ARBITRATION BETWEEN:

TOLKO INDUSTRIES LTD.

- and -

UNITED STEELWORKERS, LOCAL 1-207

Concerning the grievance of Leslie Chalifoux __________________________________________________________________

A W A R D __________________________________________________________________

BEFORE: Andrew C.L. Sims, Q.C. ................................................. Arbitrator

REPRESENTATIVE FOR TOLKO INDUSTRIES LTD. Dwayne Chomyn, Q.C.................................................... Counsel Kristen Gammel............................................................... H.R. Manager Troy Connolly................................................................... Senior General Manager, Lumber

REPRESENTATIVE FOR UNITED STEELWORKERS, LOCAL 1-207 David Mercer, Q.C. ......................................................... Counsel Scott Ruston .................................................................... Business Agent Curtis Bishop ................................................................... Chairman, Plant Committee Leslie Chailfoux ............................................................... Grievor

HEARD in High Level, Alberta on January 25, 26, April 11, 2016 and written arguments on May 10, May 16, and June 2, 2016

AWARD ISSUED on June 29, 2017 Our file: 7652

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AWARD

This is a termination grievance. On February 28, 2014, the Employer, Tolko Industries Ltd.,

terminated the grievor, Mr. Leslie Chalifoux, from his job at its High Level Lumber Division for

alleged dishonesty concerning restrictions on his physical activity. At the time, he was on long-

term disability leave and covered by insurance benefits. The Employer’s view, that he was

dishonest about his restrictions, is based on a surveillance report it had commissioned showing a

healthier capacity than he had earlier described.

Mr. Chalifoux is represented by his bargaining agent, the United Steelworkers Local 1-207. Its

collective agreement with Tolko includes the following customary prohibitions on discipline

without just cause.

Article 2 – Employer’s Rights Section 1 – Management & Direction The Management of the operation and the direction and promotion of the working forces is vested in the Company. The Company shall have the right to select its new employees and to discipline or discharge them for proper cause, provided however, that this will not be used for the purposes of discrimination against employees and is not inconsistent with the terms of the Collective Agreement.

Article 5 – Adjustment of Grievances Section 2 – Initiation … It is further agreed that an employee has the right to commence a grievance alleging that discharge or other disciplinary action taken against him/her was without just cause.

Article 6 – Arbitration Section 2 – Discharge or Failure to Hire (c) If an arbitrator finds that an employee has been unjustly suspended or discharged such employee shall be reinstated with all rights and privileges preserved under the terms of the Agreement.

Mr. Chalifoux was, at the time of these events and for some time before, in receipt of, first short-

term, and then long-term disability insurance benefits. The Employer, before it terminated Mr.

Chalifoux, sent its investigator’s surveillance report to Manulife, the insurer. This led the insurer

to cancel his long-term disability coverage, something it decided shortly before Mr. Chalifoux’s

termination, but at Tolko’s request, it did not advise him of that until after his termination.

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Termination and Grievance

The letter of termination reads:

On November 13, 2013 and on February 21, 2014, you discussed your physical abilities for return to work duties. You described very severe limitations in these conversations. For example, you said you didn’t get any exercise at all, you watched TV, you only left the house to walk the dog or pick up groceries once in a while, you were able to do dishes in small bits, you had the kids use the snow blower, that you were unable to run the snowmobiles as you were unable to use them, and you usually had others drive because driving more than 15 minutes required you to take a break. In particularizing your limitations you gave many examples including that you primarily remained sitting with occasional walking and standing, you lifted a maximum of 10lbs with pain, you had no use of your right hand, no use of your left arm and no repetitive use of your elbow. In fact you have been engaging in activities completely at odds with your claimed limitations and restrictions. For example, you used the snow blower, you pull started equipment, you drove snowmobiles, you drove your truck for over an hour without a rest amongst other activities inconsistent with your representations. All of this has lead us to the conclusion that you have been dishonest with us. Honesty is the touchstone of a viable employment relationship. We have lost all trust and confidence in you and we lost the opportunity to have you perform work within any bona fide restrictions. As a result, you are terminated.

The relevant part of the grievance, filed March 6, reads:

Nature of Grievance Unfair and Unjust, arbitrary, discriminatory, without cause or termination Resolve Requested To be fully compensated and record made whole and any other request that may be requested at any time during the grievance and arbitration process including punitive damages and/or interest.

The Evidence

The Employer called the following witnesses in support of its case:

x Mr. Troy Connolly, who was the Site Manager for the High Prairie sawmill site, and the

ultimate decision maker on the termination.

x Ms. Nancy Robinson, a disability claims manager with Manulife Insurance who, in the

course of managing the grievor’s claim file, had a number of conversations with him and

with representatives of the Employer.

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x Mr. Gilbert Henley, who is a private investigator hired by Tolko to carry out surveillance

and who prepared a report, annotated with photographs and videotapes, as to what he

had seen.

x Mr. Janin Creed, (a rebuttal witness) who was Mr. Chalifoux’s supervisor in 2012.

Mr. Chalifoux testified for the Union. He is 51 years old; a 30-year employee with Tolko, with 23

years’ seniority. His working career and the circumstances giving rise to his being off work are

described below. He has a Grade 9 education, and comes from the Little Red River Band of the

Cree Nation under Treaty 8. He is married, has three children, and some grandchildren.

Summary of Events

Events unfolded as follows. Mr. Chalifoux had been working modified (training) duties in Tolko’s

lumber mill. In July of 2012 he took a vacation. Just what happened either before, during, or just

after he returned is in dispute, but at that point he went off work and began collecting disability

benefits. Thereafter, rumours began to spread that Mr. Chalifoux was more active around town

than being off on disability might suggest, rumours exacerbated by the fact that his wife had just

won a $1 million lottery.

In the summer of 2013, Mr. Connolly was out at nearby Hatch Lake and noticed the grievor

operating an All-Terrain Vehicle (ATV). That fall, the Company began a review of some of its

disability files and, as part of that process, called in Mr. Chalifoux for a review. Mr. Chalifoux’s

description at the time of his abilities appeared to management to be at odds with Mr. Connolly’s

own earlier observations and with the prevailing rumours.

The Employer decided to pursue surveillance. They contacted the insurer who told them such

surveillance would be at their own cost. However, in anticipation of surveillance the insurance

claims manager, Ms. Robinson, contacted the grievor by telephone and obtained from him a

description of his then current restrictions. Mr. Henley conducted the surveillance, in High Level,

between January 16th and January 22nd, 2014. He was given the list of disabilities provided by

Ms. Robinson as well as pictures of the grievor. He attended in the area, observed Mr. Chalifoux

over a few days, then submitted a report.

After reading this report, the Employer called Mr. Chalifoux in for a further meeting with the

Disability Management Committee. He was not told of the surveillance, but was again asked

questions about his current condition and restrictions. The Employer viewed his answers as

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contrary to what Mr. Henley had observed and concluded that the grievor had been and

continued to be deceitful about his limitations.

The insurer decided, based on the surveillance information, to discontinue Mr. Chalifoux’s long-

term disability coverage, but the Employer asked that Mr. Chalifoux not be notified until after it

had dealt with his employment status. At a meeting on February 28, 2014 he was terminated. He

was then told, on March 14th, that his insurance coverage was being discontinued. He was

invited to provide the insurer with more medical information, and told that he had a right to

appeal, but he did neither. He did however contact the Union, resulting in this grievance.

Mr. Chalifoux and his Workplace

The High Level mill is in a relatively remote community where people know each other’s

business. Information about people, whether rumour or fact, can spread with relative ease. The

sawmill is the major employer in town, with a workforce of about 260 full-time employees. It

produces dimensional lumber, drawing on the forestry resources of the area. The mill involves

large industrial equipment and is clearly a safety sensitive environment where both agility and

mental acuity are essential.

Mr. Chalifoux worked as a spare man in the mill, performing a variety of duties. As a result of

problems with his feet (plantar fasciitis) and disc problems dating back to a workplace accident in

the 1990’s, he had been on modified duties for some time. Prior to leaving on vacation on June

15, 2012, he was training on the debarker, as well as learning to operate other machines; this as

he understood it, was in order for him to be further accommodated. In the spare man’s role, he

provided relief for and trade offs with a number of other employees, including foremen. He was a

lead hand and would also provide assistance to the Millwrights and Electricians. Mr. Chalifoux

testified to liking work at Tolko, particularly the physical aspects of the job, having lots of friends in

the workplace, and wishing to return to work.

Mr. Chalifoux described his lifestyle before his more recent disabilities developed. He was very

active and an outdoorsman, enjoying hunting, fishing and snowmobiling with his buddies. On

snowmobile trips, they would go out all day and sometimes stay out the whole weekend.

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Mr. Chalifoux’s Employment History

Mr. Chalifoux started with Tolko as a young man of 20 or so. Work at the mill has essentially

taken up his full working history. There was one interruption in his seniority, followed by a

reinstatement, in about 1992, but since then he had experienced steady full time employment.

The Union introduced the performance appraisals from Mr. Chalifoux’s personnel file. They

covered the period from 2000 to 2010, with none apparently on file after that. The 2000-2002

period indicates an employee performing almost entirely at a satisfactory or higher level. The

2002 assessment shows only one 2 rating and many 3 ratings increasing to 4 on a 1-5 scale.

Under general comments Mr. Chalifoux’s foreman wrote:

Les is a hard worker who is not afraid to do any job. Les is always ready to help work towards keeping the mill running. Les is developing into a leader on this shift and with time will improve. Keep up the effort and hard work. Good job.

The 2003 appraisal showed further improvement with many of his ratings moving to 4 from 3. His

foreman’s general comment was that he had “really excelled in the last year in most respects on

the floor”. The only areas of concern, where he received 2 ratings, were his absenteeism rate at

3.5% and concern about overlong breaks. The 2004 appraisal is again improved, with fours

being the norm. The only area of concern is, once again, his absenteeism rate at 5.8%. General

comments say:

Les has taken the floor over and runs the floor very well. Les always looks for ways to improve the mill and how it runs. Les is very dependable so I leave a lot with him on the floor. Les has shown improvement from last year and all of his hard work is appreciated. Thank you and good job.

The 2005 appraisal is similar, with the weak points involving absenteeism at 4.8%, sometimes

with little notice. The 2006 appraisal, under a new foreman, was less complimentary and showed

decreasing ratings. His absenteeism was 8.6% and again comment is made about his breaks

being too long. The 2007 appraisal, again from a new foreman, focuses on his absenteeism rate

of 4.8% and dependability. Overall, however, it is a complimentary report. The 2008 report is

quite similar in tone. The report completed in 2009 notes three safety infractions and heightened

concerns over his absenteeism, now at 7%. The foreman’s general comments read:

Overall I would have to say I am disappointed in Les’ performance in 2008. This is not to say that there was not many good things from Les, as there were. As someone whom is in the position as shift lead hand, he must stand out in many areas such as commitment, work ethic, teamwork, leadership to name a few. Although Les can certainly do these things well, to many times he did not. I know part of his performance issues come from his frustrations and concerns with working

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with the current spareman. This is something Les can control and needs to take the steps to ensure his performance is not affected. I expect much more consistent results from Les in 2009.

The report prepared in 2010 was much improved. Absenteeism was at 2.8% and it is noted that

even this was largely due to medical travel. His foreman’s general comments said:

Les showed a very big improvement from the last year. He stepped up for me, numerous times throughout the year. He has and is definitely on the right path to helping ensure success. Thanks for your effort this past year.

Unfortunately, there were no subsequent appraisals. The review of those between 2000 and

2010 show that the major area of concern was with Mr. Chalifoux’s developing disabilities to

which I now turn.

Mr. Chalifoux’s Disabilities

Mr. Chalifoux had an operation on discs in his spine in the 1990’s due to a workplace injury. He

more recently developed two other conditions. He was initially diagnosed with plantar fasciitis

and later with rheumatoid arthritis. By mid-2012, due to his increasing incapacities, he was also

being treated with medication for depression. Two topics are addressed in more detail below.

The first involves the ongoing management of Mr. Chalifoux’s disability claims and the evidence

of what Tolko knew of that process. The second involves just why Mr. Chalifoux or Tolko, which

is in dispute, decided he should or could not return to his modified duties following his two weeks’

vacation in July. Whatever the reason, the fact is he was thereafter totally off work, and collecting

disability benefits until his employment terminated on February 28, 2014, and his insurance

coverage was cancelled on March 14, 2014.

Mr. Chalifoux’s initial disability insurance began on October 4, 2011. Soon after, Tolko sought,

and Mr. Chalifoux’s family physician Dr. Essop provided, a “Fitness to Return to Work/Modified

Work” form. Dated October 23, 2011, this physician’s statement of work restrictions ticked off or

commented as follows:

(7) Alternate Work Approved with the following Restrictions:

x Primarily sitting, with occasional walking/standing x Lifting 10 lbs maximum x No use of right hand x No use of right arm, No use of left arm – No repetitive movements of elbow

Other Work Restrictions:

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x Avoid repetitive movement of right hand and both elbows x Avoid walking/standing primarily sitting

Comments:

x Regular breaks as needed Duration:

x 1 month then will review patient’s condition

This form is the one the Employer gives to employees when it wants a medical update. It is not

something supplied by the physician, nor is it initialed by the employee.

Despite the last comment on duration, this 2011 document proved to be the only medical report

the Employer ever sought or received in relation to Mr. Chalifoux’s condition or restrictions. Other

reports were, however, sought by and provided to Manulife.

Mr. Chalifoux provided the Board with a copy of a document he obtained in 2014 from the internet

site “medicinenet.com” called “Signs and Symptoms of Rheumatoid Arthritis”. It includes the

following passage:

What are rheumatoid arthritis symptoms and signs? The symptoms of rheumatoid arthritis come and go, depending on the degree of tissue inflammation. When body tissues are inflamed, the disease is active. When tissue inflammation subsides, the disease is inactive (in remission). Remissions can occur spontaneously or with treatment and can last weeks, months, or years. During remissions, symptoms of the disease disappear, and people generally feel well. When the disease becomes active again (relapse), symptoms return. The return of disease activity and symptoms is called a flare. The course of rheumatoid arthritis varies among affected individuals, and periods of flares and remissions are typical. When the disease is active, symptoms can include fatigue, loss of energy, lack of appetite, low -grade fever, muscle and joint aches, and stiffness. Muscle and joint stiffness are usually most notable in the morning and after periods of inactivity. Arthritis is common during disease flares. Also during flares, joints frequently become red, swollen, painful, and tender. This occurs because the lining tissue of the joint (synovium) becomes inflamed, resulting in the production of excessive joint fluid (synovial fluid). The synovium also thickens with inflammation (synovitis). Rheumatoid arthritis usually inflames multiple joints and affects both sides of the body. In its most common form, therefore, it is referred to as a symmetric polyarthritis. Early symptoms may be subtle. The small joints of both the hands and wrists are often involved. Early symptoms of rheumatoid arthritis can be pain and prolonged stiffness of jo ints, particularly in the morning. Symptoms in the hands with rheumatoid arthritis include difficulty with simple tasks of daily living, such as turning door knobs and opening jars. The small joints of the feet are also commonly involved, which can lead to painful walking, especially in the morning after arising from bed.

At this point, I draw no conclusion about whether this description is true, well known to be true, or

understood by this arbitrator to be true. At this point, it is significant only as the precursor to

questions put to Mr. Chalifoux about his own experience. He spoke to having remissions and

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flare-ups. He said “If I don’t do anything for three days my body settles down and I’m fine. That’s

how I’ve been living – good days and bad days” - “Its always been up and down”. He later said

that if he did something repeatedly with his hand it would swell right up. I note that Mr. Chalifoux

referred to his having good days and bad days in his testimony on January 26th and again, when

he retook the stand on April 11th. He said there were days when he could hold a cup and days

when he could hold groceries, and this was true of his other symptoms. He later described his

cycle; if he did something, he would later have to recover.

He gave as an example the trip to the cabin Mr. Henley observed (see below) saying after that “I

was back to having to rest for days”. In describing his walking with the kids, he said he could go

for 15-20 minutes then would need a break. When his back starts to bother him he takes a break.

Asked about trying to walk a little each day he again said sometimes he could and sometimes he

could not, again saying he had “good days and bad days”. It was put to the grievor in evidence

that he had not told people he had good days and bad days. However, it was not put to him that

such fluctuations were inconsistent with a diagnosis of rheumatoid arthritis.

Asked about cognitive difficulties referred to in the Medical Report given to Manulife, Mr.

Chalifoux testified to his wife telling him in 2013 that he was repeating things and that his memory

was getting worse. He alluded to this in a letter he wrote in March 2014:

Tolko does not know or understand the pain I feel just to do the simplest tasks in order to try to enjoy life no matter how much I suffer each and every minute of the day and having to take very strong medications to do so. I do not feel it is right to even think of working in the sawmill and putting people’s lives at risk while taking such medications. If that’s what Tolko feels I should be doing only because they only see the outside picture not the full picture of where my body is.

A topic discussed later concerns the degree to which, as an arbitrator, I can take notice of just

what a diagnosis of rheumatoid arthritis involves. The Employer focuses its case on the events of

late 2013 and early 2014. The Union takes a longer-term view, focused particularly on why it was

that Mr. Chalifoux did not return to work after his vacation in the summer of 2012, his dealings

with the insurer, and what the Union views as the failure to apply, and even the misuse of, the

disability management committee process. These matters are canvassed now, before getting to

the evidence tendered to support the decision to terminate.

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Disability Insurance and Disability Management

The collective agreement provides short-term and long-term disability insurance, detailed in

Article 16, sections 2 and 3 respectively. The short-term program, called Weekly Indemnity,

provides 57.5% of an employee’s regular straight time earnings at 40 hours per week, based on

the rate of pay in effect on the date of disability. Coverage lasts for 26 weeks. Premium costs

are paid 100% by the Employer.

The long-term disability plan kicks in after 26 weeks. It is funded 50% by the employee and 50%

by the Employer. It provides 50% of the employee’s straight time rate at the date of disability for

40 hours per week. It is payable until the time the employee reaches 65, or until they no longer

meet the definition of disability set out in the plan.

In 2005, the Union and the Employer agreed to a written “Disability Management and Return to

Work Program”. Its purpose is set out in a preamble:

Preamble Tolko Industries Ltd., High Level Lumber Division and United Steelworkers Local 1 -207 recognize that the prevention of injuries and the rehabilitation of injured and/or sick employees are equally important goals. The parties further recognize that return to work programs are part of a continuum of injury prevention and rehabilitation. The parties believe that effective reintegration of disabled employees minimizes the loss of expertise, resources and productive potential to the employer and is the best strategy for maintaining the employee’s/member’s potential and self-worth. The purpose of this program is as follows:

x To commit to the well being and rehabilitation of all employees/members that are suffering from an injury or illness that occurred on or off the job.

x To assist an ill or injured worker’s treatment or rehabilitation by providing transitional work that is meaningful, assists the recovery process and can be performed safely and effectively without undue risk of re-injury and without undue risk to co-workers or property.

x To help the worker maintain a positive morale and outlook regarding a return to work following an illness or injury.

x To earn the trust and respect of the individual.

x To protect the confidentiality of the individual.

x To partner with the injured or sick employee in the Disability Management process.

A lot of the program deals with the processes for accommodating employees and their return to

work after an illness or injury. Modified positions, either as to duties or hours, are referred to as

transitional work. Section V of the program describes a committee, with equal representation (2

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each) from the Union and Management, to oversee the program. However, this may vary as the

following paragraphs show:

A Disability Management Committee consisting of equal representation from the Management and Union will oversee the program. The affected employee and their supervisor are expected to attend meetings if reasonably possible. Committee Members: Chair/Union Representative (2) Employer Representative (2) The Injured or sick employee The Employee’s Supervisor Under normal circumstances, only 1 employer and 1 union representative will attend each meeting. Additional committee members are for the purpose of providing backup and/or alternative representatives. Other parties may be invited to attend a meeting if it will assist in facilitating positive outcomes. This may include health care professionals, insurance companies, the WCB, union agents or other parties as agreed to by the committee members.

The Committee’s responsibilities include the following:

x To ensure all employees/members meeting with the committee are reminded of the committee’s objective.

x To remind and/or assist employees to complete appropriate paperwork and/or forms with respect to WCB and/or insurance claims.

x To be available to meet all employees/members (as medically appropriate) that are off work or part of a transitional return to work program as required.

x To ensure the employee/member is an equal partner in managing their absence. x To ensure the employee knows they are an important and valued part of Tolko High Level

Lumber Division during their recovery and return to work. x To review with the employee/member their recovery and progress from the date of injury or

illness until they have attained functional capacity, keeping in mind that further rehabilitation may be required.

x To ensure physicians and other parties as required are aware of the Disability Management

Program and transitional work opportunities. x To consider available health care and/or modified work solutions. x To ensure the transitional work is monitored and that adjustments are made as necessary. x To manage the Disability Management Program ensuring transitional work is appropriate for

identified clinical restrictions as detailed by the employee’s physician and/or other health care professionals. (It is recognized there may be times this function may require the use of outside professional resources).

x To ensure transitional work is meaningful, productive and can be performed safely without

undue risk of re-injury and without undue risk to co-workers or property.

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x To liase with physicians, health care providers, the Workers’ Compensation Board and insurers as required.

x To focus on solutions and outcomes.

The program says that:

x The Disability Management Committee will discuss permanent disabilities and accommodations as appropriate.

x Adhoc disability management meetings may be called by mutual agreement of the parties.

It does not state, at least not expressly, that the committee has any disciplinary purpose.

Mr. Chalifoux’s short and long-term disability claim files were introduced through the evidence of

Ms. Robinson. She testified via Skype with the parties’ consent. Prior to testifying, and under a

notice to attend, she produced Mr. Chalifoux’s disability files from Manulife’s records. She was

questioned on her direct dealings with Mr. Chalifoux and representatives of the Employer, and on

the contents of the file.

Ms. Robinson has been employed in Disability Management since 2005. She took a LTDI case

manager’s job with Manulife in 2012. In that role she ensures that medical reports support a

beneficiary’s claim for insurance benefits and she works on cases with a view to a return to work.

She explained that under this LTDI policy, a claimant only qualifies until they can do any

occupation that they are qualified for, or can become educated for. Mr. Chalifoux had one

previous short-term disability claim, but it was followed by a period where he returned to work. As

a result, his first short-term claim’s file was closed and a new one later opened, with a new

diagnosis based on the 2011 medical note referred to above.

The insurance company’s files are on a computerized system. She and other Manulife staff make

notes on that system during or following telephone calls or other significant events relating to the

file. The file was assigned to her once Mr. Chalifoux’s claim switched to long-term disability. At

that point she set up the long-term claims file, contacted the Employer and the claimant and

made a decision on the claim. In doing so she drew on the application, the attending physician’s

statement accompanying that application, and her own interview (by phone) with the employee.

Following acceptance of the claim she prepared an action plan.

Mr. Chalifoux’s Manulife file was argued to be relevant on several counts. It was the source,

along with Ms. Robinson’s own evidence, of what the Employer knew of what Mr. Chalifoux was

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saying to the insurer about his limitations and abilities. It provides evidence of the medical reports

Mr. Chalifoux or his physician gave to the insurer, and what might also have been provided to the

Employer had it asked, to the extent it did not ask. To a degree, it is called on to support Mr.

Chalifoux’s diagnosis of depression and the fact that some days were better than others. It

provides evidence about why Mr. Chalifoux was not at work after his July vacation and about who

was expected to do what once he returned.

The earlier records were compiled by others other than Ms. Robinson. The Employer relies, for

their admissibility, on the rule in Ares v. Venner.

Hospital records, including nurses’ notes, made con temporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so. Had the respondent here wanted to challenge the accuracy of the nurses’ notes, the nurses were present in court and available to be called as witnesses if the respondent had so wished. Ares v. Venner [1970] S.C.R. 608

The file consists of several parts. The first part is the short-term disability file, the second the

long-term disability file, and the third a print out of all the supporting documentation. I find the file

relevant and admissible.

Leaving Work in June-July 2012

There are significant points of difference between Mr. Chalifoux’s account of how and why he left

the workplace in July 2012, and how his then supervisor, Mr. Creed, described the situation. This

is important in that, in the Company’s view, it was Mr. Chalifoux who decided he was no longer

able to work. The Union’s position is to the contrary; that Mr. Chalifoux returned to work and

wanted to continue working, but was told by the Employer he could only return if he was 100%

able to perform all the job duties of a spareman.

Mr. Chalifoux says what happened in June of 2012 is that he had been working on modified

duties for some time because of the problem with his joints. He also had some problems l ifting

because of his disk surgery. His physician had given a report in October 2011 for modified work,

but he had not been asked for an update since. He was away on 2 weeks’ planned vacation.

When he returned to work on June 25, 2012, he says he was put to work on the debarker where

another employee was training him.

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His supervisor, Mr. Janin Creed, called him into his office and told him they did not have any

more work for him and that he could not return to work until he could do his own job 100%. Mr.

Chalifoux said he did not want to be off work and felt able to continue with modified duties. Once

told to go home he applied for short-term disability, on July 9th, and later transitioned on to long-

term disability.

It was put to Mr. Chalifoux that he was actually scheduled for vacation from June 18 to 29. He

was unable to say if that was so or not saying “I’m not very good at dates.”

Mr. Janin Creed no longer works for Tolko, having moved on to other employment in 2014. While

there, he was Tolko’s Production Supervisor, in charge of issues like safety, productivity of the

crew and so on. He had a role in supervising modified work and was familiar with Mr. Chalifoux’s

employment. Mr. Chalifoux worked shifts under him for 6-8 months and worked as a spare man.

Mr. Chalifoux was initially employed in a training mode for the first couple of months in specific

jobs. He was learning the console function and learning about the machines involved. He says

he was able to perform these duties and did them by himself in his last week on the job.

Mr. Creed recalls that Mr. Chalifoux was scheduled to go on vacation for 2 weeks in the summer

of 2012 and that Mr. Chalifoux said, before he left, that he was going to see his doctor. Mr. Creed

asked him what was wrong and Mr. Chalifoux said he was having issues with his feet. He told

Mr. Creed that he was feeling better in the line (the accommodation job) but was worried about

going back on the floor. Mr. Creed says he asked Mr. Chalifoux to contact him after he had seen

his doctor. Mr. Creed says, while acknowledging that “it was a long time ago”, Mr. Chalifoux later

told him he was not coming back and was going off work because of his medical condition. Mr.

Creed says he never did get any update from Mr. Chalifoux on his restrictions and cannot recall if

he ever talked to him again. He says there was work he could do in areas where he had

completed his training. Mr. Creed personally had no role in disability management. He had no

idea Mr. Chalifoux was not going to come back, but he did expect Mr. Chalifoux to show him what

his restrictions were. He said he is “pretty sure” he asked Mr. Chalifoux about what things he was

restricted from doing but cannot recall when that was. He has no notes of these conversat ions

and was only testifying from memory about events in 2012.

Mr. Chalifoux says that for some time prior to his vacation, he had been on modified duties

learning the debarker and other machines, doing the spare man duties, for example, trading

others off over lunch, helping the millwrights and the electricians and so on. At times he would fill

in for an absent foreman. The reason he initially went on modified duties is because he felt his

joints were affecting his performance. Walking and standing was a problem. He says his lower

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back disc surgery from the 90’s was bothering him, making lifting difficult. Both elbows were

inflamed as well as his right hand and his ankles. He understood, at the time his doctor wrote the

note of October 2011, that his diagnosis was rheumatoid arthritis. He was told to avoid

repetitious movement of his right hand pending his doctor’s further review one month later. The

October 2011 note went to the Employer. Mr. Chalifoux says Tolko at no time ever asked him to

provide any updated fitness/return to work document.

Neither Mr. Chalifoux nor Mr. Creed’s evidence about what happened when he returned after his

vacation is very clear. However, a lot is clarified by the short-term disability portion of the

insurance claim file. Selected extracts reveal the following.

An August 1, 2012 entry sets out the STD Action Plan. The Job and Level of Physical Demands

are described as follows. Mr. Connolly agrees this description is essentially correct:

Sawmill Utility/Spareman – Ensure smooth flow of mill which involves operating machinery. Physical Demands: Constantly lifting/carrying up to 25lbs, frequently pushing/pulling up to 35lbs, constantly standing, frequently bending, climbing ladders, working from heights, climbing s tairs and moving equipment. Medium – Heavy Work Demands

The Action Plan continues:

3. Other Factors: EE has been on modified work since claim in 2010-2011 for same issue Hx of Lumbar surgery 4. Diagnosis: Enthesitis 5. Analysis – Medical Evidence to Support Functional Limitations & Restrictions: Sx: Join pain, inflammation, stiffness Tx: EE has seen Rheumatologist multiple times (19Jul11, 22Nov11, 19Mar12, more?) Testing: xrays, u/s Mx: was prescribed Methotrexate 15mg increased to 20mg, Sulfasalazine 500mg increased to 1 gram am and pm, steroids, Lansol – stopped all mx Prescribed only Sulfasalazine and piroxicam 20mg/day Rheumatologist has recommended EE see another specialist for second opinion (as of rpt dated 19Mar12) FILE NEEDS (DESCRIBES WHAT IS REQUIRED FOR FUTURE MANAGEMENT) 1Aug12 – Call EE for Initial Interview (Did EE see second Rheumatologist? Change in mx? Change in sx? Any further tests? Adl? R/L?)

The records of then case manager Ms. Luongo begin with an email exchange between her and

Ms. Tammie Elder for the Employer. Ms. Elder advised on August 1, 2012:

Mr. Chalifoux’s last physical day at work was June 15, 2012, followed by 2 weeks (June 18 – 29 inclusive) of scheduled vacation that had been requested by Mr. Chalifoux and approved by h is supervisor. He was requested to bring new restrictions in for his supervisor when he returned from vacation, but failed to do so, resulting in his being placed off work until such time as new

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restrictions could be obtained and integrated into the available positions. When he requested new restrictions, Mr. Chalifoux was again put off work.

This supports the view that Mr. Chalifoux in fact returned to work as he says. Ms. Luongo replied:

This one looks tricky! I think I will need to clarify some things with Mr. Chalifoux and his physician before I make any decisions on the claim.

There is no evidence that Mr. Creed or Ms. Elder ever sent Mr. Chalifoux or his physician a new

“Fitness to Return to Work/Modified Work” form of the type sought and provided in October 2011.

Similarly, the Employer took no steps to trigger any of the processes in the Disability

Management Policy. The Employer’s evidence, at best , is Mr. Creed’s recollection that he asked

Mr. Chalifoux to let him know his restrictions following his visit to his doctor during his vacation.

On August 10, 2012 an entry by a Jean Jay read:

This claimant came back from holidays to find no modified duties available. Claimant had an LTD claim 1427229 that closed October 2011; as such, this claim to be a continuation of the LTD claim. Refer to LTD CM for review. Medical to be requested.

Ms. Jay followed this up on August 10 by contacting Ms. Robinson who handled LTDI claims.

She also called Mr. Chalifoux, and recorded the information she received as follows:

- Provided his ER with note from doctor advising no changes. ER cannot accept unless he is able to return to his own occ of Spareman. They do not have any light duties available for him.

- EE was training on machines since back from his previous claim 2011. It was a sitting position working on a computer

- Recently put these medications (2 weeks ago): Folic acid Apo-Methotrexate (2.5 mg) Prednisone 4x/day (5 mg) Percacet Continues with the following medications Percacet Oxycodone (80 mg) Current R & Ls

- Joints continue to be inflamed – both elbows, Lt hand wrist pain, not able to hold anything over 2 lbs and no more than 5-10 mins. (EE is Rt hand dominant)

- Plantars (Rt foot) unable to stand more than 5-10 mins (back spasm, foot starts to hurt) - Sitting position (low back pain at end of his 8 hr shift) - Last saw foot specialist a year ago, has orthotics. Tried physio, acupuncture but nothing has

helped. - Asked if he would be able to return to his own occupation. He stated new medications seem to

be helping so possible. Also, Spareman job now changed to a 2-man job so if he is able to use the other man for the more physical parts of the job, it may be possible.

- Doctor on holidays until September. Advised I would request additional medical and he should f/u. Fees his responsibility. He understands.

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I note that Mr. Chalifoux’s recorded description to the insurer of why he was unable to return to

work is quite clear and detailed. It indicates he was telling the insurer he was hopeful with the

new medication that he would be able to return to all or part of the spare man’s job. The recorded

comments from Ms. Elder support Mr. Chalifoux’s account of what took place much more than

Mr. Creed’s account.

Still on August 10, 2012, Ms. Jay sought further medical information from Mr. Chalifoux’s general

practitioner, Dr. Essop.

Copies of recent consultation (Rheumatology) report dated June 2012 Clinical notes and any testing results from November 2011 to current

On August 22nd the doctor’s office advised that Dr. Essop was on holidays and would not sign the

medical report until her return in the week of September 12, 2012. On the 23rd Ms. Luongo made

a note saying she needed to know if Mr. Chalifoux has been doing permanent modified duties

since October 2011. If so, what did his duties consist of? If not, have they been supplying him

with random duties as needed? This was followed up with an email reminder to Ms. Elder at

Tolko on August 27 reading:

I just need to know if Mr. Chalifoux was working a permanent modified duty position since he returned in October of 2011. What I mean by that is, did you create a permanent position for him that would accommodate his restrictions that he would be doing for the remainder of his employment with Tolko? Or did he just do random duties as needed that changed everyday?

Ms. Elder replied the next day, saying:

Mr. Chalifoux has been in a modified/training position since his return. It was not created as a permanent position as we had no idea that he had permanent restrictions. The position could only last as long as there were positions in which Mr. Chalifoux had to be trained for his actual position of spare-man in which he needs to be capable of performing all production jobs in the sawmill. He was actually asked to provide updated restrictions (again, we did not know his restrictions were permanent) so that we could determine what would best suit him to be able to continue his progression on a return to regular duties. Given that, am I to understand that his restrictions are now permanent? If so, we will have to have a review of all positions in the mill to find something else that he will be capable of doing long -term.

Again, this exchange prompted no steps by Ms. Elder to trigger Tolko’s disability management

process, to in fact assess the availability of modified work, or to send Mr. Chalifoux a “Fitness to

Return to Work/Modified Work” form for completion by his physician.

Ms. Luongo then called Mr. Chalifoux (that same day) and recorded his reply as follows:

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EE stated that he had been working modified duties as of October 11, 2011 and had gone off due to availability of modified duties. EE is still experiencing pain in joints. EE is still taking mx: [listed again] EE was also prescribed Celexa (40mg) to help with depression he has had due to condition. EE said he is unable to do most physical activities as his joints swell up and he feels significant pain. EE said he spends most of his time in bed and his wife has been his main support. EE said they recently hired a maid to help with the cleaning. EE has a specialist apt on 19 Sept 12.

On August 28, following this call, Ms. Luongo approved Mr. Chalifoux’s claim for a couple of

weeks pending further medical reports. In describing Mr. Chalifoux’s job requirements, she

recorded:

EE is TD’s from ownocc as he is unable to stand or walk for more than 10 -15 minutes and his position requires him to be constantly standing. EE is also unable to lift/carry anything more than 20lbs as his joints get inflamed and he will have significant pain. EE’s position requires him to constantly lift and carry up to 25lbs.

This clearly refers to his original position, not a modified or accommodation position. On

September 17th Ms. Luongo records a telephone discussion with Mr. Chalifoux as follows:

EE said that he saw specialist today and his dx was confirmed as rheumatoid arthritis. EE said specialist increased Mx. EE said he had a MD note stating he needed a few more months off. CM said that she would need APU completed and consult rpts submitted. CM said she would call MD to say a new request will be coming and to void the last request.

This led her to extend coverage until September 30th. Ms. Elder was advised of this and of the

fact Ms. Luongo was asking his doctor for a further medical report. The doctor’s office did not

send in what was asked for, but there is no indication that this was in any way due to Mr.

Chalifoux. On October 30th Mr. Chalifoux was told he would be working with a new case

manager, Ms. Dercho Lin. She called Mr. Chalifoux who had obviously followed up with his doctor

as he told her his GP would not fill out the forms without pre-payment. However, that report

appears to have been completed and sent in on October 26 and received by November 5th. It

advised that he had been referred to Dr. Lydell, a rheumatologist. In a call with Mr. Chalifoux on

November 5th Ms. Lin was told that the medications were affecting his cognitive function. She

extended his short-term disability until December 23rd, saying:

EE remains TD from own occ. As a sawmill worker he is using heavy machinery and is classified as heavy work. EE is on many medications for arthritis and is noticing cognitive changes while on medications. While suffering symptoms of his condition and while on these medications, it would be dangerous for EE to work any machinery or do any heavy work at this time. (emphasis added)

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Again, Ms. Elder, at Tolko was notified. Again, she took no active steps to seek medical

confirmation of restrictions or to explore accommodation options. By this point it is quite clear

that Ms. Elder knew Mr. Chalifoux was being asked for and was reliably providing information

from his doctors when asked to do so by the insurer.

By November 30, 2012, Ms. Robinson prepared to move Mr. Chalifoux’s claim from short-term to

long-term disability coverage. Mr. Chalifoux was sent a letter on December 3rd about the forms

required in order to apply. The letter asked that he ensure that his doctor send in:

Any testing results from November 2012 (ie MRI, CT scans, X-rays etc., chart/consultation notes, specialist, hospital and operative reports) relevant to your current condition.

Ms. Elder received a copy of this letter which confirmed that the Employer would be sending in a

completed Employer’s statement. The closing analysis on the short-term disability file describes

the situation as the insurer understood it at the time:

3. Other Factors: Hx of condition Chronic pain Depression 4. Diagnosis: Seronegative Polyarthritis 5. Analysis – Medical Evidence to Support Functional Limitations & Restrictions: EE has joint pain and swelling. EE is able to lift and carry up to 10 lbs, stand 3 -5 minutes and walk up to 50m. All cognitive impairments are mild. EE is taking a number of medications and GP is waiting to see how EE reacts to the medication. EE is being treated by the Rheumatologist. Due to the heavy nature of EE’s job, it would be difficult for EE to complete the demands of his job and is therefore TD own occ.

This record provides strong support for the conclusion that Tolko decided it had no more modified

duties for Mr. Chalifoux once he returned from vacation. It supports the view that it was the

Company that changed his situation from the accommodation that was being offered before his

holiday. He was on modified duties, which he felt he could continue, yet the Company was

saying, since he had learned all he could, his modified duties were over. This supports Mr.

Chalifoux’s account that he was told he couldn’t keep working, rather than that he first told Mr.

Creed that he was going off due to his medical condition. I find it significant that, despite her

ongoing involvement with officials from Manulife, Ms. Elder did not testify. I infer that her

evidence would not assist the Employer on these points.

The record also shows that, over this period, Tolko took no steps to invoke the process in the

Disability Management Program despite its express purpose and despite Ms. Elder’s expressed

lack of understanding of whether Mr. Chalifoux’s restrictions were permanent, and the Company’s

consequent expressed inability to determine what would “best suit him to be able to continue his

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progression on a return to regular duties”. The Employer’s position is essentially that, Mr.

Creed’s having orally asked for an update on restrictions, it was Mr. Chalifoux’s failure to produce

an updated medical report that kept him off work.

The record shows that Mr. Chalifoux was attending at his physician and specialists and was

providing the insurer with that information subject only to a delay or two by his doctor. Ms. Elder

took no steps, despite regular contact with the insurer, to reach out to Mr. Chalifoux and say

could you send us the information you are giving the insurer so we can consider accommodation,

or begin the Disability Management Process. Had she done so, even without diagnostic

information, the Employer would have had a greater understanding of Mr. Chalifoux’s disabilities,

in particular that, due to both depression and the adverse effects of his medication, he may not be

safe at work even if he could handle some of the physical components. The Employer might also

have learnt that Mr. Chalifoux was expressing a will to return to work. It may well have also learnt

whether his condition (Rheumatoid Arthritis) was such as could be expected to go away or not.

I have considerable difficulty with the Employer asserting, as it did later, that it was simply relying

on the insurer, yet maintaining that Mr. Chalifoux remained, throughout, at fault for not providing

them with the necessary medical updates that he was clearly obtaining and providing to the

insurer who, in turn was communicating fairly freely with Ms. Elder. Beyond whatever the oral

conversation with Mr. Creed involved, and my finding is that it was little more than “tell me what

your doctor says after your appointment”, Tolko did nothing further to seek medical information

from Mr. Chalifoux. It had forms for that purpose but never asked him to get them filled out. It

had a sophisticated committee process, equipped on paper to deal with his situation, but nothing

was done to invoke that process in any meaningful way.

Shortly, I will turn to the steps taken by Tolko to scrutinize Mr. Chalifoux’s position, to interview

him and to undertake surveillance. Before doing so, it is useful to complete the review of Mr.

Chalifoux’s dealings with Manulife once he switched to long-term disability and began dealing

with Ms. Robinson, who in turn was continuing the practice of communicating with Ms. Elder.

On February 14, 2013 the insurer wrote to the grievor telling him, in part:

During the preliminary stage of reviewing the claim, Manulife Financial may find it necessary to gather additional information from yourself, your employer or physician(s). You will be notified what information, if any, is needed. Should additional information be required, we ask that you keep in touch with your employer and/or doctor(s) to ensure the necessary information is provided as quickly as possible.

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Ms. Elder, at Tolko, received a copy of this letter. On February 26 Ms. Robinson interviewed the

grievor by telephone and recorded the results as follows, omitting some details:

EE Interview Symptoms: All joints plantar fasciitis, arthritis on left wris t, lower back, right hand middle finger knuckle, elbows and migraines. Constant pain that never stops, up throughout right, on pain meds to help sleep, depressed and eating more. GP – Dr. Essop Specialist – Dr. Lydell, last visit 25-Feb-2013, waiting for next appointment Treatment: Dr. Lydell wants to try an aggressive therapy, injections, X-rays and blood work. Medications: … Did Physio – didn’t make a difference No exercise program – makes it worse. Tries to walk a block a day. Improvements since going off work? None except can walk more now that he is off work. Heel on right is torn, plantar fasciitis. Aggravating Factors: Being on my feet too long, doing anything physical, cold weather, feels the same all day and all night everyday. No similar condition in past. Activities: typical day. Gets up with kids then goes back to bed once they leave for school. Trying to relax as much as possible. Sleeps until 10 am, has breakfast, putters around house doing dishes, laundry, cooking, watch TV, tries to walk a block a day, usually eats lunch around 1-2 pm, dinner around 7pm. Goes to bed around midnight (kids13, 16 and 21) Support at home: Yes kids and wife who works, unable to clear snow, wife does grocery shopping, cant lift or do anything repetitive, elbows throb, avoids lifting. Able to drive. Has to drive about 3 hours for appointments with Dr. Lydell every second month. Makes frequent stops unless his wife drives. Plans for the future: Waiting for test results. Job/Workplace: Yes job is still available. Will return to this job if the therapy works. Hopeful. Normal hours of work: M-F 6:30 am to 4pm or 4:30pm to 1 am about 9.5 hours a day. At this job for 30 years. Major duties of job: Hectic, running around in mill keeping production going, traded o ff for lunch breaks, get mill started at beginning of the day. Run all the machines, if machines broke down then I would help the millwrights work on the machines. No other jobs available that he can post into. Seniority based. Did go back to work for awhile and worked on machine that moved logs into the machine. Sat in a shack and watched monitors but there wasn’t anymore work available doing this job. Dr. is against RTW at this time. Gets along with everyone at work and has coffee with the guys every o ther week to keep up on what is happening. Barriers to returning to work: Joints are preventing me from returning to work, mobility, repetitive work, lifting, standing, sitting. (emphasis added)

Following this interview Ms. Robinson sent Mr. Chalifoux a letter approving his long-term disability

claim, with a copy to Ms. Elder at Tolko. That letter said in part:

The availability of work is not considered by Manulife Financial in assessing your disability. … In some cases, where appropriate, services of our rehabilitation specialist are requested to work with the employee and their employer to assist in a return to meaningful employment. We will let you know if it appears these services could be helpful in your case.

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That same day Ms. Robinson prepared an “Action Plan” recorded on the file. It repeats the heavy

lifting and other requirements of the job and continues with the insurer’s findings:

4. Medical: Seronegative Arthritis with Depression and Chronic Pain GAF: 50 Subjective Sx: persistent pain affecting small joints in hands, wrists, elbows, shoulders, back and right foot. Symptom Evolution: symptoms are worsening and affecting more joints. Initial Clinical Findings: swelling and tenderness affecting the left wrist Most Recent Clinical Findings: swollen, tender joints of hands and wrist, tender with ROM of elbow and shoulder, antalgic gait. Restrictions and Limitations: all physical activity is now restricted due to the nature of the inflammation and the various joints that are affected. Cognitive or Psychiatric R&L’s: chronic pain leads to worsening depression, decreased ability to concentrate, decreased memory, decreased attention, social isolation. Claimant reports having severe arthritis in his right hand, middle finger, inflammation of the le ft wrists and both elbows, plantar fasciitis in right foot heel. Previous injury in lower back from work with osteoarthritis. … 5. Analysis Claimant has had minimal response to most of his medications. Dr. Lydell and Dr. Essop are working hard to find a treatment that will decrease his joint inflammation. He is experiencing significant joint pain in wrist, elbows, lower back and in the knuckle joint of his hand along with plantar fasciitis. He does not have difficulty with most of his activities of daily living however he is able to rest frequently and does not do anything that is repetitive or requires lifting . He stays off of his feet as much as possible. He has two teenage kids left at home that help out and a wife that does the grocery shopping. Claimant’s occupation is considered Heavy Physical Demands. He is required to lift/carry and push/pull up to 10lbs frequently, claim stairs and use of both hands for Power Grip and Speed Work. Tools used are power saws, shovel, pry bar and broom. His phys ical reports that he is unable to perform any physical duties at this time. (emphasis added)

On May 31, 2013 the insurer wrote to the grievor asking him to apply for Canada Pension Plan

coverage, which would be offset against his LTDI benefits. Again a copy was sent to Ms. Elder at

Tolko. A note that day showed that Mr. Chalifoux returned a call when asked and updated the

insurer on his physician’s advice and his conditions. In a call on July 4, 2013 Ms. Robinson again

discussed with Mr. Chalifoux the need to apply for CPP. She recorded the results of their

discussion of his conditions:

As per telephone call 4-Jul-2013, claimant continues to wait for test results and appointments. Due to his location, medical is very limited. Claimant reports being unable to move around as he experiences numbness and pain from the waist down to his foot on the right side. The pain can last for days up to a week depending on how much use it gets. Driving to appointments is very difficult for claimant. He needs to stop and walk around frequently. He also has aching in left wrist, both elbows and right middle finger. He also continues to experience weekly migraines that can last from one day to a week. He is able to recognize the signs and use the lmmitrex injection to stop the onset quickly. Pain killers of Percocet and Oxy Neo are used regularly for over 5 years now. He stays within the prescribed limits but occasionally has to repeat a dose in order to get relief from pain.

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Claimant continues to be unable to perform the duties of a Sawmill Utility/Spareman. This job requires climbing stairs, lifting/pulling over 10 lbs and up to 50 lbs. He uses power saws, shovels and pry bars and also requires repetitive movements of both feet.

An entry on October 30, 2013 records that Mr. Chalifoux let them know he would be seeing his

Rheumatologist on November 7, 2013. Mr. Chalifoux called the insurer on November 15, 2013

with an update which read:

Claimant called with update. RA has put him on a new medication: Sandoz-Leflunomide 10mg OD and requires bloodwork once a month. Follow up to be determined. Stress Test results – he has not been notified of anything so he assumes everything is okay. Test was done in September. Will be making all the appointments for around the same time. Will advise CM when they are.

The next note, on December 19, 2013 reads:

ER called with update re: Surveillance Surveillance will take place between January 16 and 21, 2014. ER will send report to CM once received. ER also advised that claimant’s wife won the Lotto Max last year and is concerned that this may play a part in his motivation. CM will contact claimant for a full functional update and provide reported restrictions and limitations to ER. (emphasis added)

Ms. Robinson’s evidence was that notes would be entered into the system “whenever anything

happened on the file” and that she would type in notes as she was talking. She said that she

could not recall who it was that called her. She agreed to call Mr. Chalifoux for an update on his

condition as “it was due on the file in any event”. The record of the call to Mr. Chalifoux is

partially set out below. It became the list of restrictions and limitations sent first to the Employer

and then to Mr. Henley. The insurance file also discloses that Mr. Chalifoux:

- Has received Acknowledgement from CPP but nothing further. Will fax to CM - New medications will start in January 2014. Just received an Orencia Response Program kit

and assumes new meds will have to be injected. - Dr. Lydell was last seen in November. No appointments for 3 months - Blood tests once a month - Feeling worse most likely due to the cold

Symptoms: - Joints feel inflamed in both feet, elbows, wrist, middle finger right hand, ankle and lower back.

Aches all the time, can’t do anything physical. - Headaches about 20 a month. Tries to medicate before they get too bad but sometimes they

become migraines which can last about a week. No as many since being off work. - Heals hurt – plantar fasciitis - No specialist appointments of any kind - Uses medication to stop pain. Heat and ice do not work - Right leg goes numb - No pool sessions – joints hurt too much

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- No physical therapy. When tried in the past, no improvement and aggravated condition - Tried acupuncture in the past too which didn’t help.

The next entry records that Mr. Chalifoux phoned on January 24, 2014 to say that his CPP claim

was denied and that he was expecting to get a date for an appointment with a RA specialist.

This review of the grievor’s long term disability file indicates that Mr. Chalifoux was actively

following treatment through his general practitioner and his specialist. It also confirms that in

addition to his physical problems cognitive difficulties and depression were contributing factors to

his inability to work. It again shows that Ms. Elder was kept abreast of activity on his file,

although with diagnostic restrictions. It shows that Mr. Chalifoux was told that he would be

advised if rehabilitation services were appropriate.

Scrutinizing Mr. Chalifoux’s Position

Mr. Connolly has been with Tolko for 16 years, in a variety of successively more senior positions,

in a number of Tolko’s mills. He was posted to High Level in June of 2010 as Mill Manager. He

is now the Senior General Manager Lumber, responsible for oversite on eight mills including the

High Level Mill, which is Tolko’s largest.

Mr. Connolly, once he arrived, tried to get to know the employees. He understood that Mr.

Chalifoux was working as the spare man in the mill, and heard that he was thought to be highly

competent in that role. Later, as he began to work through attendance issues, Mr. Chalifoux’s

absenteeism record was brought to his attention.

In January, 2012, it had become known that the grievor’s wife had won the lottery. Rumours

began to circulate to the effect that “it wouldn’t be long before the grievor would be away on

disability”. Mr. Connolly said he didn’t put much stock in such comments when the grievor went

on disability, although it obviously remained in his mind as the matter progressed.

Mr. Connolly testified that they had heard “rumblings” during the summer and fall of 2013 that the

grievor was active in the community. Mr. Connolly himself had seen the grievor at Hatch Lake.

Mr. Connolly says at the time he simply nodded in recognition and took no pictures. His

observations were for no more than a minute or so.

Mr. Chalifoux testified that Mr. Connolly never told him he had seen him driving an ATV, that he

does not know what incident he is talking about, and does not recall being at the lake Mr.

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Connolly spoke of, or of seeing him at all in such circumstances. He did not testify affirmatively

that he had not operated an ATV.

Mr. Connolly says, in the fall of 2013, as they were going through the employees off on disability,

and given his observations that summer, they (Tolko – not the Committee) decided to ask Mr.

Chalifoux to come in to meet with the Disability Management Committee to update his status. He

knew Mr. Chalifoux had been off on disability and was being dealt with through the insurance

company. He knew he was not working at all and understood his restrictions meant his ability to

work was very limited.

Meeting of November 13th

The Company arranged for Mr. Chalifoux to attend a Disability Management Committee meeting

on November 13th. Seven people attended the meeting. Mr. Chalifoux was present for the

discussion of his situation, which lasted 10 minutes, along with Corey Murphy from the Union.

The other five were from management. Management’s notes of the meeting read:

Troy requested an update from Les as to his current condition. Les stated he is getting worse and it affects all of his joints. He can’t remember what his condition is called but thinks it is rheumatoid arthritis and something else. Troy confirmed with Les that he is currently on long term disability. The last restrictions Tammie had is from 2011 which included:

x Primarily sitting with occasional walking/standing x Lifting 10 lbs maximum x No use of right hand, no use of right arm, no use of left arm, no repetitive movement of

elbow Les stated again his joints are worse now than before and the cold weather makes it even worse. He is not ready to return to work but is still hopeful. Les will keep Tammie updated on his medical status and he said Tammie can contact him as well.

Mr. Chalifoux says he was unsure of the purpose of the meeting and was nervous in front of this

group of managers. He could not recall having been to such a meeting in the past.

Tammie Elder is the payroll clerk at Tolko. Mr. Connolly was asked to explain why, since the

Disability Management Committee was intended to be a joint committee with equal

representation, there were five managers in attendance and only one Union representative. He

answered that Mr. Bob Evans was there as the incoming manager, about to replace him. Ms.

Debbie Kamieniecki, a shipping assistant, was just there to do paperwork. Ms. Tammie Elder

and Ms. Julie Clarke are out-of-scope employees, but he says only he was representing

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management. Mr. Connolly says no one questioned the number of managers in the room at the

time.

On the day of the meeting, Mr. Connolly recalls the grievor parking right at the base of the stairs,

where typically people would not park. Mr. Connolly was standing in the entrance way and says

the grievor appeared to shuffle into the building and climb the stairs slowly. His recollection was

that “he appeared to be someone who was severely disabled” and this was at odds with what he

had seen at the lake. However, this was not put to Mr. Chalifoux in the meeting.

Mr. Chalifoux does not take issue with the meeting minutes, however, the listed items were from

the 2011 medical report. He did not say he could not use his right hand, and he did not say that

the 2011 medical report described his lifestyle.

Mr. Connolly recalls Mr. Chalifoux saying, as they went through the restrictions originally listed in

Dr. Esson’s 2011 report, that he wasn’t doing well and that his restrictions were still the same or

in fact worse than they were in 2011. He cannot recall Mr. Chalifoux’s description of his daily

routine, but basically understood him to be housebound, primarily sitting. To Mr. Connolly, the

description of his disabilities sounded very severe, but inconsistent with his having seen him

operating the ATV. Overall, Mr. Connolly felt “it was a bit of a show”. Mr. Chalifoux denies

absolutely that he was “faking his illness” or “putting on a show” at that meeting.

Mr. Connolly says he cannot recall why he did not tell Mr. Chalifoux that he was suspicious of his

answers, but says that, in any event, he doesn’t think he would do anything differently. He knew

at the time that Mr. Chalifoux was suffering from Rheumatoid Arthritis and Plantar Fasciitis, but

did not know that he also suffered from depression. The insurer’s records of the available medical

information disclose that Mr. Chalifoux’s medication was affecting his cognitive skills and thus his

ability to work safely but Mr. Connolly was also unaware of that concern.

Mr. Connolly says at that time, management wanted an updated medical report, but did not ask

for one. He says that since he was on insurance benefits, Manulife was “looking after the medical

stuff”. While Ms. Elder was in contact with and receiving copies of correspondence from the

insurer, there is no evidence that Ms. Elder updated the committee on this, including the fact that

Mr. Chalifoux was providing medical reports as requested to the insurer. Again, Ms. Elder did not

testify. Management did say “if things have changed please update us” but Mr. Connolly agrees

this instruction was not direct enough. After the meeting they “let things sit for a while” and then

considered what to do. By “they” he was referring to management not the Disability Management

Committee. They considered asking around since, in a small community, Mr. Chalifoux’s level of

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activity would be known, but did not want to involve other employees. Several Tolko employees

lived right on Mr. Chalifoux’s block. Instead they decided upon surveillance.

After deciding to undertake surveillance and contracting Mr. Henley, Mr. Connolly says that,

following discussions with the insurer, they felt it was time for an update on Mr. Chalifoux’s

condition. Rather than asking for a medical report or seeking a physician’s fitness for work

assessment, which they could easily have done, they simply and only had Manulife speak with

Mr. Chalifoux and, after that, provide Tolko with an update for use in the surveillance.

On December 20, 2013, Ms. Robinson from Manulife sent Ms. Clarke at Tolko an account of what

Ms. Robinson said Mr. Chalifoux had told her about his medical restrictions over the telephone

that day. It is this description that became the reference document for Mr. Henley ’s surveillance

in mid-January. It reads:

I was able to get in contact with Mr. Chalifoux today. He reported the following: Restrictions and Limitations – reported by claimant

x Walks the dog around the block maybe 5-10 min every other day. Tries for everyday but can’t always do it. Walking on snow covered ground is easier than walking on cement.

x Lifting – hard to hold even the phone to his ear to talk, has to use shoulders. x Able to lift maybe 10 lbs but with pain. x Carry – 5-10lbs. Can lift grocery bags from cart to car and into house. Kids there to help

with the heavy things. x Driving okay, doesn’t do much of it. Town is 2 min away. Able to drive 15-20 min then

needs a break. Wrists and hands always bother him. Needs to stop for rests frequently. Lower back hurts from sitting, elbows and wrists from the steering wheel. Usually lets someone else drive. Writing okay, doesn ’t use a computer, uses IPhone just as a phone, no data

x No video games. x Grip on right hand not good. Left hand is good. x Squatting/kneeling/bending – doesn’t do. Had surgery in 1992 for OA in lower back, disc

protrusion of two discs, 2 removed, 2 left in x Sitting – can’t sit on anything hard, right leg goes numb when driving x Unable to grip a coffee with one hand or hold phone

ADL’s:

x No exercise at all, stays home, watches TV, only leaves the house to walk dog or pick up groceries once in awhile. Stays inside when it is cold. Able to do dishes in small bits, maybe cook, doesn’t do much, wife does most of it.

Claimant advises that kids get rid of the snow with the snow blower, they ride the quads in the summer and the snowmobile in the winter. He is unable to use them. I trust this will be useful. If you have any questions or concerns, please let me know.

As soon as she received this email, Ms. Clarke sent it on to Mr. Henley. Mr. Chalifoux never

received a copy.

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Mr. Chalifoux was examined and cross-examined on this list. He agrees he told her he couldn’t

hold a cup, but that was not all the time; sometimes he can hold groceries. In each case, it is not

all the time. He says he thought he was being asked about his day to day life at home and says

he told her that as best he could. He confirmed that he drives, but needed to take frequent

breaks.

Mr. Chalifoux agreed that he knew it was important to answer Ms. Robinson accurately, and that

some things she could not learn without asking him. He agreed he did not tell Ms. Robinson that

he was able to use a snow blower, but says this was very occasional. Overall, Mr. Chalifoux

does not really dispute the topics raised by Ms. Robinson, or her recording of his answers,

although he qualifies many of them by suggesting they record his answers in more absolute and

unvarying terms than was the case. He says he answered the questions he was asked but

clearly did not volunteer information about some of the more strenuous activities he might do from

time to time. He says now that he was not asked about some of these things, and when he did

such things, he would pay for it later with increased pain and the need to rest.

Surveillance from January 16 to 22, 2014

What follows is a combination of Mr. Henley’s report, his testimony, and the video surveillance

introduced into evidence. Mr. Henley began surveillance at the grievor’s home in High Level at

10:00 a.m. on January 16, 2014. At 10:47 Mr. Chalifoux remotely started his blue Dodge truck

and shortly after that walked out to the truck and back into the house. At 11:08 Mr. Chalifoux left

the house with a toddler and two dogs, going towards an outdoor skating rink. The walkways

were icy. The child played in the snow bank for a while and then they walked back to the house,

arriving at 11:42. Mr. Chalifoux was holding the dog’s leash throughout.

Right after that, the grievor was seen lifting a toboggan and starting a snowmobile electronically

with a key. Photos were taken. Mr. Chalifoux took the first child and a second for a ride. He

drove the snowmobile, pulling the children behind on the toboggan. They returned at about 12:08

p.m. after a 20 minute ride. Mr. Chalifoux lifted the snowmobile hood and inspected the engine.

At 12:20 that same day Mr. Chalifoux came out with the two toddlers. Further photos were taken.

A white Dodge truck outside the house was running, apparently having been started remotely.

Another vehicle pulled up and Mr. Chalifoux walked over to chat with the driver for a few minutes.

A couple of minutes later the grievor shoveled six or seven scoops of snow off his driveway,

apparently without difficulty, put the toboggan in the back of the truck, and at 12:30 left by truck

with the two toddlers. They drove to a nearby slope which the two toddlers climbed while Mr.

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Chalifoux watched. At one point Mr. Chalifoux pulled the toboggan up the slope. By 1:00 o’clock

the grievor had left the slope and driven back to his house. At 1:30 he carried out the garbage.

Just before 2:00 p.m. the grievor left the house and drove his truck to the nearby secondary

school, returning after 12 minutes. At 3:24 he drove the truck to Home Hardware where he

walked in and bought a small plastic toboggan which he put in the truck. He then drove to Super

A Foods and came out carrying a couple of grocery bags. He arrived back at the house about

4:00 p.m., carried the two grocery bags into the house. He then took out the garbage. At 4:10,

Mr. Chalifoux left the house with one of the children and the toboggan he had bought at the store.

They headed to the slope where Mr. Chalifoux walked with the child to the top of the slope, which

was not very high. They were back at the house within 30 minutes.

Mr. Chalifoux’s recollection of January 16th is that his wife was off work sick starting on January

14th, for about 6 weeks. He had to step up his activities a bit to help out. At the same time, they

had an unexpected visit from his grandchildren. Apparently the power was out at their home in

Fort Vermilion as a result of a storm. The boys, he says, kept bugging him to go for a little ride so

he took them around the block with the snowmobile. He agrees he went out and bought the

green toboggan and took the boys to the hill.

He says that his son usually does the snow clearing but that day he had homework to do, they

got into an argument about it and Mr. Chalifoux did it himself.

The surveillance on January 17th and 18th revealed nothing of significance in relation to Mr.

Chalifoux, who appeared to remain in the house on both days.

Mr. Henley returned to High Prairie on January 21st and 22nd for further surveillance. Nothing

happened on the 21st until 1:15 when Mr. Chalifoux took his wife’s SUV and drove it to the Extra

Foods parking lot. He pushed a shopping cart into the store. About 20 minutes later he returned

to the truck lifting the groceries including two flats of bottled water into the back of the truck. He

then drove to the A & W, the post office, and the drug store. He stopped to speak to some friends

and then drove back home, having been out and about for about 90 minutes. At 3:30 Mr.

Chalifoux again drove to the school, picked up one of the children and returned home. At 4:40

Mr. Chalifoux was observed operating a relatively small self-propelled snow blower outside his

home. This actively took about 20 minutes and seems to have been handled without difficulty.

About 5 minutes later, Mr. Chalifoux pulled out a trailer and attached it to his truck. The snow

blower was then used to clear the snow off the trailer. He drove his snowmobile onto the trailer,

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this all taking a further half hour. After that, at 6:00 p.m., Mr. Chalifoux went back into the house,

going outside again only to plug in the truck and a little later to take something off and put other

things onto the trailer.

It appeared to Mr. Henley, correctly as it turned out, that Mr. Chalifoux was preparing to leave for

a snowmobile trip. He returned early the next morning for further surveillance. At about 8:30, Mr.

Chalifoux got in the truck, with the trailer attached, and drove to the school. After that he drove to

a gas station where he fueled up the truck and the snowmobile, without apparent difficulty. He

then drove to the convenience store and waited until it opened at 9:00 a.m. He picked up a box of

something at the store. After that he picked up a male passenger, Mr. Kevin Deleeuw, from a

nearby apartment and they headed back to Mr. Chalifoux’s house where they apparently picked

up his snow blower, although its loading was not observed by Mr. Henley.

At about 9:30 Mr. Chalifoux and Kevin left Mr. Chalifoux’s home to drive out of town. They

stopped outside the A & W and Kevin went in. Mr. Chalifoux stayed outside but walked around

the truck while he was waiting. They then proceeded out of town, first on Highway 35 and then

Highway 58 going east. After about 40 minutes they turned onto an unnamed Range Road. Mr.

Henley kept his distance so as not to be seen, but lost sight of the vehicle for about 2 hours. At

about 12:30 Mr. Henley came across Mr. Chalifoux’s truck parked in the middle of the roadway on

the way to the Wadlin Lake area. It appeared to him that they had a camp set up there. He saw

them take the snow blower off the back of the truck. Mr. Henley was able to take a video of the

pair’s efforts to start the snow blower.

At about 1:30 Mr. Henley felt staying where he was would be too obvious so he left, returning to

the cabin location just after 2:00 p.m. Moving in a couple of kilometers from the cabin, Mr. Henley

came across Mr. Chalifoux’s truck parked alongside the road next to a second vehicle. He

concluded they were collecting firewood. He left and returned, past the cabin, where the snow

blower was still parked, and then back to Grande Prairie.

Mr. Chalifoux agrees that on January 21 and 22 he was indeed preparing for and took a trip. He

said his buddies were going net fishing and he’d never seen that done and was curious. His

friend he said kept bugging him. He agrees he drove out to Wadlin Lake but says he stopped on

the way many times for a break. His account of the stops in town is consistent with what Mr.

Henley observed. However, he says that on the way out to the lake he also stopped once to get

groceries and another time to visit on the side of the road with his brother. Mr. Chalifoux agreed

it’s easier to be a passenger than a driver and that he had a passenger who could drive. He

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offered no real explanation as to why he drove and not his friend except to say he took a series of

breaks, and this worked out well.

He agrees, when his friend could not start the snow blower he pulled it a couple of times and it

started up. They stayed at the cabin overnight and came back in the morning. After that he had

to rest up to recover from the activity, which is his cycle.

In December 2014, Mr. Chalifoux decided to write out a statement about the trip to Wadlin Lake

observed by Mr. Henley. It added:

On the morning that I decided to go for a camping trip overnight with a couple old buddies one of which was Mike Adekat which he kept bugging me for weks before to go with him. So I then asked another work buddy Kevin Deleeuw to come with me to help if I needed anything. So after a long winter on the morning of the January 22nd 2014 we left. [He then described the trip and his breaks in detail, continuing] All these breaks I was able to streth and help relieve some of the pa in in my lower back because of back spasms & pains shooting in my legs & the last stop #8 being @ the cabin that Mike Adekat borrowed for the night. We brought a snow throw machine because we didn’t know how much snow would be there. Taking the snow blower was to prevent us from having to shovel once we got there, but because there was no electricity there we had no choice but to pull start it. Kevin pulled on the start cord several times & it would not start. Because of my joint trouble/pain he was trying to help out. Even though it was painful and because Kevin got tired from pulling I tried & it started then I showed Kevin how to operate it because he has never operated one. After showing him how, he took over while I rested. Again I cant stress enough that this is a one time incident that I did. And it is not like I do this activities every day for an 8 hours. Once returned home on the Jan 23rd 2014, I then was back to having to rest for days. Again this trip was for sanity reasons to get out of the house and see what my body was capable of and after these activities it was clear I was not able too much.

Mr. Connolly received Mr. Henley’s report in February and went through the report and the video

recordings. He felt the activity levels he saw were completely inconsistent with what Mr.

Chalifoux had described in the earlier Disability Committee Meeting or in his conversation with the

insurer. In his view, they showed a very active person, exhibiting no limitations. Mr. Chalifoux

apparently had no problem operating a snowmobile or starting a snow blower, was able to lift

boxes and carry bags, could walk freely, and so on. He appeared to be able to move his hands

to squeeze things while operating the snow blower and the snowmobile.

Mr. Connolly’s conclusion was that the surveillance results were inconsistent with what Mr.

Chalifoux had told the committee on November 13th and also with the description he had given to

Ms. Robinson in December. Mr. Connolly concluded that Mr. Chalifoux was in fact able to do the

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types of duties Tolko would be able to make available for him to do in the plant. Mr. Connolly

says he felt he had been lied to and had lost faith in Mr. Chalifoux’s honesty. All this made him

angry. Rather than terminate him right away, he took advice and then decided to call Mr.

Chalifoux back in for a further discussion with the Disability Management Committee.

The February 21, 2014 Meeting

Mr. Chalifoux recalls being called in for this meeting, but he did not know what it was for. He was

there with Corey from the Union, while everyone else was management. No one asked him, then

or before, for a functional capacity evaluation or any updated medical reports. He had no idea he

was close to being fired.

The meeting lasted about 15 minutes. Ms. Kamieniecki took notes, which read:

The meeting began at 9:20am when Troy noted an update is required from Les on his current situation since the last meeting was in November 2013. He said this w ill also be done with the other employees in similar situations. Troy would like to understand any barriers or if there is anything we can do to return Les to work. Les stated there is no change in his condition and that his limitations remain the same. Troy asked if Les is capable of any work outside the home or any outdoor activities. Les stated no, he stays inside and only does a little at home. He said he has started a new treatment of Orencia that has just been approved in Canada and SunLife is covering the costs. Troy said he has heard from community members that Les has been seen riding a snowmobile and asked if that was true. Les said no, but he wished he could and then he laughed. He was checking his cell phone during this conversation. Les said he is trying this new treatment for a month and he just started it last Thursday. He’ll see if it makes a difference and follow up with a specialist appointment in the middle of March. He said that he should see a change in a month if the treatment will work but he is basically house bound. Troy thanked Les for coming in and that a further meeting would be required following his specialist appointment.

The purpose of this meeting, according to Mr. Connolly, was to give Mr. Chalifoux an opportunit y

to tell them about any change. While he recalls referring to the snowblower, Mr. Connolly says

he saw no need to tell Mr. Chalifoux that they had a surveillance report and video evidence. At

the point of this meeting, while they had the updated account Ms. Robinson had obtained from

her call to Mr. Chalifoux, they still had no medical report beyond the original 2011 document. Mr.

Connolly again says “we were relying on the insurer”. He also viewed obtaining a functional

capacity evaluation as “the insurer’s job”. Mr. Connolly acknowledges knowing (as the notes

indicated) that Mr. Chalifoux had an appointment scheduled for some time later to see a

specialist.

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Mr. Chalifoux agrees that he replied when asked that there had been no change in his condition

and that his limitations were the same. Asked about his reply to the allegation he’d been

snowmobiling, he says he interpreted this as the type of snowmobiling he used to do for a

weekend out with his buddies, not towing his kids around the block. When being asked about his

use of the snow mobile, he replied “I don’t call that snow mobiling” and then said “I didn’t think

anyone had seen me so I didn’t tell him [Mr. Connolly in the meeting] about that. He agreed that

riding the snow mobile for a few blocks in town “may have happened once or twice.”

He elaborated on the new treatment he was to be receiving which he said required an injection

once a week and that it involved a very expensive drug, something for which he had to wait first

for approval and then for a nurse to fly up to High Level to teach him how to do the injection. He

could not recall saying he was basically homebound, but did not deny it, saying that his memory

was not very good because of the medication he was on. No one at the meeting told him they

had a written statement from Manulife and no one told him he had been under surveillance.

At this meeting, once again, Mr. Connolly saw Mr. Chalifoux park in the visitor’s area. His walk

was not as relaxed as in the videos but not as restricted as it was for the earlier meeting.

Termination

In deciding on termination, Mr. Connolly says he did not look at Mr. Chalifoux’s performance

appraisals, since they did not address what he saw to be the issue at hand. Similarly, he did not

consider his lack of any disciplinary record. His sole consideration was whether Mr. Chalifoux

was being honest with them. Mr. Connolly agreed there was no urgency to terminating Mr.

Chalifoux.

For Mr. Connolly, this was not a case where progressive discipline was worth considering or

appropriate. The decision to terminate was driven by the contradiction between Mr. Chalifoux’s

description of the facts and the results of the surveillance. They were too inconsistent and had

resulted in the necessary trust having been broken.

The meeting to terminate Mr. Chalifoux only lasted a few minutes. Mr. Cory Murphy from the

Union was present, as was Mr. Connolly’s soon to be replacement, Mr. Evans. Mr. Chalifoux was

not given any further opportunity to explain himself, or to comment on the surveillance of which

he had never previously been told. Mr. Chalifoux was shocked by the termination.

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He says he had a family to think about and that is why he needed to work. He acknowledged his

wife’s lottery win but said with strong conviction that they have always shared things 50/50 and

that he likes to do his share. He does not like to ask her for money, and says it’s not a good

feeling. He feels like he is living off her now.

On March 3, 2014 Mr. Chalifoux put together a statement about his condition, his abilities,

feelings and activities. It includes the following:

It was about the year of 2012 I started to have trouble with my joints and it started to effect my performance. I decided to see Doctors and specialists and do something about it. And as a result I was diagnosed with Rheumatoid Arthritis. So in order to try heal my body with the advise of my Doctor’s I had to take time away from work. As well I had to stop all the things I loved in life that was enjoyable i.e. Curling, Quading etc. One of my other favorite activities was snowmobiling which I had to stop as well. I have a wife and three beautiful Children. Which can be a busy life style and with their support and understanding I had to stop doing things for them as well. So as a result I’ve been off work until this date with my Doctor’s and specialist advice. As well, my Dr’s and specialists have been trying different treatments, and medication to try and get me better so I am able to return to work. Well on Friday February 28, 2014 I was called into the main office in High Level of Tolko Industries only to find out that I was terminated from Tolko because I was called a liar. Apparently they had someone spying/stalking me by having me followed & watching everything I did around my residence. Tolko said I had been snowmobiling, using my snowblower and driving my truck for more than one hour. These were their reasons I was given for being terminated after almost 30 yrs of service. I was not given notice or any time to respond to these accusations and was handed an envelope from Tolko which took no longer than a minute or two. With my condition of having Rheumatoid Arthritis I am in a lot of pain everyday and on a lot of medications to help with the pain. And even with the pain I am in, it is recommend I do some type of exercise to keep my joints moving so they do not seize up. These are the reasons I did those things. For one thing to get some fresh air and to check to see if my body was making any progress with my treatments or not. After being stuck indoors like a prisoner of my own body. My response to the Company is: Tolko does not know or understand the pain I feel just to do the simplest tasks in order to try enjoy life no matter how much I suffer each and every minute of the day and having to take very strong medications to do so. I do not feel it is right to even think of working in the sawmill and putting people’s lives at risk while taking such medications. If that’s what Tolko feels I should be doing only because they only see the outside picture not the full picture of where my body is. It hurts me as a person and a long time employee that they did not trust me and they have to start stalking me. I wish that Tolko could have my Body for one day only to know & feel what it is like to have to suffer as I am every day. As of this date my Doctors and specialists feel that I am still not able to work (note attached) and are still trying new medications to try and make me better. The newest and latest treatment that I started was February 1, 2014 which has just been approved in Canada of June or July of 2013. Medication is Orencia.

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The Grievor’s Long-Term Disability Claim

On March 14, 2015 a couple of weeks after his termination, the grievor was advised that his long-

term disability insurance was being denied from then forward. The Union raises concerns about

the Employer’s role in this decision, and, in particular, the fact that the disability insurer was

asked to wait until he had been terminated before he was advised of the insurer’s decision.

Under the policy, the grievor had appeal rights. He did not proceed with an appeal, nor did he

take advantage of the extension given to him for submitting additional medical information. The

Employer argues that the grievor’s failure to take an appeal under the policy is a failure to

mitigate any damages he may have suffered.

Mr. Connolly was asked to explain why Manulife had been asked not to close Mr. Chalifoux’s

long-term disability file until after he was fired. He said it was decided along with Kristen Gammel

and Bob Evans and legal staff, but offered no other explanation.

Mr. Chalifoux was a little vague in his recollection of being cut off his insurance. He could not

remember getting a phone call but did receive a letter. He agrees he discussed the issue with the

Union and says he told them he did not think it was right. Asked about why he did not appeal, his

only explanation was that he did not think the grievance would take so long. He did not know

who to ask for help. He then says he “just got frustrated and decided to give up on it.”

Evidence over Rheumatoid Arthritis

Early in this hearing, it was disclosed that Mr. Chalifoux had been diagnosed with Rheumatoid

Arthritis and that this was at least one of the causes of his disabilities. When that arose, I advised

counsel that I had direct experience with Rheumatoid Arthritis since a long-time employee suffers

from the same affliction and I had, as a result, observed its development, symptoms and

treatment. Neither counsel saw this as presenting any concern. At the end of the hearing a

question arose as to whether and to what extent I might draw on either my own experience, or

what is common knowledge, in respect to the characteristics of this disease. The Employer took

a much narrower view of any such ability than did the Union. As a result, I asked both parties to

address whether the Board could take arbitral notice that:

Rheumatoid Arthritis (“RA”) is an autoimmune disorder that causes inflammation of the joints, which inflammation may be subject to flare ups, resulting in symptoms that fluctuate from time to time in their severity and pain.

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Neither party introduced formal medical evidence concerning the nature or symptoms of

Rheumatoid Arthritis. Mr. Chalifoux referred to the internet extract cited above, and it was not put

to him that anything in that description was inconsistent with his own experience.

I do however have Mr. Chalifoux’s own experience with the illness. He testified to having good

days and bad days, in his evidence in January and again in April. In April the Employer took

issue with that testimony, arguing it had no prior indication that Mr. Chalifoux would be making

such an assertion, catching it unprepared to deal with the issue. That was not in fact the case as

in January Mr. Chalifoux referred to remissions and flare-ups. He said if he did not do anything

for three days his body would settle down and he would be fine. He said specifically “that’s how

I’ve been living – good days and bad days”. He said too that “some days he could walk as if

nothing would bother me” while other days he could not. He testified that after the activities with

his grandchildren his joints became inflamed and he had to rest up the next day. At another point

he said “it’s my cycle – I do something then I recover”.

In cross-examination, again still in January, Mr. Chalifoux said, “pain comes and goes – good

days and bad days.” The Employer objects that some of this was entered through leading

questions. In some cases it was, but in others not. I do not accept the Employer’s assertion that,

when he said the same thing in April, it was a surprise. Nor can I accept the proposition that

there is no direct evidence from Mr. Chalifoux that that was how his symptoms presented

themselves. It was open to the Employer in April, by rebuttal evidence, to impeach Mr.

Chalifoux’s description of his symptoms if it believed that description to be contrary to accepted

medical opinion.

The Employer takes no objection to the proposition that it is an autoimmune disorder and that it

causes inflammation of the joints. It did object to any “arbitral notice” being taken of the

proposition that it is “subject to flare-ups” or that the symptoms “fluctuate from time to time in their

severity and pain”.

Much of the Employer’s written argument on this concerned skepticism about the grievor’s “I have

good days and bad days” response, and by similar arguments based on similar evidence in other

cases. Examples of this include the Wood Buffalo (infra), Simon Fraser (infra) and Toronto Sun

(infra) cases discussed below. On the point of particular concern over the propriety of taking

notice of the proposition set out above, the Employer argues:

As a general rule, arbitrations must be decided solely on the basis of evidence presented at a hearing. If a party’s case depends on a particular fact, they must present evidence to establish that fact. It is generally unfair and a breach of the rules of natural justice for an adjudicator to bring

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personal knowledge to supplement evidence on a question of fact that is controvertible and approaches the dispositive issue. There is however, an exception to this general rule. A trier may properly take notice of facts that “everybody knows”. The trier may take notice of facts that are either:

a. Notorious or generally accepted as not to be the subject to debate amongst reasonable persons; b. Be capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

Authority for this general approach to judicial notice can be found in:

Palmer and Snyder, Collective Agreement Arb itration in Canada (4th edition) part. 6.35-6.36 Gorsky, Usprich and Brandt, Evidence and Procedure in Canadian Labour Arbitration, Thomson, 2015, p. 11-105 Regina v. Board of Arb itration, ex parte, United Steelworkers of America Local 4752 (1969) 7 D.L.R. (3d) 571 at pp. 578-79

Professor Gorsky’s text makes the following observation:

Generally, the type of fact admitted without proof is the kind that can be ascertained by reference to an indisputable, accepted source. The temperature at which paper catches fire, for example, may be admitted into evidence, even though the arbitrator may not know that temperature. Reference works of accepted reliability will tell the arbitrator that the temperature is 233°C. Historical facts are considered to be facts ascertainable from reference to an acceptable source. Scientific facts that can easily be ascertained from a textbook or other reference work can be judicially noticed, but not if the matter is highly technical and requires special expertise.

The Employer argues that the fact an arbitrator happens to have special knowledge of a matter

cannot form the basis of taking judicial notice. Sopinka (infra) refers to this principle at 19.42 of

his text. At 19.28, he comments on when and how a tribunal may take notice of “Facts Capable

of Immediate Accurate Demonstration.”

19.28 There are some facts which, although not immediately within the judge’s knowledge, are indisputable and can be ascertained from sources to which it is proper for the judge to refer. These may include texts, dictionaries, almanacs and other reference works, previous case reports, certificates from various officials and statements from witnesses in the case. The Law of Evidence in Canada, Sopinka et al (4th edition) Lexis Nexis

The authors go on to say, under the subheading: The Course of Nature and Scientific Facts:

19.35 The cases, however, are in conflict as to the extent to which, if at all, facts of nature and scientific facts, which are capable of accurate demonstration from reliable sources, can be noticed.

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After reviewing varying decisions on the issue of indisputability and the ability to consult reliable

sources the learned authors conclude at 19.39:

19.39 The Preston-Jones case and the two Canadian cases referred to above can be explained on the ground that the fact under consideration was thought not to be capable of immediate and accurate demonstration by reference to an indisputable source of information. As Chief Justice Campbell points out, judicial certainty about a scientific fact will always lag beh ind expert scientific knowledge. The court will, therefore, preclude reference to scientific treatises by counsel, except in the examination of expert witnesses, unless it is assured that there will not be a conflict between different treatises on the same subject. Where the scientific facts, although not notorious, can be readily and accurately ascertained from a textbook on the subject, the judge can, and should, take judicial notice of the fact.

Under the heading D. Personal Knowledge, the authors offer the opinion that:

19.42 Unless the other criteria for taking judicial notice are present, the judge cannot judicially notice a fact within his or her personal knowledge even if it has been proved before the judge in a previous case. There is an exception in the case of a custom which, if proved often enough, may be judicially noticed.

The authors closed that heading with the following note:

19.46 It may be that judges, as human beings, are incapable of adjudicating question of fact without being affected by their own personal experience. As pointed out by one academic:

The reality, and it is a fortunate one for the sensible resolution of facts, is that there is no bright line that divides judicial notice of adjudicative facts from its close relative, “common sense”.

The Employer relies on the following extract from a case where a judicial decision was challenged

because the Judge failed to take judicial notice of alleged facts contained in articles the Judge

had already rejected as of little probative value. The reviewing Court said at paras. 15-17:

16 There is no evidence on record to the effect that the facts mentioned in these documents are so notorious as not to be the subject of dispute among reasonable persons or are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy: R. v. Williams [1998] 1 S.C.R. 1128, at page 1156. 17 This is an essential condition for judicial notice to be taken. I must add that, after having read this documentation, I am of the same opinion as the judge to the effect it does not in any way affect the validity and legality of the non-association condition. Gosselin v. Canada (Attorney-General) [2006] F.C.J. 1941 (Fed. C.A.)

The Employer argues that one cannot take notice of notorious facts without some source being

offered, citing:

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Boise Cascade Canada v. Canadian Paperworkers Union (1989) 8 L.A.C. (4th) 55 (Haefling) at p. 7

However, it appears to me Arbitrator Haefling at para. 10, while citing one such source,

expresses the proposition in broader terms and does not make the cited source a precondition for

taking notice of notorious facts.

It is also recognized among labour relations arbitrators, in the medical community generally, and in society at large that alcoholism, that is, alcohol abuse and alcohol dependence, is a crippling and debilitating personal illness but one which often manifests itself in behaviour which impacts negatively on the alcoholic individual's family, social and working life: see, for instance, "Manual of International Statistical Classification of Diseases, Injuries and Causes of Death", rev. ed. (1975), published by the World Health Organization (Geneva, 1977).

Indeed, the Employer appears to concede as much when it argues, at paragraphs 22-23 of its

written submission on the point that:

22. This is not a case involving the pathology of diabetes or strokes which have both been the subject of widespread public health education campaigns. Thanks to these public campaigns, almost everyone knows that diabetes makes you thirsty or strokes may manifest themselves in numbness in the face or arms. 23. But autoimmune illnesses have not been the subject of public health campaigns, are relatively rare, and are not “common knowledge”. In fact, it would not be common knowledge that RA is even an autoimmune illness.

The Employer cited two cases where Courts declined to take judicial notice of the effects of

analogous medical conditions. The Saskatchewan Court of Queen’s Bench, in a complex case

involving the assessment of damages, said:

117 Pollon also disclosed on the witness stand that he had been diagnosed with Multiple Sclerosis (“MS”). The defendant was unaware of this diagnosis but was prepared to proceed and cross -examined on this issue. The defendant raises the issue of MS in the context of this head of damage. I cannot take judicial notice of the effects of this disease. The only evidence that I have on this issue indicates a balance problem at work and I have no other evidence as to how it might generally affect his enjoyment of life. A & L Plumbing and Heating v. Ridge Tool Company [2008] SKQB 77 at 78.

A more substantial analysis is contained in a case from B.C. where the Plaintiff was seeking

damages following a motor vehicle accident that caused soft tissue injuries. The Plaintiff had a

pre-existing condition of back problems and osteoarthritis. The Court was asked to take notice,

without any proof, that it was a progressive and degenerative condition. It held, at para. 83 that it

could not, relying on the decision in Spence (infra).

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[83] The Defendant correctly concedes there is no evidence of a progressive ongoing degenerative condition, but says I can take judicial notice that osteoarthritis is degenerative and progressive. However, I cannot. The Supreme Court of Canada has defined the situations where it is appropriate and open to the court to take judicial notice of facts. … [91] In this case, whether osteoarthritis is a degenerative and progressive condition is relevant to the issue of whether the Plaintiff has a “crumbling skull”. Because liability is admitted, this trial only involves the issue of damages. Accordingly, the question of whether the Plaintiff has a progressive and degenerative disease is central to the disposition of the damages issue and is governed by the more stringent Morgan criteria adopted in Find. [92] In my opinion, that osteoarthritis is a progressive and degenerative disease is neither “so notorious or generally accepted as not to be the subject of debate among reasonable persons“, nor is it “capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy”. Also, I note that even if the less stringent test were applied, it would not be met because whether osteoarthritis is progressive and degenerative could be disputed by reasonable and informed people and this “fact” is central to the disposition of the parties’ dispute. I do not take judicial notice of it. This is the subject of medical expertise which requires evidence. Penland v. Lofting [2008] BCSC 507 at pp. 12-13 (MacKenzie J.)

Spence (infra) is similarly discussed in:

Canada Post Corp. and C.U.P.W. 171 L.A.C. (4th) 353 (Smith J., B.C.S.C.) at para. 74

The Union argues that there is disagreement among legal scholars over the breath of judicial

notice. It refers to the discussion of notice in Spence (infra) a case involving whether a judge

might take notice of certain racial prejudices when hearing challenges to a juror’s partiality.

R. v. Spence [2005] 3 S.C.R. 458

The Supreme Court allowed the appeal because the Court below had “pushed judicial notice

beyond its proper limits” (see para. 6). It accepted that there is flexibility in the application of

judicial notice.

60 Professor Davis’ useful distinction between adjudicative facts and legislative facts is part of his larger insight, highly relevant for present purposes, that the permissib le scope of judicial notice should vary according to the nature of the issue under consideration . For example, more stringent proof may be called for of facts that are close to the center of the controversy between the parties (whether social, legislative or adjudicative) as distinguished from background facts at or near the periphery. 61 To put it another way, the closer the fact approaches the dispositive issue, the more the court ought to insist on compliance with the stricter Morgan criteria. Thus in Find, the Court’s consideration of alleged juror bias arising out of the repellant nature of the offences against the accused did not relate to the issue of guilt or innocence, and was not “adjudicative” fact in that sense, but nevertheless the Court insisted on compliance with the Morgan criteria because of the centrality of the issue, which was hotly disputed, to the disposition of the appeal.

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The case draws a distinction between adjudication, social and legislative facts, the stricter

standard of notice applying to adjudicative facts. It provided examples of each category. The

Court said at para. 65:

65 When asked to take judicial notice of matters falling between the high end already discussed where the Morgan criteria will be insisted upon, and the low end of background facts where the court will likely proceed (consciously and unconsciously) on the basis that the matter is beyond serious controversy, I believe a court ought to ask itself whether such “fact” would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used, keeping in mind that the need for reliability and trustworthiness increases directly with the centrality of the “fact” to the disposition of the controversy.

The Supreme Court of Canada summarized R. v. Spence recently as follows:

[156] This Court considered the application of the doctrine of judicial notice in R. v. Spence, 2005 SCC 71 (CanLII), [2005] 3 S.C.R. 458. Ultimately, the permissible scope of judicial notice should vary according to the nature of the issue under consideration: Spence, at para. 60. Thus, the closer a fact approaches the dispositive issue, the more stringent is the test for its admissibility: Spence, at paras. 60-61; P. Béliveau and M. Vauclair, Traité général de preuve et de procédure pénales (22nd ed. 2015), at para. 2366. When a fact falls between an adjudicative fact (one that is at the centre of the controversy between the parties) and a background fact (one that is only at the periphery of the controversy, and that the court will assume to be uncontroversial), the court must ask itself

whether such “fact” would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used, keeping in mind that the need for reliability and trustworthiness increases directly with the centrality of the “fact” to the disposition of the controversy. [Emphasis in original.]

(Spence, at para. 65) This is why a court may take judicial notice of a “fact” in one case but decline to do so in another case in which the issue is dispositive: Spence, at para. 65. R. v. Lacasse [2015] 3 S.C.R. 1089

The Employer goes on to argue that it is unfair to rely upon facts when the Employer has had no

opportunity to cross-examine the source of that evidence. Partly this is met by the fact there was

an opportunity to cross-examine Mr. Chalifoux on his assertions, as noted above, and what the

Employer is really seeking to do is to impeach his evidence. Taking judicial notice of a fact does

preclude the opportunity for cross-examination. However, if the Employer had sought to cross-

examine Mr. Chalifoux on his assertion of flare-ups as contrary to his condition, it would have had

to have been in a position to establish a contra assertion.

The Panel has a duty to follow a fair procedure in their hearings. They failed to do so in this cas e. The credibility of the Panel could be put in question by their obvious failure to follow any rules of evidence. While they are not strictly bound by the rules of evidence, there must be some compliance with them in order to follow the duty of fairness .

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Grant MacEwan Community College v. Alberta Human Rights Commission [2000] A.J. 241 (Alta. C.A.) at para. 53

See also:

Alberta Plywood Ltd. v. Smaili [2010] A.J. 1391 Atlas Lumber v. I.W.A. Canada Local 1-207 (2003) 127 L.A.C. (4th) 336 at para. 29

The Union argues that an arbitration board has statutory authority to take a flexible approach to

the admission of evidence:

143(2) An arbitrator, arbitration board or other body

(a) may accept any oral or written evidence that it considers proper, whether admissible in a court of law or not,

(b) is not bound by the law of evidence applicable to judicial proceedings, …

It also relies on the following passage:

[44] Common law and equitable doctrines emanate from the courts. But it hardly follows that arbitrators lack either the legal authority or the expertise required to adapt and apply them in a manner more appropriate to the arbitration of disputes and grievances in a labour relations context. [45] On the contrary, labour arbitrators are authorized by their broad statutory and contractual mandates ― and well equipped by their expertise ― to adapt the legal and equitable doctrines they find relevant within the contained sphere of arbitral creativity. To this end, they may p roperly develop doctrines and fashion remedies appropriate in their field, drawing inspiration from general legal principles, the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievances of which they are seized. Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59

The Union cites two cases involving the taking of notice of the symptoms of illness despite a lack

of expert testimony.

Although I was offered no expert testimony about it, I can accept as a fact that there is an illness or disease known as alcoholism which is “characterized by impaired control over drinking, preoccupation with the drug alcohol, use of alcohol despite adverse consequences, and distortions in thinking, most notably denial.” That much seems sufficiently indisputable to be the subject of judicial notice or its arbitral equivalent. Alcan Rolled Products Co. v. United Steelworkers of America, Local 342 [1996] OLAA No. 44 (Grey)

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The B.C. Supreme Court upheld Arbitrator Blasina saying:

77 … It was open to the arbitrator to take arbitral notice of the longevity of addiction to alcohol and cocaine. That “fact” would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it was to be used. I do not accept the petitioner’s argument that the arbi trator wrongly found or assumed that permanent conditions are always necessary simply because addictions are long-standing problems. There was evidence before the arbitrator upon which he could reasonably conclude that permanent conditions were necessary for Mr. Black, taking into account the persistent difficulty Mr. Black had had in maintaining his attendance at work due to his addictions, and the fact that addictions can pose long-lasting problems. Canadian Union of Postal Workers v. Canada Post Corporation [2008] BCSC 338 at paragraph 77

The Union seeks to distinguish A & L Plumbing (supra) on the basis that in that case the onus of

proof fell to the Plaintiff to prove pain and suffering loss due to the effects of Multiple Sclerosis

whereas in this case, the onus falls to the Employer to establish just cause for its decision to

terminate Mr. Chalifoux. It similarly distinguishes Penland v. Lofting, (supra). In this case, the

only purpose for which judicial notice needs to be taken (if at all) is to determine whether Mr.

Chalifoux’s testimony, that he had good days and bad days , is plausible. The Union also submits

that the fact that the symptoms of Rheumatoid Arthritis can fluctuate in severity and pain is not a

proposition that is the subject of reasonable dispute.

The Union further argues that, if the Employer sought to challenge Mr. Chalifoux’s evidence that

Rheumatoid Arthritis caused him to have good days and bad days, it ought to have confronted

him on the point under the principle in Brown v. Dunn.

[17] Related to this is the rule in Browne v. Dunn: there is a general duty on counsel to put a matter directly to a witness if counsel is going to later adduce evidence to impeach the witness’ credibility or present contradictory evidence. In McWilliams’ Canadian Criminal Evidence, 4th ed. (Aurora: Canada Law Book, 2009) [McWilliams] the Honourable Mr. Justice S. Casey Hill, David M. Tanovich, and Louis P. Strezos, eds. note at 18-96 that in accordance with this general duty: “Crown counsel should therefore cross-examine defence witnesses if it is intended to contradict their evidence in rebuttal so that they may have an opportunity to explain.” If counsel fails to satisfy Browne v. Dunn, the failure may be used to assess credibility and the contradictory evidence led by the opposing party. In R. v. Paris (2000), 2000 CanLII 17031 (ON CA), 138 O.A.C. 287, 48 W.C.B. (2d) 294, leave to appeal to Supreme Court of Canada dismissed, [2001] S.C.C.A. No. 124, the Ontario Court of Appeal summarized this rule at para. 22:

Where a witness is not cross-examined on matters which are of significance to the facts in issue, and the opposing party then leads evidence which contradicts that witness on those issues, the trier of fact may take the failure to cross -examine into consideration in assessing the credibility of that witness and the contradictory evidence offered by the opposing party. The effect of the failure to challenge a witness's version of events on significant matters that are later contradicted in evidence offered by the opposing party is not controlled by a hard and fast legal rule, but depends on the circumstances of each case: R. v. Palmer (1979), 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193 at 209-210 (S.C.C.);

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R. v. H.(L.M.) (1994), 39 B.C.A.C. 241 at 255 (C.A.); R. v. Verney (1993), 87 C.C.C. (3d) 363 at 375-76 (Ont. C.A.); R. v. K.(O.G.) (1994), 1994 CanLII 8742 (BC CA), 28 C.R. (4th) 129 at 131 (B.C.C.A.); R. v. Letourneau and Tremblay (1994), 1994 CanLII 445 (BC CA), 87 C.C.C. (3d) 481 at 522-23 (B.C.C.A.); R. v. McNeill, supra, at 565; A. Mewett, Witnesses, 2d ed., looseleaf (Toronto: Carswell, 1999) at 2-32 to 2-34.

Her Majesty the Queen v. Pasqua [2009] ABCA 247

The Union replies to the Employer’s submission that arbitral notice should not be taken in respect

to dispositive issues central to the case as follows:

The issues in this case are (1) whether the Employer, at the material time, had grounds to discipline Mr. Chalifoux on the basis of dishonesty, and (2) whether the penalty of dismissal was justified in the circumstances. In our submission, the disposition of the matter does not hinge on a finding of medical fact with respect to whether RA is subject to “flare ups” or symptoms which fluctuate in severity and pain. Mr. Chalifoux testified that his personal experience with his disability was such that he did experience “flare ups”, and the Employer neither put any competing facts to Mr. Chalifoux in cross-examination to test his evidence, nor called any medical evidence to contradict Mr. Chalifoux’s expressed symptoms and effects of RA. At the time of termination, the Employer failed to confirm or seek a medical opinion with respect to whether Mr. Chalifoux was actually dishonest about his condition as a matter of medical impossibility, which was the key consideration in its decision to terminate his employment. As a result, its disciplinary actions were not justified. The Employer had an obligation to properly investigate and satisfy itself that it had proper grounds before depriving Mr. Chalifoux of his means of livelihood. The Employer, although utilizing the Disability Management Committee and Program to stage its in person meetings with Mr. Chalifoux, failed to request or suggest an updated medical or functional evaluation to put his present condition in perspective. With respect, we submit that it is not appropriate to now require Mr. Chalifoux to prove the nature of symptoms of his condition after the fact. … It is common ground that Mr. Chalifoux suffered from RA. Further, his evidence suggests that his personal experience with his condition was such that he had “flare ups”, or ‘good days and bad days’. We submit that it is not necessary to make a finding of medical fact in order to accept Mr. Chalifoux’s evidence. If the Emp loyer seeks to argue that it was medically implausible that Mr. Chalifoux could have instances of decreased pain and increased functionality, it bears the burden of leading its own medical evidence in that regard, which it has failed to do. In our respectful submission, the inquiry into whether it is appropriate to take arbitral notice of the nature or symptoms of RA serves to distract from the Employer’s failure to discharge its burden to prove its actions were justified, and effectively reverses the onus of proof.

The objection to my taking any arbitral notice of “flare-ups” being a common feature of

Rheumatoid Arthritis causes me to be cautious on several fronts. I agree that a decision maker

should not as a general rule take notice of their own particular knowledge except perhaps when it

is disclosed and, as a result, subject to contradiction or clarification by either party. In this case,

while I disclosed general familiarity, that alone may not be sufficient to cover the question of

“flare-ups”.

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Personal knowledge also makes it a challenge to discern what is so notorious as to not require

proof. It is fair to say that anyone who has conversed with those with Rheumatism will know that

their aches and pains come and go. However, Rheumatism and Rheumatoid Arthritis are

included in a broad spectrum of such ailments. The caution against too broad a reliance upon

arbitral notice is only the greater in this era of easy access to “Dr. Google” and of too ready an

acceptance of “alternative facts”.

Conversely, consideration must be given to s. 142(3)(a) and (b) of the Labour Relations Code.

Arbitrators generally come with a baseline of industrial knowledge and that includes both the

causes of and the cautions appropriately exercised when examining both the reasons employees

take time off work, and the duty to accommodate persons with disabilities.

There is a certain irony to a debate, at the eleventh hour, about the characteristics of a disease

the grievor disclosed to the Employer when he first went off work. Neither the Employer, nor the

insurer appear to have ascertained for themselves the characteristics of Mr. Chalifoux’s principle

disability.

I thank the counsel for their thorough argument on the question put to them. I find, in the end

result, I do not need to take arbitral notice of the disputed proposition. I find myself in agreement

with the Union that this question is relevant to the Employer’s efforts to impeach Mr. Chalifoux’s

evidence that he was at times able and at other times unable to do certain activities. I am not

prepared to proceed on the generalized assumption that the ability to do something at one point

proves that a person can do it consistently, or in a sustainable manner. If the Employer wished to

challenge Mr. Chalifoux with the improbability of his evidence on that particular point, the onus

was on the Employer to do so, not on the Union to call collaborating medical evidence.

I have therefore approached my assessment of the evidence and Mr. Chalifoux’s credibility

without reference to the proposition upon which the parties disagree, and without reference to any

personal knowledge I have of the disease. Rather I have Mr. Chalifoux’s evidence, the evidence

disclosed in the medical records and the general circumstances all of which I assess below on

the more general question of Mr. Chalifoux’s credibility and his veracity when questioned.

Employer’s Argument

The Employer urges that this case is about the grievor’s honesty with the Employer. It is not

about whether the grievor was ill; it is common ground that he was, and that this placed some

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restrictions on his abilities. It is about his level of candour about the extent of those disabilities.

Honesty, the Employer urges, is the touchstone of the employment relationship. In support of this

general principle the Employer refers to the commentary in Brown and Beatty, Canadian Labour Arbitration, at sections 7:3300 and 7:3330.

In this case, the Employer argues that it has proven that the grievor, in his conversation with the

insurer’s case manager and with the Disability Management Committee, exaggerated his

restrictions and downplayed his capacity. He was, in the Employer’s submission, dishonest about

his ongoing activities. This undermined management’s ability to assign modified work.

This conduct, the Employer argues, justifies the imposition of discipline. There is no basis, it

asserts, to invoke the arbitrator’s remedial jurisdiction in s. 142(2) of the Labour Relations Code.

142(2) If an arbitrator, arbitration board or other body determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject -matter of the arbitration, the arbitrator, arbitration board or other body may substitute some other penalty for the discharge or discipline that to the arbitrator, arbitration board or other body seems just and reasonable in all the circumstances.

The Employer suggests, while there are a lot of cases dealing with situations such as this, some

of which it brought forward in argument, essentially it is a case that turns on the facts and on

credibility. As to the tests of credibility, it relies on the following passage from Brown and Beatty,

Canadian Labour Arbitration, at 3:5110 which includes the often-cited extract from Faryna v. Chorney:

3:5110 — Assessing credibility One of the most important aspects of deciding the sufficiency and weight of evidence is assessing the credibility of witnesses. An exact definition of “credibility” is not possible, but it has been expressed in these terms:

One of the most enlightened guides on this aspect of a trial Judge’s functions appears in a judgment of the late O’Halloran, J.A., delivered in the British Columbia Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R. 354. What the learned Jurist there stated is so apposite in the present case that I feel impelled to quote the following extract from his reasons which appear at pp. 356-8: “If a trial Judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a very unfavourable

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impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie. “The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say ‘I believe him because I judge him to be telling the truth’, is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind. “The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge’s finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case.”

Another arbitrator has said that demeanour is not necessarily a good indicator of credibility. Rather, he opined that the “clarity, consistency and plausibility of the testimony as tested in cross-examination in the context of the evidence as a whole, and the apparent ability of witnesses to resist self-justification or the influence of self-interest are far more significant indicators”. And where a witness is less than candid, it may result in the board either rejecting his or her position or not giving full support to it. However, where both witnesses have told conflicting versions, albeit candidly, the arbitrator must nevertheless choose between those two versions and not rely upon the burden of proof to make a decision. In any event, when an arbitrator makes a finding of credibility, it is incumbent upon him or her to give reasons explaining the basis of that conclusion.

The Employer notes that Tolko has a disability program. That program incorporates a number of

policy objectives, as expressed in the preamble and program purpose section set out above. The

Employer argues that frugality and economy, by keeping the cost of benefits down, is a legitimate

objective of the program. Providing for a prompt return to work, where possible, is also a

legitimate goal of the program. It is a goal shared with the Union and employees because

program costs were shared jointly.

The Employer asserts that it commits resources to this program and that the provision of modified

work is a routine part of employment at the mill. The grievor would have been, as a result of this

policy generally, and of his own previous experience, well aware of the opportunities for returning

on light duty.

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The Employer asserts that Mr. Creed’s evidence of the events of June-July, when the grievor left

work, should be accepted. That is that Mr. Creed and the grievor discussed his ailments prior to

his leaving, that the grievor told Mr. Creed he was going to his doctor and that Mr. Creed asked

him to provide an update of his restrictions. Rather than doing so, Mr. Chalifoux phoned to say

he was not going to return to work but was instead going to apply for benefits.

The case manager at that point found the grievor unable to perform any of the duties of his own

occupation. The difference in these accounts, the Employer suggests, is critical since the grievor

needs to show he was forced off work while still able to perform modified duties. The Employer

suggests the grievor needs to establish this account to explain his later description of his

disabilities in the context of his thinking that he had to be able to do 100% of the job.

In assessing credibility the Employer urges consideration of the entire context including the

surrounding circumstances. It urges an assessment of each witnesses’ ability to recall events. It

suggests the insurer’s file shows Ms. Elder was wanting a new description of the grievor’s

restrictions and that they had a well running modified work program available once he did so.

Given this, it argues Mr. Creed’s account is more probable. I considered these arguments in my

assessment of these matters as set out above.

The Employer relies on the insurer’s file, but cautions against accepting the grievor’s statements

that may be self serving. It suggests that the finding that the grievor was eligible for LTDI

coverage was not surprising given the grievor’s account of the extent of his disability.

Whatever the view one takes of why the grievor left work, it argues that by the time of the

disability committee interview the grievor was choosing to present himself as entirely disabled in a

way that does not accord with the other evidence of his abilities. It suggests that the grievor

simply did not want to return to work. It challenges the “good days – bad days” evidence

suggesting it is too coincidental that the grievor’s bad days all occurred when he was interviewed

and his good days when he was under observation. Without that, the grievor’s account of his

disabilities are generally and specifically at odds with observations during the surveillance. Those

observations, according to Mr. Connolly, show a person with abilities that could have been put to

work in the mill. Mr. Connolly offered nothing specific in terms of a potential placement.

In assessing the grievor’s responses when interviewed, it suggests the grievor was not simply

denying things put to him, but also withholding abilities and act ivities that he was later shown to

possess or have undertaken.

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The Employer referred to the following case which involved analogous facts described in the

headnote as follows:

The Grievor went off work due to an injury. At a meeting to discuss whether he could do any modified work, he said "I can't do nothing", including not driving or lifting. This was contradicted by surveillance evidence. The Employer subsequently interviewed the employee twice about the false statement, without providing particulars of the falsehood, during which he provided inconsistent descriptions of his limitations. He was ultimately dismissed for lack of truthfulness, although in the interim he had been put back to modified work. HELD: The Grievor did lie at the meeting, which was cause for discipline, and there was no basis for exercising the statutory discretion to substitute a lesser penalty. Grievance dismissed. Wood Buffalo (Regional Municipality) v. Canadian Union of Public Employees, Local 1505 (Roy Grievance) [2001] A.G.A.A. No. 38 (Jones)

In particular it refers to the arbitrator’s reasons for not mitigating the penalty of dismissal, where

he said, in part:

While it is true that the Employer could have approached this case differently - for example, by sending the Grievor for an independent assessment, or by asking the Grievor for permission to obtain more specific details from Dr. Liebenberg - this would not have changed the fact that the Grievor lied to the Employer. This case does not involve a bona fide question about what the Grievor's true limitations were or about what specific duties he could have performed, but rather is squarely focused on the Grievor's false statement that he "couldn't do nothing".

Arbitrator Munroe dealt with analogous circumstances in:

Simon Fraser University v. Canadian Union of Public Employees Local 3338 (Fraser Grievance) [1992] B.C.C.A.A.A. 139

In that case it was the insurer that decided to conduct surveillance, but the result was the same, a

comparison between the answers the grievor had given the insurer orally and the capacities

revealed by the surveillance of the grievor as she participated in a garage sale. The grievor was

off work, as she had been many times before, due to back pain. Her position did not require

heavy lifting on long periods of sitting. The arbitrator after reviewing the videotape observed at

para. 25:

…the videotape reveals someone experiencing no functional impairment whatsoever in respect of a wide range of activities, many involving the lifting and carrying of objects much heavier than the grievor would be required to lift or carry at work. Of course, I am not able to say whether the grievor's activities as shown on the videotape were causing her discomfort. But I am bound to say that there is not the s lightest hint of physical impairment -- either in terms of the grievor's general mobility or the normal daily range of bodily movements. On the contrary, the videotape reveals an absence of such impairment.

and at para. 27:

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27 I must frankly express my dismay at the startling contrast between the demonstrative evidence (i.e., the videotape), on the one hand, and the grievor's written statements to Confederation Life (especially the one dated June 27 which was quite close in time to the garage sale), on the other; and more generally, the contrast between the demonstrative evidence, on the one hand, and the way in which the grievor presented herself in the witness stand, on the other.

Following those conclusions, Arbitrator Munroe observed at para. 36-37:

36 The ongoing ability of employers and unions to negotiate and administer sick leave and long term disability plans depends in large measure on the willingness of the beneficiaries of such plans to be honest in relation thereto. In that sense, employees as well as employers have a stake in the veracity and general bona fides of claims for sick leave or LTD indemnities. An employee who deliberately makes a false claim is guilty of a serious breach of trust -- not only as against the employer but also as against her working colleagues. 37 It is impractical to suggest that employers ought to be tightly policing and second-guessing the applications by their employees for sick leave or LTD benefits. Moreover, any such suggestion would be inconsistent with the aims and underpinnings of the modern employment relationship. What is required by everyone concerned is a reasonable and appropriate level of mutual trust: and an attitude of voluntary compliance.

The arbitrator upheld the grievor’s termination for gross misconduct and found no basis to

mitigate the penalty. The Employer notes that, in each of these two cases, what the employer

lost was the opportunity to offer modified employment which, it argues, is the same here.

The third case relied on by the Employer involved an employee who admittedly had a disability

due to an accident. She was accommodated first by being allowed to work from home and then

by modified duties and a modified workplace. Surveillance revealed the grievor outside of work

was more agile than her workplace activities suggested; activities that had led the employer to

excuse her from the need to work outside the workplace or to drive a car.

Arbitrator Stout found that the grievor was dishonest and knowingly mislead the employer as to

her abilities. He rejected the grievor’s evidence that she had good days and bad days because,

at work, no one had ever observed “a good day”. After accepting that honesty is the touchstone

of the employment relationship, the arbitrator said at para. 207-208:

207 It is also trite to say that every employee has an obligation to work, if he or she is able to do so and they also have an obligation to be truthful about their abilities and capacity to perform work. 208 In this case, the Grievor has misrepresented her ability to perform work. The conduct is dishonest and provides just cause to impose a serious disciplinary response.

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The arbitrator also considered whether the employer’s actions in dismissing the grievor were

discriminatory; motivated by a desire to rid itself of a disabled employee. He concluded that they

were not. In respect to the duty to accommodate he said, at para. 238-240:

238 The Grievor was accommodated for many years. I do not doubt that there were a few problems along the way. However, since at least 2007 the Employer has lived up to its’ obligations and provided modified work to accommodate the Grievor in the workplace. 239 The Grievor has a legal obligation to assist the Employer in the duty to accommodate. The Grievor has an obligation to provide the Employer with accurate information to assist them to fulfilling their duty. Part of the Grievor’s obligation is to be forthright and honest in representing her ability to perform work, both with her physicians and the Employer. In this respect, I am of the view that the Grievor was not honest or forthright. Instead, the Grievor’s conduct was dishonest and undermined the duty to accommodate as well as the employment relationship. In this regard, the Grievor took advantage of both the Employer and her fellow employees. 240 In this case, I find that the Employer had reasonable and probable cause to conduct the investigation and surveillance. The Employer also had cause to discipline the Grievor for her misconduct. In these circumstances, I also find that the Employer has provided a non-discriminatory explanation for their actions. In my opinion, it is more probable than not that the Employer’s actions were not motivated by any discriminatory intent. Rather, the Employer’s conduct was a reasonable response to being misled by the Grievor.

The arbitrator found no sufficient mitigating factors to relieve against termination, even after

considering the decision in McKinley (infra).

Toronto Sun v. Unifor Local 87-M [2014] OLAA No. 158 (Stout)

The Employer urges that any mitigating circumstances here are insufficient to justify interfering

with the termination. The grievor’s lack of candor, it urges, amounts to serious misconduct.

There is no way to reconcile the grievor’s description of his capacities with the video evidence. It

recognizes his long service and good record. All terminations have an economic consequence.

However, the grievor had considerable time to “come clean” but did not do so.

The Employer urges that if, contrary to its arguments, mitigation is considered, it should only be to

a time-served suspension. In terms of economic loss, the grievor failed to mitigate by ignoring

the option open to him to appeal the insurer’s decision to terminate his coverage.

Union Argument

The Union begins its argument by noting that, despite living on a block with other Tolko

employees, and living in a town where everyone knows each other, everything Mr. Chalifoux did

was done in the open. If, as the Employer argues, secrecy is a badge of fraud, there is none of

that here. Mr. Chalifoux is a straightforward uncomplicated man whose whole life has involved

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open air pursuits like hunting, quadding and fishing, rather than sedentary or academic pursuits.

His work life has always involved physical activities. That lifestyle has been gradually but severely

challenged by a horrible disease.

It asks that the Employer’s characterization of Mr. Chalifoux as a dishonest and untrustworthy

individual be weighed against his employment record and the appraisals of the past which show a

productive and reliable individual. Further it asserts, there is a lack of any evidence that Mr.

Chalifoux was cheating the Employer of its opportunity, or right, to have him return and perform

modified duties. Rather, it says, it was the Employer that told him he was unable to work, and the

Employer failed to take any steps to pursue the possibility of accommodation. In the Union’s

submission, this is indicated by the Employer’s failure to actively seek any updated medical

information beyond the very limited assessment from 2011. They sought no updated fitness to

work assessment. They were simply content to leave matters to the LTD insurers.

While the Employer has, with the Union as a joint partner, a formal Disability Management and

Return to Work Program, it was not followed. It asserts that the committee meetings to which Mr.

Chalifoux was summoned were that in name only, with no attempt at labour management

balance. Instead, they were management dominated and used to question the grievor without

giving him any fair indication of the Employer’s suspicions or observations. There was no

suggestion in that committee process that they should examine the committee’s responsibilities

from page 8 of the policy, or seek an updated medical opinion or a functional capacity evaluation

if there was doubt as to the grievor’s capacit ies. The grievor was then, and still remains, hopeful

of returning to work in some capacity. The Employer offered no explanation for not confronting

the grievor with its suspicions or its surveillance observations.

The questions put to the grievor, both by the insurance company representative, and the

Employer through the committee, have to be judged with the grievor’s perceptions in mind. As to

his outdoor activities such as snowmobiling, to him that connoted a day out riding a snowmobile

all day as he had done in the past, not pulling a couple of children round the block. The ability to

work connoted an ability to do what he was formerly doing in the plant, five days per week on his

feet all day. While the grievor can get out at times for things like shopping for groceries, and can

do a few chores intermittently, he remains basically housebound.

The Union argues that the decision in this case should be guided by the Supreme Court of

Canada’s comments in:

McKinley v. B.C. Tel [2001] 2 S.C.R. 161

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The case arose from common law employment, not a collective agreement. It involved

dishonesty with the employer over the plaintiff’s medical condition. The employer took the

position that such dishonesty, once established, was always antithetical to a continued

employment relationship. The Court took a more contextual approach. It said, between

paragraphs 51-57:

51 … I conclude that a contextual approach to assessing whether an employee's dishonesty provides just cause for dismissal emerges from the case law on point. In certain contexts, applying this approach might lead to a strict outcome. Where theft, misappropriation or serious fraud is found, the decisions considered here establish that cause for termination exists. This is consistent with this Court's reasoning in Lake Ontario Portland Cement Co. v. Groner, [1961] S.C.R. 553, where this Court found that cause for dismissal on the basis of dishonesty exists where an employee acts fraudulently with respect to his employer. This principle necessarily rests on an examination of the nature and circumstances of the misconduct. Absent such an analysis, it wo uld be impossible for a court to conclude that the dishonesty was severely fraudulent in nature and thus, that it sufficed to justify dismissal without notice. 52 This is not to say that there cannot be lesser sanctions for less serious types of misconduct. … 53 Underlying the approach I propose is the principle of proportionality. An effective balance must be struck between the severity of an employee's misconduct and the sanction imposed. The importance of this balance is better understood by considering the sense of identity and self-worth individuals frequently derive from their employment, a [page189] concept that was explored in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, where Dickson C.J. (writing in dissent) stated at p. 368:

Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being.

This passage was subsequently cited with approval by this Court in Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, at p. 1002, and in Wallace, supra, at para. 95. In Wallace, the major ity added to this notion by stating that not only is work itself fundamental to an individual's identity, but "the manner in which employment can be terminated is equally important". 54 Given this recognition of the integral nature of work to the lives and identities of individuals in our society, care must be taken in fashioning rules and principles of law which would enable the employment relationship to be terminated without notice. The importance of this is underscored by the power imbalance that this Court has recognized as ingrained in most facets of the employment relationship. … … 56 Such an approach could foster results that are both unreasonable and unjust. Absent an analysis of the surrounding circumstances of the alleged misconduct, its level of seriousness, and the extent to which it impacted upon the employment relationship, dismissal on a ground as morally disreputable as "dishonesty" might well have an overly harsh and far-reaching impact for employees. In addition, allowing termination for cause wherever an employee's conduct can be labelled "dishonest" would further unjustly augment the power employers wield within the employment relationship. 57 Based on the foregoing considerations, I favour an analytical framework that exam ines each case on its own particular facts and circumstances, and considers the nature and seriousness of the dishonesty in order to assess whether it is reconcilable with sustaining the employment relationship.

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This approach, the Union argues, accords with the approach outlined by Arbitrator Weiler in the

seminal case of:

Re Wm Scott and Co. [1977] 1 Can LRBR 1

There, in describing an arbitrator’s remedial authority, he said at para. 14:

The point of that overall inquiry is that arbitrators no longer assume that certain conduct taken in the abstract, even quite serious employee offences, are automatically legal cause for discharge. (That attitude may be seen in such recent cases as Phillips Cables (1974) 6 L.A.C. (2d) 35 (falsification of payment records); Toronto East General Hospital (1975) 9 L.A.C. (2d) 311 (theft); Galco Food Products (1974) 7 L.A.C. (2d) 350 (assault on a supervisor).) Instead, it is the statutory responsibility of the arbitrator, having found just cause for some employer action, to probe beneath the surface of the immediate events and reach a broad judgment about whether this employee, especially one with a significant investment of service with that employer, should actually lose his job for the offence in question. Within that framework, the point of the third question is quite different than it might otherwise appear. Suppose that an arbitrator finds that discharge and the penalty imposed by the employer is excessive and must be quashed. It would be both unfair to the employer and harmful to the morale of other employees in the operation to allow the grievor off scot-free simply because the employer overreacted in the first instance. It is for that reason that arbitrators may exercise the remedial authority to substitute a new penalty, properly tailored to the circumstances of the case, perhaps even utilizing some measures which would not be open to the employer at the first instance under the agreement (e.g. see Phill ips Cables, cited above, in which the arbitration board decided to remove the accumulated seniority of the employee).

A decision of a Canada Labour Code adjudicator involved analogous facts to the case at hand.

Boily v. ADM Milling Col [2007] C.L.A.D. 131 (Schwartz)

In that case, the Employer dismissed the complainant when it concluded, from surveillance

evidence, that the complainant was engaging in work while on medical leave. It confronted the

grievor with the surveillance and felt he had failed “to come clean”. The grievor had worked his

way up the ranks over 13 years, from driving a delivery truck to being a shift mill operator, a

physically demanding job.

The grievor had gone off sick, with an injured arm, although his supervisor doubted this due to the

way he was moving his arm while describing his injury. In a way not dissimilar to Ms. Chalifoux

winning the lottery, suspicions were further raised with news that the grievor’s wife had just

bought a business. Surveillance was requisitioned, and the grievor was filmed picking up boxes

from his wife’s new flower shop and delivering them to customers. As to the allegations that,

when confronted, the grievor “had not come clean”, the arbitrator held, at para. 38:

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38 The Employer contends that Mr. Boily should have "come clean". He was not given a reasonable opportunity to do so. He was not invited to describe and explain what he actually was doing over the period of his injury or in the scenes in the videotapes.

The adjudicator also commented on the duty of an employee off on disability saying:

49 The Employer argued, however, that Re Johnson Mathew Ltd and U.S.W.A. Loc 9046 (Murray), holds that fraudulent intent is not necessary to uphold discipline where an employee has been "negligent or untruthful" about a disability. For example, in Re Kenroc Tools Corp and U.S.W.A. (1990) 17 L.A.C. (4th) 416, discipline was upheld in a case where an employee went on a hunting trip during a medical leave. The adjudicator held that the grievor was under a "minimal obligation to follow a faithful program of treatment and convalescence, and to clear in advance with both his physician and his employer contemplated activities which might be unusual in the circumstances". 50 With respect to any alleged negligence in looking after his convalescence, the evidence shows that he regularly visited his physician, took physiotherapy as recommended and agreed to a cortisone shot despite the uncertain prospects of whether it would help. As noted earlier, none of the activities shown on the video or acknowledged in the testimony of Mr. Boily or his wife were shown to have in any way jeopardized his recovery, or to be the kind of activity that a reasonable person in Mr. Boily's circumstances should have considered as potentially prejudicial and so requiring prior clearance. 51 The Employer cited an argument by counsel for the employer recorded in the Re Johnson Mathley, supra, that an employee "has a responsibility to advise the company when he feels ready to work". This might well be a correct statement of a general legal obligation on the part of an employee who is absent with a disability. (There is a similar statement in the Employer's manual: "Employees are expected to return to work as soon as they are medically able to perform the duties of their job.") As already explained, however, the evidence does not establish any breach of such an obligation on the part of Mr. Boily on the facts of this case.

The Union also referred to:

Energex Tube v. Unifor Local 523 (Adamo Grievance) (2013) 240 L.A.C. (4th) 249 (Bendel)

The facts are set out in the headnote:

The grievor, a Shipper/Loader, challenged the termination of his employment for having been dishonest with the employer on the extent of his disability following an injury at work. The employer terminated the grievor’s employment on May 13, 2013, after concluding that there existed a serious inconsistency between what the grievor was telling it about his disability and what was revealed by surreptitious surveillance of the grievor following his injury. The surveillance revealed an increase in physical activity by the grievor at home and while on vacation. The grievor said that he had good days and bad days but always had some lower back pain.

Arbitrator Bendel said the following about the grievor’s description of his abilities to the Employer.

The Employer had terminated the grievor on the basis of surveillance evidence gathered while

the grievor was on a trip to Montreal. The Union argues that the arbitrator’s approach described

in the following passages apply equally here:

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61 Upon carefully examining the evidence, I have concluded that, at the May 8 meeting, the employer and the grievor were almost certainly talking at cross purposes about the restrictions on his functional abilities. 62 For the employer and Ms. Petro, the restrictions stated by Dr. Stark described the limits of the grievor’s functional abilities. They identified (to use the language of the FAF) his “overall abilities and restrictions”. From this, it was therefore easy to conclude that he had been dishonest in asserting the continuing validity of those restrictions when he had shown, during the Montreal trip, that he was capable of going well beyond them without any apparent difficulty or pain. 63 For the grievor, on the other hand, the restrictions applied to activities over an 8 -hour shift, five days a week, when they could be expected to be repeated constantly. They defined not so much what he was able to do, but rather what he should be expected to do on a continual basis, day in and day out. Since the intensity of his pain varied from day to day, occasionally exceeding the restrictions did not signify any dishonesty on his part. Moreover, since the restrictions on what the grievor should undertake were designed to prevent a recurrence, it was a clinical judgment by his doctor whether they should be relaxed, and not a call the grievor should make himself. … 70 I am inclined to agree with Mr. Orr’s submission that it would have been appropriate, at the May 8 meeting, for the employer to have confronted the grievor with the information it had obtained about his activities during his Montreal trip and to have asked him directly to explain how he could reconcile those activities with the answers he was giving to Ms. Petro at the meeting. Asking that question might well have brought to light that the two sides had different views on the restri ctions identified by Dr. Stark. 71 In light of the above, I am not satisfied that the grievor was dishonest with the employer. Dishonesty must be proved. It will not be lightly inferred. Certainly, one interpretation of the grievor’s statements at the May 8 meeting is that he was intentionally misrepresenting his true physical abilities. However, it is more likely, in my view, that, in responding to Ms. Petro’s questions about his functional abilities, he was thinking in terms of his doctor’s advice on whether he should attempt to do various things at work and not in terms of whether he was physically capable of doing so when he experienced “good days”. The stair-climbing, the walking and the boisterous behaviour on his trip to Montreal do not therefore prove that he was dishonest at the May 8 meeting.

I have also considered the decision in:

United Steelworkers Local 7656 v. Mosaic Potash Colonsay ULC (2014) 243 L.A.C. (4th) 1 (Hood)

It is of limited assistance except to the extent it shows there can well be circumstances where

there is more behind a physician’s opinion as to fitness to work than a description of observable

physical symptoms. There the grievor was accused of “faking it” to get time off for vacation. The

reasons for his absence however was for “situational anxiety” and “stress in the workplace”.

The arbitrator observed, at p. 206-211:

206 It is apparent from the evidence in the hearing, including the termination letter, that the Employer concluded the Grievor was able to attend work at the mine because he could perform physical landscape work. 207 Ms. Fox made this connection based on the report that the Grievor was operating heavy equipment and performing manual labour while on a medical leave. The heavy equipment was the Bobcat.

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208 The termination letter linked the alleged dishonesty to the Grievor’s own admission that while performing landscape work, he was medically unable to perform work at the mine. The Employer did not consider that the illness had nothing at all to do with his physical abilities or restrictions, but was solely related to his mental well being and stability. The diagnosis was situational anxiety requiring counselling and medication. 209 There is no evidence the Grievor was mentally or emotionally fit to return to work at the mine during this period. The Grievor’s voluntary disclosure that he was performing landscape work while on medical leave, a disclosure that was made before it was known to the Grievor the Employer had obtained its own surreptitious surveillance report of the Grievor’s activities, does no t mean he was medically fit to work at the mine during this period. 210 The evidence of the Grievor is there was no comparison between the two jobs, in regard to both the mental and physical requirements. 211 The Grievor was unwilling and unable to work in the mine and operate dangerous mine equipment and place the life of his co-workers at risk during this period where he suffered from situational anxiety requiring counselling and medication.

Lastly, the Union argues that the Employer should have used progressive discipline and refers to

the following extract from Tolko’s Employee Handbook addressing its approach.

Your performance and behavior is expected to contribute toward the achievement of the Company’s goals and objectives. When your performance or behavior is unsatisfactory, corrective action must be taken. Corrective action will follow the process of progressive discipline when the situation is a result of inappropriate behavior or unsatisfactory performance when you have the ability to perform at an acceptable level but chooses not to do so. It is the intention of the Company to be fair to all employees and consistent in its approach to progressive discipline. The goal is to correct unsatisfactory behavior rather than to punish. Your supervisor will make you aware of unacceptable behavior in a timely manner. The severity of the employee’s violation of company rules, policies or applicable legislation will determine the severity of the corrective action.

The Union argues that the termination should be set aside, and if appropriate a suitable penalty

substituted, along with other remedies, to reinstate the grievor to employment and compensate

him for his financial losses.

Decision

As this is a termination case I must answer the customary three questions from Wm Scott [1976]

B.C.L.R.B.D. No. 98:

1. Did Mr. Chalifoux give Tolko just and reasonable cause for some form of discipline, as

alleged?

2. If so, was dismissal an excessive response in all of the circumstances of the case?

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3. If discharge was excessive, what alternative measures should be substituted as just

and equitable?

All three questions present challenges in this case. The allegation justifying termination is that

Mr. Chalifoux was dishonest in describing his abilities, his activities, and his limitations. I have

concluded that there is substance to that allegation and that it provided Tolko with just and

reasonable cause for discipline. That said, I also accept as valid several of the points raised by

the Union that put Mr. Chalifoux’s accounts of his condition in important context. Answers that

are objectively misleading or untrue are not always premeditated or involve out and out deceit.

The first point that I accept is that it was Tolko, primarily through Mr. Creed, who told Mr.

Chalifoux that he could not return to work until he was 100% able to do his job. I have found that

Mr. Chalifoux was told to leave when he returned from vacation, and not Mr. Chalifoux who said

he was unable to work and was not coming back. I accept as genuine and true Mr. Chalifoux’s

assertion then and now that he was anticipating being assigned, and anxious to work, modified

duties. This conclusion impacts on the finding of dishonesty in two respects. First, I accept that

when Mr. Chalifoux was asked about and replied over his current abilities, he was doing so

having been told that while he thought he could work by being accommodated, the Employer did

not. Nothing the Employer ever said subsequently changed that message. Nothing the insurer

said changed that message, and Mr. Connolly emphasized throughout that he was placing heavy

reliance on the insurer in respect to such matters. Second, it undermines the Employer’s primary

suspicion and later conclusion, that Mr. Chalifoux was engaged in a deliberate plan to avoid a

return to work and to draw on disability benefits to which he was not, and implicitly knew he was

not, entitled.

The second point I consider relevant is what Mr. Chalifoux knew, but the Employer did not know

(or did not take the time to learn) that one of Mr. Chalifoux’s primary disabling characteristics was

that the strong medication he was on interfered with his cognitive abilities. His physician noted

this as a reason he was not fit to return to work in a safety sensitive plant. The Employer’s

questioning and its assessment of his purely physical abilities missed this point, but Mr.

Chalifoux’s replies must be assessed based on the fact that he did know this, and that it was

based on a medical opinion not just on Mr. Chalifoux’s own assumptions. Much the same can be

said of Mr. Chalifoux’s capacity for sustained physical activity. The Employer’s evidence,

including that of Ms. Robinson, took an overly black and white view that, if Mr. Chalifoux could

hold a cup, squeeze an accelerator, or lift a box, he must be able to do so in a sustained way.

There is an important difference between being able to do things intermittently and being able to

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do them consistently during a day’s work activities. Mr. Chalifoux’s position was much like that

described in paragraph 63 of the Energex decision (supra). Testing such endurance is an

essential element of most Functional Capacity Examinations. Yet another unconsidered aspect

was the fact that Mr. Chalifoux was suffering from depression. Replying to that by simply saying

“he wasn’t receiving counselling” struck me as rather dismissive, particularly when he was

following prescribed pharmaceutical treatment.

The next point which softens the gravamen of a finding of dishonesty, but at the same time

makes it apparent, is that Mr. Chalifoux, due to understandable and unfortunate circumstances,

appears to have allowed himself to fall into a dejected state of mind, depressed and also angry

because of the loss, due to illness, of his ability to work and to play. There was a defeated tone

to some of his evidence. My finding is that it was that factor that explains but does not excuse

answers that downplayed abilities and exaggerated infirmities. Put simply, he was feeling sorry

for himself, was having difficulty adjusting to his lost capacities, and was presenting his condition

in a very pessimistic manner.

Nonetheless, the conclusion is inescapable that Mr. Chalifoux was not frank about the totality of

his activities, and he was conscious of that lack of frankness. His absolute denial of

“snowmobiling” was not true. On occasion he did use his snowmobile. He was quite capable of

saying, “yes I use it for minor runs but not like I used to”. The same was true of his answers over

day-to-day activities like clearing his pathway, going for walks, driving and so on. I am able to

accept Mr. Chalifoux’s assertion that the trip to Wadlin Lake was a one-of event. However, it is

too much of a coincidence to accept fully that Mr. Henley’s observation of h is activities on

January 16 & 21st were completely unusual and only due to his circumstances at home at that

particular time. Rather, I find it more probable Mr. Chalifoux would often try to and actually do

more than he described to Ms. Robinson or to the Employer, although perhaps often with a price

to pay in terms of causing an aggravation of his pain. Particularly damaging to Mr. Chalifoux’s

overall truthfulness was that he did not volunteer that he had been snowmobiling because “he

didn’t think anyone had seen him” so he did not tell them.

I am troubled by the fact the Employer chose not to confront the grievor with its full allegations

and its surveillance evidence before the decision to terminate such a long-serving employee. The

Employer’s assumptions at the time were threefold. It had formed the clear view that Mr.

Chalifoux was faking his illness and that he was in fact capable of performing modified work.

Given the available medical reports from the insurer’s records, I have very serious doubts that Mr.

Chalifoux had any such capacity or that Tolko had work that he could perform on any sustained

basis given his disabilities combined with the effects of his medication. It had also implicity

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accepted the view that Mr. Chalifoux did not need or want to work because of his wi fe’s good

fortune. Several cases have disparaged the practice of not putting such evidence to an employee

to offer a fair opportunity to explain. I note the following:

An employer relied on the employee’s dishonesty as a ground for dismissal on the basis of his failure to admit, when interviewed, his role in throwing a tub of margarine, something that had been seen by a manager directly. However, that fact was not disclosed to the grievor, leading the arbitrator to comment, at p. 62:

62 As indicated, although the Employer sought a specific admission or denial, Mr. Royle did not actually put the facts to the Grievor for his response. I am, frankly, left to wonder why Mr. St. Pierre did not simply put to the Grievor, when he first confronted him in the aisle or immediately thereafter in the coffee room, that he witnessed him throwing the margarine. Equally perplexing, is the fact that even though he did not discuss the margarine throwing with the Grievor, St. Pierre nevertheless immediately suspended h im pending the "... conclusion of an investigation of dishonesty ..." (Ex. 2) prior to any direct denials by the Grievor. … 64 I accept that the Grievor was not directly forthright in admitting his behaviour. However, given: the circuitous nature of the questioning in that first interview; the fact that he was not made aware, by St. Pierre, of the behaviour that resulted in his suspension in the first place; and his declared reluctance to speak without the benefit of speaking with Mr. Zigart, I cannot draw either the inference or the conclusion regarding the first interview, as urged upon me by the Employer.

Canada Safeway Ltd. v. U.F.C.W. Local 401 (Champagne Grievance) [2007] AGAA 27 (Hornung) 96 I do not view it to be my task, as arbitrator, to impose lock-step investigatory procedures on an employer where none are prescribed by the parties in their collective agreement. The actions of the Inn are, of course, to be assessed against the templates of reasonableness and fairness and I accept that if the manner in which the Inn confronted the Grievor (or any employee) denied the Grievor (or any employee) a reasonable opportunity to provide an explanation then this can be a factor to be taken into account when assessing the evidence as a whole, particularly when an allegation of theft is made. But, there are no absolute rules. Victoria Inn v. UFCW Local 832 [2000] MGAD 36 (Hamilton) at 96

In my view in these circumstances fairness required the Employer, at some point, to fully confront

the grievor and seek his explanation. My conclusions about the severity of Mr. Chalifoux’s

misconduct are tempered by the fact this did not occur. Had a full confrontation occurred it may

have precipitated a misleading explanation or dissembling, but it may also have precipitated

confession or explanation. I find this particularly important in this case because of the low level of

Mr. Connolly’s understanding of Mr. Chalifoux’s medical condition, and by the degree of susp icion

that had been created by his wife’s lottery win.

Mr. Connolly was acting on his own subjective assumptions of what Mr. Chalifoux could do, and

not just on his anger at being lied to (although these two are interrelated). Mr. Chalifoux was in

fact suffering from complex disabilities for which he took treatment and about which he provided

information and medical reports to the insurer. While Mr. Connolly repeated several times that

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“the medical stuff” was the insurer’s responsibility, he was not content to leave the decision

making there. While not entirely parallel, the following comments from the Supreme Court of

Canada are instructive:

38 This Court has, on several occasions, referred to the existence of a subjective component of discrimination. Indeed, this concept is not foreign to Canadian law. In Andrews v. Law Society of British Columbia, supra, at p. 174, McIntyre J. defined discrimination in terms of distinctions based on personal characteristics attributed to an individual. Similarly, in an appeal concerning an Ontario statute and whether it violated s. 15 of the Canadian Charter, McLachlin J. spoke of discrimination in terms of “presumed” characteristics: Miron v. Trudel, supra, at para. 132. See also Battlefords and District Co-operative Ltd. v. Gibbs, supra; Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241; Vriend v. Alberta, supra. 39 The objectives of the Charter, namely the right to equality and protection against discrimination, cannot be achieved unless we recognize that discriminatory acts may be based as much on perception and myths and stereotypes as on the existence of actual functional limitations. Since the very nature of discrimination is often subjective, assigning the burden of proving the objective existence of functional limitations to a victim of discrimination would be to give that person a virtually impossible task. Functional limitations often exist only in the mind of other people, in this case that of the employer. 40 It would be strange indeed if the legislature had intended to enable persons with handicaps that result in functional limitations to integrate into the job market, while excluding persons whose handicaps do not lead to functional limitations. Such an approach appears to undermine the very essence of discrimination. Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 SCR 665, 2000 SCC 27 (CanLii)

Put simply, without medical information, and with heightened suspicion, Mr. Connolly assumed

that, if Mr. Chalifoux could be observed doing certain things periodically, he could do those and

other things consistently and could therefore be put to work productively in the plant but for his

dissembling. A fuller review of the medical information suggests those assumptions were not

accurate even though Mr. Chalifoux was exaggerating his condition and depreciating his abilities.

However, Mr. Connelly’s assumption about Mr. Chalifoux’s capacities are what underpinned Mr.

Connelly’s approach to questioning Mr. Chalifoux and to his assessment of his answers.

In summary, I find the Employer had just cause for discipline, but the nature of the cause is

qualified by additional circumstances.

The Employer’s case relies on the proposition that termination was, of itself, and without

consideration of other factors, a just and equitable response. While in many circumstances that

remains true, since at least the Supreme Court’s decision in McKinley, arbitrators have adopted a

more contextual analysis, considering all the circumstances before ruling out some alternative

approach. Proportionality must be considered. In this case Mr. Chalifoux is a long service

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employee with an overall good record. He appears to have been an individual from whom the

words of the Supreme Court in McKinley (quoting the PSERA reference) are particularly true:

Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being.

The Employer maintains that Mr. Chalifoux failed to keep them informed of his condition. I do not

accept this proposition, firstly because of my view of the exchange with Mr. Creed. Mr. Connolly

for the Employer repeatedly said, “they were relying on the insurer”. The same might be said of

Mr. Chalifoux. The evidence is clear from Mr. Chalifoux’s evidence and that of Ms. Robinson,

and the insurer’s file, that throughout Mr. Chalifoux was actively seeking treatment from his

general practitioner and a specialist. The Employer’s complaint of lack of information must be

assessed against the fact that it had a routine form to give to employees to request medical

updates when it wished them, but never sought such an update, relying on a clearly time limited

report from 2011. Further, Ms. Elder was regularly in touch with the insurer and knew that reports

were being sent in.

The Employer urges the view that it has a sophisticated Disability Management Process known to

and available to Mr. Chalifoux. Its assertion is that Mr. Chalifoux, hiding his capacities,

deliberately declined to avail himself of available assistance. I agree that the program had, on

paper, the processes in place to help Mr. Chalifoux explore opportunities. However, from the

materials before me in this case, in respect to Mr. Chalifoux’s situation at least, the process was

moribund. There is also a significant difference between eligibility for insurance coverage (the

insurer’s job and concern) and the duty to accommodate persons with disabilities (a three way

obligation including the Union, the Employer and the employee).

The existing Disability Management Process, as written, not only provides protection and facilities

for employees, it provides clear and agreed upon mechanisms to explore accommodation for

Employers and to protect the Employer’s interests by assessing the disabilities and capacities of

employees and taking appropriate and proactive steps to get them back to work. It provides an

orderly method of identifying modified work that might be available and assessing individuals

whose capacities might fit that work.

The fact that there was a Disability Management Process in place is a significant fact in

assessing the appropriateness of outright termination in this case. Had that process been

properly used from the outset, at least when Mr. Chalifoux came back from his holiday, and more

appropriately even before that, outcomes and understandings could have been quite different.

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There is a sharp contrast between the aspirational statements that make up the policy’s express

purpose and the Committee’s responsibilities and what happened in this case. Mr. Chalifoux was

saying throughout that he wanted to get back to work yet no one reached out to him and said,

“how can we make this happen”, or “how can we assess whether this is possible”. Neither the

Employer or the Committee charged with managing this process took the intuitive to assess what

alternative work might be available or to ask Mr. Chalifoux’s physician whether he had the

capacity to perform such work. If indeed Mr. Chalifoux was unduly resistant to accepting work,

use of the Committee process might have revealed the fact earlier and allowed capacity testing to

be undertaken. Using the committee process could have given the Employer and the Union a

clearer indication of the full extent of Mr. Chalifoux’s limitations as determined by his physician.

Using the committee process might have given Mr. Chalifoux a sense of support and some

reason for optimism.

My conclusion is that the view that the “insurance company was responsible for these things” was

misplaced. That assertion flies in the face of the policy. There is no evidence the insurer was

addressing questions of accommodation, and no evidence that, in her contacts with the insurer,

or the committee, that Ms. Elder was taking any proactive steps in that regard, or that she

conceived it as even being part of her job. There is no indication that she passed on any

significant information she had from the insurer to the meeting on November 13th, again despite

the stated responsibilities of the committee.

These factors, for a 30-year disabled employee with a good employment record, persuade me

that this is an appropriate case to exercise the authority under s. 142(2) to substitute another

penalty.

Just what that penalty should be presents another difficult decision. The initial problem is my

conclusion, from the medical information on the insurance file, that, despite the Employer’s

suspicion and assertion from physical observations, Mr. Chalifoux was more probably that not at

the time of his termination, unable to work in a safety sensitive plant because of his inability to

perform physical activities consistently through a full shift and because his cognitive abilities, due

to medication, remained a problem. However, I have little to no evidence as to just what positions

the Employer might have available to match such abilities as he had.

It may also be that the answer to both these questions will be different now than they were at the

time of termination. The duty of accommodation, when a disability results from disease, varies

over time as needs, opportunities and capacities change. Mr. Chalifoux’s evidence was that his

medication was changing, giving him some optimism of a renewed ability to work.

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If my conclusion is correct, Mr. Chalifoux might well have, but for other factors, been eligible to

remain on long-term disability insurance. That ability has been lost (a) due to the Employer’s

initiating and providing the insurer with the surveillance evidence; (b) the view of Ms. Robinson

that assessing contrary evidence was for the appeal process and not her direct responsibility; and

(c) Mr. Chalifoux’s having given up on the insurance claim by failing to appeal. On this last point,

I do not accept the Employer’s argument that this was because he knew he could not win

because he had been lying about his disabilities. Rather, Mr. Chalifoux truly seemed defeated by

the overall processes surrounding his dismissal.

The Employer’s view is that if reinstatement is to occur, it should be on the basis of a time served

suspension. I am not persuaded that such a remedy would provide an appropriate disposition

both because of the magnitude of the implicit suspension and because it leaves unresolved Mr.

Chalifoux’s future employment potential and leave unexamined his employment potential since he

was terminated.

The Supreme Court of Canada has said:

54 For arbitration to be effective, efficient and binding it must provide lasting, practicable solutions to workplace problems. Commensurate with the notion of exceptional circumstances as developed in arbitral jurisprudence is the need for arbitrators to be liberally empowered to fashion appropriate remedies, taking into consideration the whole of the circumstances. To rob arbitrators of access to the full breadth of the employment context risks impairing their role as final arbiters of workplace disputes. Arbitrators are well positioned on the front lines of workplace disputes to weigh facts and assess credibility as the circumstances warrant. Alberta Union of Provincial Employees v. Lethbridge Community College [2004] SCR 727

That case dealt with an employee who was not reinstated to work because of incapacity. I am

not at this point suggesting that is an appropriate remedy here. My direction at this point is that

Mr. Chalifoux’s situation needs to be assessed, not on the basis of assumptions but as a result of

objective expert testing. Once that is done the parties will be better able to resolve, or this

arbitrator better able to decide, on a final remedy.

I direct the Employer to provide details of accommodating work it is able to offer in its facilities. I

direct that Mr. Chalifoux provide a medical opinion of his capacities and limitations both as of the

date of termination, insofar as his medical practitioners can now ascertain, and as of now. If

necessary, Mr. Chalifoux may also be required to undergo a functional capacity evaluation. Each

will be at the Employer’s expense. Thereafter, in a manner that complies with the three-way duty

to accommodate disabilities, the parties shall meet and determine whether there is a way any

remaining disabilities Mr. Chalifoux may have can be accommodated, without undue hardship,

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with the Employer, and if so, what that accommodation might be. These steps are to be

accomplished within three months of the date of this award. I retain jurisdiction over any further

and final remedies.

Once these assessments are accomplished I will decide on whether to set aside the termination

and order Mr. Chalifoux reinstated, or whether to substitute some other remedy for his termination

and any losses he has suffered as a result of the Employer’s action. I am not at this point ruling

on the Employer’s objection that he failed to mitigate any damages he suffered by fai ling to

appeal his denial of long-term disability coverage, but it is my view that, as an arbitrator under this

grievance, I have no authority to extend his time for an appeal to the insurer or to make any other

award against the insurer directly. That is a civil matter beyond my authority.

Once the parties have carried out the directives above they should advise my office so

arrangements can be made for finalizing these matters. The ability to do that should not prevent

the parties attempting, in the meantime, to resolve the matters by agreement.

DATED at Edmonton, Alberta this 29th day of June, 2017.

ANDREW C.L. SIMS, Q.C.

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