FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Paul Ouellet, the grievor, filed a grievance on December 12, 2006, alleging the following:

[Translation]

…

I am filing a grievance because my employer, the Canada Revenue Agency (CRA), is discriminating against me on the grounds of a mental disability, a deficiency and age, contrary to the provisions of clause 19.01 of my collective agreement and the provisions of sections 3 and 7 of the Canadian Human Rights Act(CHRA).

In addition, my employer refuses to make reasonable accommodations that would allow me to return to work at the CRA, ensure my livelihood, resume rewarding professional activities and make a positive contribution to the community.

…

2 Mr. Ouellet seeks the following corrective action:

[Translation]

…

That my employer cease all discrimination against me by taking, in particular, the following measures:

• Facilitate my access to the necessary psychotherapy treatments, provided by a therapist of my choice, by assisting me financially to that end until my return to work or until I am declared permanently unfit for a position at the CRA;
• Comply with the return-to-work plan and accommodations as negotiated with my union representative and me at the appropriate time based on the recommendations and suggestions of the health professionals legitimately involved or as modified by them from time to time;
• Apply no pressure for and make no allusion to my retirement before the mandatory retirement age under applicable legislation;
• Cease, and do not engage in future, any deliberate, malicious or stalling tactics that would force me to withdraw from my professional activities with the CRA and the federal public service with the sole purpose of shielding me from a state of poverty or ensuring that I have a viable livelihood;
• That my employer pay me the monetary equivalent of lost income suffered since July 2005 as moral damages for my suffering since September 2003;
• That my employer pay me $50 000 as exemplary damages for the suffering, prejudice and affronts to my dignity as a human being and my status as an employee.

…

3 The employer dismissed the grievance at every level of the grievance process. On April 25, 2008, Mr. Ouellet referred the grievance to adjudication before the Public Service Labour Relations Board.

4 It should be noted that notice was given to the Canadian Human Rights Commission (CHRC) about the allegations of discrimination. The CHRC declined to participate in these proceedings.

II. Summary of the evidence

5 Dr. Jacques-A. Frigault and Mr. Ouellet testified for the complainant. Paula Harder, Service Canada Project Manager in Ottawa, was the director of human resources at Human Resources Development Canada (HRDC) in New Brunswick during the relevant period. Phélice Cormier, Senior Program Officer with the Canada Revenue Agency (CRA) in Moncton, held management positions with National Collection Services, which reported to Human Resources and Social Development Canada (HRSDC) until December 2003, to Social Development Canada (SDC) from December 2003 to August 2005, and finally to the CRA beginning in August 2005. Ms. Cormier and Tony Manconi, a director at the CRA since 2005, testified for the employer.

6 The facts of the grievance are complex, and the versions of them differ somewhat. I will relate only the most relevant elements and indicate when there is a divergence.

7 Mr. Ouellet held several positions at the HRDC in Moncton between September 1971 and April 2002. Following a sexual harassment complaint made in August 1996, an investigation and a mediation led to a settlement in 1998. Some of the stipulations of the agreement were that it was without prejudice to the parties and that it would be kept confidential.

8 The grievor was assigned to a PM-01 position with the Canada Pension Plan from February 1998 to February 2001. Management then decided not to renew the assignment, deeming his performance unsatisfactory. Mr. Ouellet maintained that his performance was satisfactory and that he wanted to continue his assignment.

9 In May 2001, he was assigned to a CR-05 position while retaining his PM-01 salary. As a result of what management considered performance issues, meetings were held in early 2002. Mr. Ouellet felt that his new duties were not challenging and that they were not reflective of his competencies. At a meeting on February 21, 2002, Mr. Ouellet’s union representative, who accompanied him, informed management that Mr. Ouellet suffered from post-traumatic stress disorder and that he required accommodation.

10 A meeting was held in April 2002. Subsequent discussions led the parties to agree in September 2002 that, to better understand Mr. Ouellet’s limitations and special needs, he should undergo a functional and occupational assessment but that he should first undergo a psychosocial assessment. The parties also agreed that the complainant would remain at home on leave with pay as of April 2002 and that the department would cover the costs of the psychotherapist chosen by Mr. Ouellet, Dr. Frigault. Mr. Ouellet chose him for spiritual and religious reasons. Dr. Frigault is a doctor of psychology and not a physician and is not registered with any professional body in Canada. His office is in Fredericton, a three-hour drive from the patient’s home in Moncton. The department agreed to reimburse the grievor’s travel and accommodation expenses when he was required to go to Fredericton for his treatments. Dr. Frigault was to inform the department after the psychosocial assessment if he recommended psychotherapy and in addition:

1) If he recommended psychotherapy, how many sessions would be required? What would be the length of treatment, and would Mr. Ouellet be fit to work during the therapy?

2) If he did not recommend psychotherapy, what would he recommend as the next steps to take?

3) Whether or not psychotherapy took place, when would the appropriate time be to move forward with the functional and professional assessment (Exhibit E-1)?

11 In November 2002, following the preliminary psychosocial assessment, Dr. Frigault recommended that Mr. Ouellet follow 15 to 20 sessions of psychotherapy and that he remain on paid leave during the treatment (Exhibit G-2).

12 In February 2003, Dr. Frigault reported to the department, informing it that he had conducted a functional and occupational assessment, that Mr. Ouellet was fit to return to work but that he would have to continue therapy. He stressed that a return-to-work plan was needed. His contract for therapy was extended. On May 27, 2003, he proposed the following six-step return-to-work plan:

1) resolve the outstanding grievances and complaints;

2) identify a position for Mr. Ouellet’s return to work — he wanted to be officially appointed to the PM-01 position with the Canada Pension Plan;

3) prepare the employee for the identified position, including individualized training;

4) prepare the work environment, namely, superiors and colleagues;

5) assess the return to work after between two and six months; and

6) gradually return the employee to work.

The employee would continue his therapy (Exhibit G-3).

13 Management agreed to extend the psychotherapy with Dr. Frigault but asked him to confirm that the grievor was fit to return to work (Exhibit G-5). Dr. Frigault did so in writing on July 2, 2003 (Exhibit G-7).

14 A meeting was scheduled for August 27, 2003 to discuss Mr. Ouellet’s return to work. Mr. Ouellet, his union representative and Dr. Frigault attended along with Ms. Harder and a human resources officer for management. The meeting did not go well, and Dr. Frigault departed. The meeting continued without him but ended without achieving its purpose — Mr. Ouellet’s return to work.

15 Dr. Frigault wrote to the regional director on September 3, 2003, commenting on the August 27 meeting. He complained about the attitudes of the employer’s representatives toward Mr. Ouellet and the quality of the union’s representation. However, he expressed his desire to continue to be a resource person for Mr. Ouellet’s return to work (Exhibit G-8).

16 Louise Branch, Regional Chief Executive, replied to Dr. Frigault on November 4, 2003. She informed him that, since Mr. Ouellet’s functional and occupational assessment was complete and he was found fit to return to work, Dr. Frigault’s involvement in the return to work was not required. Additionally, since Mr. Ouellet was fit to work, the employer was no longer required to pay for his psychotherapy treatments. Mr. Ouellet could use the benefits provided under his health care plan if he wished to continue his psychotherapy (Exhibit E-9).

17 Mr. Ouellet contacted the Sun Life insurance company to determine whether he could continue his psychotherapy with Dr. Frigault. He was entitled to 10 sessions annually, but travel and accommodation expenses would not be covered. He did not have any financial resources, so he did not continue therapy. However, he communicated with Dr. Frigault from time to time. He confirmed under cross-examination that he did not try to find another psychotherapist in Moncton.

18 The department called another meeting in November 2003 to discuss Mr. Ouellet’s return to work with him and his union representative. He was offered a position as a payment officer at the CR-05 group and level, while retaining his PM-01 salary. He replied in a November 26, 2003 letter stating that accepting the offer would not result in a successful return to work since he would be required to work under the supervision of someone whom he considered hostile. Management did not agree with that opinion because he had never worked under that manager.

19 Mr. Ouellet’s work unit was transferred from the HRSDC to the SDC in December 2003. It meant that the labour relations responsibilities shifted from the region to headquarters in Ottawa, which may have delayed the handling of the file.

20 Mr. Ouellet made a complaint with the CHRC on August 25, 2004, alleging that his employer was not accommodating him for a mental disability by refusing to reintegrate him, contrary to the advice of the psychologist hired by the employer itself. An investigation report was submitted in September 2005, and the complaint was dismissed in January 2006. The application for judicial review was dismissed in December 2006 (2006 FC 1541).

21 The employer attempted to contact Mr. Ouellet in fall 2004 to discuss a new return-to-work strategy and to ask him to undergo an assessment of his fitness to work with Health Canada’s Workplace Health and Public Safety Programme (WHPSP). Mr. Ouellet refused the assessment because the employer had Dr. Frigault’s assessment of February 2003. The employer also learned at the same time that the complainant had made a complaint with the CHRC. Therefore, it decided not to aggravate an already complicated situation and did not attempt to contact Mr. Ouellet again until the complaint was resolved (Exhibit E-4).

22 The employer wrote to Mr. Ouellet in April 2005, and again asked him to undergo a WHPSP assessment so that it could determine the appropriate accommodations to enable him to return to work (Exhibit E-14). The complainant responded that the employer already had Dr. Frigault’s February 2003 assessment. If it simply wished to update the assessment of his functional and occupational capabilities, he was prepared to return to Dr. Frigault (Exhibit E-14).

23 The employer called a meeting on June 23, 2005 to assign Mr. Ouellet to a collection officer position, his substantive PM-01 position, as of July 11, 2005 (Exhibit E-14). After the meeting, the union representative wrote to the employer, requesting that Mr. Ouellet be appointed somewhere other than the same environment in which he had been harassed in the past to ensure a better return to work since Mr. Ouellet was very stressed about the idea of returning to his former unit (Exhibit E-15). Dr. Frigault also wrote to management and suggested following the return-to-work plan proposed in May 2003 rather than appointing Mr. Ouellet to his former position (Exhibit G-9).

24 Mr. Ouellet did not show up for work on July 11. He was deemed to be on sick leave. He provided a medical certificate to that effect (Exhibit E-6), but the certificate from Dr. Melanson, his family physician, did not provide reasons or a return-to-work date. However, it did mention that Dr. Frigault’s instructions should be followed (Exhibit E-17).

25 On August 8, 2005, the employer again asked Mr. Ouellet to undergo an assessment by Health Canada’s WHPSP about his fitness to work (Exhibit E-20).

26 Mr. Ouellet replied to the employer on September 9, 2005, refusing to undergo the Health Canada assessment but suggesting that the questions submitted to the WHPSP be submitted to Dr. Frigault and Dr. Melanson and that the findings be discussed to identify the necessary and possible accommodations. He also asked for financial assistance to meet with Dr. Frigault as was done in the past (Exhibit E-21).

27 The Manager replied to Mr. Ouellet on September 22, 2005, again mentioning the contradictory information, which led him to request the WHPSP assessment and to raise the possibility of taking administrative action if he refused (Exhibit E-22). The complainant responded on October 4, 2005, claiming that, despite the fact that he still questioned the value of undergoing an assessment, he would agree to his doctors and the WHPSP exchanging information and to proceeding with a WHPSP assessment only with an adequate explanation of the reasons or if he were so ordered (Exhibit E-23). The Director wrote to Mr. Ouellet on November 24, 2005, reiterating the reasons for the assessment and indicating that, if Mr. Ouellet refused, the Director would recommend his dismissal for incapacity based on the medical information available to the employer (Exhibit E-24).

28 Mr. Ouellet submitted a disability insurance claim in October 2005 to Sun Life. After an initial denial, the application was approved retroactively in March 2007 (Exhibit E-2). He received benefits until November 2007.

29 On December 4, 2005, Mr. Ouellet signed the consent forms for the WHPSP assessment, and the assessment request was sent to Health Canada on December 22, 2005 (Exhibit E-25). However, the grievor withdrew his consent to provide medical information on February 1, 2006 (Exhibit E-26).

30 Dr. Mayrand assessed him in February 2006 and concluded that Mr. Ouellet was not fit to work. He required psychotherapy. The prognosis was that he would be unable to return to work in the near future or even in the medium term. Given his age, it was perhaps appropriate to consider a pre-retirement plan (Exhibit G-11). That information was not shared with the employer. On April 5, 2006, Health Canada notified the employer that the grievor was not fit to return to work and would not be until he had undergone a long period of therapy with a specialist (Exhibit E-27).

31 Therefore, on May 11, 2006, the employer extended Mr. Ouellet’s unpaid sick leave for 12 months (Exhibit E-28).

32 Mr. Ouellet retired in November 2007 despite his desire to return to work.

III. Summary of the arguments

A. For the grievor

33 Mr. Ouellet’s representative argued that Mr. Ouellet only wanted the employer to allow him to continue his therapy with Dr. Frigault and then to return to work. The choice of psychotherapist was based on his religious beliefs and was not frivolous.

34 The employer stopped paying for his therapy with Dr. Frigault in May 2003. The therapy ended in September 2003.

35 The employer held a meeting in August 2003 to discuss a return to work without therapy. That is like a person in a wheelchair being refused access to an elevator.

36 Additionally, there was no contact between the employer and Mr. Ouellet other than through correspondence between August 2003 and July 2005, when another return-to-work offer was made but still without therapy, although his health was deteriorating.

37 Finally, in April 2006, following Dr. Mayrand’s medical assessment, it was confirmed that Mr. Ouellet could not return to work without first undergoing therapy. Therefore, this is a case of the employer refusing to accommodate a medical problem. Defraying the costs of Mr. Ouellet’s therapy did not constitute an undue hardship for the employer.

38 As a result of the refusal, Mr. Ouellet had no choice in 2007 but to retire rather than be dismissed for incapacity.

39 Mr. Ouellet’s representative referred me to the following paragraphs of Centre jeunesse des Laurentides c. Syndicat des employés des services sociaux des Laurentides (CSN), 2006 CanLII 35636 (QC A.G.):

[Translation]

…

[125]   The Court describes as follows each step of the test:

Step One

The first step in assessing whether the employer has successfully established a BFOR defence is to identify the general purpose of the impugned standard and determine whether it is rationally connected to the performance of the job. The initial task is to determine what the impugned standard is generally designed to achieve. The ability to work safely and efficiently is the purpose most often mentioned in the cases but there may well be other reasons …

The employer must demonstrate that there is a rational connection between the general purpose for which the impugned standard was introduced and the objective requirements of the job…

The focus at the first step is not on the validity of the particular standard that is at issue, but rather on the validity of its more general purpose…

Step Two

Once the legitimacy of the employer’s more general purpose is established, the employer must take the second step of demonstrating that it adopted the particular standard with an honest and good faith belief that it was necessary to the accomplishment of its purpose, with no intention of discriminating against the claimant…

Step Three

The employer’s third and final hurdle is to demonstrate that the impugned standard is reasonably necessary for the employer to accomplish its purpose, which by this point has been demonstrated to be rationally connected to the performance of the job. The employer must establish that it cannot accommodate the claimant and others adversely affected by the standard without experiencing undue hardship… Yet the standard, if it is to be justified under the human rights legislation, must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship.

…

The employer did not demonstrate that it followed the three steps.

40 In Mr. Ouellet’s case, there was no contact for almost 18 months, even though he was being paid. On that point, his representative cited the following paragraph from Syndicat des employés et employées de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000, 2006 QCCA 150:

…

[102]   The arbitrator could not conclude on his own that Hydro-Québec did not need to accommodate Ms. L. based solely on the evidence of her possible inability to perform her job in the reasonably foreseeable future. The burden on the employer in defence of a BFOR is heavy, and Hydro-Québec has not discharged it as there is no evidence showing that it tried to accommodate Ms. L. after February 8, 2001. The patience and tolerance displayed by Hydro-Québec in the past with respect to Ms. L.’s numerous absences do not represent accommodation; Hydro-Québec took these measures with no regard to her disability since it was not yet aware of it. The duty to accommodate requires the employer to be proactive and innovative, that is to say, it must make concrete efforts to accommodate or it must demonstrate that its attempts have been in vain and that any other solution, which must be identified, would impose an undue hardship. It is not sufficient to state simply that there are no other solutions; such an assertion must be demonstrated.

…

41 She also cited Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, and asked me to allow the grievance.

B. For the employer

42 The employer’s representative argued that the first thing to establish is the matter at issue. The grievance, which is similar to Mr. Ouellet’s complaint with the CHRC, invokes discrimination because he was not accommodated and seeks as corrective action that the employer defray the costs of his therapy with the psychotherapist of his choice.

43 Therefore, the question at issue is whether the employer is required, as an accommodation, to pay for the employee’s therapy treatments.

44 The grievor’s argument refers essentially to the criteria established by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (Meiorin). To summarize, if an individual has a disability, the employer must offer to accommodate, taking into account any justified occupational requirement, to the point of undue hardship. Otherwise, there is discrimination. In this case, it is not that simple. Did Mr. Ouellet’s request represent an accommodation? Was the employer required to comply with it?

45 The Federal Court answered those questions in Ouellet v. Canada (Attorney General), 2006 FC 1541. Under cross-examination, the complainant was unable to explain the difference between his complaint and his grievance. The employer cited the following paragraphs of that decision:

…

[38] The applicant also criticized the investigator for not having examined the main issue of his complaint, that is to say, the matter of whether the Department had properly accommodated the applicant by preparing a return-to-work plan that met his needs. In support of his argument, he submits that the investigation record did not contain any document showing the Department had prepared a return-to-work plan and that the investigator did not do a thorough job, having failed to question the employer’s witnesses about their return-to-work plan. In addition, the applicant states that the investigation report did not contain any analysis of the employer’s duty to accommodate or of the return-to-work plan proposed by the employer.

[39] Once again, I am not satisfied by this argument. The issue was not whether the Department’s return-to-work plan was in compliance with Dr. Frigault’s recommendations. Ultimately, it was up to the Department to determine the best way to have Mr. Ouellet return to work, relying on Dr. Frigault’s recommendations for inspiration, of course. In this case, what the investigator had to consider, and what the Commission had to decide, was whether the employer had fulfilled its duty to accommodate.

[40] On this point, the investigator’s report appears to me to be complete. She explained all the measures taken by the employer to facilitate Mr. Ouellet’s return to work: a paid leave of absence; the payment of fees for assessment and psychotherapy, as well as Mr. Ouellet’s travel expenses; the extension of Dr. Frigault’s contract, twice; and an offer of employment made to the applicant to ensure his return to work.

[41] It is interesting to note that, in his report filed with the Department in February 2003, Dr. Frigault mentioned being of the opinion that Mr. Ouellet was fit to return to work and added that he should continue receiving psychological treatments to ensure the success of his return. The employer seems to have taken this recommendation into consideration. It was only on the issue of the means that the employer disagreed with Dr. Frigault, insofar as the employer was of the view that the psychotherapy required by the applicant should be paid from now on under the Public Service Health Care Plan or the Employee Assistance Program.

[42] The investigator also noted the concerns mentioned by Mr. Ouellet and his psychologist about the return-to-work plan proposed by the respondent. The investigator even contacted the Department to obtain more information about the return-to-work plan and the reasons why it did not comply with Dr. Frigault’s recommendations (letter from investigator Anick Hébert to Serge Viens, dated June 22, 2005, Applicant’s Record, pages 263-264). Finally, she carefully dealt with the applicant’s complaint without avoiding the fundamental issue of accommodation and mentioned all the relevant facts in her report.

[43] From the moment she concluded that the applicant refused to co-operate with the employer, she was not required to take her analysis any further. Her role was not to choose the best way of having Mr. Ouellet return to work, but rather to determine if the evidence established that the Department did not fulfil its duty to accommodate. Considered from this point of view, the investigator’s report was thorough and gave the Commission relevant information allowing it to rule on Mr. Ouellet’s initial complaint while respecting the principles of procedural fairness as prescribed by the decisions rendered under paragraph 44(3)(b) of the Act. In endorsing an investigation report that was free of any procedural irregularities, the Commission rendered a decision that is not open to judicial review by this Court.

…

46 The elevator analogy is weak. Mr. Ouellet does not need an elevator because he is fit to work. He wanted psychotherapy to better his life, and he wanted the employer to pay for it. But is he fit to work, or not?

47 The employer’s representative reviewed the evidence and submitted the following points:

• Dr. Frigault declared Mr. Ouellet fit in February 2003 (Exhibit G-3).
• After that, the employer agreed to defray additional psychotherapy costs but wanted the complainant to return to work in August 2003.
• Dr. Frigault’s credibility is in doubt because he is not registered with any professional body and because he stresses the importance of therapy as a return-to-work measure even though it is outside his mandate.
• Dr. Frigault appeared to assume the role of Mr. Ouellet’s representative, which he was not asked to do.
• In November 2003, Mr. Ouellet was asked to return to his position, but he refused as long the employer would not pay for his therapy. He insisted that Dr. Frigault be his therapist.
• Mr. Ouellet did not even seek to have his therapist’s services paid through his health insurance plan.
• The problem then became Mr. Ouellet’s and not the employer’s. The employer was not responsible for Mr. Ouellet’s dependence on Dr. Frigault, for Dr. Frigault’s questionable conduct or for Mr. Ouellet’s complete lack of flexibility in obtaining help.
• It is true that 18 months passed without any action by the employer, but the file is complex, and additionally, Mr. Ouellet was on leave with pay during that period.
• The employer again attempted to have Mr. Ouellet return to work in 2005, but he was on certified sick leave and was ultimately declared unfit to work in April 2006.

48 The employer’s representative concluded that the employer was not Mr. Ouellet’s insurer. Moreover, the supplier in his case, Sun Life, paid benefits retroactive to the start of Mr. Ouellet’s leave without pay. The dispute is not about money but about Mr. Ouellet’s insistence on having Dr. Frigault as his psychotherapist.

49 The following authorities were cited:

• Gunderson v. Treasury Board (Revenue Canada - Customs and Excise), PSLRB File Nos. 166-02-26327 and 26328 (19960725):

…

6     The parties are ad idem that the issue to be addressed here is to what extent the employer has an obligation, flowing from the above-noted adjudication decision, to underwrite the cost of Mr. Gunderson’s treatment, and to refrain from recovering those costs from Mr. Gunderson. I would note at the outset that it would appear that the employer has not at this time taken steps to recover such costs; accordingly, a determination as to whether the employer has the right to engage in such a recovery is at best premature, and possibly academic. I would however make the observation that in my view the matter of the costs associated with the rehabilitation of the grievor is, in the absence of any contractual obligations to the contrary, the responsibility of the individual employee, and not that of the employer. If it were otherwise, then the various provisions in collective agreements respecting sick leave, workers’ compensation, injury on duty leave and disability benefits, would be entirely superfluous. I do not believe that there is anything in the Public Service Staff Relations Act or the Canadian Human Rights Act, that provides that there is an inherent right, again, absent any contractual obligations, on the part of an employee to demand that the employer underwrite the medical cost arising out of a disability from a non-work related illness. I would note that Mr. Ahrens did not cite any jurisprudence which would support such a position, nor have I been able to find any. Indeed, the only case-law which I have been able to find having some relevance to this issue appears to support the employer’s view. In Canadian Airlines International Ltd. v. Canadian Air Line Pilots Association [1996] 3 W.W.R. 683 the British Columbia Supreme Court addressed inter alia whether an arbitrator had the authority to order the employer to place the grievor who had been dismissed in a rehabilitation program. In overturning the arbitrator’s award the court concluded:

(at p. 697-698)

  If an arbitrator substituted suspension and reinstatement for dismissal in a case where the employee had, say, broken his leg and could not return to active employment, the employee’s entitlement to disability benefits on the date of reinstatement would surely be governed by the language of the collective agreement. I do not interpret s. 60(2) of the Code as empowering the arbitrator in such a case to order the employee reinstated to disability benefits the employee was not otherwise entitled to under the collective agreement, since that would not be an “other penalty” under s. 60(2) but a benefit. If the collective agreement did not provide disability benefits, the employee would simply have to wait until his leg was healed before the reinstatement to active employment took effect.

  Although there was a good deal of argument addressed to the question of whether the program was part of the collective agreement, that is not in my view an issue that needs to be resolved. Unless the collective agreement or the program document contain a provision which entitles the grievor to participate in the program, he is not entitled to do so, just as he is not entitled to disability benefits on reinstatement unless he qualifies for them under the language of the collective agreement. It is not open to the arbitrator, acting under s. 60(2) of the Code to create entitlement to benefits or to order that the grievor be admitted into the program if he is not otherwise entitled to be admitted under the terms of the collective agreement or program document.

…

[Emphasis in the original];

• Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970;
• McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4:

…

38        The duty to accommodate is neither absolute nor unlimited. The employee has a role to play in the attempt to arrive at a reasonable compromise. If in Ms. Brady’s view the accommodation provided for in the collective agreement in the instant case was insufficient, and if she felt that she would be able to return to work within a reasonable period of time, she had to provide the arbitrator with evidence on the basis of which he could find in her favour.

…

50 Also cited as follows was Spooner v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 60:

…

139  The concept of “undue hardship” alluded to in the quotation has proved somewhat difficult to define in the discourse about the duty to accommodate. In Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, the Supreme Court of Canada confirmed its decision in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, that Canadian courts should not adopt the approach outlined in American jurisprudence that would define any effort by or cost to an employer beyond a de minimis level as qualifying as undue hardship. On the other hand, as the Court stated in Hydro-Québec, the notion of undue hardship does not place a burden on an employer so onerous that it can be satisfied only by showing that it is impossible to find a satisfactory accommodation. The conclusion that can be drawn from these statements is that the obligation resting on an employer is serious and requires that it make diligent and vigorous efforts to identify options that will permit the employee to continue to work, taking into account whatever limitations exist. However, that does not place on the employer an unlimited obligation to accommodate the employee.

…

141  The principles set out in those decisions indicate that, although an employer is required to make vigorous efforts to identify options for accommodating an employee, the obligation is not infinite, and it permits an employer to select options that will serve its purposes as well as the employee’s. The employer is entitled to expect that the work performed by the employee will make a meaningful contribution to the enterprise. The employer is not required to provide “make-work” projects as a pretext for having the employee continue on the job. It should also be noted that the employee has a responsibility to reach an agreement about accommodation — that of accepting reasonable compromise and providing a medical basis on which the employer can make decisions. The employee and his or her physician have the best understanding of the limitations entailed by the employee’s physical condition, and it is the employee’s responsibility to communicate clearly with the employer concerning those limitations.

…

[Emphasis in the original]

51 Meiorin was also cited as follows:

…

65   Some of the important questions that may be asked in the course of the analysis include:

(a)   Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?

(b)   If alternative standards were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?

(c)   Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?

(d)   Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose?

(e)   Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?

(f)   Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles? As Sopinka J. noted in Renaud, supra, at pp. 992-96, the task of determining how to accommodate individual differences may also place burdens on the employee and, if there is a collective agreement, a union.

…

[Emphasis in the original]

52 He concluded that Mr. Ouellet did not cooperate in his return to work as the CHRC previously confirmed. The obligation to accommodate does not extend to becoming the insurer. He was already insured. If he did not receive therapy, he was responsible. Therefore, the employer asks that I dismiss the grievance.

IV. Reasons

53 The grievance invokes clause 19.01 of the collective agreement for the Program and Administrative Services group, which reads as follows:

19.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Alliance, marital status or a conviction for which a pardon has been granted.

54 It also invokes sections 3 and 7 of the Canadian Human Rights Act, which read in part as follows:

…

3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.

(2) Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex.

…

7. It is a discriminatory practice, directly or indirectly,

(a) to refuse to employ or continue to employ any individual …

…

on a prohibited ground of discrimination.

…

55 It should be noted that the evidence that Mr. Ouellet adduced and the arguments of his representative covered only physical or mental disability and did not address age as a ground of discrimination.

56 The question to decide is whether Mr. Ouellet was discriminated against because of a disability and whether the employer failed in its obligation to accommodate.

57 The employer learned in February 2002 that Mr. Ouellet suffered from post-traumatic stress disorder. It immediately placed him on leave with pay, and an agreement was reached, negotiated by his union, for him to undergo a functional and occupational assessment to determine the accommodations required by his condition. It was also agreed that he would first undergo a psychosocial assessment by a psychotherapist of his choice, who would make recommendations on the need for therapy and on the appropriate time for the functional and occupational assessment.

58 Dr. Frigault conducted the psychosocial assessment and recommended therapy treatments, which were approved and paid for by the employer, along with travel and accommodation expenses. The grievor continued on paid leave.

59 In February 2003, without being instructed, Dr. Frigault issued an opinion stating that Mr. Ouellet was fit to work but that he needed to continue his therapy with Dr. Frigault. Based on that opinion, the employer determined that it was appropriate to proceed with the complainant’s return to work. At that point, a disagreement arose over how to implement the return to work. Mr. Ouellet and his psychotherapist insisted that therapy needed to continue at the employer’s expense and in parallel with his return to work in a position other than his substantive position, for which the employer had found him unsuited. The employer felt that the cost of future therapy should be covered by the health insurance plan and that the return to work should be to the complainant’s substantive position.

60 The parties were unable to agree until December 2005, when Mr. Ouellet agreed to the WHPSP assessment. The medical assessment found Mr. Ouellet unfit to work.

61 I agree with the employer’s representative that, in an accommodation situation, the employer has the responsibility to cooperate in finding a solution. However, I note that the grievor did not cooperate. I base my finding on the fact that the grievor insisted on continuing his therapy with Dr. Frigault, that he wanted the employer to cover his therapy costs and that he refused two offered positions.

62 For all of the above reasons, I make the following order:

V. Order

63 The grievance is dismissed.

March 18, 2010.

PSLRB Translation

Michel Paquette,
adjudicator