March 2010 to April 2010. The negotiation of a MOA in such circumstances

is an accepted and appropriate process. It recognizes the union's responsibility both as

collective bargaining agent and as having its own responsibility as part of an

accommodation process. In my view, the parties should be afforded a reasonable period

of time to finalize the MOA which in this case I would suggest is one month after which

time the grievor should have been reinstated while negotiations continued. As a result,

the compensable period of delay is July 2009 to November 2009 and March 2010 to April

2010.

[152] The union must bear some responsibility for the delay associated with negotiating

the MOA. It would be unfair to saddle the employer with .the entire cost of the delay

associated with good faith negotiations with its collective bargaining partner, especially

when the union did not request that the grievor return to work while the parties negotiated

the MOA.

[153] In addition, there is the unexplained delay in the union responding to a draft MOA

from November 2009 until March 2010. Equally, Romano did not follow up to determine

the status of the matter during this time period. In my view, this is another delay that is a

shared responsibility.

[154] Finally, the union must bear responsibility for the delay resulting from the

fundamental alteration of the the terms of the MOA which it had previously indicated was

acceptable to the union and the grievor.

Request for Two-Thirds Assignment

[155] On November 8, 2010, the grievor requested an increase in assignment to two­

thirds workload to commence on February 3, 2011. He was assigned a two-thirds

workload effective September 2011.

32

[156] A reasonable request for a medical report from Giammarco was made to Cacoilo

by Romano in a letter dated November 26, 2010. On June 6, 2011, seven months after

the request was made, a joint letter from her and Parkinson was given to the employer.

[157] The employer made no inquiries to the Principal of Continuing Education prior to

July 2010 about the griever's performance at one-third workload although this was not a

significant factor in the delay in assigning the griever to a two-thirds workload.

[158] The delay in this aspect of the case appears to be entirely attributable to the

unexplained delay in receiving the medical report. Although the medical report is

addressed to Romano and refers to a letter from him to the doctor dated "November

201 O", he testified that he did not send a letter in November 2010 requesting the report.

Although he was not certain, he believed that the report was given to him by Cacoilo.

[159] I conclude that the request for the report was made by the union to the doctor.

There is no evidence of any effort by the union and/or griever to obtain the report in a

timely way. Equally, there is no evidence that the employer made any effort to follow up

with the union or the doctor regarding the report. Simply put, both sides were at fault for

letting the matter languish from November to June.

Request to Go to Full Work Load

[160] On October 20, 2011, only six weeks after he was formally on a two-thirds

assignment, the griever requested that his assignment be increased to a full workload.

He was given a full-time assignment at SMCSS effective October 31, 2012. This

amounted to a delay of just over one year.

[161] The employer refused to consider placing the griever in such an assignment during

the 2011-2012 school year for a number of reasons. First, it wanted to assess the griever's

performance at a two-thirds assignment. Second, with the griever's severe restrictions,

the availability of full-time positions was extremely limited. Third, the employer wanted

confirmation that the griever's medical condition was sufficiently stable to justify a return

to a full-time assignment.

33

[162] In my view, these reasons are reasonable in the circumstances of this case. The

problem is that each justification could have and should have been addressed at a much

earlier point in the process. The primary reason why that did not occur was because the

employer did not have a policy in place to guide it in cases such as this or an oversight

process in place to manage and assess the grievor's progress. Its approach was purely

ad hoc and reactive rather than proactive.17

[163] The lack of employer oversight was exacerbated by the grievor's continual resort

to self-accommodation which I view as a failure to cooperate with the employer in its effort

to accommodate the grievor. The combination of these facts resulted in a chaotic situation

which was constantly evolving.

[164] The example of the Notre Dame House/PASS situation is illustrative-the grievor

self-accommodated, the employer was not aware that he had done so and had not been

at Notre Dame House as scheduled and the employer was without any information

~egarding how the grievor was performing.

[165] The result of the chaotic process can also be seen in the medical report

accompanying the request for a full-time assignment. Statements were made about how

well the grievor had done in a two-thirds assignment. But he had only been doing two­

thirds at PASS as part of his self-accommodation for two or three weeks.

[166] As part of the process of moving the grievor to a full workload, the employer acted

reasonably, albeit very belatedly, in seeking further information and clarification from the

grievor's physician. It appears that the employer waited until the grievor had been

assigned to Bishop Ryan through the staffing process (June 13, 2012) before initiating

the request of the grievor's physicians on June 25, 2012.

17 It should be recalled that, as part of the grievor's·return to work in June 2010, a Rehabilitation Committee was to meet not less than once per term to monitor the grievor's work trial and he was to attend regular meetings with the Principal of Continuing Education to discuss his progress. The Rehabilitation Committee was never formed and no meetings took place with the Principal. In addition, the employer did not even have an accommodation/return to work policy. In my opinion, if these or similar steps had been taken, much of the delay and confusion of the accommodation process could have been avoided.

34

[167] The griever was advised by letter dated June 26, 2012 that his physician had been

contacted seeking additional information and the completion of a FAF. The griever was

asked to contact his physicians to ensure the FAF was returned by July 6, 2012. The

requests for the information and the timeline were reasonable.

[168] All of the information that was requested was not finally received by the employer

until September 28, 2012. As outlined in paragraphs 55 to 64 above, this was due to the

griever's. failure to cooperate with the employer, which was his duty as part of the

accommodation process.

[169] In addition, the union failed in its duty by failing to respond to Romano's request

on October 5, 2012 for a RTW meeting which was not held until October 29, 2012 and

which led to the assignment at SMCSS.

Effect on Damages of Reporting Late

[170] The employer argued that any damages arising from the delay in increasing the

griever's assignmentfrom two-thirds should be reduced to take into account the fact that

he was not capable of working full-time hours. The employer calculates that the griever

was only working 82.5% of a full-time assignment. I do not accept this argument.

[171] For the reasons given above, the griever's attendance difficulties were disciplinary

in nature and do not reflect whether he was capable of working full-time hours.

[172] Even if I accept the employer's argument on this point, the problem is that the

evidence about the griever's late reporting is spotty. The employer had screen shots taken

from video in May and June 2015 about which Gravina testified but there was nothing for

the period prior to that. He was also relying on information provided to him by his Vice

Principals who were tasked with monitoring the arrival of the griever. Piccioni had no

records of the dates and times that the griever was late which, in any event, were

effectively condoned by him through his lack of action.

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[173] The evidentiary record is not sufficiently complete to make the wholesale deduction

requested by the employer, and by the calculation provided in argument, it seeks to

extend this spotty evidence from the 2014/2015 and 2015/2016 school years back to the

2011 /2012 and 2012/2013 school years.

Damages under s. 45.2(1) of the HRC

[174] The union claims damages in the amount of $20,000,00 pursuant to the above

section of the HRC for injury to dignity, feelings and self-respect.

[175] The union relied on the following facts: ongoing violations of the HRC prior to the

return to work process, the offer of a custodial position, forcing the griever to take legal

action with an application to the HRC, delay in returning the griever to work because he

was not prepared to resolve his grievance on terms proposed by the employer, violations

of the procedural duty to accommodate by not giving proper consideration to requests to

increase his workload in the 2010-2011 and 2011-2012 school year.

[176] The griever testified about the impact of the return to work process. He testified

that he felt powerless and that the employer had put up many roadblocks to his return to

work. He said that the turning point was when "they were going to terminate me". He also

referred to other personal things that were occurring in his life that made things even

worse for him.

[177] He was particularly upset and stated he was "devastated" by the result of the

January 2009 meeting since he believed he had turned the corner, was going to be

assigned to Continuing Education and he could move on with his life.

[178] He was very frustrated with the employer's actions in delaying his increased

assignment from one-third to two-thirds and from two-thirds to full-time and referred to the

employer's requests for medical reports.

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[179] He stated that he felt the employer's only objective was to put up enough

roadblocks that he would go away. He stated "These people [the employer] make

decisions that ruin people's lives."

[180] I have found that the employer did violate the procedural duty to accommodate in

a number of ways. The whole process was conducted in a less than professional manner.

The grievor has suffered as a result of it and is entitled to be compensated. There was no

medical evidence that the employer's actions caused any physical or psychological

damage to the grievor.

[181] It is also worth noting that some of the things the grievor focused on in his evidence

as causing him distress were not in fact the fault of the employer. For example, the

employer did not threaten to terminate the grievor. Rather, that was a conclusion Caciolo

reached as a result of a discussion with LoPresti that he communicated to the grievor.

Similarly, some of the delay in returning the grievor to work was caused not just by the

employer but, as well, by the union and the grievor. Finally, I have found that the employer

was justified in requesting further medical information prior to making the full-time

assignment.

[182] The union cited two cases in support of its claim for damages. In National Grocers

Co. v. United Food and Commercial Workers Unions, Local 1000A [2010] O.L.A.A. No.

512 (Armstrong) ("National Grocers") the arbitrator awarded $20,000.00 to a grievor,

dismissed for reasons related to his disability, for the trauma associated with his

mistreatment on the job, his wrongful termination and the impairment of his prospects for

future employment.

[183] In LCOSB, the arbitrator awarded $7,500.00 damages for injury to dignity, feelings

and self-respect where the employer violated the HRC by the delay in implementing

accommodation, failing to take steps to ensure the grievor was treated with dignity and

respect by some of her co-workers, a public scolding by the vice-principal, where the

grievor's sick credits ran out leaving her without income as a result of the delay and for

having to undertake a lengthy commute. In addition, there was evidence from the grievor's

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psychologist that the employer's violation of the HRC had caused the griever to become

depressed with feelings of anxiety, sadness, stress and a sense of feeling rejected. In

addition, the griever's physical symptoms worsened.

[184] From the review of some of the cases cited by Arbitrator Brown, the quantum of

the awards in cases such as this tends to be at the upper end when the griever has lost

his/her job or had to leave it and where the employer's behaviour is premeditated.

[185] In my opinion, this case more closely resembles LOCSB than National Grocers. In

this case, the delay in accommodating the griever is much longer than in LOCSB but is

similar in that there is a series of violations of the griever's right to be accommodated. On

the other hand, unlike LOCSB, I have found the employer is not entirely responsible for

the delays and there is no medical evidence that the griever suffered the same kind of

harm as the griever in that case.

[186] Taking into account all of the circumstances, I award $7,500.00 as damages for

injury to dignity, feelings and self-respect.

Punitive Damages

[187] The union claims $10,000.00 as punitive damages for what it characterizes as the

outrageous or egregious conduct of the employer which, it asserts, warrants public

admonishment.

[188] The Divisional Court in Greater Toronto Airports Authority v. P. S.A. C., Local 0004,

2011 CarswellOnt 449 at para. 120 stated as follows:

... an award of punitive damages must be rational. This requires a determination as to whether the wrongdoer's misconduct is so outrageous as to require punitive damages for the purposes of retribution, deterrence and denunciation ..... .

[189] In my opinion, the employer's conduct cannot be characterized as outrageous

requiring retribution, deterrence or denunciation. At best, the employer was negligent, and

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perhaps in some instances grossly negligent, and the process of accommodation

certainly suffered as a result but it was not outrageous.

[190] The request for punitive damages is denied.

Damages In Respect of Ontario Teachers Pension Plan

· [191] The union, in its written submissions, also requested an order that the employer

make all contributions to the Ontario Teachers' Pension Plan ("Pension Plan") to reflect

service in the periods set out by the union over the course of the RTW process. The union

also requested an order that the employer compensate the griever for the additional costs

(if any) related to the buyback of the pension service with the Pension Plan.

[192] This argument was not addressed in any detail in the evidence or argument by

either side. No material was provided to me that would assist me in understanding the

nature, process and requirements of the payments referred to and nothing provided to

me regarding the quantum of this request.

[193] On its face, the request seems to be one that might flow from the delay in returning

the griever to work. In the circumstances, I refer this matter back to the parties for further

discussion.

Summary

[194] The grievance is allowed. The griever is awarded $7.500.00 damages pursuant to

s. 45.2(1) of the HRC for injury to dignity, feelings and self-respect, payable forthwith.

[195] The griever is also entitled to an award for lost wages from February 15, 2009 plus

interest, to be grossed up to take into account the negative income tax obligations related

to lump sum payments resulting from this award.18 In calculating the wage loss, I accept

the union's position that a proper accommodation process should have started in

18 OPSEU v. Ontario (Ministry of Citizenship), 1995 Carswell Ont 1357 (G.S.B.)

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February 2009 and that the griever would have increased his workload by one third every

second semester.

[196] As I have noted several times, the responsibility for the delay in returning the

griever to full-time employment is not soley that of the employer. The inherent difficulty in

determining the appropriate apportionment of responsibility was clearly articulated by

Arbitrator Luborsky in Toronto (City) referred to earlier. This case reflects all of those

challenges and more because of the lengthy period of time covered by the grievance and

the fact that the accommodation at issue concerns a series of requests to be

accommodated at increasing levels of workload.

[197] Taking into account the factors referred to in paragraph 130 above, I find that the

employer is responsible for 80% of the delay in returning the griever to full-time

appointment.

[198] I remain seized in the event that the parties encounter any difficulty implementing

this award.

Dated at Toronto Ontario this 28th day of September 2018

Larry Steinberg

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