Date: 20211028

File: 566-02-13027

 

Citation: 2021 FPSLREB 120

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Anjie Tarek-Kaminker

Grievor

 

and

 

TREASURY BOARD

(Public Prosecution Service of Canada)

 

Employer

Indexed as

Tarek-Kaminker v. Treasury Board (Public Prosecution Service of Canada)

In the matter of an individual grievance referred to adjudication

Before: John G. Jaworski, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Sean McGee and Alison McEwan, counsel

For the Employer: Joel Stelpstra, counsel

Heard at Toronto, Ontario,

April 2 to 4 and December 10 to 12, 2019,
and via videoconference November 17 and 18, 2020.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

[1] Anjie Tarek-Kaminker (“the grievor”) is employed by the Treasury Board (TB or “the employer”) with the Public Prosecution Service of Canada (PPSC), classified at the Law Practitioner (LP)-02 group and level, which at the times relevant to facts set out in this decision, had also been classified at the Law (LA)-02A group and level, prior to a classification conversion in 2014.

[2] On April 6, 2016, the grievor filed a grievance that stated as follows:

...

Nature of Grievance

I hereby grieve:

1. Management’s decision to rescind the accommodation measures in place at Old City Hall since 2012 and for many years prior;

2. Management’s failure to accommodate me and its harassing behaviour;

3. Management’s contention that I owe leave credits (previously approved) due to my compressed schedule, as informed by Ms. Chris Gruppuso during our March 3^rd, 2016, meeting;

Corrective Action Sought

I hereby seek:

1. That management stay the operation of accommodation revocation pending the final determination of this Grievance;

2. That management accommodate my needs as per my several requests;

3. That the accommodation measures (in the form of telework and flexwork) established well before 2012 remain in place, be clarified and that the employer’s obligations be adhered to;

4. That management refrain from demanding or recovering leave credits for the leave situation raised by Ms. Gruppuso on March 3^rd, 2016;

5. That Management abide by their own policy on timekeeping;

6. That I be made whole;

7. Such other remedy that an Adjudicator may deem appropriate under the circumstances.

[Emphasis in the original]

 

[3] On October 13, 2016, the grievor referred her grievance to the Public Service Labour Relations and Employment Board (PSLREB) for adjudication. On that same date, she also gave notice to the Canadian Human Rights Commission under s. 92(1) of the Public Service Labour Relations Regulations (SOR/2005-79), as they were then named.

[4] As of the grievance being filed, her terms and conditions of employment were partially governed by a collective agreement between the TB and the Association of Justice Counsel (AJC) for the LA Group that was signed on October 15, 2012, and that expired on May 9, 2014 (“the 2012 collective agreement”). Before that collective agreement, the grievor’s terms and conditions of employment were partially governed by a collective agreement between the TB and the AJC for the LA Group that was signed on July 23, 2010, and that expired on May 9, 2011 (“the 2010 collective agreement”). As of the hearing, the collective agreement in place between the TB and the AJC for the LP Group had been signed on November 7, 2018.

[5] On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the PSLREB and the titles of the Public Service Labour Relations and Employment Board Act, the Public Service Labour Relations Act, and the Public Service Labour Relations Regulations to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, the Federal Public Sector Labour Relations Act (S.C., 2003, c. 22, s. 2; “the Act”), and the Federal Public Sector Labour Relations Regulations.

[6] The hearing was held in person in April of 2019 in Toronto, Ontario, and continued there in December of that year. It was completed in November of 2020 by videoconference due to the COVID-19 pandemic. The parties submitted a joint book of documents (JBD).

[7] After the hearing was completed, both parties provided the Board with a written copy of the outline of the oral arguments that had been made. In her written reply argument, the grievor sought an order, which had not been requested at any time prior, for the anonymization of her identity. The employer objected to this request.

II. Summary of the evidence

A. Collective agreement provisions, an arbitral award, a conversion process, and the relevant directive and policy

[8] Article 5 of all the collective agreements is the management-rights article, and they all state as follows:

5.01 All the functions, rights, powers and authority which the Employer has not specifically abridged, delegated or modified by this Agreement are recognized by the Association [AJC] as being retained by the Employer.

5.02 the Employer will act reasonably, fairly and in good faith in administering this agreement.

(Arbitral award dated October 23, 2009, provision of clauses 5.01 and 5.02 effective November 1, 2009)

 

[9] Article 36 of all the collective agreements is the no-discrimination article. The 2010 and 2012 collective agreements both state as follows:

**Article 36: No discrimination

**

36.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced [sic] with respect to a lawyer 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 Association, marital status or a conviction for which a pardon has been granted.

...

[Emphasis in the original]

 

[10] Article 13 of both the 2010 and 2012 collective agreements is entitled “Hours of Work”, and its relevant portions are set out as follows:

[The 2010 collective agreement:]

HOURS OF WORK

13.01 The following applies to lawyers at the LA-1 and LA-02A levels:

(a) The normal hours of work for lawyers shall average thirty-seven decimal five (37.5) hours per week over each four (4) week period. Subject to the approval of the Employer, the hours of work shall be arranged to suit a lawyer’s individual duties and to permit the lawyer to carry out his or her professional responsibilities.

(b) In making arrangements for hours of work, lawyers will be permitted reasonable flexibility in the time during which they perform their work, including arrival and departure from the workplace, to enable them to balance work and family responsibilities.

(c) The normal work week shall be Monday through Friday, except where a lawyer is required to work on what would normally be a day of rest or a paid holiday in order to carry out his or her professional responsibilities.

(d) A reconciliation of hours of work will be made by the lawyer and his or her immediate supervisor for each four (4) week period. In computing the hours of work within the period, vacation, designated paid holidays, and other leaves of absence will account for seven decimal five (7.5) hours per day.

(e) Where a lawyer has been required to work in excess of an average of thirty-seven decimal five (37.5) hours per week over a 4-week period, the lawyer shall be compensated at the rate of one and one-half (1 1⁄2) times the lawyer’s hourly rate of pay for each hour worked in excess of the normal hours of work for each four (4) week period.

(f) In the calculation of hours worked for the purposes of paragraph (e) hereof, a lawyer shall be deemed to have worked seven decimal five (7.5) hours on any day when the actual hours worked were more than seven decimal five (7.5) hours but less than eight decimal five (8.5) hours. All other calculations for overtime shall be based on each completed period of thirty (30) minutes.

(g) Upon application by the lawyer and at the discretion of the Employer, compensation earned under this Article will be taken in the form of compensatory leave calculated at the premium rate set out in this Article, provided that compensatory leave earned in a fiscal year and outstanding on September 30th of the next following fiscal year shall be paid at the lawyer’s daily rate of pay on September 30th.

...

(i) Nothing in this Article is intended to prevent lawyers from having access to the Employer’s existing policies respecting alternate work arrangements, including compressed work week, job sharing, telework, self-funded leave and pre-retirement transition leave.

(j) Lawyers will submit such attendance and timekeeping reports as may be required by the Employer for the purposes of this Article. (Arbitral award dated October 23, 2009, provision effective February 20, 2010)

 

13.02 The following applies to lawyers at the LA-2B and LA-03 levels:

(a) The normal hours of work for lawyers shall average thirty-seven decimal five (37.5) hours per week over each four (4) week period. Subject to the approval of the Employer, the hours of work shall be arranged to suit a lawyer’s individual duties and to permit the lawyer to carry out his or her professional responsibilities.

(b) In making arrangements for hours of work, lawyers will be permitted reasonable flexibility in the time during which they perform their work, including arrival and departure from the workplace, to enable them to balance work and family responsibilities.

(c) The normal work week shall be Monday through Friday, except where a lawyer is required to work on what would normally be a day of rest or a paid holiday in order to carry out his or her professional responsibilities.

(d) A reconciliation of hours of work will be made by the lawyer and his or her immediate supervisor for each four (4) week period. In computing the hours of work within the period, vacation, designated paid holidays, and other leaves of absence will account for seven decimal five (7.5) hours per day.

(e) Lawyers are eligible for exceptional leave with pay, as the delegated manager considers appropriate, for a period of up to five (5) days in one (1) fiscal year. Examples of such leave are situations where lawyers are required to work excessive hours.

(f) Under exceptional circumstances, the deputy head can approve exceptional leave with pay for a period exceeding the five (5) days referred to above.

(g) Leave granted as exceptional leave with pay can be carried over into the next fiscal year, and is to be used within six (6) months of being granted.

(h) Lawyers will submit such attendance and timekeeping reports as may be required by the Employer for the purposes of this Article.

(Arbitral award dated October 23, 2009, provisions of clause 13.01 and 13.02 effective February 20, 2010)

[Emphasis in the original]

 

[The 2012 collective agreement:]

HOURS OF WORK

**

Paragraphs 13.01(d), (e), (f), (g) and (h) will continue to apply to work by lawyers at the LA-1 and LA-2A levels up to and including March 31, 2013. Thereafter, 13.01(d), (e), (f), (g) and (h) will be of no force or effect except as they relate to compensation for work performed up to and including March 31, 2013.

13.02(d) will be of no force or effect after March 31, 2013.

Effective April 1, 2013, 13.02(e), (f) and (g) will apply to all lawyers (Management leave).

13.01 The following applies to lawyers at the LA-1 and LA-2A levels:

(a) The normal hours of work for lawyers shall average thirty-seven decimal five (37.5) hours per week over each four (4) week period. Subject to the approval of the Employer, the hours of work shall be arranged to suit a lawyer’s individual duties and to permit the lawyer to carry out his or her professional responsibilities.

(b) In making arrangements for hours of work, lawyers will be permitted reasonable flexibility in the time during which they perform their work, including arrival and departure from the workplace, to enable them to balance work and family responsibilities.

(c) The normal work week shall be Monday through Friday, except where a lawyer is required to work on what would normally be a day of rest or a paid holiday in order to carry out his or her professional responsibilities.

(d) A reconciliation of hours of work will be made by the lawyer and his or her immediate supervisor for each four (4) week period. In computing the hours of work within the period, vacation, designated paid holidays, and other leaves of absence will account for seven decimal five (7.5) hours per day.

(e) Where a lawyer has been required to work in excess of an average of thirty-seven decimal five (37.5) hours per week over a four (4) week period, the lawyer shall be compensated at the rate of one and one-half (1 1⁄2) times the lawyer’s hourly rate of pay for each hour worked in excess of the normal hours of work for each four (4) week period.

(f) In the calculation of hours worked for the purposes of paragraph (e) hereof, a lawyer shall be deemed to have worked seven decimal five (7.5) hours on any day when the actual hours worked were more than seven decimal five (7.5) hours but less than eight decimal five (8.5) hours. All other calculations for overtime shall be based on each completed period of thirty (30) minutes.

(g) Upon application by the lawyer and at the discretion of the Employer, compensation earned under this Article will be taken in the form of compensatory leave calculated at the premium rate set out in this Article, provided that compensatory leave earned in a fiscal year and outstanding on September 30th of the next following fiscal year shall be paid at the lawyer’s daily rate of pay on September 30th.

...

(i) Nothing in this Article is intended to prevent lawyers from having access to the Employer’s existing policies respecting alternate work arrangements, including compressed work week, job sharing, telework, self-funded leave and pre-retirement transition leave.

(j) Lawyers will submit such attendance and timekeeping reports as may be required by the Employer for the purposes of this Article. [Arbitral award dated October 23, 2009; provision (j) effective February 20, 2010]

...

[Emphasis in the original]

 

[11] The arbitral award referred to in the 2010 collective agreement is dated October 23, 2009. Its relevant portion states as follows:

...

Hours of Work, Overtime & Travelling Time Compensation

16. A major issue in this dispute had to do with overtime compensation. The Association proposed that employees in this unit should have the same rights to overtime and travelling time compensation as other professional groups in the Public Service. The employer argued that it would be inconsistent with the performance pay régime for this unit (which the board is required to maintain by the ERA) to compensate these employees for overtime. However, the employer did make a proposal for Time Management Leave with Pay, which would permit management, in its discretion, to allow an employee up to 5 days off with pay each year in exceptional circumstances, such as where the employee had worked excessive hours over a prolonged period.

17. The board has decided that the following will apply to lawyers at levels LA-1 and LA-2A:

[The wording here is reflected earlier in this decision with respect to clause 13.01 of the 2010 collective agreement.]

18. For lawyers at levels LA-2B and LA-3, the board awards the following, based on the parties’ proposals :

[The wording here is reflected earlier in this decision with respect to clause 13.02 of the 2010 collective agreement.]

...

21. All the provisions on Overtime and Travelling Time will become effective 120 days from the date hereof.

...

[Emphasis in the original]

 

[12] Effective January 6, 2014, a conversion process took place involving the identification of the lawyer groups and levels. The LA classification standard was eliminated, and the group was renamed the Law Practitioner (LP) Group. The group definition for lawyers did not change, and the bargaining affiliation (with the AJC) remained the same. In short, the new classification divided lawyers into two classification streams, one for lawyers with managerial responsibilities, and the other for practitioners (the LP group). LA-2As were converted to LP-02s. The rates of pay were also converted, effective May 10, 2013.

[13] Article 19 of all the collective agreements is titled “Other Leave With or Without Pay”, and clause 19.18 is entitled “Religious Observance”. Clause 19.18 is the same in all the collective agreements, and it states as follows:

19.18 Religious Observance

(a) The Employer shall make every reasonable effort to accommodate a lawyer who requests time off to fulfil his or her religious obligations.

(b) Lawyers may, in accordance with the provisions of this Agreement, request annual leave, compensatory leave, leave without pay for other reasons in order to fulfil their religious obligations.

(c) Notwithstanding paragraph 19.18(b), at the request of the lawyer and at the discretion of the Employer, time off with pay may be granted to the lawyer in order to fulfil his or her religious obligations. The number of hours with pay so granted must be made up hour for hour within a period of six (6) months, at times agreed to by the Employer. Hours worked as a result of time off granted under this clause shall not be compensated nor should they result in any additional payments by the Employer.

(d) A lawyer who intends to request leave or time off under this Article must give notice to the Employer as far in advance as possible but no later than four (4) weeks before the requested period of absence.

[Emphasis in the original]

 

[14] Entered into evidence was a copy of the PPSC’s Directive on Management Leave for Represented and Excluded Lawyers, the relevant portions of which state as follows:

EFFECTIVE DATE

This Directive takes effect on April 1st, 2013.

CONTEXT

The PPSC is committed to conducting its operations in an efficient and fiscally responsible manner. It values the contribution of its lawyers and recognizes the importance of allowing lawyers to maintain a balance between professional and personal life.

Due to operational demands, represented and excluded lawyers may be required by management to work beyond their normal hours of work, or to travel or be on stand-by [sic] outside their normal hours of work. In recognition of these requirements, lawyers may be granted management leave with pay.

The authority to grant management leave to represented and excluded lawyers is found in the Collective Agreement for the Law Practitioner Group.

The purpose of this directive is to provide direction for the responsible, fair and consistent granting of management leave with pay.

DIRECTIVE STATEMENT

A manager may approve up to five (5) days of management leave. In considering whether to grant such leave, the manager must take into account the number of hours worked by the lawyer, the circumstances in which they were worked (i.e. whether they were worked away from the lawyer’s usual place of work and whether they were the result of sustained effort over a prolonged period), and the time at which the work was performed (i.e. whether the lawyer was required to work or travel on days of rest or holidays).

The following are examples of circumstances when the granting of management leave may be appropriate:

· Trials or project work involving excessive hours of work over a sustained period;

· Extensive travel outside of normal hours of work;

· Significant personal restrictions as a result of being on standby duty.

The amount of management leave with pay granted should be responsive to the number of excessive hours worked, spent travelling on days of rest or holidays, or spend on stand-by. Such leave is not compensatory and is not to be granted on an hour for hour basis or on an anticipatory basis.

...

Requests for management leave must be substantiated by a written explanation of the circumstances on which the request is based. In appropriate situations, managers may on their own initiative grant a lawyer management leave. In such situations, managers must set out in writing the reasons for granting the leave.

Management leave with pay for a period exceeding five days may only be granted in exceptional circumstances and can only be granted by the Director of Public Prosecutions.

...

[Emphasis in the original]

 

[15] Entered into evidence was a copy of the TB’s Telework Policy. The portions of it relevant to this matter are as follows:

Preamble

...

Both managers and employees are responsible to ensure that operational needs of the organization are met and that neither productivity nor costs are negatively impacted by the application of this policy.

Policy objective

To allow employees to work at alternative locations, thereby achieving a better balance between their work and personal lives, while continuing to contribute to the attainment of organizational goals.

...

Policy Requirements

The approval of each telework situation shall be made on a case-by-case basis at the discretion of management. Departments are encouraged to clarify and publicize their approval criteria for telework requests.

Participation in telework is voluntary, that is no employee shall be required to telework.

Prior to approving requests from employees to telework, whether for some or all of the regular workweek, managers shall ensure that the following conditions apply:

· the nature of the work to be performed at the teleworkplace is operationally feasible;

· the overall quality and quantity of work carried out in the designated workplace shall be sustained by the teleworker in the telework place;

· the work done at the teleworkplace should be cost effective. Certain up-front costs are permissible, provided they can be recouped over a reasonable period;

· the terms and conditions of employment, provisions of relevant collective agreements and the application of existing policies and legislation will continue to apply in telework situations;

...

· the details of the telework arrangement must be discussed and agreed upon between the employee participating in the telework situation and the supervisor and at the request of either party these details will be put in writing. These details must as a minimum include: the voluntary nature of the arrangement; the duration of the arrangement; the specific days the employee will telework; hours of work; whether the arrangement will be regular or episodic; the telework location; work objectives and expected results; issues of liability (personal and equipment); responsibility for costs associated with telework (utilities and insurance); safety and health responsibilities; impact on colleagues; and the requirement to adhere to all aspects of government policies, rules and regulations;

A telework arrangement can be terminated at any time, with reasonable notice by either party.

Once requests are approved, the manager should ensure employees who will be teleworking and their colleagues understand the impacts and practical considerations of the telework situation.

...

[Emphasis in the original]

 

B. Background

[16] The grievor advanced her grievance under three protected grounds: religious affiliation, family status, and mental or physical disability.

[17] The PPSC is a national prosecution authority, established and governed by the Director of Public Prosecutions Act (S.C. 2006, c. 9, s. 121). Its objective is to prosecute federal offences. It maintains offices across the country, including in the Greater Toronto Area (GTA). Before its creation, federal prosecutions were handled by a division within the Department of Justice (DOJ), the particulars of which are not germane to the issues in this decision. As part of its structure, the PPSC has a Southern Ontario Regional Office (“the Sthn. Ont. office”), which includes the City of Toronto and parts of the GTA.

[18] The grievor was called to the bar of Ontario in 1996. She joined the DOJ in May of 1999. Between 2003 and 2012, she worked on the “Revenue Prosecution Team” (RPT), which prosecuted tax-related offences in the GTA. On a date that was not clear, she moved from the DOJ to the PPSC. In 2012, she moved to the Toronto Amalgamated Team, also referred to as “the Toronto Team” or the “Old City Hall Team” (“the OCH team”), which is part of the Sthn. Ont. office. It is responsible for federal prosecutions, primarily drug offences, in Toronto, North York, Scarborough, and Etobicoke. “Old City Hall” refers to the courthouse that is now located in the old Toronto City Hall building located on the north side of Queen Street West and the east side of Bay Street in downtown Toronto and is where the majority of court proceedings involving the OCH team took place. The grievor had two offices, one located in a downtown office tower on King Street West at York Street, identified as the Exchange Tower. The other was in a space in what was identified as the “attic” of the OCH, which did not consist of one lawyer per closed office. The two offices are about five blocks apart.

[19] As of the hearing and the events relevant to this grievance, Morris Pistyner was the chief federal prosecutor for the Sthn. Ont. office (his position was formerly known as the director of the Ontario regional office), which included the City of Toronto and parts of the GTA. As the chief federal prosecutor, he was responsible for all federal public prosecutions in his region, and he reported to the deputy minister. Approximately 180 people reported to him.

[20] As of the hearing and since 2017, Chris Gruppuso was the team leader (TL) of the Superior Court Team. She joined the DOJ in 2000. As of the events relevant to this grievance, she was the TL of the OCH team, which, as of the period relevant to the issues in this grievance, also included the Superior Court Team, and the grievor reported to her.

[21] As of the events relevant to this grievance, Tom Andreopoulos was the associate chief federal prosecutor for the PPSC’s Toronto Operations. Ms. Gruppuso reported to him. He in turn reported to Mr. Pistyner.

[22] As of the hearing and the events relevant to this grievance, Kerrie Benzakein was a lawyer in the PPSC’s Sthn. Ont. office. Between January of 2010 and October or November of 2015, she was a deputy TL on the OCH team. While the deputy TL, she reported to Ms. Gruppuso.

[23] The employer operates on a fiscal year that starts on April 1 of any given year and that ends on March 31 of the next year. Any references to a particular fiscal year would cover that period from April 1 of that first year to March 31 of the second year.

[24] “iCase” is an electronic, computer-based timekeeping or docketing system that the PPSC and the DOJ use to keep track of the hours that the lawyers work. Each lawyer is required to record or “docket” time into the system. It can generate different types of reports. One hour is recorded as 1.0, and 2 hours as 2.0. A half hour would be recorded as .5, etc.

[25] Entered into evidence were copies of the grievor’s monthly iCase timekeeping totals for fiscal year 2015-2016, with the exception of the month of December (“the iCase dockets”). Specifically, entered into evidence was a copy of each calendar month, with the total time that the grievor docketed for each specific day. For example, on Tuesday, July 14, 2015, the recorded amount of time shown was 7.9 hours. The work that the 7.9 hours represented is not identified in the iCase dockets.

[26] In addition, handwritten on many of the days of the monthly iCase dockets were the letters “V”, “S”, “C”, and “JH” and the words “Jewish Holidays” and “STAT”. The author of the handwritten markings was not identified to the hearing. However, the grievor’s leave records showed vacation leave or sick leave that coincided with the “V” or “S” that was handwritten on the iCase dockets. The statutory holidays line up with the handwritten word “STAT”. As the grievor was working a compressed schedule, which entitled her to take 1 day off in every 20 working days, I have assumed that the “C” refers to a compressed day.

[27] In some circumstances, the employer allows employees to work what has become known as a compressed schedule. Simply put, under one, an employee is permitted to work a fixed extra amount of time every day, without the employer being required to pay overtime for it, and the employee is allowed to complete his or her minimum required work hours per 4-week period, in 19 days rather than the normal 20. In the grievor’s case, her normal hours of work, as set out in the collective agreements, are Monday to Friday, 7.5 hours per day, for a 37.5-hour workweek. Over a 4-week (20 workday) period, the total is 150 hours. A compressed schedule allows an employee, such as the grievor, to work those 150 hours over 19 days, provided the employee puts in 7.895 hours per day. The day off during a compressed schedule is referred to colloquially as a “compressed day”.

[28] The evidence disclosed that at all relevant times, the grievor worked a compressed schedule and that she was supposed to work 7.895 hours per day, which would give her 1 compressed day every 4 weeks, for at total of 13 over the course of a year.

C. Facts related to the grievance

[29] The grievor is married and has 5 children. Her husband was identified to me as a surgeon. At the outset of the hearing, the grievor said that he worked in Scarborough. They parent children with an age range of approximately 14 years between the eldest and youngest. As of the events relevant to this grievance, all 5 children would have been under the age of 18. As of the start of the hearing, the eldest was legally an adult, and by the time the final hearing days were held, the second-eldest would have also reached adulthood.

[30] The grievor testified that both she and her husband are Jewish, but they do not necessarily agree on all the facets of adhering to the religion. She said that she is more observant than he is and that they do not necessarily agree on being observant in exactly the same manner. She said that she would like to be more observant. When asked about religious requirements, such as keeping kosher, she said that not all Jews agree on what it means. An example she provided was with respect to dishes, glasses, and cutlery. She said that she had different sets for meat and dairy and for Passover, different pots for cooking, and different sinks to wash different dishes, pots, and pans. She said that while keeping kosher is required, people interpret what keeping kosher means differently. Not everyone does what she does with her dishes, glasses, utensils, pots, and pans. She said that not all members of the religion necessarily agree on the specifics and details of those requirements; nor do they all follow them all or in the same manner. She testified that she and her husband are both observant of the Jewish religion and that they are bringing up their children as Jewish.

[31] The grievor testified that an important part of the religion for her is lighting candles on the eve of the Sabbath or Shabbat (Friday), which she said takes place at about an hour before sundown. She said that traditionally, an adult female of the household carries it out and, that she follows this tenet of the religion, that it is important to her, and that she strives to do it every week.

[32] I take note that sundown times vary in Canada, dependent on how far north or south in the country the location is and on the time of year. In Toronto, at or about the summer solstice (June 21), sunset would be late in the evening, after 21:00, while at the winter solstice (December 21), it would be in the late afternoon, between 16:30 and 17:00.

[33] The grievor said that if she did not follow the rules, she would not be perpetuating the religion. She also said that while it was also obligatory not to drive or work on Shabbat (i.e., from sunset on Friday to sunset on Saturday), she admitted that she did drive on Shabbat. While work was not defined for me with respect to what it means vis-à-vis Shabbat, if it means working to earn a living, the grievor’s time dockets for 2015-2016 disclosed that she also worked on Shabbat.

[34] She also testified that it was important for her that her children attend Orthodox Hebrew day school, which she said was obligatory. She said that it was imperative for the children to “know where they came from; to learn their religion; to learn to be a Jew.” However, despite this, she confirmed that her second-eldest child did not attend that school. Also, she said that when the children were of high-school age, they did not attend a Jewish or Hebrew high school.

[35] She said that it was also important for them to live in the area of Toronto that she said was the core of the Jewish community and that was close to the school, synagogue, and kosher food stores. I was not provided any information on where, in relation to either of her homes, any of the children’s schools were located. For the purpose of the grievance and these reasons, in or about the spring of 2009, the grievor and her family lived approximately 11 to 12 km north of the old Toronto City Hall courthouse, just north of Highway 401, west of Avenue Road, and east of Bathurst Avenue. Sometime after the spring of 2009 and before July of 2015, she moved a further 4 to 5 km north in the same relative area, again north of Highway 401 and east of Bathurst Ave.

[36] The evidence disclosed that sometime in or about 2007, while she was on the RPT, she entered into a telework arrangement with the employer. It was not produced to the hearing. However, entered into evidence was a copy of a renewal of it that she and Mr. Pistyner signed in April of 2009 (“the 2009 telework extension agreement”). The relevant provisions of the agreement are as follows:

...

Telework Location: [the grievor’s home address]

...

The following constitutes a Memorandum of Agreement between Anjie Tarek-Kaminker, who has made a voluntary renewal request for Telework, and Morris Pistyner, Chief Federal Prosecutor, PPSC.

1. Conformity with the relevant collective agreement/Terms and Conditions of Employment:

The employee will be provided with a copy of Treasury Board’s Telework Policy for review upon request.

2. Suitability for Telework

The employee has received a technological readiness assessment from IT in the past. The employee has historically received “Fully Satisfactory” PREA ratings and is productive when working alone. The employee requires little supervision. Telework will allow the employee to eliminate a workday commute of one hour, each way, to and from work.

3. Hours of Work

The employee’s regular compressed hours of work are from 9 a.m. to 5 p.m., with a half hour unpaid lunch period between 12 p.m. and 12:30 p.m. The precise timing of work and breaks are flexible as the job and employee requires (e.g. evening work on urgent wire consultations). It is understood, however, that at least the total minimum weekly hours will be fulfilled (subject to leave, holidays, etc.). The employee will Telework Thursday and Friday of each week unless changed and agreed to by the parties of this Agreement.

4. Productivity

It is expected that no loss of productivity will result from Teleworking. The Telework arrangement will not affect the employee’s responsibility for court appearances.

...

13. Exceptions

The employee agrees to come to the office on a designated Telework day if requested by management upon reasonable notice.

...

15. Duration

This agreement is effective from November 3, 2008 to November 3, 2009 at which time the request may be reviewed and evaluated. The parties to this Agreement may withdraw concurrence to Teleworking at any time, subject to reasonable notice.

...

[Emphasis in the original]

 

[37] As of the 2009 telework extension agreement, the grievor had four children, one of whom had both then and continued to have as of the hearing several health issues. For the purpose of this decision, the exact nature and extent of these issues need not be set out.

[38] The evidence disclosed that the grievor was moved from the RPT to the OCH team effective May 1, 2012, and while there was some evidence about why she changed teams, the move is not the subject matter of this grievance and is not relevant to this decision.

[39] The OCH team was responsible for prosecuting all drug cases in Toronto, North York, Scarborough, and Etobicoke. Ms. Gruppuso stated that the work of a Crown prosecutor, including the grievor, involves all facets of a criminal prosecution, including intake, first appearances, disclosure, bail proceedings, Crown pre-trials, pre-hearing matters, and trials (including pleas and sentencing). She said that depending on a number of different factors, Crown prosecutors on the OCH team could be in court between three and five days per week carrying out different tasks related to the work. In short, she said that the team receives cases ready to go and that it then carries them forward, from start to finish. The grievor testified that the OCH was the busiest criminal court in the country. Mr. Pistyner testified that the work on the OCH team was much more court centric than on the RPT. He said that on the RPT, there were lengthy periods during which a lawyer would not be in court. The grievor agreed that RPT cases were larger and more paper oriented, with much less time in court. She agreed that as part of the OCH team, she could be called upon to cover in court for counsel who might be away and that she might have to do it on short notice; for example, when someone called in sick.

[40] In the course of the evidence, both “114 Court” and “117 Court” were referenced. The 114 Court reference was to the courtroom where many different processes took place; it was a court of first appearance and a remand court. Also, bail hearings took place there, and hearing dates, including trial dates, were set. The 117 Court reference was to the courtroom where pleas were made and sentencing was done. Both courts feature prominently in the work of OCH team members. The term “Crown pre-trial” is often referred to in documents that were entered into evidence as “CPT” or “CPTs”.

[41] Entered into evidence was a copy of a generic work description of an LA-2A legal counsel for a Crown prosecutor on the OCH team. The relevant portions state as follows:

...

Client Service Results

Legal advice, guidance and assistance to colleagues, investigative agencies and partners (including federal departments and agencies and those in other jurisdictions) on criminal law matters including regulatory.

The conduct of criminal prosecutions on behalf of the Director of Public Prosecutions.

Key Activities

At the working level with expertise in criminal law:

· Provides prosecutorial advice and litigation support services on criminal offences, working with colleagues, investigative agencies and partners.

· Provides legal advice, opinions and guidance on various file or project specific issues, where precedent is relatively clear, to colleagues, investigative agencies and partners.

· Collaborates with and supports senior prosecutors on complex and lengthy large-scale files or projects. (The position is developing the skills to lead files or projects in a team environment.)

· Assigns work and acts as coach, guide and/or mentor to support staff, less experienced counsel and others.

· Participates in regional and/or national committees or working groups.

...

Working Conditions

Psychological Environment

· A public officer working in an adversarial environment exercising a quasi-judicial role where decisions impact human lives and the safety of communities and are under public scrutiny. This creates a unique type and level of stress.

· Requirement to travel and work overtime frequently, often during weekend periods, with resulting impact on home and professional life.

· Scrutiny by the public and media pertaining to controversial files.

· Exposure to criminal investigations may lead to graphic material as evidentiary exhibit (i.e. crime scene photos) and individuals who are distressed, angry or hostile which may result in receiving threats, openly or disguised, personal attacks or becoming a personal target that may endanger the safety of self or family members from hostile parties aimed at intimidating, destabilizing the prosecution of files or projects and undermining the criminal justice system.

Working Conditions

Physical Environment

...

· When prosecuting files, the work is performed in a court room [sic]. When prosecuting in rural and/or remote communities, files may be prosecuted in makeshift facilities. This work is also performed in a closed office environment.

· The work is performed in a closed office environment.

...

[Emphasis in the original]

 

[42] The grievor testified that some of the tasks related to the work she did on the OCH team did not require her attendance in court at the OCH and could be done from her office in the Exchange Tower or from her home. She stated that CPTs took place by phone and that they could be done from her home, as could such things as vetting documents.

[43] On May 4, 2012, the grievor emailed Mr. Pistyner and Ms. Gruppuso under the subject line of “Request for Telework/Flexwork Accommodation due to Family status”. The relevant portions of the email state as follows:

I am anxiously awaiting the details of Chris’ [Ms. Gruppuso] proposed accommodation which are expected next week but I think that Morris’ [Mr. Pistyner] email begs a response. I hope this one will help expedite and instruct the awaited proposal. I have requested continued accommodation in the form of my previous telework arrangement based upon family status due to my family obligations (four children in JK-grade 8), including recently diagnosed, special medical and educational needs.

I have explained that I need to continue teleworking Th/Fri, that there are numerous tasks I can perform on those dates but that I can make myself available for trials, particularly if given notice.

...

From 2003, when I had only two children, ages 3& 7, I was granted this same flexwork. This included only two non-consecutive years in which the arrangement was codified in writing. I also worked part-time before that. My needs have expanded, not decreased and I require this kind of accommodation to reduce the barriers which impede my participation in the workplace.

It is not my desire to commence a working relationship on a controversial note but you will appreciate that a unilateral decision to revoke my long-standing employment arrangement without notice is causing undue hardship for me and for my family members.

Instead, I trust that in receiving and reviewing my accommodation request, you will apply both the sensitivity and confidentiality mandated by the employer’s Accommodation Policy.

...

It is even more unfortunate that Chris and I did not have the opportunity to fully consult in advance of this move as it would have allowed for a smoother transition, less stress and for me to gather any additional information needed by the employer without compromising productivity. Rather, I have lost much transition time to our ongoing, albeit collegial discussions about my current telework arrangement and accommodation needs. Having understood that Morris’ assurance of “where there is a will, there is a way” meant no significant alterations, I had not idea until 1 business day and 1 hour before my new posting began that there would be such a drastic change, particularly since all teams, including the Amal. Team [OCH team] routinely offer flexwork arrangements.

Accommodation:

· I wish to continue my successful telework arrangement/equally suitable alternative. This includes as an option, a request to remain on the Revenue Team where I understand my Team Leader of 9 years takes the position that the accommodation can continue.

...

· I formally request the involvement of an Accommodation Specialist from within the department and understand that MS. LOUISE LEVESQUE of the PPSC [phone number deleted] is such a person. I have taken the liberty of copying her on this email and am more than willing to help find a proper solution and cooperate in this process. In the interim, I request that my telework be continued pending any negotiations or related grievances so there is no risk that I will be deprived of reasonable accommodation unnecessarily. This should not be a burden to the employer considering the long history of success.

...

*please note that, in the spirit of cooperation, many facts have already been provided to the employer (e.g. 3 diagnoses of which two were made this March, various OT sessions. Intensive and specialized tutors multiple times per week, school meetings, helping with homework, OT exercises, doctor appointments, doctor-recommended home therapy work, liaising with health care providers, etc.) and I am prepared to elaborate upon them for Ms. Levesque/employer, including how telework allows me to be present for candle-lighting and Sabbath dinner each Friday – which is the only time we sit down as a family reliably. In this respect, should my facts include other grounds such as religion, please consider them to be pleaded as well.

...

[Sic throughout]

[Emphasis in the original]

 

[44] The email the grievor referred to from Mr. Pistyner in her email of May 4, 2012, was not produced into evidence.

[45] Mr. Pistyner replied to the grievor’s May 4, 2012, email on May 8, 2012 (copying both Mses. Gruppuso and Louise Levesque (of the PPSC) and Mr. Andreopoulos), stating as follows:

...

Assignment to the Amalgamated Team

On April 17th, I advised you that you would be working for the Amalgamated Team [OCH team], effective May 1 for a period of up to 18 months. You have been assigned an office on the 25th floor, co-located with members of that team. I strongly believe that the Amalgamated Team will be a better fit for you, and that remains my view. I expect that you will work with Chris Gruppuso, your new supervisor, in a manner that will ensure the transition is as smooth as possible. Since the primary purpose of making this change remains the same, it will not be revisited at this time.

The Issue of Special Work Arrangements/Accommodation

The PPSC currently follows the Dept of Justice policy. According to the policy, such requests are to be in writing and should be addressed to the applicable manager. As Tom Andreopoulos is the ACFP in charge of Toronto Operations, he will be dealing with your accommodation request.

Finally, I note that you have asked for interim accommodation, based on an informal telework arrangement between you and your previous supervisor, Ivan Bloom. Ms. Gruppuso will advise Mr. Andreopoulos as to the extent she will be able to accommodate such an arrangement, prior to the formulation of any formal accommodation arrangement that Mr. Andreopoulos may authorize.

...

[Emphasis in the original]

 

[46] Entered into evidence was a letter from Dr. Sheldon Wise dated May 15, 2012 (“the 2012 Wise letter”), whom the grievor identified as the Tarek-Kaminker family paediatrician, which she said was provided to the employer. It identifies the children (at that time aged 5, 6, 10, and 14) and states that one has special needs. It is a two full pages with nine single-spaced paragraphs, the relevant ones of which state as follows:

...

That child was diagnosed with an occupational therapy-related disorder which has far-reaching implications as well as which required various courses of intensive therapy ... There are different reinforcement exercises which must be employed at home for the child which require approximately a half hour of devoted time per day. They are time-consuming, tiring and change as progress is made so Anjie has received training and employs the therapy suggested by professionals, with alterations as they are relayed. Left unchecked, this OT disorder will pose a serious barrier to the child in terms of development and education. As such, therapist support and parental reinforcement are essential.

...

... the same child was also referred by me this year for a ... evaluation by an expert who has recently provided a report that adds two more serious diagnoses. Meetings are underway with all professionals concerned as well as parents and school officials and it is reasonable to expect that regular consultations will continue ... Angie needs to be available to liaise with the various medical and educational professionals involved in her child’s car, which professionals are often only available during office hours and expect to receive her response within a few days.

...

It is clear to me that without appropriate supports, this family will struggle and all the children will suffer enormously. The change to the long-standing work arrangement comes at a time when the children have been though the upheaval of change in several child-care providers. Their newest caregiver was only hired in April of this year and is still in the process of being trained. Moreover, the special needs child has been through several new and departing tutors, therapy providers and professionals this year alone. The parents remain the only constant. One of the reasons that this specific form of work arrangement is best is that Anjie and the children have been accustomed to it dating back many years. Abruptly changing schedules at a time of upheaval, in addition to all the changing care providers in their lives and at a time when the medical needs are in flux and just being sorted out, presents a serious impediment to the health and well being of the entire family unit.

Practically speaking, in September of next year, the four Tarek-Kaminker children will attend three different schools, possibly four depending on the special needs of one child. It is physically impossible to have three carpools and only one caregiver driving. Both Dr. and Ms. Tarek-Kaminker will have to participate in group carpools on their prearranged dates. To that end, they tell me that they have always requested Thursdays and Fridays and gone to great lengths to ensure that both of their work schedules are more pliable on those dates.

Further time-consuming appointments which require parental involvement include special dental care requirements. The older children receive ortho0dontic care from Dr. Daniel Pollit and specialized paediatric dentistry from Dr. Melvin Kay. I have reviewed their dental billings and can state that over 50 trips to these health care providers were necessitated in 2011 alone. To compare the needs of school-aged children to infants or to assume that their needs dissipate with age ignores that infants do not receive orthodontic care, tutoring, etc.

I believe that accommodation should take the form of the continuation of the work arrangement that existed to date or with the addition of the third telework day. A happy, healthy challenged but not overworked parent is what my patients require for the foreseeable future. It is my opinion that Ms. Tarek-Kaminker requires regular flexibility during at least 16 consecutive business hours for the majority of the year in order to mange her family’s Paediatric needs. If this cannot be accommodated, I am most certain that the interests of these children and in particular the child who needs current special care will suffer drastically and unnecessarily.

...

[Sic throughout]

 

[47] In her examination-in-chief, the grievor was asked if when she provided the letter to her employer, she believed anything in it to be untrue. She said that she did not believe so. In cross-examination, she stated that she and her husband wrote the 2012 Wise letter.

[48] Dr. Wise did not testify; nor did either Drs. Daniel Pollit or Melvin Kay.

[49] On June 5, 2012, Mr. Andreopoulos emailed the grievor, forwarding her a draft telework agreement (“the 2012 draft telework agreement”). The email stated that he was prepared to enter into such an agreement with her related to her work on the OCH team. The 2012 draft telework agreement was almost identical to the 2009 telework extension agreement, except that it referred to it as being “... a Memorandum of Agreement (MOA) between Anjie Tarek-Kaminker ... and Tom Andreopoulos ... relating to her work on the Toronto Amalgamated Team.” It did not set out the duration of the agreement, but it did contain the same phrasing that the parties to the agreement may withdraw their concurrence to teleworking at any time, subject to reasonable notice when possible. A signed copy of the agreement was not entered into evidence.

[50] Entered into evidence was an email from Ms. Gruppuso to the PPSC’s Labour Relations (LR) area dated October 9, 2012, which had attached a copy of a document identified as the PPSC “Alternative Working Arrangement Request” (AWR). The AWR is a template form; it appears that this particular one was signed by the grievor on October 5, 2012, and by Ms. Gruppuso on October 9, 2012. It indicates an arrangement for flexible working hours, variable working hours (compressed hours), and telework. In the section marked for approval (management’s section), it is indicated that management approved the request on June 15, 2012. Attached to it was an addendum that indicated that start, finish, and lunch times would be determined in conjunction with the TL and that they could vary, depending on operations. Regardless, her total weekly hours were always to be at least 39.475.

[51] The grievor was on maternity leave between January of 2013 and January of 2014. I was not provided the exact dates; however, sometime in early 2014, she returned to work on the OCH team. She testified that upon her return, the telework, flexible work hours, and compressed work hours arrangement continued. She said that she teleworked from home on Thursdays and Fridays.

[52] The grievor testified that after her return from maternity leave in January of 2014, she never received another telework agreement from the employer. Entered into evidence was an email dated July 8, 2015, from her to Mr. Andreopoulos, which had attached a draft telework agreement signed only by the grievor (“the 2015 draft telework agreement”). The email stated as follows:

...

Here is a new signed copy with para 3 changed so it matches the other HR document. Last time it did not. In any event, it is clear that hours often shift up or down as needed anyways. For example. I came in well before 9 am and even before 8:30 AM often when assigned to 114 in order to avoid subway delays, etc.

The accommodation and flexibility is still required for my busy family and is much appreciated.

...

 

[53] The 2015 draft telework agreement appears to be identical to the 2012 draft telework agreement, with the following minor differences: the grievor’s classification, home address, and phone number are different; the hours of work are handwritten, with different start and end times; the duration is set out as being from January 6, 2015, to January 5, 2016; and the grievor signed it on July 8, 2015.

[54] On August 11, 2015, Mr. Andreopoulos forwarded the grievor’s July 8, 2015, email together with the 2015 draft telework agreement to Ms. Gruppuso, stating as follows:

...

As discussed with you last week, following my return from vacation, I will need your input and assessment of the sustainability of such an agreement into the future, having regard to the current and expected operational requirements of your team. When this agreement was initially accepted, it was on the basis or expectation that Ms. Tarek Kaminker would be able to contribute fully and meaningfully at an LA 02 level on your team on a number of important initiatives in place on that team that have been implemented to achieve greater efficiencies. There would be a reorientation phase and over time she was expected to evolve into effective leadership roles commensurate with her level and experience in a number of fronts. The expectation was that: She can assume stewardship of the statutory files; be engaged in 117 and trial courts at OJ; conduct pretrials; participate in recent and important vetting initiatives and case management strategies along with a team of other counsel currently engaged in that initiative; she can also take on Superior Court work with advance notice and built in flexibility should proceedings extend beyond 5 consecutive days.

I would like you please to consider whether these expectations were realized within the framework of the agreement, whether they were in fact capable of being achieved, and what exactly her conflicts are that serve as the basis for the continued request. I will be writing to her asking her to do that. WE can follow up once all relevant information or facts is in hand in order to then make an informed decision.

...

[Sic throughout]

 

[55] On August 11, 2015, Mr. Andreopoulos responded to the grievor (copying Ms. Gruppuso), stating as follows:

...

I have asked for your team leader’s input and assessment of the sustainability of the current arrangement, in light of current and expected operational requirements of the team. I believe that she has spoken to you about that. In order to make an informed decision about continuing the telework arrangement, can you please provide any update to the basis for the continuing request, in terms of particulars of your circumstances and nature of any conflicts with work schedule and alternative solutions that have been tried to resolve it? Can you please do so by some point next week? I have in file the written materials you had provided initially. Please provided [sic] any updates to that to your team leader, with a copy to me, and discuss with her directly any aspects of your request, all of which will be taken into account in the assessment and decision making process relating to your request to extend the telework agreement.

...

 

[56] The grievor responded to Mr. Andreopoulos’ August 11, 2015, email on August 21, 2015, stating as follows:

...

Attached please find a 2nd letter from Dr. Sheldon Wise in support of continuation of the accommodation-related arrangement for telework & flexwork.

I had not had the impression that any changes were envisioned – just that I was to get a renewal form/contract to you.

I have been able to discharge all duties with good, if not excellent results, including often being first in the office at 8 AM and on time for 114 court despite subway delays and inclement weather, conducting tele-pretrials, running contested show causes or consent releases in an assist court, attending on JPT’s, covering others’ JPT’s, acting as float and duty crown, conducting research, appearing on sentencings, dealing with disclosure issues, assisting colleagues on various teams, training juniors, drafting motion material, vetting, preparing assigned trials, turning around pre-charge referrals on sharp deadlines, attending Jarvis court and preparing for upcoming trials in October ....

We are moving from a file assessment tract into a trial stream which is a challenge I welcome.

In many ways, my work from home has not been much different than the remote work done by all OCH Crowns at the Exchange Tower or Jarvis court. Indeed, I am often most efficient and energetic when hours of commuting are saved. As an example, I have been able to start work at 7:30 AM today (when I would otherwise be riding a packed subway) before my 9 AM pretirals begin.

...

Please note the dr’s comments regarding overtime. Overtime and flexibility on my part is not generally prohibitive due to all of the resources and measures I have put in place on my end – as long as sufficient time in lieu or management leave is granted to allow me to catch up on duties at home. I note and am appreciative of the attention that my team leader has given to helping balance excess work. The constraints we face stem largely from resource issues and are of an ongoing concern. I look forward to working with her on more strategies.

...

[Sic throughout]

 

[57] Entered into evidence is a letter dated August 2015 from Dr. Wise (“the 2015 Wise letter”), which states as follows:

I have reviewed my letter of May 2012. There are a few changes to note and none which impact my original views and recommendations. In fact, the family need that I described has only increased with the addition of a fifth child in January of 2013.

The only obvious change in current status is that OT services are no longer being provided to the child who was receiving them. The parents are personally providing any OT support needed.

Additional reasons for an even greater need for flexible work hours, telework and other such accommodation now include:

· The family now has five children between the ages of 17 and 2. This factor alone should speak for itself. The children attend 4 different schools. Next year, it is expected to be five different schools due to their varying needs and ages. Travel may be necessitated.

· The youngest child is still nursing at night.

· Two separate home tutors, [names not relevant] have now been retained to assist one child with educational challenges and they attend 1-3x per week.

· A computer tutor was recommended by school officials and has been retained for that child so that they will have skills to supplement note-taking long term.

· That same child was recently the subject of a second [type of evaluation omitted] evaluation and report. The testing was conducted over December 2014 and January 2015. The results were copied to me immediately and the SST/IEP school team was convened to review the results with both parents as they were very concerning and not at all positive. Drastic changes were made rapidly in response to the alarming report and both the child’s classroom teachers were changed mid-year. An educational consultant [name withheld] was hired by the family and assisted all parties. This required several meetings and phone calls. Different schools were visited and continue to be. School changes may need to be further evaluated as time goes on. Constant and close monitoring of the progress in all areas of concern noted in the report was ongoing for the balance of the school year as amongst doctor, school, tutor and home and this proved to be very crucial in achieving some remedial results. Summer plans for tutoring and pre-teaching were devised by the parents in consultation with professionals and are now underway. Close involvement of the family is crucial for continued success of the child and evaluation. This is a vulnerable child who, absent, close attention and involvement could easily slip through the cracks.

· The report was also further discussed with Dr. Markovitz who had performed the initial testing. She made recommendations, clarified a diagnosis based upon the report and assisted the family with planning for the future.

· ... specialized pediodontic dental care (Dr. Mel Kay – pediodontist) and pending orthodontic planning has been somewhat challenging and has required more appointments than might be required with more conventional processes or for other patients.

· The remaining children function at the extreme other end of the psychoeducational spectrum and are largely gifted athletes. More than one is involved in high rep/triple-A sports team(s). Clearly these are very time consuming endeavours for parents as they involve weekend travel to tournaments and evening attendance at games and team practices. The needs of these high functioning children are no less demanding or important and they require intensive enrichment of various kinds in order to keep them challenged.

· I expect these needs to exist for the foreseeable future in this large and devoted family. The parents are active participants in their children’s lives and are both to be commended and supported. No doubt flexwork and telework has been a valuable resource in this respect and in the delicate balancing of such factors that adults of less fortitude might not be able to juggle for such a large family of diverse needs.

· I would note that what I am hearing about chronic overtime without compensation in the form of time in lieu is of concern to me for the welfare of my patients for the reasons touched upon in both my letters.

...

[Sic throughout]

[Emphasis in the original]

 

[58] In cross-examination, the grievor admitted that she and her husband also drafted the 2015 Wise letter.

[59] Dr. Markovitz, mentioned in that letter, did not testify.

[60] Neither of the tutors nor the educational consultant referred to in the 2015 Wise letter testified.

[61] On August 27, 2015, Mr. Andreopoulos and the grievor exchanged emails, as follows:

[The grievor to Mr. Andreopoulos, at 11:04:]

Hi Tom. Have you had a chance to consider the renewal in consultation with Chris?

...

[Mr. Andreopoulos to the grievor, at 12:19:]

I am out of theoffice for the rest of the week and understand. You were off ffor a couple of days this week. I am consulting with Chris, but would ask that you do as well and canvass with her what alternatives short of a telework agreement may be implemented to address your circumstances. The benefit of a full andconsultation

[Mr. Andreopoulos to the grievor, at 12:21:]

I hit send too quickly. I meant to add that the benefit of a full and ongoing consultation process should be pursued.

...

[Sic throughout]

 

[62] The discussion with respect to the telework arrangement continued into September of 2015, with the grievor sending the following emails to Ms. Gruppuso on September 24 and 29, 2015:

[The grievor to Ms. Gruppuso, September 24, 2015:]

As per his email, Tom wants us to speak more so perhaps we could discuss PREA [performance appraisal] & revisit ACCOMMODATION right after.

Last we chatted about my accommodation plan at his behest it was to discuss if we could come up with an alternate solution to what has been in place for the last 12-ish years. I tossed out the idea of changing the regular telework days from Th/Fri or doing AM’s only downtown – but those do not work as well as the current process of OCH needs. On your end, we discussed abandoning the telework altogether OR possibly a switch of teams because of your concern that come January, your loss of approx. 6 staff will not make it possible to telework on a litigation team.

I hope that’s an accurate summation of our chat in this area. As expressed then, losing telework/accommodation is highly problematic for me. While I can come in for occasional trials, etc., most weeks, I really need telework. It’s an accommodation need (recall: pink/needs-based) based on, inter alia, family status and supported by an updated 2015 medical report.

It has been somewhat stressful to now be in limbo on this accommodation request and essentially not know what is to become of me as of January. So now that you are back from leave, I hope we can finalize the issue.

...

[The grievor to Ms. Gruppuso, September 29, 2015:]

...

Please note that there has been a development and I attaché a new CONFIDENTIAL hospital letter that did not form the basis of the pediatrician’s comments.

It is not signed because the dr emailed it in to the receptionist who provided it to us unsigned.

...

[Sic throughout]

 

[63] The letter referred to by the grievor in her September 29, 2015, email to Ms. Gruppuso is a letter from the Hospital for Sick Children dated that same day. It simply said that one of the children was a patient at the hospital and had medical appointments for a follow-up as an outpatient. It does not provide any other information, such as the dates or lengths of appointments or any information with respect to diagnosis or treatment.

[64] On October 4, 2015, Ms. Gruppuso emailed the grievor, stating as follows:

...

Further to our discussions earlier this week, below are the questions that management is seeking clarification on:

– Is there a legal obligation to be at home 2x a week?

– If so, what arrangements are in place for the other days of the week?

– What are the childcare arrangements currently in place?

– Can the older children supervise the younger ones?

– Are there other family members available to assist with childcare – spouse, parents?

– Are there any other arrangements, other than a 2 day telework agreement, that could be implemented instead (i.e. 1 day telework agreement, variable work hours etc)?

...

 

[65] On November 4, 2015, one of the grievor’s children was sick, and she sent the following email to Ms. Gruppuso:

...

I am proposing telework today ....

...

I know I am to answer more telework Q’s from labour rel. [sic] I have started a few times and will complete them when I find a minute. Still regrouping from a 60+ hour week the week of your leave.

I also found the process of answering more questions after years of win:win telework that is crucial to my ability to practice law, more upsetting, depressing, angering, harassing and time consuming than I had expected. The memories of the last revocation of my telework are still painful as there were many negative repercussions for my marriage and kids that I’d prefer to forget.

If Labour Relations can point me to any full time Mother of 5 kids incl [sic] three under the age of 10 anywhere in Canada who can practice law with no accommodation/flexibility, I would gladly take guidance.

As per today’s scenario, it is a benefit to the employer and often more than it is to me.

Since there is a “new sheriff in town” who tipped his hat on this issue, I am hoping that what seems to be a wholesale attack on telework by forces outside your office, will be abandoned in favour of common sense, equity and well established law.

...

 

[66] The grievor responded to the October 4, 2015, email on November 18, 2015, advising Ms. Gruppuso that she had formulated answers; however, none was attached to the email. As such, Ms. Gruppuso followed up with the grievor that same day, inquiring if an attachment was missing. The grievor responded on November 19, 2015, stating as follows:

No attachment.

The notes I drafted for myself are lengthy and I can condense it for you when we speak. During those discussions, I would also be happy to answer any further questions you may have and to elaborate if desired. I also have questions of my own if there is such an opportunity.

...

The short answers for your eyes only are:

– Is there a legal obligation to be at home 2x a week? ABSOLUTELY and I SHOULD PROBABLY BE HOME MORE. THREE OF FIVE CHILDREN ARE UNDER THE LEGAL AGE TO STAY HOME ALONE AND MUST BE PICKED UP FROM SCHOOL, ACTIVITIES ETC. BUT THE COMMUTE IMPEDES THIS.

ONE ADULT CANNOT CONSTANTLY PROPERLY SUPERVISE AND TEND TO ALL 5 CHILDREN ALONE FOR THAT MANY HOURS.

– If so, what arrangement are in place for the other days of the week? 1.5 NANNIES, 7 DAYS/WEEK to the tune of $75K /annum. i.e. I have done far more than my fair share to contribute to removing the barriers that impede my access to employment

– What are the childcare arrangements currently in place? See above

– Can the older children supervise the younger ones? ABSOLUTLEY NOT. Different schedule.....

– Are there other family members available to assist with childcare –spouse, parents? ABSOLUTLEY NOT. MY HUSBAND IS ON CALL AT LEAST ONCE PER WEEK AND DOES NOT COME HOME. WHEN HE IS HOME, THERE IS MUCH TO DO. I AM STILL PROPORTIOANLLY RESPONSIBLE FOR 2.5 CHILDREN WHICH IS FAR MORE THAN ANY SINGLE PARENT AT PPSC. I am also the co-caregiver for my Mother and Grandmother. The accommodation request is not only based on childcare responsibilities. It is based upon elder care, religion and my own health needs.

– Are there any other arrangements, other than a 2 day telework agreement, that could be implemented instead (i.e. 1 day telework agreement, variable work hours etc)? ON THIS TEAM, NONE THAT MY MANAGER AND i CAME UP WITH DESPTIE GOOD FAITH EFFORTS. I HAVE TRIED PART-TIME WORK. IT DOES NOT WORK AT PPSC. THIS IS A HIGHLY SUCCESSFUL AGGRANGEMENT I HAVE HAD FOR OVER A DECADE ON THREE DIFFERENT TEAMS. It combines flex-work, alternative hours and telework. It cuts down on absenteeism and even lateness caused by increasingly unreliable TTC & SNOW STORMS. IT HAS GARNERED MY FORMER TEAM LEADER AWARDS AND ACCOLADES IN DOJ PUBLICATIOINS. IT WAS IMPLEMENTED WHEN I HAD only 3 KIDS. IT WAS REVOKED IN 2012 WITHOUT CAUSE AND CAUSED SEVERE DAMAGE TO MY ENTIRE FAMILY. IT WAS REINSTATED AFTER MY UNION BECAME INVOLVED. IT IS LIMITED NOT BY THE MALEABLE CONCEPT “OPERATIONAL REQUIREMENTS” (which will suffer far more if I am forced out of practice) BUT BY A HIGHER TEST AT LAW, NAMELY “UNDUE HARDSHIP”. THERE ARE MAJOR QAUNTIFIABLE BENEFITS TO THE EMPLOYER INCLUDING PRODUCTIVITY, RETENTION, RECURITMENT, INCLUSIVENESS AND BUILDING/MAINTAINING A DIVERSE WORKFORCE, ETC. THERE IS ZERO HARDSHIP. THERE HAS CERTAINLY ARISEN NO UNDUE HARDSHIP SIMPLY BECAUSE THE EMPLOYER HAS DECIDED ON AN ONGOING AND FORSEEN BASIS TO INCREASINGLY UNDER-RESOURCE. I NOW HAVE MORE CHILDREN. RES IPSA LOQUITOR. I WOULD, HOWEVER BE OPEN TO SHADOWING ANY MOTHER (NURSING OR NOT) IDENTIFIED BY THE EMPLOYER WHO IS IN FULL-TIME PRACTICE WITH FIVE CHILDREN TO SEE HOW SHE BETTER ADDRESSES WORK-LIFE BALANCE BUT SUCH A PERSON DOES NOT EXIST.

...

[Sic throughout]

[Emphasis in the original]

 

[67] On December 2, 2015, the grievor emailed Ms. Gruppuso with respect to telework, flexwork, and overwork and addressed an ability and a time commitment with respect to working on a particular appellate file. Much of what was set out in the email repeats facts already set out in this decision and as such will not be repeated. Also, I will not set out the grievor’s arguments. She raised as an additional issue overtime, which was set out as follows:

...

OVERTIME – which is a further but related problem. It is somewhat perverse to be discussing operational requirements and accommodation in the context of 60+ work week hours and 31 hour weekends when my collective agreement specifies regular weekly work hours of 37.5/week. Our entire team is subjected to overwork. It often takes its toll first on those needing accommodation, like canaries in the coal mine.

...

While the collective agreement contemplates a regular work week of 37.5 hours, i.e. if I work too much one week, I should work less the next, this is virtually impossible on our team as we are scheduled to the hilt, including if trial matters resolve. Unlike other teams and due to overwork, the opportunity to leave early is rare and frowned upon.

These Torquemada hours and a long commute all week are an easy barrier to address where there is understanding and will. It is not undue hardship for the employer to adhere to the regular hours of work or they would not have signed such a contract with my union. It has not been a barrier for them to let me telework for 10 years nor other employees 5 days a week for blue [sic] reason.

...

[Emphasis in the original]

 

[68] In cross-examination, the grievor was brought to this email, specifically to the sections with respect to overtime and hours of work. When her statement in the email of 60-plus hours of work per week was put to her, she said that sometimes, she worked that many. When the term “Torquemada” hours was put to her, she commented that it meant “torturer” and that it referenced unrestrained hours. She stated that it is why labour laws are in place to restrict hours of work.

[69] On December 16, 2015, Ms. Gruppuso emailed the grievor, stating as follows:

I have now had an opportunity to review your email of December 2nd, in which you provide your chronology of events with respect to your family status accommodation request.

On November 19th, you also provided a response to the family status questions proposed by Management. Prior to rendering a final decision on your accommodation request, Management is requesting additional information about your specific needs. This information would assist in determining whether, and to what extent, a family status accommodation is required.

Your responses to the family status questions have been reviewed in conjunction with the letter received from Dr. Wise dated August 2015. The letter from Dr. Wise makes reference to one child who has some educational challenges and clarification is being requested about the needs of this specific child. In his letter, Dr. Wise indicates the following:

The parents are personally providing any OT support needed.

Two home tutors have been retained to assist one child with educational challenges.

Following a psycho-educational evaluation an educational consultant was hired and as a result, school changes were to be reviewed.

The doctor who completed the evaluation on the child made recommendations, clarified a diagnosis and assisted the family with plans for the future.

The same child requires more frequent visits to the dentist/periodontist/orthodontist then [sic] normally required.

Keeping this child in mind, Management is seeking answers to the following questions:

1. What is the exact need?

2. What has been done to mitigate the accommodation need?

3. What can PPSC reasonably do for you now?

4. How long is it anticipated that the accommodation will be required? When do you expect to find a non-work solution to your need?

5. Have other alternatives been looked at?

6. What is the treatment plan in place for the child with challenges? How often? What intensity? (i.e. for OT, dental care, etc.)

Anjie, please note that Management has the responsibility of making decisions with respect to requests such as yours and in order to do so Management needs to have as much information as possible to accurately assess the request. In order to provide you with a final decision, your responses will have to be shared with Management and a Labour Relations Representative on a “need to know” basis.

In your email dated December 2nd, 2015, you also asked for information on how to access informal conflict resolution services. I am advised that you can contact any of the following individuals for assistance.

[listed names removed]

Further to our discussions earlier today, I am also copying [name removed] one of our Labour Relations representatives.

...

 

[70] On January 19, 2016, Ms. Gruppuso sent an email to the grievor, following up on the December 16, 2015, email. On February 2, 2016, the grievor responded to the December 16, 2015, email as follows:

...

I worked unpaid overtime to prepare this response. It is a significant barrier to seeking such things as accommodation, management leave and the completion of mandatory OHSA training when no additional prep time can be afforded.

...

Instead of 44 or even 48 hours, i am working 50-60+ hour weeks away from my kids over my protests. Telework and flexwork help me to survive under such extreme conditions – I’m not even sure you can call it accommodation at that point – but still the employer wants those extra 4 hours back for ease of the scheduling process and to have me work two more days while still TELEWORKING at the Office Tower downtown for no apparent reason?

Is it not clear that this is prohibitive for any parent of 5 children, and, indeed, is tantamount to saying only want young lawyers with no children who are willing to work outside of negotiated contract terms are desired in this office? It is reasonable that there be a quid pro quo and flexibility.

The best answers I can give to the confusing questions are as follows:

... The child you mention has a diagnosed [medical condition deleted] and consequently an IEP based upon the learning profile. The treatment plan is a moving target. I meet with dr’s, professionals, tutors (this is mitigation as I am not doing the tutoring myself), teachers and a team of 10 SST personnel regularly. Since we do not know our work schedule until the Monday of the previous week, I would otherwise be consulting my manager frequently to approve day-time meetings. With flexwork and telework, I can agree to a meeting 2 months down the road as long as it is on a TH/Fri as it will be likely I can make it. ... I cannot use a nanny as the liaison. This requires the consistency and skill of a parent.

... frequent pediadontist appts are necessary ... My husband tries to attend as many of these appointments as he can. I tried to send a nanny to these appointments but on one occasion, ... My nanny would not have had the wherewithal to step in in this way. Nor can she go to complex school appointments or be an intermediary between me or the tutors, etc. She cannot do homework when the tutor is not available. I have to do it.

The above child also has [medical condition deleted]. ... There are various things I was taught by the OT to do to help when this happens. My nanny is dealing with the other kids at that time — especially AM when getting ready for school.

I am often assigned to the earliest court and must leave my house by 7:30 AM to make it in time given the ever-increasing Toronto traffic and transit delays. The children are not even all awake at that hour as I fly out. (Punctuality is never a problem when I telework. During a recent compliance che3ck, our CFP found few employees at OCH but I have proof of an email from 7:30 AM that morning as I was teleworking.)

At a certain point in time, if I were to sub-assign everything to accommodate the employer’s excessive work hours and rigid requirements of unnecessary downtown “face time”, I would cease to be a parent and would not be providing necessaries.

In 17+years at this job, I have missed ONE day due to babysitting/childcare issues. That is how devoted I have been. But the questions seem to suggest that you want me to give up child-rearing duties altogether???

As these are humans, there are significant emotional and mental health impacts due to my absence; impact on the children and marriage as well.

A better assessment of the need is to look at what happened to my family in 2012 when this telework agreement was revoked by Tom Andreopolpus without notice or cause and my union had to wade in over a torturous 3-month period.

Inter alia, the emotional and physical health of my children was impacted by my increased absence. We were literally hurled in a downward spiral and though I never made it the employer’s problem, at this difficult time, my children lost the consistency of our caregiver as my nanny quit EXPRESSLY due to my over-work (although she was paid full overtime). [Issue with child deleted].

I am pivotal in my children’s lives. During the particularly gruelling summer that just passed when I was even more absent than usual because of work, I got this gut-wrenching note home from camp [identity of child deleted].

[letter from camp imbedded in the email and attached to document]

I had thought I had answered this question. In addition to a tutor and other professionals to help my child, I have 1.5 nannies day and night/weekend and spend more than $75K annually (T4 tax proof available) that we cannot afford for childcare that greatly exceeds 50 hours per week. I have to use expensive weekly grocery delivery services, sub-assign my gardening, snow removal, housekeeping and hire a handyperson for repairs and often shop at 24 hour grocery stores at ridiculous hours. I have given up lunch-making, cooking, exercise and other things I need for wellness. I bought a shredder, paid to re-wire my home office for interne, p[aid internet bills to telework, paid a locksmith, got metal filing cabinets, supply a shared land line and a phone unit – all for the privilege of working at home - where I get more done – instead of in a downtown office.

3) If PPSC wants traditional women of the Jewish faith who have a large number of children of varying ages and needs to be able to work here, they can reasonably do the following:

– On past teams my manager has had sole power to agree to informal or formal accommodation. I have not had to deal with more senior managers with whom I do not have a close relationship. I was told accommodation was up to Ms. Gruppuso but this is not her understanding and, indeed, in the past few years, I have been made to deal with her boss, deputy FP, Tom Andreopolous. PPSC can confirm that my direct manager has the power to agree to accommodation. Then an accommodation agreement can be executed between us for a 1-year period and I would have faith that my direct manager would do her best to adhere to it in spirit and practice.

– reapprove flexwork as well so I am not beholden to the traditional 9-5 barriers. That serves no one.

– Clarify the responsibility for the list of 8-10 expenses that I have had to shoulder despite the equipment clauses agreed to.

– Stop the administrative nightmares with no extra prep time.

– Halt the putting of my feet to the fire in a manner which is demeaning, belittling and humiliating when many other employees (including several with no enumerated grounds) telework(ed) far more with no formalities at all – even during times of extreme resource deficiencies.

– More importantly, the employer should stop over-assigning work so that I can truly work approx. 37.5 hours/week and telecommute 2 days to save me over 4 hours in travel and AM preparation. This does not mean refusing meaningful work. It actually means decreasing death-by-paper-cut, never gets you experience or advancement work. It also means compensating excess hours like tonight’s.

4) I expect the need to continue due to the ages and needs of so many children – and especially since we will switch the above child’s school next September so there will be a big transition, many more meetings, etc. How long and how much overwork is forced upon me also impacts my answer.

5) YES. As stated, I tried working only 3 days in the past. This did not work for many reasons. In hurdle 2, after providing the customary medical documents, I still sat down with my manager. I suggested teleworking on different days instead of just Th/Fri but that is not a better solution for either of us. The employer has suggested nothing. I might be receptive to a move to AOC or back to Revenue but that has not been offered.

The only other alternative I can think of is if you wish to make me an offer in exchange for resignation.

...

[Sic throughout]

[Emphasis in the original]

 

[71] The note was with respect to the grievor’s youngest child missing his mother when he was either two or three years of age.

[72] Entered into evidence was an email dated February 24, 2016, from the grievor to Ms. Gruppuso in which she forwarded her emails with a dental office that disclosed that a dental appointment for one of the children had been missed. In the email to Ms. Gruppuso, the grievor stated as follows:

...

As you can see from the emails below, things are more than starting to give at home. Those are but 2 examples. I would NEVER forget a court appearance but I have now missed 2 dental appts [sic] for 5 different kids and the dentist may fire us.

My prep has now spilled into my personal and weekend hours for several weeks and I’m a little burnt.

...

My court obligations have increased and although I have risen to every challenge, I am now straddling a case management and court stream practice with no increase in prep time.

The ever-growing TO DO pile is daunting and I need to dial back my hours to contractual ones. I cannot work an extra free week per month.

To that end, I am seeking more prep time in March and April. The excess work is impacting my family, my health and even my marriage. I understand this is not an uncommon “complaint” but I am not seeing any solutions and I can’t sustain this.

...

[Emphasis in the original]

 

[73] On March 15, 2016, the grievor sent Ms. Gruppuso a lengthy email, the subject being a March 3, 2016, meeting. Ms. Gruppuso forwarded that email that same day to Messrs. Pistyner and Andreopoulos, the relevant portions of which state as follows:

These are some of the salient points from our March 3, 2015 meeting.

...

- You asked me to file leave amendments and pay more leave for days where I had drawn only 7.5 hours. Although we had discussed this, you had approved the leave and I more than made up the time (7.895 compressed), I have now made the amendments you require.

Neither you nor HR offers an alternate interpretation for the clause below.

4.1-4.2 LEAVE ENTRIES WHEN ON A COMPRESSED WORKSCHEDULE

When entering leave, timekeepers on a compressed work schedule should adjust their time entries according to their prescribed work hours. No time should be recorded for the non-work day that results from the compressed work schedule.

Timekeepers on a compressed work schedule are required to make up the difference between 7.5 hours and their compressed schedule either by working extra hours or by using paid leave entitlements.

- The employer has looked at my time sheets and is concerned that I have some days with many hours and some days with less than 7.895 (notwithstanding over 250 unpaid overtime hours in only 11 months).

- You told me that flexwork is no longer allowed on a litigation team. Regular hours of work are 8:30-4:50 (minus 1⁄2 hour for lunch.) (No AM or PM breaks exist).

- I was surprised when you asked if I had a flexwork arrangement. I replied that my Memorandum of Agreement always had a combination of telework and flexwork & my formal accommodation request always including these key terms.

- I referenced the CA’s explicit emphasis on work-life balance entitlements (see 13.01(b)) and advised that flexwork usually works in the employer’s favour. I cited core Collective Agreement (“CA”) clause 13.01(a) which states that,

“the normal hours of work for lawyers shall average thirty-seven decimal [five] (37.5) hours per week over each four week period. Subject to the approval of the Employer, the hours of work shall be arranged to suit a lawyer’s individual duties and to permit the lawyer to carry out his or her professional responsibilities.”

You did not share the view that this was an averaging clause and offered no alternate explanation for the bolded language above.

You reminded me of professional obligations to work in addition to the non-flex hours (i.e. you do not intend to cancel flexwork when it suits the employer) and advised that I must docket a minimum number of 7.895 hours per day, 5 days a week – even if one day has 12 hours, the next cannot have under 7.895.

- You advised that here are no maximum hours of work.

- Your view was that management leave is limited to 10 days annually. You disagreed that it was unlimited although I have raised this many times before.

...

- I was perplexed at the conditions being described (no max hour, no averaging out of hours, no flexwork) as this sounded like exhausting labour and restricted freedom. We discussed the resourcing issues of why excess work is landing on my plate so regularly. It has nothing to do with my efficiency or productivity (things that will suffer when my quiet telework office is gone).

- The third issue you raised and which you prefaced by saying I would not like, was that my telework and flexwork arrangement of 10+ years has been fully denied/revoked. Furthermore,

...

C. You could not tell me why wasting hours of productivity to commute to the unsupervised “Telework Tower” was important to the employer.

E. You advised that I had a mere 30 days before this took effect. Since I had to come in off of telework on March 3&4 and you know I am scheduled for court March 10 & 17 (because the agreement has always had the exception for the necessitated court obligations) this leaves only two full telework periods before your April 4th deadline.

I. I expressed surprise that there was a revocation on the sole basis that I do not meet the test for family status accommodation when I had requested accommodation on other enumerated grounds in at least two emails (Dec 2, 2015 and Feb 2, 2016) but the employer continues to ignore the grounds pleaded. After interminable inquiries over months and fixation on family status, I invited the employer to ask any questions they needed to clarify my request based on religion, elder care and medical need. In our last in-person meeting, we specifically talked about being able to light Sabbath candles before sundown on Fridays and you expressed concern about whether I was being able to do that so I thought the lack of questions on that point meant it was not going to be a problem.

J. Neither you nor HR/LR offered (I asked) any reasonable alternative that the employer would agree to in its discretion to ameliorate any of the issues raised although, inter alia, the revocation of telework will deprive me of the ability to practice my religion. I am not aware of any other options available to me that do not make me choose between my employment, my family or my faith. You did not offer a Tower team transfer although we had discussed this as a regrettable possibility in our last discussion. The issue was very clearly that I did not merit accommodation – not that I was eligible but due to undue hardship had to transfer teams. You said the only suggestion being made was if I wanted to apply for unpaid leave like care and nurturing leave. I replied that my children need to eat. I also pointed out that being prepared to lose 100% of my labour given current resource levels would be problematic in any later undue hardship analysis or even an operational requirements calculus. I asked if you would be offering me a paralegal position, something I have feared since I heard that those who cannot fit the bankers’ hours model and require flexibility have had that put to them as an option. You did not reply.

My formal requests

A I advised that although I have enjoyed working with you and have done commendable work (under difficult pressures), I am left with no choice but to request to work on a Tower team where there may be work-life balance. Since that request, a new umbrella team of sorts has been announced. I fear that it will be the “non-litigation” team/Mommy Track Ghetto. Hopefully you will put forth the transfer request that I am forced to make so that I am at least spared the humiliation of personally digging my own professional grave.

B. I requested a written decision, with reasons and I asked that it come forthwith because, my mere 30 days have already begun to run. Nothing in this process has unfolded in a may mandated for accommodation requests – not even procedurally. As a lawyer, you will appreciated the importance of written reasons and I told you that my prejudice will be increased if I do not get a written decision with reasons while this short limitation is ticking. I have received nothing from “management or labour relations/[name withheld]” to date although almost two weeks have passed.

C. I requested that you consider all the implications of this decree and object to it in writing as my direct supervisor. It clearly works an injustice and is even off-side sound business judgment. It has a chilling effect on future accommodation requests (which the Equal Opportunity employer is not supposed to await, but rather INVITE). I urge you to not be a party to this.

D. I have advised you that I view this decision as another bout of harassment by the employer in a long history of unyielding attacks and reprisals.

E. I must mention the belittling and micro-managing treatment i received from your new deputy who, in your absence, seemed to single me out for ridicule and sent me several concerning emails unnecessarily. I am perplexed by this treatment as we have had a very good relationship and I have been happy to stay late to assist her in any way I can or to be collegial at times when she has needed support.

F. I will reiterate now my request for the return of my former office space which I lost due to maternity leave. It was assigned to me as an incident of my seniority and that is something which accumulates while on maternity leave. In this office, children seem to roll back seniority for women. I also now reiterate a request for a proper desk, not a table and, until I have my office back, an office partition to separate me from my two male office-mates as the lack of privacy at the OCH location for a female adult is damaging to wellness. So is the constant noise.

The Implications

I want it to be very clear about what sorts of things the cancellation of my agreement means going forward. Already, it has been damaging to my family. In addition to time sensitive work I was given no time to prep, I now have to spend my partial March break making alternate childcare, carpooling, etc. Plans.

The major change you announced does not mean I wake up in the morning and just simply come down to work. Many plans need to be put in place to be able to do this every week. I am materially changing many things that cannot be easily be undone.

For over a decade, I have supplied to the employer a 24/7 rent-free, heated/cooled secure room and filing cabinets, internet, etc. For the privilege of 2 days of telework. My family has been excluded from this much-needed space. Now that I have to secure more driving childcare, I may have to convert it into nanny quarters for a live-in caregiver. Once converted, it cannot be easily restored. I cannot be expected to reserve this space in the hopes that the employer will reverse its decree in whole or in part at some stage down the road. I am already two weeks into the unreasonable Notice period.

I cannot now compensate my current driving childcare provider for emergency night coverage by averaging her time on my telework days. I will now be unable at 2:30 PM (after 7 hours in court), to embark on new bail hearing assist matter that runs until 6 PM.

I will have to renegotiate our nannies’ hours (and pay stub deductions) which will have a ripple effect on their other employment and add to my steep childcare costs. That too is not easily reversible in fairness to them I am loathe to have to interview, train, supervise and expose my children to a third non-parent caregiver. This is NOT good for their well-being.

These are but a few examples.

I have lit Sabbath candles since I was Bat Mitzvah’d at the age of 12. We have discussed this religious need. You are aware that I am a traditional Jew who takes leave on all Jewish holidays, whose children attend Jewish schools and who keeps kosher. Candle-lighting is one of the most significant ceremonial obligations of a Jewish woman. Making it impossible or more difficult for me to observe this pivotal religious practice with my family is an affront to the entire Jewish community.

...

[Sic throughout]

[Emphasis in the original]

 

[74] On April 6, 2016, Ms. Gruppuso emailed the grievor, the relevant portions of which state as follows:

...

You will recall that we met on March 3rd 2016. At that meeting I advised you of the following:

(a) Your request does not fit the criteria for family status accommodation as per the PPSC policy on the duty to accommodate.

(b) Your telework agreement would not be renewed and effective April 4th, you would be expected to be in the office 5 days per week.

At the same meeting, we also discussed the following:

(c) Your core hours of work are 8:30 am – 4:50 pm;

(d) Variable/flex hours of work have never been approved so you would be expected to work your core hours at a minimum of 7.895 hours per day (required hours when on a compressed schedule with one day off every four weeks); and

(e) When submitting leave, you are expected to input for 7.895 hours and not 7.5 hours given that you are on a compressed schedule.

At the end of our meeting, you indicated that you wanted management’s response in writing so that you could consider your options moving forward.

In addition to this, you were seeking answers to the following questions:

(a) What are the maximum hours of work?

(b) How much management leave is available?

You subsequently sent an email on March 15, 2016 setting out your recollection of what took place at our meeting on March 3rd, as well as a second document titled Denial of Accommodation. Below please find some additional information and clarification to the multiple issues raised in your emails.

TELEWORK/FAMILY STATUS ACCOMMODATION

You were forwarded a list of family status questions on October 4, 2015 seeking clarification on your family status need. You responded on November 18, 2015 saying you had finally formulated your answers but were unsure who the audience would be. You indicate [sic] you would be happy to discuss with me in person.

On November 19, 2015, you provided me with your written “short answers” to the family status questions and advised that the responses were for my eyes only. Within this response you indicate that 3 of your 5 children are not of the legal age to stay home alone and must be picked up from school, activities, etc. But your commute impedes this. You indicated that you have 1.5 nannies, at the cost of $75,000 a year, who are employed 7 days per week. You note that your husband is often unavailable to assist. You also stated you are the only lawyer at PPSC with 5 children. Within this document you relay that you are also caregiver for a mother and grandmother and the accommodation request is based upon childcare responsibilities, elder care, religion and your own health needs.

On December 2, 2015 you provided a three page document outlining the background of your accommodation dating to January 2014. You were very specific in this document about your “child-rearing” needs which you state is something completely different than childcare/daycare/babysitting. You did not expand further on your responses to the family status questions.

I have reviewed the letter from Dr. Wise dated August 2015, who describes your need since the addition of your fifth child in January 2013, as well as a letter from Sick Kids dated September 29, 2015. The letter from Sick Kids requests flexibility in the form of early departure from the office on days you had scheduled appointments with your child in an outpatient program.

Based upon the information you provided, it appeared that the childcare obligations for your five children were met through alternative solutions, specifically your employment of nannies seven days a week, evenings and weekends. Please know that a family status accommodation cannot be approved simply based upon the number of children you have alone. From the information you have provided, all indications were that you have reconciled family obligations with work obligations. The conclusion reached by the employer was that your responses to the initial family status questions were not considered to meet the needs of a family status accommodation.

Having said that, in order to ensure that the employer had received all pertinent information related to your needs, a second set of family status questions was posed to you on December 16, 2015. These questions sought further information into your family status needs but specifically related to your child [child’s health issued redacted].

– The parents are personally providing an OT support needed.

– Two home tutors have been retained to assist one child with educational challenges.

– Following a [specific evaluation type redacted] evaluation an educational consultant was hired and as a result, school changes were to be reviewed.

– The doctor who completed the evaluation on the child made recommendations, clarified a diagnosis and assisted the family with plans for the future.

– This same child requires more frequent visits to the dentist/periodontist/orthodontist than normally required.

Given this information, management sought further clarification as to the needs related to this child by the following questions:

(1) What is the exact need?

(2) What has been done to mitigate the accommodation need?

(3) What can the PPSC reasonably do for you now?

(4) How long is it anticipated that the accommodation will be required? When do you expect to find a non-work solution to your need?

(5) Have other alternatives been looked at?

(6) What is the treatment plan in place for the child with challenges? How often? What intensity? (i.e. for OT, dental care, etc.)

You responded to these questions on February 2, 2016. However, your responses provided no specific details related to this particular child’s needs now, especially as they relate to medical needs, and the frequency of appointments and treatment. In addition, it was not specified if the child is of school age.

...

RELIGIOUS ACCOMMODATION

In your emails of November 19, 2015 and February 2, 2016, you have indicated your need for a religious accommodation. Within your latest communication it is stated that you are an observant Jewish woman who sits down to Sabbath dinner, whose children attend Orthodox Hebrew schools for which no bussing is provided and who lives in the Bathurst corridor near family, friends, and kosher food merchants.

An employer must reasonably accommodate an employee’s creed, religious believes [sic], observances and practices unless doing so would cause undue hardship on the way the employer conducts business.

Please know that you must be clear when explaining why you need an accommodation based on religious ground. Given this, could you please identify the belief that needs to be accommodated and the specific accommodation you require?

ELDER CARE ACCOMMODATION

In your email of November 19, 2015, you state you are a caregiver to a mother and grandmother. In addition, Section I of your email dated March 15, 2016 (11:32 a.m.) you have indicated that you have a family status accommodation need based on Elder Care. In order to consider your request and assess your need, you are being asked to provide information related to your specific situation in the form of responses to the question below:

· Who is the caregiver for the family member(s)?

· What is the family member’s health status? (Are there special needs to be considered?)

· What is the extent of the care needs?

· What social services support is available?

· What are the family member’s daily routines? E.g. Information about the family member’s hospital visits?

· What are the alternatives available to the employee to provide for caregiving?

· What steps has the employee taken to resolve his/her work-family conflict if such steps are available?

· How is the employee affected by his/her status as the caregiver?

· Are the obligations on the employee so onerous that it renders him/her unable to balance his/her family obligations?

MEDICAL NEEDS

In your email of November 19, 2015 and Section I of your email dated March 15, 2016 (11:32 a.m.) you have also indicated that you have an accommodation need based on your own medical situation. I would encourage you to provide medical supporting documentation from your treating practitioner which outlines the medical functional limitations or precautions that should be conserved in your case.

COMPRESSED/VARIABLE HOURS

The employer authorized your participation in a compressed/variable hours alternative work arrangement. A previous Memorandum of Agreement was signed and became effective from January 6, 2014 to January 5, 2015. This agreement outlined the hours of work from 0900 to 1725 hours, with a 30 minute unpaid lunch. It was understood and expected in the agreement that at least the total minimum weekly hours will be fulfilled. I note that this agreement has currently expired.

As discussed at our meeting, your core hours of work are 0830 to 1650 hours. As such you are required to work a minimum of 7.895 hours per day, Monday through Friday (required hours when on a compressed schedule with one day off every 4 weeks).

It is my understanding that the agreement to continue on a compressed schedule will need to be formalized/renewed through the appropriate forms ... and memorandum of agreement.

FLEXIBLE HOURS

To date, we have not entered into an official alternative work arrangement for flexible hours. The provisions of the collective agreement allow for a work life balance. Clause 13.01 states,

[Clauses 13.01(a), (b), (c), (i), and (j) are set out.]

The employer supports the flexibility permitted under 13.01(b) however I have noted some concerns in your timekeeping. There are several examples within your timekeeping reports where it does not appear that you are working your core number of hours. For instance on Friday July 31st, 2015 only 3.5 hours of work have been entered. On Friday August 7th, 2015 only 4 hours of work have been entered. On November 20th, 2015 only 1.5 hours of work have been entered. On Thursday January 21 2016 you entered only 1.5 hours of timekeeping. These are a few examples of days that were intended to be telework days where the minimum number of hours have not been worked and there does not appear to be any leave entries for those dates.

MAXIMUM HOURS OF WORK

With respect to your question about maximum number of hours of work, as discussed at our meeting on March 3rd, 2016 I am not aware of a specific number of maximum hours that employees are expected to work.

MANAGEMENT LEAVE

With respect to your questions related to management leave the following has been extracted from Clause 13.02, of the collective agreement. It outlines that management with the delegated authority can approve 5 days of management leave and under exceptional circumstance more can be approved by the deputy head, with the recommendation from the delegated manager.

[Clauses 13.02(e) and (f) set out.]

HARASSMENT/DISCRIMINATION

I would like to bring your attention to the Treasury Board Policy on Harassment Prevention and Resolution. I have attached the link for your convenience.

[Internet link set out.]

The employer takes both harassment and discrimination allegations very seriously. In respect of the issues raised, I would invite you to particularize the details so we could attempt to resolve your specific concerns.

...

REQUEST TO TRANSFER TEAMS

Please be aware that in reviewing your request of March 15, 2016, at this point in time management is not prepared to approve your request to move to another team.

...

[Emphasis in the original]

 

[75] The grievance was delivered to Ms. Gruppuso on April 6, 2016.

[76] In 2015-2016, based on a 37.5-hour workweek, taking into account statutory holidays, and not counting Saturdays and Sundays but counting all available weeks of Mondays through Fridays at 7.5-hour workdays, there were a total of 1867.50 regular working hours. If the grievor (or any other lawyer at the PPSC) worked all the working hours and took no leave whatsoever, except the statutory holidays and Saturdays or Sundays, she would have worked 1867.50 hours. If December is excluded, the result is 1717.50 working hours.

[77] The grievor’s timekeeping and leave record disclosed that in 2015-2016, she docketed 1903 hours (not including December of 2015). However, an analysis of the leave records for the same period disclosed that she entered her leave time into iCase. For example, the iCase record for June of 2015 disclosed that there were 22 working days (Monday to Friday) that month, totalling a potential of 165 working hours. The grievor’s iCase record disclosed she recorded 165.08 hours. Of those hours, there is time docketed on 4 days where an “S” was handwritten, and 2 days of docketed time with a handwritten “V”. The grievor’s leave records for 2015-2016 disclose that she requested and received paid sick leave for the days marked “S” and that she requested and received vacation leave for those days marked “V”. On two days, June 26 and 30, docketed are .25 of an hour and .50 of an hour respectively, and the letter “C” is handwritten. Subtracting the docketed time from those days marked “S” and “V” but including the .75 of an hour on June 26 and 30 leaves the grievor with a total of 117 hours docketed for work.

[78] Based on the records entered into evidence, for the entire year, the actual time docketed, less the time taken for leave of some sort that was recorded, was 1521.165 out of a possible 1717.5 working hours, excluding December.

[79] Entered into evidence was a letter dated April 26, 2016, from Venessa Hurst of One Remediation Services, who is identified in the letter as a direct instruction specialist and a director of that organization. The letter indicates that she has been working closely with the grievor for a number of years with respect to the child identified in this decision as having a number of health challenges. She speaks to the grievor’s robust involvement with respect to the child’s health, care and nurturing, and education and identifies her as the team leader coordinating all that has to be done. She states that the grievor has been instrumental in managing the required treatment and action.

[80] Ms. Hurst’s specific qualifications were not provided; nor did she testify.

[81] In her evidence-in-chief, the grievor testified that she became ill in the summer, after her telework was ended. She said that she was off work for between four and six weeks. She stated that the reason was “sort-of doctor ordered” and added that she was experiencing these effects:

· suffering from exhaustion;

· stressed;

· depressed;

· suffering from anxiety; and,

· losing hair.

 

[82] When asked what she believed contributed to the stress and anxiety, she said the souring of the relationship with her manager, she “thought [her] manager wasn’t speaking to [her]”, the physical exhaustion of the extra commute, the excess hours of work, over 400 [excess] hours over a year, one day of prep time was not enough, and being at odds with her employer, which had been protracted. She felt that the employer was “tightening the noose”.

[83] Entered into evidence was the first-level grievance response dated May 31, 2016, which was signed by Ms. Gruppuso and sent to the grievor. Relevant sections of it state as follows:

...

You indicate you require an accommodation of two days telework, each Thursday and Friday, for the following reasons:

(1) Religious

(2) Medical

(3) Family Status – Elderly Care

(4) Family Status – Child Rearing

Religious Accommodation

... You have requested telework on Fridays in order to prepare for your Friday evening ceremony and because you are suffering health effects worrying (and watching the clock) that you may not make it home in time.

Please be advised that although the employer is not prepared to approve a telework arrangement on the basis of religious accommodation, the employer is willing to respect your observances on Friday evenings by allowing some flexibility in your work hours on Friday afternoons whenever possible in order to allow you the time to commute and be at home one hour prior to sundown. The employer’s willingness to allow flexibility will be subject to the scheduling considerations of presiding jurists on trial matters that extend to Fridays. The employer also recognizes that this accommodation may be needed more in the winter months when the sun sets earlier.

Medical Accommodation

You have indicated that your requirement for two days telework is also based upon your own personal medical accommodation need. As a result of the ongoing stress associated with being overworked and the denial of the continued telework, you claim to be suffering from insomnia, stress, chest pain, hair loss and other health problems. You also mention that the extra four (4) hours of commuting a week has had its own effects. You referred to Dr. Wise’s note (your children’s Paediatrician) of August 2015 to support continuing telework. You state that Dr. Wise treats the family as a whole; however you did note your eighteen (18) year old is no longer being treated by Dr. Wise due to her age. You have stated that you have no time to visit your own doctor, having seen him or her only once or twice in the last year. To be considered for an accommodation, I would encourage you to supply supporting medical documentation from your own treating practitioner, which outlines any medical functional limitations to be considered. Upon receipt, the employer will review the letter to further determine your accommodation need.

...

Family Status – Child Rearing

You believe you have met the threshold for approval of a family status accommodation based upon the five children [ages omitted] under your care. You advise that you are essentially a single parent as your husband has a very demanding job and your nannies cannot cover all responsibilities.

...

You noted in the grievance hearing that you attended over fifty (50) dental appointments per year, with more Orthodontic work anticipated for your children. Since the grievance hearing you have provided each of the claims you submitted to Great West Life Assurance, which notes each of your appointments for the last several years. This claim indicated that twenty (20) appointments were scheduled between April 16, 2015 and April 19, 2016. It also appears that approximately 11 of the 20 appointments were scheduled on a day other than a Thursday or Friday. It also appears that of the names that have not been vetted from this document, that four (4) of these appointment dates were for either you or your husband.

The employer has also requested a list of upcoming scheduled appointments, related to dental and other appointments, so the employer can offer some flexibility for you to attend the appointments you are required to attend.

...

You have in fact entered into a formalized alternative work arrangement specific to a compressed schedule. This specifies that your hours of work are from 8:30 to 4:50 (7.985 hours per day) each weekday, with one day off every four weeks. PPSC National Timekeeping Protocol, Article 4.1.3.2, Compressed Work Week states, “Timekeepers on a compressed work schedule should adjust their leave entries according to their prescribed work hours. No time should be recorded for the non-work days that results from the compressed schedule. Timekeepers on a compressed work schedule are required to make up the difference between 7.5 hours and his/her normal compressed schedule either by working extra hours or by using paid leave entitlements.” In our discussions on this specific topic, my expectation was that you would adjust your leave entries to make up the difference in time. At no time, did you request in advance to make up this time by working extra hours; especially given the fact that you are seeking resolution to some work/life balance issues.

...

On an operational level, I would like to re-integrate you into the trial schedule and have you fulfilling the full duties of your position. The Toronto Team is a litigation team, which deals with matters at both the Provincial court and Superior court level. In provincial court, matters can be scheduled to be heard in a “list” court or they can be scheduled to proceed as “specials” over several days in a given week or over multiple weeks. In Superior Court, matters are set to proceed either with or without a jury and can be scheduled for one week or for multiple consecutive weeks. With a telework agreement, working from home every Thursday and Friday, I have been restricted in what I can assign you and have not been able to schedule you for trial court on either of these days nor have I been able to assign you to cover a trial in the Superior court.

...

 

[84] Entered into evidence was a letter dated July 12, 2016, from Ms. Gruppuso to the grievor, the relevant portions of which state as follows:

...

On June 10th, 2016, you sent an email with two doctor certificates attached. In your email, you gave notice that you would be going on medical leave for one month. The first attached note from Dr. Alisa Naiman indicated that you had been advised to remain off work effective June 20th, 2016 as a result of a medical leave. This note also indicated that you would be reassessed in the middle of July to determine the return to work date. The second note from Dr. Alisa Naiman was in support of your request for a Sit/Stand Desk.

You subsequently provided a doctor’s note (dated July 7th, 2016) to Mathieu Delorme. This note has been forwarded to my attention and indicates that you have been advised by dr. [sic] Naiman to remain off work as a result of ongoing physical and other health related conditions. It also indicated that you would greatly benefit from flex work, at least two days of telework and a reduction in overtime hours.

The Public Prosecution Service of Canada (PPSC) is committed to supporting employees to maintain their health, and to recover from illness or injury when it occurs, and are respectful of the principles articulated in the Canadian Medical Association policies on the physician’s role in supporting ill or injured employees. We strive to enable employees to remain-at-work by accommodating their needs, or to return-to-work as soon as it is medically appropriate in order to facilitate their recovery and maintain their connection to the workplace.

Your role and responsibility as an employee is to provide, in a timely manner, relevant information from your attending medical practitioner to assist in the determination of abilities, functional limitations, and restrictions. This will enable us to facilitate a safe and productive work environment for you that addresses your individual medical needs.

At this time, management requires additional information from Dr. Alisa Naiman. We ask that you take the attached documentation to her for completion so that she can provide an updated report on your medical condition. Management has requested that these documents be completed in order to receive clarification as to the extent of your medical leave absence, as well as, to provided [sic] information about any limitations that may impact on your work duties once you return to work.

...

 

[85] Entered into evidence were two notes from Dr. Alisa Naiman, which state as follows:

[The note dated July 7, 2016:]

...

Ms. Tarek-Akeminker has been advised to remain off work as a result ongoing physical and other health related conditions. Ms. Tarek-Akaminker greatly benefits from flex work, at least two days of telework and a reduction in overtime hours.

...

[The note dated July 13, 2016:]

...

Ms. Tarek-Akeminker has been cleared to return to work as of July 25, 2016.

...

[Sic throughout]

 

[86] Entered into evidence was the second page of a form that the grievor identified was signed by Dr. Naiman and that appears to have been signed on August 8, 2016 (“the Aug. 8 note”). It appears to be a part of a TB fitness-to-work form related to workplace assessments requested by an employer. The top portion entered into evidence starts with a box identified by the letter “B” and is entitled, “Non-Physical Work-Related Capacities”. It contains 3 boxes, which are entitled “Scheduling Demands”, “Social/Emotional Demands”, and “Cognitive/Mental Demands”. Each of these boxes contains between 10 and 16 demands and a box for the demand to either be checked or not checked. The bottom of Box B, which contains these identified demands, has a place for the supervisor’s signature and a date. I have seen these forms before, and the portion missing is what a supervisor fills in. While some boxes in this section have been checked off, the signature and date are blank, although Box B appears completed. There was no evidence that the employer provided a completed form for the grievor to bring to Dr. Naiman.

[87] Below Box B is a box identified as “Section C – Limitations/Restrictions (to be completed by attending Physician or Health Care [sic] Practitioner)”. The following was set out by Dr. Naiman:

...

1) Specify the work limitations/restrictions noted in Section B. (eg. Frequency of movements; hours of work)

- difficulty with prolonged sittig [sic] without breaks.

- requires work time to average approximately 39.5 hrs [unclear text]

Occasional overtime is fine but [unclear text] flexibility in work week to [unclear text]

-.reduced commute time by a few hours (due to several hours drive to telework is recommended) for example - can work 66 hours per week but over following weeks requires change to [unclear text] worked to [unclear text] 39.5 hrs/week

*2 able to work court duties as legal counsel as court [unclear text]

2) Specify any restrictions due to medication(s) that can interfere with the safety of the employee and or his/her co-workers during any of the preceding work abilities in Section B.

Not applicable

Medical Practitioner’s Assessment – Do not include a diagnosis (to be completed by medical practitioner only)

(please see forms provided)

Please see my letter dated July 7, 2016

...

[Emphasis in the original]

 

[88] At the bottom of Section C, Dr. Naiman wrote that the grievor was fit to work with limitations and restrictions, but she was unable to indicate when the grievor would be capable of carrying out full, regular duties.

[89] Entered into evidence was a letter dated August 29, 2016, from Ms. Gruppuso to the grievor that referenced a medical note (assumedly the Aug. 8 note) from the grievor’s doctor being provided to a senior PPSC LR advisor. It stated that the note had been forwarded to both her and Mr. Andreopoulos on August 15, 2016. In response to that note, Ms. Gruppuso sought answers to the following questions:

(a) What is it about your substantive duties that is causing you difficulties as a result of a medical condition?; and,

(b) How often do you need to take breaks/stretch in the course of the work day?

 

[90] Entered into evidence was an email chain. The initial email is dated March 22, 2017, at 18:53, and is from the grievor to Ms. Gruppuso, which Ms. Gruppuso forwarded to Mr. Andreopoulos that same day. He replied to Ms. Gruppuso on March 23, 2017, at 10:24. The relevant portions of the email chain state as follows:

[The grievor to Ms. Gruppuso, March 22, 2017, at 18:53:]

Tom has required that i consult you when my hours are excessive. The unabated, excessive workload (for not only me but most OCH colleagues) speaks for itself usually but since you are away I though I’d note these additional, specific occasions.

· My court ran until 5:25 Friday March 16, 2017. That was particularly stressful due to candle-lighting and Shabbat dinner.

· Since I was assigned that same day to a hearing on Monday but was in court non-stop, additional prep had to be done over the weekend. That was particularly difficult as I have no weekend childcare.

· Again yesterday, I was in 112, 121, 123 and 112 on multiple hearings. I got absolutely no breaks and again my last court closed at 5:25 PM with no chance to make child-care-related calls. At 5:47 I rushed in a taxi while making emergency childcare arrangements for my kids and the 3 carpool kids I was responsible for driving home after the (missed) 5:30-6:30 PM function I had arranged in my capacity as basketball team manager. I arrived at the tail end of the awards banquet where other attendees had been required to take over my duties.

· I anticipate more excess work as my Passover leave approaches, as I near the first SCJ jury trial I have had in years shortly upon my return and if you accede to the request of my colleagues that I do specific Project work with them (I remain willing).

...

To that end, I have sought clarification regarding additional medicals you may or may not still need as per your letter in order to action Dr. Naiman’s summer requirements. You forwarded that inquiry to Tom for a response but none has been received by my. I will therefore presume that nothing further is needed from me. As per the summer functional assessment of dr. Naiman and my governing collective agreement, I am still seeking, inter alia, that my assignments not require that I work more than 37.5 hours over any 4-week period. Since I must be downtown during M-F, this means that I should not be asked to do any weekend work at all. This does not need to mean lesser quality assignments. Rather, less volume, more predictability, less death by papercut, no admin work, more preparation time and not constantly straddling multiple streams as well as all the items set out by Dr. Naiman.

...

[Ms. Gruppuso to Mr. Andreopoulos, March 22, at 19:20:]

...

Please see Anjie’s comments and queries below. My email to her had one simple request and this is her response.

This constant barrage of emails from her is unacceptable. We need to discuss and find a solution once I’m back in the office in April.

...

[Mr. Andreopoulos to Ms. Gruppuso, March 23, at 10:24:]

...

I do not understand how she received the impression that something was outstanding from my end. I have not had any communication with her and I do not know where the comment “Tom has required that I consult you when my hours are excessive” comes from or her expectation, and conclusion, that i was to respond to the request for additional medical information. I was not part of that dialogue.

We need to get on the same page and ensure that the narrative remains accurate and responsive to the issues at hand.

There was an outstanding email response you were to provide to her about her medical report, which had nothing to do with her ergo assessment, but with the medical limitation on the number of hours she was supposed to work and which were supposed to be managed.

...

[Sic throughout]

 

[91] The grievor was shown the March 22 and 23, 2017, email chain and was asked if anyone at the employer told her that her communications were a barrage. She said, “No.” She then stated that she was always careful to be polite and that she did not want to be seen as harassing. She said that no one ever told her to stop sending emails.

[92] Entered into evidence is an email dated March 31, 2017, at 16:12, from the grievor to Ms. Gruppuso and Mr. Pistyner, the relevant portions of which state as follows:

Please accept this management leave request for the maximum allowable hours.

Attached are 12x 2016/2017 timesheets (April 2016-March 2017 inclusive).

In this outgoing fiscal year I worked a total of approximately 463.92 overage hours. That translates into approximately 62 days of labour in addition to leave.

There was not a month in which I had no overage.

There was not a month other than June, when I began a 4+ week doctor-ordered sick-leave, where I had no weekend work.

Chronic overage was directly related to that sick leave and continues to be an ongoing problem for wellness as per the Functional Limitations report of my doctor (requiring a sit/stand desk, work hours averaging out to 37.5 hours per week & telework) and concurrent, ungranted accommodation requests (for telework, interim telework, change of teams, etc.).

...

A total of over 2,347.93 “Bay Street type” hours were docketed, including leave. It should have been closer to 1, 884 hours including leave.

...

 

[93] The time sheets that the grievor referred to in the March 31, 2017, at 16:12, email were not produced to the hearing.

[94] Entered into evidence was an email dated April 3, 2017, at 12:44, from the grievor to Ms. Gruppuso, which had attached a forwarded email dated April 2, 2017, at 12:32, from an organization called Family Matters Caregivers Inc., the relevant portions of which state as follows:

...

Hi there

Finding a live out driving nanny to start at 7am will be virtually impossible. If you want someone to start at 7am you will need to hire a live in. They will then have to take driving lessons once they get here Most live out nannies will not start before 8am.

...

 

[95] Ms. Gruppuso forwarded the grievor’s April 3, 2017, email to Mr. Andreopoulos that same day at 16:21, stating as follows:

...

I have just received this email this afternoon. I have not responded. You should be aware of these issued [sic] that Anjie continues to raise as she appears to be laying a foundation for a grievance/lawsuit/other action.

I am at a loss as to what more I can do to address the issues that Anjie has raised. I have tried to accommodate her on the Toronto Team by assigning her less files than anyone else on the team but giving her the same number of prep days; giving her less days in trial court at Old City Hall and only one SCJ trial; assigning her in docket court where less preparation is required etc but it does not appear to be enough. I would like to discuss moving her from the Toronto Team as this does not appear to be a good fit for her in her current/ongoing situation.

...

 

[96] In cross-examination, it was put to the grievor that Ms. Gruppuso had assigned her fewer files than her colleagues, given her less days in court, and reduced her workload relative to other OCH team members. When asked if she agreed, the grievor said that she did not agree. She then stated that she was not able to say what her colleagues’ workloads were. When she was asked if she was aware that she was being assigned fewer files than the others, she said that she was not assigned fewer files. When she was asked if she was aware that Ms. Gruppuso was giving her less days in court, she said, “perhaps; I never asked for less.” When she was asked if she was suggesting that she had too much work for the hours she had to work with, the grievor said, “Yes.” When asked if she was disputing Ms. Gruppuso’s comments in the April 3, 2017, email to Mr. Andreopoulos, she said “Yes,” and added that she disputed that her manager reduced her work complement to contractual levels. Counsel for the employer again asked the question, pointing out that he was asking about her work relative to that of the rest of the team. The grievor then answered in a meandering way about quality versus quantity of work. She made some comparisons between Superior Court trial work and working at the OCH and made a number of comments about time lost due to technical issues.

[97] Entered into evidence was an email dated April 7, 2017, at 18:00, from Ms. Gruppuso to the grievor, which states that it is a follow-up to the August 29, 2016, letter that Ms. Gruppuso sent to the grievor, in which she asked the two questions with respect to the Aug. 8 note. That email stated as follows:

I am following up on this letter dated August 29th, 2016 with respect to Management’s request for clarification in regard to your limitations/restrictions as set out in section C of the medical note your doctor provided. I have checked my records and it looks like you were originally scheduled to see your doctor on September 9th but the appointment did not take place on that day. Instead, I understand that the appointment was rescheduled to September 23rd and my recollection is that you worked from home on this date to facilitate your attendance at your doctor’s office in the morning.

I have searched my records but I do not have a letter/report providing the additional information that Management has requested. As this information is still required by Management, can you advise when it will be forthcoming.

...

 

[98] On April 7, 2017, at 19:18, the grievor responded to Ms. Gruppuso. She indicated that she had seen her doctor “a few times” and that “we have been scratching our heads and trying to figure this out.” She goes on in the email about her doctor not understanding what the employer is looking for and how it is not covered by the Aug. 8 note. She also requests a transfer out of the OCH team.

[99] Ms. Gruppuso forwarded this email and her earlier April 7, 2017, email to the grievor to Mr. Andreopoulos on April 11, 2017. In her email to Mr. Andreopoulos, Ms. Gruppuso said that she supported the request for the grievor to be transferred off the OCH team. She indicated that she felt it was necessary for her health and welfare and that it was in the best interests of the team as a whole, indicating that she felt that the grievor was not able to contribute to the OCH team in a meaningful way.

[100] On April 20, 2017, Mr. Andreopoulos wrote to the grievor, as a follow-up to the August 29, 2016, letter from Ms. Gruppuso to the grievor requesting clarification of the Aug. 8 note. In this letter, Mr. Andreopoulos suggested that rather than getting a second letter, the grievor should provide her consent for a management representative to speak with Dr. Naiman directly to obtain clarifications on the limitations and restrictions. At the end of the letter was a short release that stated that the grievor consented to a management representative contacting Dr. Naiman directly to obtain clarifying information as outlined in the April 20, 2017, letter and for Dr. Naiman to release the information requested. The grievor amended the release, dated it, and signed it on April 27, 2017. The amended release stated as follows: “I consent to have Ms. Anie-Pierre West contact Dr. Naiman directly to clarify with her what addition [sic] information the employer is seeking.”

[101] Ms. Anie-Pierre West was identified as an LR advisor. She did not testify.

[102] Dr. Naiman did not testify; nor did any other medical professional. No other medical documents with respect to the grievor’s health were entered into evidence.

[103] Entered into evidence was a letter dated April 25, 2017, from Mr. Andreopoulos to the grievor in response to several emails that she had exchanged with Ms. Gruppuso earlier in the year, some of which were entered into evidence at the hearing and have been reproduced, in part, in this decision. The relevant portions of the April 25, 2017, letter state as follows:

...

Management has reminded you on multiple occasions that you are not to work hours that exceed the maximum number of hours suggested by your physician, and has asked that any surplus hours to be worked must be approved in advance by your supervisor. Furthermore, your workload was reduced to ensure it respects the recommendation made by your physician. Regardless, it seems that unapproved overtime continues to accumulate. Regardless, it seems that unapproved overtime continues to accumulate. Nonetheless, management recognizes that you report having worked, according to the ICase report you have provided, approximately 463.92 hours more than the minimum expected hours of work of a full time prosecutor that is according to the LA Collective Agreement.

...

In your email dated April 3, 2017, you informed us that you had recently received your full time nanny’s resignation letter, effective in May. In addition, you attached a response from the Family Matters Nannies Agency, which indicated that live-in nannies are a possibility given the hours you are requesting, since most nannies start around 8:00a.m. while you require the services starting at 7:00 a.m. Have you considered the option of live-in nannies? Have you consulted with other Agencies? What other efforts have you taken to find temporary and longer term solutions?

In order to determine if the circumstances you are describing are ones that trigger the duty to accommodate, management requires additional information related to the various efforts taken. Specifically, information is needed in relation to the different efforts made to resolve the conflicts between your work and family responsibilities. This will assist in identifying potential options, which may be required temporarily in order to meet your needs, should you be able to substantiate the requirement to accommodate. Management would also like to remind you that although you have indicated that having a caregiver that drives is one of your requirements, and while this may be the ideal situation for you, it may not be the most reasonable expectation in the interim. There are other options such as public transport, taxis, carpooling, etc., which could be considered in the interim.

Employees and their families are expected to take reasonable steps to ensure that their family needs and the workplace requirements [sic]. Furthermore, the duty to accommodate for reasons of family status is only triggered once the employee has demonstrated that they have made reasonable efforts to self-accommodate. Therefore, management would like to remind you that family status protection extends only to parental obligations, and does not cover personal choices and/or preferences, which cannot be the basis for a request for accommodation under this criteria.

...

In your email dated April 3, 2017, you specify that “although getting out of bed has been getting hard and harder and wellness is continually threatened, I don’t have time in my week nor funds to continue (...) the cost of supporting a family of this size and nature with, inter alia, a university student are [sic] onerous and we are at risk of losing our heavily mortgaged home as our debt soars.” If your need for accommodation is one that is causing financial hardship, you will need to demonstrate it with clear evidence. Other than stating that you are starting to experience financial pressures, you have not demonstrated to management how your situation and circumstances would impose financial hardship on you and that the need for your requested accommodation arrangements, including some paid time off, are related. However, management would like to take this opportunity to inform you that services from a professional psychologist are covered under SunLife insurance (PSHCP). The maximum eligible expense is of $2,000.per calendar year if you have a prescription from your physician.

In relation to your family situation, you have further suggested that the delicate work-life balance was disturbed by a revocation of telework and flex work. It was previously explained to you that the Toronto Team [the OCH team] is a litigation team, which deals with matters at both the Provincial court and Superior court level. The aforementioned telework arrangement was not an entitlement derived from any demonstrated human rights’ need and it also limited the files that could be assigned to you, especially those in Superior Court.

...

[Emphasis in the original]

 

[104] In cross-examination, the grievor was brought to the reference in the April 25, 2017, letter stating, “Management has reminded you on multiple occasions that you are not to work hours that exceed the maximum number of hours suggested by your physician, and has asked that any surplus hours to be worked must be approved in advance by your supervisor.” It was put to her that she was told this, which she confirmed, and that she had been told this before Dr. Naiman’s letter. The note from Dr. Naiman was dated August 8, 2016 (the Aug. 8 note).

[105] Entered into evidence was an email exchange between the grievor and Mr. Andreopoulos between May 11 and 24, 2017, which states as follows:

[The grievor to Mr. Andreopoulos, May 11:]

I hate to ask but in my recent PREA, I inquired of my manager what form the pre-approval required of me (as a pre-condition for eligibility to be considered for management leave) is to take.

For example, am I to email her/her deputy in her absence for permission to wo9rk late on a day by day basis?

She did not seem to have an answer for me on process and suggested that I’d have to redirect the question to you. I note that your absence greeting has you on leave until May 12th – hopefully a good one – so I won’t expect an answer this week.

...

[Mr. Andreopoulos to the grievor, May 19:]

The PPSC Directive on management leave does not speak of pre-approval as a condition for entitlement. Instead, consideration for such leave is based on the supervisor requiring the employee to work excessive hours. In that regard, your supervisor is mindful of your medical limitations with respect to hours of work and is assigning you work that is expected to be completed within your regular hours on a weekly basis. If you feel that teh work assigned to you cannot be completed within your normal hours of work (37.5hours/week), then you should discuss with your supervisor, as needed.

[The grievor to Mr. Andreopoulos, May 24:]

I agree that management leave rules do not envisage pre-approval.

Yet you refused all management leave in the last fiscal period unless I can show that excess work between April 1, 2016- March 31, 2017 was “pre-approved” by my manager (your letter of April 25, 2017).

I can assure you that I was REQUIRED by management, (explicitly and/or implicitly) to work the 460+ excess hours. As mentioned, I can’t set this out more explicitly in a day by day accounting apart from the dockets that management has, without time set aside in my busy work schedule for such a cumbersome process.

Based on my inquiries, there exists no better, formal process envisaged to pursue pre-approval/required work.

I have indeed spoken with my manager regularly about my hours on an ongoing basis. I do not agree that the work assigned in the last fiscal period could be completed within an average of 37.5 hour over a 4 week period.

I am also not aware of any medical limitation that was being observed when, for example, reassignment of trial files during my weeks of certified sick leave was refused. This is one example of excess hours> 7.895/day required of me in the period despite consultation.

Pre-approval/ensuring hours are officially “required” on a frequent basis and making the attainment of (pro-work-life balance) management leave more and more difficult is not referable to any accommodation need asserted on my behalf.

...

[Sic throughout]

[Emphasis in the original]

 

[106] In cross-examination, the grievor was brought to this May 11 to 24, 2017, email exchange. She stated that it was a part of a “keep-away game” that management was carrying out with her. She suggested that no one was communicating to her and that she received the runaround. She said that Ms. Gruppuso was often away, so when she asked her TL, she was told that she would not pre-approve it. She stated that she was trapped between her Law Society obligations and work duties and her obligations to the public and to the accused. She stated that she sent emails, passed her boss in the hallways, and received assignments late in the day. She stated that the email from Mr. Andreopoulos was not an accurate reflection of what was going on. She said that she was saying that she was overworked.

[107] Entered into evidence was an email exchange between the grievor and Mr. Andreopoulos on April 23 and 26, 2018. The relevant passages of the email exchange are as follows:

[The grievor to Mr. Andreopoulos, April 23:]

I got your message from Chris Greene last week, namely a reminder that I am not to work past 5 PM.

I would like to revisit your chosen methodology of “accommodation” for the overwork that threatens to make me (and others) ill. What you have imposed has simply not been working for either employer nor employee.

Friday was a perfect example.

I was in court until 5 PM on an assist bail matter that began at 3 PM but had emails to send after court, a jammed email account and two JPTs (assigned Thursday) for Monday at 9 & (:30 AM to finish preparing. I was unable at that late hour to secure permission to work an additional 2-3 hours but was more than willing to do this necessary work. And i was fearful, having been publicly ejected from OCH before in front of my office-mate.

My work has only increased since the transition and it is not possible to meet my LSO obligations without an AWA.

Additionally, the requirements imposed by you continue to increase my stress, increase my absence from my family and work, cause me humiliation and set me up for failure vis a vis otherwise excellent relationships with managers and colleagues.

...

I went back to Dr. Naiman in December and she stated that she intended to provide a letter that says what you are doing is contrary to her functional assessment requirements which simply required that I work approximately 39 hours averaged over any 4-week period. She already gave the example on that form that I can work a 60 hour week when required as long as the hours average out as per the collective agreement. Dr. Naiman also said, and I anticipated that her updated letter would reiterate, that reducing HOURS of commute and more flexibility with AWA’s was recommended for stress-reduction, so that i can work more productively in a quiet environment, etc. Currently, members of my team & other teams enjoy the same AWA’s I have been seeking & I have even expressed the willingness to consider team changes after 6 years back at OCH as well as other viable options.

I have no idea why I have not received that letter from Dr. Naiman and have both written to and called her busy office. During my last call, I was told by her staff that she had been in a very serious car accident. I cannot wait for a letter at this point, especially one which will not say that a mother of 5 kids can work an additional 2 months per year without an impact on health. No medical professional would write that.

...

[Mr. Andreopoulos to the grievor, April 26:]

Your understanding of the situation does not correspond with my own and that of your immediate supervisors.

Over the past year and half, management has repeatedly made clear its expectations concerning your workload and hours of work. These have been communicated to you in correspondence and emails from myself as well as from your current and previous managers who directly supervise your work. As indicated before, management is mindful of the medical limitations with respect to your hours of work. In order to accommodate you and respect the average of 37.5 hours a week prescribed by your doctor, your team leaders have been mindful to assign you work which is expected to be completed within normal work hours.

In an accommodation situation, management is responsible to determine how the work is given to you based on the medical information available. The decision must also take into account business requirements and the nature of your work. As previously explained to you , it is simply not feasible for your team leaders to allow you to work a 60 hour week with the remainder of the weeks or significant blocks of them to be taken off in lieu or to be worked from home. Instead, your immediate supervisors have been able to address the limitations and manage the overtime hours issue by assigning work that should not exceed 37.5 hours in a week to complete.

The issue at hand is that you continue to work overtime hours beyond the arrangements that have been provided to accommodate your situation. That is to say, you have been assigned work with a view for it to be completed within normal working hours that make up a 37.5 hours work week. The excess hours you continue to work are beyond what is necessary and are being worked without prior approval from management, and without medical clearance. It has recently been brought to my attention that for the month of March, you entered excessive hours in the total amount of 218. Just last week, your immediate manager/supervisor, Chris Greene, reminded you about not working excessive hours in light of your time entries for February. Prior to that, both your previous managers/supervisors did the same. Yet, you continue to work excessive hours, contrary to management’s express instructions.

Management takes its responsibilities with respect to the accommodation process very seriously. Therefore, your immediate manager/supervisor needs to be aware if the workload assigned cannot be completed in the timeframe prescribed by your limitations. If you cannot complete that work within that time, then your manager will reassign you work accordingly, and mindful of your medically prescribed limitations. This should be an ongoing dialogue.

Once again, if the medical limitations have changed, please ensure to provide your supervisor with updated medical information. If you are unable to get this information, an assessment with Health Canada can be arranged.

...

You continue to allege that you are required to work the excess hours in order to meet your obligations under the Law Society of Ontario. It is important for me to raise that all lawyers are subject to respect the same obligations to the Law Society. Those obligations have been taken into account by management in respect of your assigned workload that is to be competed within normal working hours.

...

[Sic throughout]

[Emphasis in the original]

 

[108] The grievor was brought to this exchange in cross-examination and stated that it all depends on what goes on in court.

[109] Entered into evidence was a letter dated September 23, 2019, from the Genesis Professional Group Inc., Medical Consultants, and signed by Dr. Sheryl Brown, the relevant portions of which state as follows:

...

I am writing to clarify the Functional Assessment Form previously prepared by Dr. Naiman, as I understand that there has been a claim of confusion surrounding it.

As stated by Dr. Naiman, my patient, Ms. Anjie Tarek-Kaminker, can indeed work excess hours in any week. Even 60 hours as Dr. Naiman set out is fine from a medical perspective.

While the above is true, we understand that working excessive hours is not sustainable in the long run and in Ms. Tarek-Kaminker’s case, more specifically, her hours need to ideally be balanced to reflect an average of approximately 37.5-39 hours per week over any four week period in order to secure greater work-life balance. For the benefit of greater clarity, a long week means that another must be shorter to help achieve this average. This could mean providing my patient with timely compensable time off work for working excess hours in order that she may regain balance from her longer weeks. This could also include offering her forms of telework on a proactive basis to help secure greater work-life balance in a more sustainable way. Based on my medical assessment, Ms. Tarek-Kaminker would greatly benefit from two days of telework per week in order to ensure her wellbeing and productivity longterm.[sic]

The employer is well advised to take its cues from Ms. Tarek-Kaminker who is best positioned to articulate her immediate health needs so as to properly manage her stress, workload levels and capacity. Giving Anjie some control and flexibility over her working conditions, health needs and capacity is encouraged, dignified and would contribute greatly to her occupational and general well being.

I wish to clarify that the previously completed forms were never intended to delineate the maximum number of hours Ms. Tarek-Kaminker could work, so as to potentially punitively deprive her of paid forms of leave or other entitlements that are otherwise available to her colleagues who do not require accommodation. Again , the employer is encouraged to have a constructive dialogue with my patient to ascertain her needs and find a means of ensuring that she remains a healthy and productive member of your team ant [sic] to reconsider its past approach regarding denials of benefits as these have culminated in a significant toll on her morale, health and well being.

...

 

[110] Dr. Brown did not testify.

D. Leave and time docketing

[111] At the outset of each fiscal year, employees are advanced their full vacation leave allotment, despite the fact that vacation leave is earned monthly, based on the hours worked per month. In addition, each employee is advanced 37.50 hours (5 days) of family responsibility leave (FRL), 1 personal leave day (7.5 hours), and 1 day of volunteer leave (7.5 hours). While vacation leave can be carried forward to a certain extent, FRL and the volunteer and personal-leave days must be used in the fiscal year allotted; they do not carry forward. In short, they are used or lost.

[112] Entered into evidence were the grievor’s leave records for the fiscal years 2014-2015, 2015-2016, and 2016-2017. They disclose the following with respect to vacation leave:

· At the start of fiscal 2014-2015, the grievor carried forward 159.650 hours (21.28 days) and was advanced 150.00 hours (15 days), for a total vacation leave available of 309.650 hours (41.286 days);

· At the start of fiscal 2015-2016, the grievor carried forward .10 hours and was advanced 162.50 hours (21.666 days); and,

· At the start of fiscal 2016-2017, the grievor carried forward 30.175 hours and was advanced 165.50 hours for a total vacation leave available of 195.675 hours (26.09 days).

 

[113] The records do not indicate why in 2015-2016, the grievor was advanced only 162.5 hours of vacation leave, while in 2016-2017, she was advanced 165.5 hours. I heard no evidence on this.

[114] According to the leave records, the grievor used FRL as follows: for fiscal 2014-2015, 36.185 hours; for fiscal 2015-2016, 37.185 hours; and for fiscal 2016-2017, 37.285 hours.

[115] The records for 2014-2015 disclose that the grievor used 7.5 hours of personal leave. The records for 2015-2016 and 2016-2017 do not disclose any personal- or volunteer-leave usage.

[116] When the leave records were put to the grievor in cross-examination, she confirmed that she had no reason to doubt what was in them, although she admitted that she had not reviewed them.

[117] As set out earlier in this decision, the grievor worked a compressed schedule. That meant that she was required, at a minimum, instead of putting in 7.5 hours per day Monday through Friday, to put in 7.895 hours per day. Instead of a 37.5-hour workweek, she had a 39.475-hour workweek. This allowed her to complete 150 hours of work in 19 days rather than in 20.

[118] While the grievor’s iCase dockets were in evidence for 2015-2016, and they had some written indication that compressed days were taken, it did not appear that the grievor took her compressed days with any sort of regularity, such as every fourth Friday or Thursday; nor did I hear which days she took off as compressed days.

[119] The grievor’s iCase records disclosed that the month of October of 2015 had 165 hours working hours, from Monday to Friday, and that she docketed a total of 188.95 hours. However, her leave records disclosed that she also took 2 days of sick leave with pay (SLWP) totalling 15.8 hours. As such, she docketed a total of 173.15 hours. The weekly docketed time was shown as follows:

· October 1-3 (Thursday through Saturday): 16 hours;

· October 4-10 (Sunday through Saturday): 61.13 hours;

· October 12-16 (Tuesday through Friday): 33.05 hours (October 12 was Thanksgiving and SLWP was taken on October 14);

· October 19-23 (Monday through Friday): 37.73 hours; and,

· October 26-30 (Monday through Friday): 26.78 hours (SLWP was taken on October 26).

 

[120] The iCase dockets disclosed that the only week in 2015-2016 that the grievor docketed more than 60 hours was the week of October 4, 2015, in which she docketed 61.13 hours. They also disclosed that she docketed the following total hours per month on the weekends:

· April 2015	3.0 hours
· May 2015	0.0 hours
· June 2015	0.0 hours
· July 2015	32 hours
· August 2015	1.5 hours
· September 2015	6.0 hours
· October 2015	6.7 hours
· November 2015	0.0 hours
· January 2016	14.67 hours
· February 2016	13.28 hours
· March 2016	14.0 hours

 

[121] In her evidence, the grievor also testified that she took time off for the obligatory Jewish holidays and that at times, she would take time off for other non-obligatory religious holidays. While I heard some evidence on this, it is unclear which specific Jewish holidays she took during the course of the fiscal years at issue and how they were dealt with in the leave system.

[122] The grievor made a number of different comments about having to take the children to several appointments, such as to a doctor and dentist. Other than the odd specific email exchange with respect to a particular appointment, she did not provide any specifics with respect to appointments for the children or who attended with them.

[123] With respect to the child identified as having multiple health issues, the grievor spoke about going to special education meetings as well as coordinating meetings with and among the educational and healthcare professionals with respect to the child’s health and well-being. Again, other than the odd, specific email exchange with respect to a particular appointment or meeting, the grievor did not provide any specifics with respect to appointments for the child or who attended with the child. I was not provided with any indication of how many meetings took place over any particular period, when those meetings were held, or if her husband ever participated.

[124] The grievor did state that in general, she attended meetings. She said that she thought that most meetings were in person and were usually held during school hours. She confirmed that they could take place on her compressed day. When it was put to her in cross-examination if she ever asked Ms. Gruppuso to change her compressed day to attend a meeting, she said “No,” adding that she would do that only as a last resort. When the question was put to her again, which was if she ever asked for that change, she said that if she knew about the meeting in advance, she would schedule it on a Thursday or Friday or use a FRL day. When the question was put to her again, she said that she could not say that she never asked, because on some occasions, Ms. Gruppuso refused because the grievor had asked too late. When it was put to her that she said that on some occasions, Ms. Gruppuso had refused, so there were times when Ms. Gruppuso agreed, the grievor said, “I am sure there must have been a rare occasion.” She then stated that one day, she had a childcare emergency, and Ms. Gruppuso had refused. The childcare emergency was not disclosed; nor were any other facts related to this statement. Nor was Ms. Gruppuso cross-examined on it.

[125] Entered into evidence was an email exchange between the grievor and Ms. Gruppuso on August 14 and 15, 2016. The following is relevant from it:

[The grievor to Ms. Gruppuso, Sunday, August 14, at 19:38:]

...

*Subject to any reductions you can make in the CPT workload this week, if I can do mine from home on Friday, that will allow me to perform a very important personal errand, without losing productivity I can’t afford and falling more behind.

...

[Ms. Gruppuso to the grievor, Monday, August 15, at 16:46:]

...

On Friday, I understand that the CPT @ 1:15 has already been completed by [name removed]. You will therefore only be responsible for completing the CPTs @ 2:45pm, 3:30 pm and 4 pm. I understand that you have an important personal errand to deal with on Friday and am content that you work from home on that day for that reason.

...

 

[126] When the August 14 and15 email exchange was put to the grievor in cross-examination, she confirmed that she was allowed to work from home when she asked to.

[127] Entered into evidence was an email exchange between the grievor and Ms. Gruppuso dated December 1, 2016, in which the grievor asked if she could work from home as she had a home repair taking place that she had to be home for. Ms. Gruppuso allowed her to work from home. Again, in cross-examination, the grievor was brought to this exchange. She confirmed that she made the request and that she was allowed to work from home.

[128] In cross-examination, it was put to the grievor that Ms. Gruppuso would testify that the grievor did not say that she had meetings and did not ask to work from home and that had the grievor had asked, she would have let her work from home. The grievor stated this in response: “If I was going to play ‘mother may I’ with Chris Gruppuso, I would be asking her everyday. She would not welcome that because of [the] havoc on her schedule.” When the grievor was asked if she had appointments every day, she said that there would be phone calls, appointments, and meetings. When she was asked if she had to change her schedule for a phone call, she said that she would need to have a phone and some privacy. When asked if she would be able to schedule calls when in her Exchange Tower office, she said that she would not know where she would be the next week. When it was put to her that she could arrange for a call on her “prep” day, she said that she did not know where she would be and that she did not know when her prep day would be.

[129] I heard no evidence of whether the grievor had a work or personal mobile phone.

[130] In cross-examination, it was put to her that she spoke about helping the child who had difficulties with homework and that sometimes, she would just make sure that it was done. She spoke about time in the evenings and on the weekends and stated that there was very little of it, and she spoke about how difficult her job was and how much time was lost to commuting.

[131] The grievor identified the many resources that were required for the child who had difficulties, including both a full-time nanny and a part-time nanny. She stated that at one time, she had three different nannies and that at times, when she had two nannies, both drove. She did confirm in cross-examination that the nannies brought the children to some of their appointments.

[132] Referring to help from her extended family, the grievor said that many evenings, her parents would assist her. When she was asked when that happened, she said between 1998 and 2005 or 2007. She said that her mother did not watch the children alone but needed the grievor’s father to be there. She did not elaborate any further about her parents. When asked about her husband’s parents, she said only that they were “not so helpful”.

[133] When asked about assistance within the community, the grievor commented that at times, she and her husband would impose on another family involved in sports with respect to dropping off or picking up the children. She indicated that her spouse was very involved in one child’s sports activity.

[134] In cross-examination, the grievor was asked about time off for religious observations. Counsel for the employer suggested to her that based on what she had testified to in her examination-in-chief, she was not allowed time off. The grievor answered by stating she had had a 55-hour period to make up. She said that in terms of holidays, she had a standing request to take time off for some of them. Counsel then said to her that Ms. Benzakein had said that the grievor could make up the time and was asked if that was her understanding. The grievor replied, “for some people.” When she was asked if that meant that she could not take leave for holidays, the grievor answered that there are many different rules. She explained that there were difficulties, suggesting that she thought that it would be difficult to push back on July trials. She agreed that people who are not Jewish may not be aware of the Jewish holidays and that not all Jewish people observe them or observe the same ones.

E. Performance appraisals

[135] Entered into evidence were copies of the grievor’s performance appraisals for the fiscal years 2015-2016 (“the 2015-2016 PER”) and 2016-2017 (“the 2016-2017 PER”). In addition, adduced was a copy of Ms. Gruppuso’s narrative for the grievor’s performance appraisal for 2011-2012 (“the 2011-2012 PER”).

[136] In the 2011-2012 PER, Ms. Gruppuso stated as follows:

...

Ms. Tarek-Kaminker participated in several large files as part of teams of prosecutors. Most notable was the [name deleted] matter.

Ms. Tarek-Kaminker is an intelligent lawyer who is knowledgeable in the law. When given a defined task by lead counsel on a case, such as writing legal submissions on a point, she turns out an excellent product.

Unfortunately, she holds herself and others with whom she works to unrealistic standards of perfection both legally and ethically. In his PREA discussion with her, the team leader emphasized the importance to her development of learning to accept the necessity of imperfect but expeditious decision-making in litigation. This step would involve her own and her lead counsel’s decisions. It would enhance her productivity, her enjoyment of her work, and the quality of her relations with co-counsel.

...

 

[137] In the 2015-2016 PER, Ms. Gruppuso stated as follows under the following sections:

...

Competency 2. Thinking things through

Manager/supervisor: This is an area where Ms Tarek-Kaminker can focus on in the coming year to improve her time management skills. By thinking things through more effectively when assigned tasks/files, Ms Tarek-Kaminker should be better able to use her time more efficiently. Given the volume of work undertaken by the Toronto Team, Ms Tarek-Kaminker has to become more skilled at prioritizing her workload and exercising good judgment. This will allow her to use her time more effectively to focus on important tasks on significant prosecution matters. For example, a 15 page committal memo for a routine case involving 2 officers which takes too many hours to prepare may be extremely thorough but is of little assistance to the SCJ crown doing the JPT when provided late.

Competency 4. Showing initiative and being action-oriented

Manager/supervisor: Ms Tarek-Kaminker continues to show initiative and is quick to take action to remedy deficiencies when she identifies them. Although in general this is a commendable trait, this is another area where the exercise of good judgment is required to ensure that time is spent most efficiently on tasks that merit this additional attention. For example, chasing down certified documents for breach charges is not always the most effective use of a lawyer’s time when other more significant prosecution matters in our inventory require attention.

...

Technical Competencies

Year-Ed [sic] Assessment:

Manager/supervisor:

Overall, Ms. Tarek-Kaminker has “met” expectations during this review period. However, there are a few areas (time management and exercise of judgment) that she can focus on to improve the quality of her work and to reduce the number of excess hours spent on tasks that do not add significantly to the prosecution of her cases. It is anticipated that as Ms Tarek-Kaminker more fully undertakes an active litigation schedule at both the OCJ and SCJ level, her ability to evaluate cases and prioritize tasks will continue to develop. To this end, working with a senior lawyer on the team would allow her to have one-on-one input/feedback on an ongoing basis.

...

[Emphasis in the original]

 

[138] In the 2016-2017 PER, Ms. Gruppuso stated as follows under the following sections:

...

Competency 2. Thinking things through

Manager/supervisor: This is an area where Ms Tarek-Kaminker continues to have some issues. In the next review period, she should continue to focus on improving her time management skills. As previously indicated, by thinking things through more effectively when assigned tasks/files, Ms Tarek-Kaminker should be better able to use her time more efficiently. Given the volume of work undertaken by the Toronto Team, Ms Tarek-Kaminker has to become more skilled at prioritizing her workload and exercising good judgment. This will allow her to use her time more effectively to focus on important tasks on significant prosecution matters. For example, spending hours to prepare multi-page memos for simple and routine matters may provide an “extremely thorough” assessment but will be of little assistance to her colleagues who subsequently deal with the matter.

...

Competency 4. Showing initiative and being action-oriented

Manager/supervisor: Ms Tarek-Kaminker continues to show initiative and to take action to remedy deficiencies when she identifies them. Although in general this is a commendable trait, this is still an area in which Ms Tarek-Kaminker can continue to work on in the next review period. The exercise of good judgment is required to ensure that her time is spent most efficiently on tasks that merit this additional attention. The Toronto Team has a significant inventory of cases that need to be dealt with. Not all of them require the added attention. Some can be dealt with more expeditiously, leaving more time to spend on complex prosecution worthy of the additional effort.

...

[Emphasis in the original]

 

[139] In the employee comment section of the 2016-2017 PER, the grievor stated as follows:

I have had no discussion about the comments made on this form by my manager.

My signature evidence [sic] that I have read the comments of C. Gruppuso.

I dispute all comments regarding my efficiency and judgment.

I note that the mentor raised in previous evaluations by the manager has never been assigned by management.

I am completing this so that I can proceed to the next year’s assessments with Manager Futerman. The program does not permit me to proceed without checking the boxes.

 

[140] The grievor was cross-examined about her work hours and stated that she worked many evenings and weekends and that she often worked through her lunch hour. She was brought to her performance appraisals (PREAs) in cross-examination and confirmed that they stated what they did about her excess work.

F. Shabbat candle lighting

[141] The grievor testified about the importance to her of the candle lighting on the eve of Shabbat. She also testified that the telework arrangement made it easier for her to be sure that she could be home, as there would be no commuting concern. In cross-examination, she confirmed that she is not scheduled for court every Friday.

[142] The grievor testified that on a few occasions, she missed the Friday night candle lighting. In her examination-in-chief, she said that she missed one specific occasion, when she got caught up in court and was not able to make it home in time to carry out her obligations. In her stead, it was taken care of by her eldest daughter. She stated that she missed the candle lighting on the Friday before the hearing continued on December 10, 2019. In cross-examination, this discussion continued, and the grievor confirmed that although she was on sick leave, she had held onto two matters, and that the matter that was proceeding was one that she had retained. When asked what would have had to take place for someone to stand in for her at court, the grievor said that it would have meant spending hours briefing another counsel. She said that it took place on the Friday because it was a contested sentencing and that she had no way of knowing when the court session would end as there would be reply submissions.

[143] Counsel for the employer showed the grievor a copy of the first-level grievance response (from May 31, 2016), specifically the reference to the employer providing her with flexibility in her work hours on Fridays whenever possible, to allow her the time to commute home. She stated that it was not enough and suggested that if she were in court and were ordered to see the trial coordinator or were to receive an emergency call, she would still be still “tethered”. When he put to her that if she had missed the candle lighting more than once as of the grievance, she said that she could not recall, although she did say that once, she was thwarted by the subway. She did not provide any other specifics or examples.

[144] It is not uncommon that after a witness has been examined-in-chief, cross-examined, and re-examined, there may be questions in the judge’s or the adjudicator’s mind that are important, and those questions are raised at that time. I did so in this matter. I asked the grievor about the reference in the cross-examination to missing the candle lighting on Friday, December 6, 2019, given that she had said that she had been stuck in court. What came out of the questions I put to the grievor was that she had set the appearance for Friday, December, 6, 2019, herself at a previous court hearing. She confirmed that she had set the date and that she had known that December 6, 2019, was a Friday. She did not tell the judge or the other counsel attending that she had to leave by a certain hour, to be home for her religious obligation. There was no evidence that her supervisors were aware of it or that she had made them aware of it.

III. Summary of the arguments

A. For the grievor

[145] In addition to the Act, the grievor referred me to the Canadian Human Rights Act (R.S.C., 1985, c. H-6; “the CHRA”), Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 SCR 536, Canada (House of Commons) v. Vaid, 2005 SCC 30, B. v. Ontario (Human Rights Commission), 2002 SCC 66, Saadati v. Moorhead, 2017 SCC 28, Fraser v. Canada (Attorney General), 2020 SCC 28, British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868, Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 SCR 489, Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2005 FCA 154, Canada (Attorney General) v. Mossop, [1993] 1 SCR 554, Turner v. Canada (Attorney General), 2012 FCA 159, Radek v. Henderson Development (Canada), 2005 BCHRT 302, Baylis-Flannery v. DeWilde (Tri Community Physiotherapy), 2003 HRTO 28, Commission scolaire régionale de Chambly c. Bergevin, [1994] 2 SCR 525, Commission des droits de la personne et des droits de la jeunesse (Deschênes) v. Centre hospitalier Robert-Giffard, 34 CHRR 436, Levac v. Canadian Armed Forces, 1991 CanLII 191, Kirby v. Treasury Board (Correctional Service of Canada), 2015 PSLREB 41, Canada (Attorney General) v. Johnstone, 2014 FCA 110, Misetich v. Value Village Stores Inc., 2016 HRTO 1229, Syed v. Canada (Attorney General), 2020 FC 608, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, Mellon v. Human Resources Development Canada, 2006 CHRT 3, Dupuis v. Canada (Attorney General), 2010 FC 511, S. L. v. Commission scolaire des Chênes, 2012 SCC 7, Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), Loyola High School v. Quebec (Attorney General), 2015 SCC 12, Cyr v. Treasury Board (Department of Human Resources and Skills Development), 2011 PSLRB 35, Pepper v. Deputy Head (Department of National Defence), 2008 PSLRB 71, Canadian National Railway Company v. Seeley, 2014 FCA 111, and Douglas v. Treasury Board (Correctional Service of Canada), 2020 FPSLREB 51.

[146] The grievor requested the following relief:

· A declaration that there was a violation of the collective agreement and the CHRA;

· An order that the employer cease the discriminatory practice and provide the accommodation as it was previously provided and recommended by the grievor’s medical professionals;

· Compensation in the amount of $20 000 for pain and suffering the grievor experienced as a result of the discrimination on the basis of religion under s. 53(2)(e) of the CHRA;

· Compensation in the amount of $20 000 for pain and suffering the grievor experienced as a result of the discrimination on the basis of family status under s. 53(2)(e) of the CHRA;

· Compensation in the amount of $20 000 for pain and suffering the grievor experienced as a result of the discrimination on the basis of disability under s. 53(2)(e) of the CHRA;

· Compensation in the amount of $20 000 for the wilful and reckless behavior of the employer under s. 53(3) of the CHRA; and,

· Any other remedy the Board deems appropriate.

 

[147] In her reply, the grievor requested that the decision be anonymized.

B. For the employer

[148] In addition to the CHRA and Johnstone, Misetich, and Syed, the employer referred me to referred me to Ajax (Town) v. Ajax Professional Fire Fighters’ Association, Local 1092, 2019 CanLII 69278, Andres v. Canada Revenue Agency, 2014 PSLRB 86, Boudreau v. Treasury Board (Department of Human Resources and Skills Development), 2008 PSLRB 66, British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3, Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.), Edmonton (City) Police Service v. Edmonton Police Assn., [2019] A.G.A.A. No. 4 (QL), Envirocon Environmental Services ULC v. Suen, 2019 BCCA 46, Flatt v. Canada (Attorney General), 2015 FCA 250, Guilbault v. Treasury Board (Department of National Defence), 2017 PSLREB 1, Halfacree v. Treasury Board (Department of Agriculture and Agri-Food), 2012 PSLRB 130, Havard v. Treasury Board (Correctional Service of Canada), 2019 FPSLREB 36, Leclair v. Deputy Head (Correctional Service of Canada), 2016 PSLREB 97, Morrow v. Treasury Board (Department of Natural Resources), 2017 FPSLREB 8, Nash v. Deputy Head (Correctional Service of Canada), 2017 PSLREB 4, and Richmond v. Treasury Board, PSSRB File Nos. 166-2-23653, 23862, 24140 to 24151, 26000 to 26012 (19950515), [1995] C.P.S.S.R.B. No. 43 (QL) (upheld in Richmond v. Canada (Attorney General), [1997] 2 FC 946).

[149] With respect to the issue of anonymization, the employer referred me to Reynolds v. Treasury Board (Correctional Service of Canada), 2019 FPSLREB 47, and Olynik v. Canada Revenue Agency, 2020 FPSLREB 80.

[150] The employer objected to the request for anonymization.

[151] The employer requested that the grievance be dismissed.

IV. Reasons

A. The request to seal documents

[152] The grievor submitted copies of medical records and reports signed by her children’s paediatrician with respect to health issues of some of her children. The parties agreed that these documents be sealed.

[153] In Basic v. Canadian Association of Professional Employees, 2012 PSLRB 120 at paras. 9 to 11, the Public Service Labour Relations Board (PSLRB) stated as follows:

[9] The sealing of documents and records filed in judicial and quasi-judicial hearings is inconsistent with the fundamental principle enshrined in our system of justice that hearings are public and accessible. The Supreme Court of Canada has ruled that public access to exhibits and other documents filed in legal proceedings is a constitutionally protected right under the “freedom of expression” provisions of the Canadian Charter of Rights and Freedoms; for example, see Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (CanLII).

[10] However, occasions arise where freedom of expression and the principle of open and public access to judicial and quasi-judicial hearings must be balanced against other important rights, including the right to a fair hearing. While courts and administrative tribunals have the discretion to grant requests for confidentiality orders, publication bans and the sealing of exhibits, it is circumscribed by the requirement to balance these competing rights and interests. The Supreme Court of Canada articulated the sum of the considerations that should come into play when considering requests to limit accessibility to judicial proceedings or to the documents filed in such proceedings, in decisions such as Dagenais and Mentuck. These decisions gave rise to what is now known as the Dagenais/Mentuck test.

[11] The Dagenais/Mentuck test was developed in the context of requests for publication bans in criminal proceedings. In Sierra Club of Canada, the Supreme Court of Canada refined the test in response to a request for a confidentiality order in the context of a civil proceeding. As adapted, the test is as follows:

...

(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

...

 

[154] As further noted recently in Sherman Estate v. Donovan, 2021 SCC 25 at para. 7, the dissemination of highly sensitive personal information that would result not just in discomfort or embarrassment, but in an affront to the affected person’s dignity, is a justifiable exception to the open court principle.

[155] While some of the medical issues were relevant to the hearing and are tangentially mentioned in this decision, the medical records relating to her children should not be in the public domain, as it is a serious risk to their privacy and dignity, which outweighs the deleterious effects outlined in Sierra Club. Therefore, I order sealed the documents that were submitted and marked as Exhibit G-1, Tabs 7 and 14, as they set out medical information about some of the children.

[156] I am not prepared to order sealed the medical notes authored by Drs. Naiman and Brown, the grievor’s doctors, as they do not contain any diagnosis, prognosis, treatment plan, or personal information.

[157] In reviewing the exhibits in the course of writing this decision, it came to my attention that while many of the documents had personal information redacted that was not relevant to determining this grievance, such as the names of the children, there are places where the parties missed redacting such personal information. This includes the grievor’s home address. She is to review the documents that were submitted to ensure that information such as the home address and the children’s names have been properly redacted. The Board shall seal all exhibits that could potentially have personal information inadvertently left in them for a period of 30 days to permit the grievor to carry out this task and to provide the Board with any replacement documents, as necessary.

B. The request to anonymize the decision

[158] This matter proceeded for six days in person and for two days by videoconference. Both parties were represented by legal counsel and made oral closing arguments. Subsequent to closing the hearing, the parties provided me with copies of the outlines of their oral arguments. Until that point, there was no mention of anonymizing the grievor’s name. It came in what appeared to be a written reply to the employer’s written outline of its argument.

[159] However, this does not hamstring the Board from taking the step of sealing a document, ordering a redacted version to replace one that is not redacted, or anonymizing the identity of a person, if it is not relevant to the determination of the grievance. It is not uncommon for parties to proceedings to fail to address the issues of anonymizing the identities of individuals or of redacting information from documents submitted, which will become accessible to the public at large. The Board is the master of its proceedings and certainly has the jurisdiction to address those issues, if it chooses and it is appropriate.

[160] As I noted earlier, some of the documents submitted by the parties to this hearing contained information that need not be in the public domain and that added nothing to the proceedings. While some of it was redacted, some other information appeared to have been missed. The fact that it was missed or overlooked by the parties during the course of the hearing does not somehow foreclose the Board from doing what is appropriate, whether or not such a request is made during the course of the proceedings.

[161] In Olynik, the Board stated as follows:

...

[6] The Board’s “Policy on Openness and Privacy” affirms the importance of the open court principle, and discusses the exceptional circumstances which may justify a departure from that principle:

In exceptional circumstances, the Board departs from its open justice principles, and in doing so, the Board may grant requests to maintain the confidentiality of specific evidence and tailor its decisions to accommodate the protection of an individual’s privacy (including holding a hearing in private, sealing exhibits containing sensitive medical or personal information or protecting the identities of witness or third parties). The Board may grant such requests when they accord with applicable recognized legal principles.

...

 

[162] In Reynolds, the Board stated as follows:

...

65 The grievor requested that the exhibits that contained his sensitive medical information be sealed. I agree and order that those exhibits listed in Appendix A shall be sealed. He also requested that his name be anonymized, which is not granted on the basis that he has not shown why the Board should deviate from its practice of observing the open court principle and publish the name of the grievor.

66 As stated in the Board’s Policy on Openness and Privacy, the open court principle is a significant principle in our legal system. In accordance with that constitutionally protected principle, the Board conducts it hearings in public, except in exceptional circumstances. The Board maintains an open justice policy to foster transparency in its processes, accountability, and fairness in its proceedings. Board decisions identify parties and their witnesses by name and may set out information about them that is relevant and necessary to the determination of the dispute. This is a public policy available to anyone and is shared with the parties to the adjudication process.

67 In exceptional circumstances, the Board may depart from its open justice principles and grant requests to maintain the confidentiality of specific evidence and tailor its decisions to accommodate the protection of an individual’s privacy when such requests accord with applicable recognized legal principles. Anonymization is rare in the Board’s jurisprudence, particularly when these rights may be protected by other means, such as sealing exhibits. I am satisfied that the grievor’s privacy rights can be sufficiently protected by sealing exhibits and heard no argument to the contrary.

...

 

[163] Each case must be assessed on its merits. Information that is clearly sensitive, private, and not relevant to the findings need not be published. It is for this reason that many documents have information redacted, as the general public need not know such things as a person’s home address or telephone number. It is also common that there are persons who play a part in the larger narrative of a case; however, their specific identities need not be divulged as they are not pertinent to the decision. Often, they are identified by a neutral designation such as “Mr. A” or “Ms. B.”, or as in cases involving the Correctional Service of Canada, “Inmate C (IM C)”.

[164] At the outset of these proceedings, the parties indicated that they had agreed to identify the grievor’s children by a letter designation and that I should also do so in these reasons, which I had no difficulty doing. However, as the matter proceeded, and during the course of writing the decision, it became clear that I really did not have to identify the children either by name or letter designation; as such, I did not.

[165] As stated in Reynolds, the open court principle is a significant principle in our legal system. Conducting hearings in public fosters transparency in processes and accountability and fairness in proceedings. I have been provided with no argument or reasoning as to why the Board should depart from the normal course of identifying the parties, and as such, the request is denied.

C. The merits of the grievance

[166] For the reasons that follow, the grievance is denied.

[167] The initial burden of proof is on the grievor and largely turns on the facts. In this case, the grievor alleged that she was discriminated against by the employer based on religious affiliation, family status, and mental or physical disability, in violation of the no-discrimination article in the collective agreements.

[168] In Diks v. Treasury Board (Correctional Service of Canada), 2019 FPSLREB 3, the Board stated that the test in workplace discrimination cases is as follows:

...

76 In order to demonstrate that an employer engaged in a discriminatory practice, a grievor must first establish a prima facie case of discrimination. A prima facie case is one that covers the allegations made and which, if the allegations are believed, would be complete and sufficient to justify a finding in the grievor’s favour in the absence of an answer from the respondent (Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536 at para. 28 (“O’Malley”)).

77 An employer faced with a prima facie case can avoid an adverse finding by calling evidence to provide a reasonable explanation that shows its actions were in fact not discriminatory; or, by establishing a statutory defence that justifies the discrimination (A. B. v. Eazy Express Inc., 2014 CHRT 35 at para. 13).

...

 

[169] As set out in Stewart v. Elk Valley Coal Corp., 2017 SCC 30, to make a case of prima facie discrimination, a complainant (or grievor as the case may be) is required to show that he or she has a characteristic protected from discrimination, that he or she experienced an adverse impact of some type, and that the protected characteristic was a factor in the adverse impact. Discriminatory intent is not required to demonstrate prima facie discrimination. At paragraph 45, the Supreme Court of Canada rejected a suggestion that a fourth element be added, requiring a finding of stereotypical or arbitrary decision making. It stated as follows:

[45] ... The goal of protecting people from arbitrary or stereotypical treatment or treatment that creates disadvantage by perpetuating prejudice is accomplished by ensuring that there is a link or connection between the protected ground and adverse treatment. The existence of arbitrariness or stereotyping is not a stand-alone requirement for proving prima facie discrimination. Requiring otherwise would improperly focus on “whether a discriminatory attitude exists, not a discriminatory impact”, the focus of the discrimination inquiry ....

 

[170] Before I address the specifics of the allegations of discrimination, I will first address the issue of the grievor’s credibility.

1. The grievor’s testimony and credibility

[171] The grievor testified over the course of four days. Much of the documentation was filed by the parties on consent in the JBD, and much of that was authored by the grievor. During the course of her testimony, it became clear that she was often given to the use of hyperbole as well as being less than frank and omitting important facts. Two very troubling examples of this involved her evidence with respect to her children’s paediatrician, Dr. Wise, and to her missing Shabbat candle lighting.

[172] Contained in the JBD were two very detailed letters from Dr. Wise that the grievor provided to her supervisors, one in 2012, and the other in 2015. She spoke about these letters briefly in her examination-in-chief, albeit stating that she provided them to her employer, and when asked if, when she provided them, she believed there was anything in them that was incorrect, she said that she did not believe so.

[173] What the grievor knew and did not tell the hearing, when these documents were introduced, was that in fact, Dr. Wise was not the author of these documents but that the grievor and her husband wrote them and that Dr. Wise signed them. She stated that Dr. Wise would never have signed anything that he did not agree with.

[174] During the course of her testimony, I heard a significant amount of evidence about how convenient teleworking was for the grievor, as one thing it did was alleviate the need to commute to and from downtown Toronto on Fridays, and as such, there was no risk of missing the Shabbat candle lighting.

[175] In the course of being cross-examined, the grievor testified about a specific missed candle lighting that coincidently occurred on the Friday before the hearing continued on the week of December 10, 2019. She testified that she had been in court on the previous Friday, that the court session ran late, and that by the time it finished, she could not get home in time to carry out her responsibilities with respect to candle lighting. The purpose of this evidence was seemingly to demonstrate that the employer prevented her from engaging in her sincerely held religious practice and belief.

[176] What she left out of her testimony, both when questioned by her legal counsel and in cross-examination, was that the employer had nothing to do with the scheduling of this court appearance or the missing of the candle lighting. Only after both counsel had finished questioning her and during my questioning did it come to light that the employer had nothing to do with the missing of the candle lighting but that in fact it was missed solely as a result of the action or inaction of the grievor that resulted in the situation.

[177] What the grievor, in both her examination-in-chief and cross-examination, failed to tell the hearing was that she had set the court hearing for that Friday two weeks previously. When further questioned by me, she confirmed that she did not alert anyone involved in the court hearing (the presiding judge or opposing counsel) about her need to leave to be home in time to carry out the candle lighting. The evidence did not disclose that her supervisor was in any way involved in scheduling that particular case for that time or was even aware that the grievor had done so.

[178] At the time she testified before me, the grievor was a relatively senior member of the bar of Ontario, having been called some 23 years earlier, in 1996. In addition to being a member of the profession, she is a Crown prosecutor and a litigator. She earns her livelihood in a courtroom and often has to deal with witnesses being less than forthcoming. The very nature of her profession, her seniority in it, and her specific job dictate that she is well aware of not only the importance of being honest but also of the repercussions of being less than honest and truthful.

[179] This grievance is largely about her allegations of discrimination on the basis of family status and religion. The grievor knows the basis of the law involving family-status accommodation because she referenced the Johnstone case in her correspondence with her supervisors. She knew the importance that would be placed on correspondence from the family paediatrician, yet she appeared to be prepared to not be forthright about his letters. With respect to the allegation of discrimination on the basis of religion, this issue is largely about the grievor being able to return home from downtown Toronto on Fridays. When speaking about missing Shabbat candle lightings, she provided a particular example. Again, she withheld important information about that instance.

[180] What was most troubling about these two instances is that the grievor withheld information that was clearly relevant and important to the hearing. In the instance of the candle lighting, her case largely turns on how the employer’s change to her required work location was discriminatory as it affected her ability to be home by the required time to carry out her obligations. Her case turns on the employer’s actions with respect to possibly preventing this from happening. When faced with providing an example of missing a candle lighting, she presented an instance of a Friday court appearance, which, had I not questioned her further, would have left me assuming that the employer had something to do with it. In fact, she was on SLWP, and she had kept the particular file and had scheduled the court appearance herself for the Friday.

[181] Had I not asked the grievor questions about this, the impression that was left was that somehow, this appearance was completely out of her control, and her failure to get to the candle lighting was the fault of others, implicitly the employer. After she had testified in chief, been cross-examined, and then been re-examined, until I asked, she failed to state that she had scheduled the appearance in the court for that specific day and time, and not only that, but also, she had failed to advise either the presiding judge or opposing counsel of the vital information, which was that she had a religious obligation to fulfil at a certain hour.

[182] Both these instances, the letters from Dr. Wise and the Shabbat candle lighting, clearly indicate to me that the grievor misled the Board as to critical facts related to her situation.

[183] In addition to the instances involving the letters from Dr. Wise and the missing of the December 6, 2019, candle lighting, there were other instances in which the grievor’s evidence was so bereft of detail and laden with hyperbole that given her deliberate failure with respect to those instances, very little weight should be given to evidence put forth by her.

[184] Much of the evidence with respect to the grievor’s responsibilities for her children was couched in generalities, such as requirements to attend appointments of different types, of which one example was dental appointments. She pointed out that one of the children had a number of particular issues that required a significant number of treatments and appointments and therefore a significant number of attendances by her.

[185] In an email dated February 24, 2016, the grievor forwarded to Ms. Gruppuso emails between her and a dental office that disclosed that she had missed a dental appointment for one of her children, which was not the child who was identified as having a multiplicity of issues. The February 24, 2016, email stated as follows: “As you can see from the emails below, things are more than starting to give at home. Those are but 2 examples. I would NEVER forget a court appearance but I have now missed 2 dental appts [sic] for 5 different kids and the dentist may fire us.”

[186] In the email exchange that the grievor attached, indicating that one child had missed an 08:30 appointment, the grievor told the dental office that she was “working around the clock”, as was her husband, and that they did not receive the usual reminder. The February 24, 2016, email implies that there was a suggestion that the dentist would “fire” them as patients, although the emails attached deal only with one missed appointment and do not actually say that. The missed dental appointment referred to in the email was scheduled for a Wednesday, a day on which the grievor would not have been ordinarily teleworking. In addition, she appears to blame the dentist’s office rather than her and her husband’s failures to keep track of the appointment.

[187] Also entered into evidence was a copy of the first-level response (dated May 31, 2016) to the grievance that is the subject matter of this hearing. It refers to dental appointments, stating as follows:

...

You noted in the grievance hearing that you attended over fifty (50) dental appointments per year, with more Orthodontic work anticipated for your children. Since the grievance hearing you have provided each of the claims you submitted to Great West Life Assurance, which notes each of your appointments for the last several years. This claim indicated that twenty (20) appointments were scheduled between April 16, 2015 and April 19, 2016. It also appears that approximately 11 of the 20 appointments were scheduled on a day other than a Thursday or Friday. It also appears that of the names that have not been vetted from this document, that four (4) of these appointment dates were for either you or your husband.

...

 

[188] The grievor was the only witness at the hearing who could tell me how many dental appointments were made over the course of fiscal 2015-2016 for how many of the children and when those appointments were scheduled. According to her evidence, she was the person responsible for these things, yet there was no evidence. I suspect that there are records, as she made claims to recover such expenses under the employer’s dental plan, which is referenced in the grievance response. That response also states that the grievor produced for Ms. Gruppuso dental claims for the “last several years”. It also states that although the grievor suggested that she attended over 50 dental appointments per year, the expense records she produced disclosed only 20 appointments in the 1-year period encompassing April 16, 2015, and April 19, 2016. It further stated that 4 appointments were for the grievor or her husband, meaning that only 16 were for the children. It further stated that 11 of the 20 were on days other than a Thursday or Friday, which were the grievor’s telework days.

[189] What both of these examples disclose is the hyperbole that the grievor appeared prone to when she presented facts, both before me and at the relevant times to her supervisors, to achieve her goal of maintaining telework. Given her propensity to both exaggerate and mislead, I am skeptical as to the truth of much of what she states when it is not supported by a source independent from her.

2. The allegation of discrimination on the basis of family status

[190] Both parties stated in their final submissions that Johnstone is the definitive case with respect to discrimination on the basis of family status. At paragraph 93, it sets out the four-part analysis that a court or tribunal must consider to make a determination of whether a prima facie case of workplace discrimination on the prohibited ground of family status resulting from childcare obligations is established. To establish that prima facie case, the grievor had to show the following:

1) that a child or children is or are under her care and supervision;

2) that the childcare obligation at issue engages her legal responsibility for the children, as opposed to a personal choice;

3) that she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and no such alternative solution is reasonably accessible; and

4) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with fulfilling the childcare obligation.

 

[191] Each of the four factors set out in Johnstone acts as a stepping stone to the next. This means that when claiming discrimination based on family status, the claimant must meet each and every factor, starting with the first one. And if in the course of the analysis, the claimant fails to meet what is necessary to satisfy a factor, he or she will fail to establish a prima facie case. Each part of the four-part analysis is further defined at paragraphs 94 through 97 of Johnstone.

[192] The first factor requires a claimant to show that the children are actually under the claimant’s care and supervision. This required the grievor to demonstrate that she stood in such a relationship to the child or children at issue and that her failure to meet the needs of the child or children engaged her legal responsibility. In the case of a parent, this will normally flow from that person’s status as a parent.

[193] The second factor is closely linked to the first. The grievor has to demonstrate that the childcare needs at issue flow from the legal obligation to the children. Again, in the case of a parent, this normally will flow from their status as a parent. However, depending on the circumstances, it can be a bit of a fluid factor, depending on the situation. A legal obligation to an infant, a toddler, or an elementary-school child is usually, although not always, different from one that may exist for a teenager or a high-school-aged child or children.

[194] The third factor requires the grievor to demonstrate that reasonable efforts have been expended to meet those childcare obligations through reasonable alternative solutions and that no such alternative solution is reasonably accessible. Under this factor, a grievor will be called upon to show that neither he or she nor his or her spouse can meet their enforceable childcare obligations while continuing to work and that an available childcare service or alternative arrangement is not reasonably accessible to them to meet their work needs. In other words, the grievor must demonstrate that he or she is facing a bona fide childcare problem. This is highly fact specific, and each case will be reviewed on an individual basis, accounting for all the circumstances.

[195] The fourth and final factor requires that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with fulfilling the childcare obligation. The underlying context of each case in which childcare needs conflict with a work schedule must be examined to ascertain whether the interference is more than trivial or insubstantial. Factor four also considers the workplace rule creating the problem in the first place. Without the problematic rule or workplace situation, all the other factors become redundant.

[196] For the reasons that follow, I find that the grievor did not establish a prima facie case of discrimination as set out in Johnstone, and as such, with respect to the allegation of discrimination on family status, her grievance is denied.

[197] It is undisputed that the grievor is the mother of the children that have been identified in this matter and that the children, as of the grievance and the facts that gave rise to it, were living with her and her husband at the family home or homes identified in this decision. As such, there is no question that the grievor satisfies the first factor of the Johnstone test.

[198] The evidence disclosed that childcare needs flow from the legal obligation to the children; however, it also disclosed that some things, or needs, were identified that would not necessarily flow from the legal obligation. But those would be best addressed in conjunction with the third factor of the analysis.

[199] The third factor requires the grievor to demonstrate that reasonable efforts have been expended to meet those childcare obligations through reasonable alternative solutions and that no such alternative solution is reasonably accessible. She had to show that neither she nor her spouse could meet their enforceable childcare obligations while continuing to work and that an available childcare service or alternative arrangement was not reasonably accessible to them to meet their work needs. The grievor failed to satisfy this factor for a number of reasons.

[200] I have no doubt that having 5 children, with an age gap of 14 years, which at the time of the grievance included a toddler and one with multiple health challenges, presented an extremely busy household. Both the grievor and her husband were professionals, and her evidence was that they had in their employ, from time to time, not just one, but two or even three nannies. However, almost all the evidence she brought forward in support of her position revolves around the telework agreement and how it allowed her to conveniently carry out tasks related to her family and, to a lesser extent, to the Shabbat candle lighting.

[201] Telework is a manner in which an employee can carry out the duties of his or her employment with the concurrence of the employer. It involves working from a location, usually an employee’s home, rather than the employee’s normal place of work. Usually, it is most conducive with respect to jobs that are office related and that do not require some form of physical presence in the work location. Neither the CHRA nor any clause of the collective agreements that may be relevant in this matter provide that telework is a protected right. But it can form the basis of an accommodation that can be used in cases in which a protected right may be at issue.

[202] The genesis of the issue in this case was the grievor’s move from the RPT to the OCH team. The RPT carries out tax-related prosecutions, which were described as being of larger scope and more time consuming and that involve considerable and extensive periods of work outside the courtroom that are conducive to teleworking. While on the RPT, the grievor had four children of different ages, and a telework arrangement was agreed to that allowed her to work from her home on Thursdays and Fridays. She also had what was described as a flexwork arrangement that allowed her work hours to start and finish at variable times, depending on different circumstances, as well as a compressed schedule.

[203] The grievor is Jewish, and by her testimony, she adheres to many of its customs, traditions, and rules. She admitted in her evidence that she is often more observant than other practising Jews, including her husband. Some of her religious beliefs and followings are in turn inextricably linked to the operation of her family unit. This included enrolling the children in the Hebrew day school; following certain rules with respect to Shabbat, including the candle lighting before sunset at Shabbat; and keeping kosher, to name a few. She also admitted that in some circumstances, she did not follow rules such as using or driving a car on Shabbat or working.

[204] While I did not hear evidence from an expert in the tenets and practices of the Jewish religion, from the evidence of the grievor, they sounded much like the tenets of several religions, in which rules may exist, but their exact natures are not always crystal clear, and so individuals often interpret them differently. And even when they are clear, they are not always followed by everyone in the same manner. In either event, the evidence disclosed that the telework arrangement was convenient and that it served the grievor well with respect to the responsibilities she undertook for her children. Some of those responsibilities intersected with her religious belief about educating the children in their religion, which included sending them to the Hebrew day school.

[205] In April of 2012, the grievor was advised that effective the next month, she was being moved from the RPT to the OCH team. While she would still carry out prosecution work, its nature would be much different. Prosecuting cases on the OCH team was a very much more court-centric process; the team performed a high volume of prosecutions in the provincial and superior courts, largely out of the OCH. Prosecutors carried a heavy caseload, which could and did change. They were expected to carry out a variety of different tasks related to a criminal prosecution, often many different tasks on many different files each and every day. Ms. Gruppuso, who was in charge of the team, was required to juggle her resources to ensure that all court appearances were met. I have no doubt that prosecuting cases on the OCH team was a very different beast than was the RPT and that the workday of a front-line prosecutor on the OCH team was extremely busy and often chaotic, with too much work and too few hours within which to get it done.

[206] The grievor’s 2009 telework agreement expired on November 3, 2009. While there was no documentary evidence that a further telework agreement was signed by the grievor and the employer while she was still at the RPT, it would appear that she continued to telework. In addition, despite the change from the RPT to the OCH team in May of 2012, the grievor continued to telework in 2012 before going on maternity leave in January of 2013. Although there was talk of a new written telework agreement with her new managers on the OCH team, and there is evidence that both flexwork and telework arrangements were approved and that a draft written agreement was forwarded to her from Mr. Andreopoulos, no copy was entered into evidence, and it is unclear from the evidence if one was ever actually signed. That said, the evidence disclosed that the grievor continued to telework while on the OCH team after her return from maternity leave in January of 2014.

[207] In July of 2015, the grievor forwarded a new draft telework agreement to Mr. Andreopoulos, which was based on the template of the 2009 telework extension agreement (the 2015 draft telework agreement). The only significant differences were the start and end times of her workday and the duration of the agreement (from January of 2015 to January of 2016). Upon receipt of this new draft telework agreement, Mr. Andreopoulos forwarded it to Ms. Gruppuso and posed the question to her as to whether the continued telework arrangement for the grievor was feasible. On August 11, 2015, Mr. Andreopoulos emailed the grievor, advising her of his request of Ms. Gruppuso. This appeared to be the beginning of what can be described only as the tumultuous relationship that emerged between the grievor and Mr. Andreopoulos and Ms. Gruppuso.

[208] Over the course of the next several months, there were email exchanges involving the grievor, Mr. Andreopoulos, and Ms. Gruppuso. On October 4, 2015, Ms. Gruppuso emailed the grievor, asking her a series of clarification questions with respect to her request to telework. Those questions have already been set out in this decision; as such, I will not repeat them, except to state that clearly, they were based on the wording and reasoning found in Johnstone. The grievor replied to the email on November 18, 2015, but she did not answer Ms. Gruppuso’s questions. As such, Ms. Gruppuso emailed the grievor, following up. The grievor responded on November 19, 2015. From the response, it is clear that she was upset with the requests being made. As they were already set out earlier in this decision, I will not repeat them.

[209] The emailing back and forth on this subject line went on between the grievor and Ms. Gruppuso over the next few months, culminating in a meeting on March 3, 2016, at which the grievor was informed that her telework arrangement was being ended. She emailed Ms. Gruppuso on March 15, 2015, summarizing the meeting from her perspective, which Ms. Gruppuso forwarded to Messrs. Pistyner and Andreopoulos. It is clear that the employer did not feel that the grievor had provided it with the necessary information that satisfied it that an accommodation was necessary based on Johnstone, and as such, it ended the telework arrangement.

[210] While some of the grievor’s evidence was quite detailed and specific in nature, much of that detailed evidence was either quite tangential or, at times, irrelevant to the issues before me. With respect to the facts that were critical to the determination of the issues before me, she often spoke in generalities, thus failing to provide the evidence necessary to establish the prima facie case under the third factor set out in Johnstone.

[211] The grievor has 5 children with an age range of 14 years. The oldest was entering adulthood just as the youngest was starting school. I have no doubt that their household was extremely busy. However, this does not differentiate it from any other household of any other employee at the TB, the PPSC, or the PPSC’s Sthn. Ont. office. I heard no evidence that would differentiate her from other employees who had children, lived in the GTA, had to commute to work, and had lives outside their work. This in and of itself does not satisfy the criteria set out in the Johnstone factors.

[212] The grievor spoke at length and provided details of some of the issues that the children had. She focused significantly on the one child who was identified as having a number of health difficulties. She spoke about how convenient it was being able to telework; it saved her valuable time otherwise spent commuting. It allowed her to attend meetings on short notice at the school. She could arrange meetings or appointments to take place on those days. I have no doubt that being able to telework made things easier for the grievor. What I did not hear were any specifics.

[213] The telework arrangement was cancelled on March 3, 2016. The hearing before me stared on April 2, 2019, more than three years after the event. Correspondence included in the JBD references the grievor and her manager exchanging emails and speaking of the Johnstone criteria. When the telework agreement was ended, the grievor was a litigator with 20 years of experience at the bar of Ontario.

[214] Johnstone was decided by the Federal Court of Appeal in 2014. It is clear that the grievor was familiar with the case at the relevant time, as she discussed it with the employer before the ending of the telework agreement. She was also represented by her bargaining agent, which solely represents lawyers in the federal public service. It was incumbent on her to bring forward to the hearing the evidence necessary to establish her case based on Johnstone. What she had to do was provide information that reasonable efforts were expended to meet the childcare obligations through reasonable alternative solutions. This was exclusively evidence that was solely within her knowledge and control. It is in this respect that the grievor failed, specifically as follows:

1) While the grievor spoke about being the team leader and key person with respect to the collaborative effort for the child with numerous health issues, and while she produced documents stating this, what was not produced was any evidence of how many meetings occurred, with whom, when they were held, how long these meetings were, and which of them, if any, and how many, occurred on her telework or compressed days.

 

2) While she spoke about attending appointments, such as with doctors, dentists, orthodontists, and other specialists as well as meetings with teachers and tutors, again, what was not produced was any evidence of how many appointments or meetings occurred, with whom, when they were held, how long these appointments or meetings were, and which of them, if any, and how many, occurred on her telework or compressed days.

 

3) As set out in the section about her credibility, there appears to be evidence of dental appointments; however, there were no specifics, and the one example provided in documentation referred to an appointment on a Wednesday, which was a day she did not telework. In this specific instance, the evidence disclosed that she and her husband appeared to have forgotten about the appointment.

 

4) While the grievor spoke about the children attending the Hebrew day school, I was not provided any information about the school’s location relative to her home. Could the children walk there, or was driving them a must? She spoke of a carpool arrangement but provided no details or specifics of it. She did not state if there was a quid pro quo arrangement with respect to the carpool, and if so, what it was. She did not state whether there were multiple carpool requirements and arrangements.

 

5) With respect to carpooling, was it only a morning issue, or was it an after-school issue as well? What about after-school activities, such as extracurricular activities?

 

6) While the grievor spoke about having nannies, about sometimes having more than one nanny at a time, and about losing her nanny or nannies, she provided no details of how many nannies she had at any given time, their duties, or whether they could drive. Could they fulfil the carpool duties, or not?

 

7) I heard no specific evidence about the role of the grievor’s husband. Although he was mentioned in some of her emails, in short, I heard that he was a surgeon and that at the time the grievor commenced her examination-in-chief, he was working at two different hospitals and was very busy. I have no further information on him. I have no idea of the hours he was working over any of the periods at issue in the grievance or any idea of what role and responsibility he took in the operation of the family unit, including all the points I have just made.

 

8) In addition to the lack of evidence with respect to the grievor’s husband, I heard very little evidence about her extended family. While there was some discussion of parents and in-laws, very little detail emerged. I did get the impression that her parents and in-laws were living in Toronto, but other than that, I was provided with very little. She did state that there was a time when her parents did take care of the children in the evening; however, when she was pressed, it appeared to have happened long before the period at issue in the grievance, dating to before 2009. The only other thing I heard was that the grievor’s mother could not take care of the children without the grievor’s father being there. I did not hear if it was because five children were too much for her or if there was a health issue.

 

9) In one email to Ms. Gruppuso, the grievor stated that she was advancing her request for accommodation on the basis of elder care, referencing taking care of her mother and grandmother. I heard no evidence about this.

 

10) The grievor did mention a falling out of some sort with her father-in-law over something involving one of the children, but the details were not provided to the hearing. Did this occur before, during, or after the time at issue?

 

[215] The grievor also spoke about some extracurricular activities of the children and her involvement in them. She gave as one example picking up a child on the way home from work and taking the child to a sporting event and as another example working later downtown and thus missing most of an athletic-awards event, even though she was the manager of the team involved. She also spoke of missing out on the extracurricular activities of the children and how this was a problem in the household. She put into evidence a note about one of her children, written when he was very young, being at camp and missing his mother.

[216] It is not uncommon for families to be busy. The bigger the family, the busier it can be. While these examples and the evidence that the grievor provided in this vein evoke empathy and pull at the heartstrings, they are not the basis for a finding of discrimination or a failure to accommodate. I have no doubt that this plays out in tens of thousands of households across the country when parents are unable to attend important extracurricular activities of their children or when toddlers are left with caregivers and their parents go to work.

[217] In sum, the grievor did not establish that she made reasonable efforts to meet the childcare obligations through reasonable alternative solutions and that no such alternative solution was reasonably accessible. As the grievor was not able to satisfy the criteria set out in the third Johnstone factor, the fourth factor is not relevant.

3. The allegation of discrimination on the basis of religion

[218] The grievor testified about her religious beliefs and followings. She outlined a number of different rules that she said should be followed, specifically these three mandatory rules: Jews should not work on Shabbat, they should not drive on Shabbat, and the candle lighting should take place before sunset on the eve of Shabbat. The evidence also disclosed that the grievor on occasion chose not to follow the no-driving-on-Shabbat and the no-work-on-Shabbat rules but that she chose to follow the candle-lighting rule on the eve of Shabbat.

[219] In short, although the grievor opted not to follow all the rules of her religion, candle lighting was an important religious obligation to her, and she chose to follow it strictly.

[220] Although the grievor spoke about many different aspects of her religion and its importance to her, this grievance and the component of religious discrimination attached to it was attributable to the Shabbat candle lighting, as it took place on Fridays, an hour before sunset, and, according to the grievor, required that she have the accommodation of telework to be able to fulfil.

[221] There is no mystery that in Canada, the time the sun sets changes as much as five hours or more between the summer solstice in June, the longest day of the year, and the winter solstice in December 21, the shortest day. The further north in Canada, the greater the gap between the two. Based just on this, I would suspect that for the grievor, being in Toronto, the more problematic period involved Fridays in the fall and winter, when the days are shortest and sunset occurs in the late afternoon.

[222] I heard very little evidence about the employer’s alleged discriminatory practice with respect to this. What I did hear from the grievor largely consisted of how inconvenient it would be for her as she had to leave her workspace in downtown Toronto and commute home in time to light the candles. What I largely heard about was that in general, the commute was difficult, and there could be traffic and transit woes.

[223] However, the evidence did not disclose that the employer in any way discriminated against the grievor and her religious beliefs. There was absolutely no evidence that it was not prepared to allow her the time she needed to get home in time to engage in the Shabbat candle lighting or to participate in other religious obligations. In fact, one of her arguments throughout the discussion about telework was in essence that there were rarely court appearances on a Friday; thus, it made for the perfect day to telework. While that may be true, this argument does not help her in her allegation that the refusal to allow her to telework was discriminatory on the basis of religion. The fact that there was no actual requirement to be downtown would suggest that she could work there and leave when necessary to make it home in time for the candle lighting without being bogged down with the requirement to be in a particular place for a particular time.

[224] I have no doubt that Toronto traffic can be bad. I have no doubt that the transit system sometimes has delays. I have taken the subway in Toronto on my way to hearings, and it has been stopped and delayed. It is a fact of life in that city as it is in many large cities. While teleworking on a Friday is an appropriate accommodation with respect to the grievor needing to be home by a particular time, it is certainly not the only accommodation, and the jurisprudence is clear that an accommodation need not be perfect; nor need it be the one that the employee prefers.

[225] The grievor’s grievance in this respect was predominately that if she were teleworking on Fridays, she would not risk missing the candle lighting. However, the evidence does not support this claim. It is difficult to comprehend, when during many months of the year, sunset is well after 18:00 on Fridays, how not being able to telework was discriminatory, when the one instance I did hear about of her missing lighting the candles arose from the instance described earlier in this decision, was wholly attributable to the grievor’s actions, and had nothing to do with the employer, save for the fact that the grievor is employed as a Crown prosecutor.

[226] As set out earlier in this decision, the grievor missed lighting the candles when by her own accord, she had set a court date for a Friday afternoon. She had not been ordered to set it for that date or time. The court date and time was not set for her by another Crown prosecutor and foisted upon her by another Crown prosecutor or her supervisor; she freely agreed to the set the date and time. She did not inform her supervisors that she could not attend or ask them to have someone else attend on her behalf. She did not inform the presiding judge or defence counsel of her requirement to leave by a certain time. Nor when it became clear that there might be a risk of not being able to commute home in time did she provide this information to the presiding judge or defence counsel.

[227] As set out earlier in this decision, under the subheading with respect to the grievor’s credibility, despite expending a significant amount of time and energy on putting forward her position about the need for telework, particularly on Fridays, and despite filing a grievance over it, when questioned about missing the candle lighting, the one specific example she spoke about in detail was the one that had happened on the eve of the second week of the hearing into her grievance and that was the result of her behaviour. Given the immense importance that she placed on this matter and the time and effort that went into debating this with her supervisor, she attended court on the Friday before this hearing, and when questioned by counsel for the employer about how often she missed candle lighting, she really could provide no concrete examples save the specific one I have already spoken of. I would have thought that she would have carefully documented the difficulties she has had in this respect since March of 2019. If she did, she did not produce any evidence of it.

[228] While the grievor spoke of having other religious obligations, there is no evidence that she was refused time off for those other obligations or that she was in any other way discriminated against for holding her beliefs or practising her religion.

4. The allegation of discrimination on the basis of disability

[229] There is no evidence that before the grievance was filed, the grievor was suffering from a disability. In fact, there is no evidence that she ever suffered from a disability and so needed accommodation.

[230] In an email to Ms. Gruppuso on November 19, 2015, responding to earlier questions posed to her by Ms. Gruppuso, the grievor included a comment to suggest that the accommodation request with respect to telework and flexwork was grounded in an issue of her own health. The comment was as follows: “I am the also the co-caregiver for my Mother and Grandmother. The accommodation request is not only based on childcare responsibilities. It is based upon elder care, religion and my own health needs.” Nothing in the November 19 email suggested what this health issue was.

[231] There was nothing further in this vein. It did not appear to be raised again until Ms. Gruppuso did so it in a follow-up email on April 6, 2016, coincidentally on the same day the grievor’s grievance was filed. In the April 6 email, Ms. Gruppuso raises the grievor’s comment from the November 19 email, stating as follows:

...

In your email of November 19, 2015 and Section I of your email dated March 15, 2016 (11:32 a.m.) you have also indicated that you have an accommodation need based on your own medical situation. I would encourage you to provide medical supporting documentation from your treating practitioner which outlines the medical functional limitations or precautions that should be conserved in your case.

...

 

[232] No medical documentation was forwarded to the employer until sometime in June of 2016. But that documentation was not entered into evidence. What was entered into evidence was the July 12 letter from Ms. Gruppuso in response to receiving those notes. The July 12 letter merely states that two notes from Dr. Naiman were received in the grievor’s email dated June 10, 2016, that one of the notes indicates that the grievor should remain off work effective June 20, and that Dr. Naiman would reassess the grievor in mid-July to determine a return-to-work date. The second note attached information about and referred to a sit-stand desk, which is not in issue.

[233] The July 12 letter references a July 7, 2016, note from Dr. Naiman, which was entered into evidence. It merely stated that the grievor had been advised to remain off work as a result of physical and other health-related conditions and that Dr. Naiman said that the grievor would benefit from flexwork, telework, and less overtime. There was no indication of a disability.

[234] The July 12 letter requested additional information from Dr. Naiman and requested that the grievor take documentation to her such that Dr. Naiman could provide the employer with an updated report on the grievor’s medical condition. The grievor provided the employer with a note from Dr. Naiman dated July 13, 2016, which merely stated that the grievor was cleared to return to work as of July 25, 2016.

[235] The Aug. 8 note, some four months after the grievance was filed and five months after the date on the grievance identifying the date on which the grievor was aware of the circumstances that led to the grievance, like the other medical notes from Dr. Naiman, also does not identify a disability.

[236] Finally, there is the September 23, 2019, note. It came 31⁄2 years or 42 months after the date of the grievance, and it identified the date on which the grievor was aware of the circumstances that led to the grievance. It was written not by Dr. Naiman but by Dr. Brown.

[237] There is nothing in the evidence that discloses that the grievor has a disability. What the evidence does disclose is that at times after her telework arrangement had ended, she went on sick leave. The reason for the sick leave, based on what she said, appears to be stress related to having to attend work at her offices, rather than having the convenience of working from home, combined with what she believed was extra work being thrust upon her in her family situation by the employer’s decision.

[238] Dr. Naiman did not testify; nor were her clinical notes or records produced. The very limited evidence about the grievor’s health came from the grievor, and she did not disclose a disability. At best, she disclosed that she believed that she was suffering from an illness that appeared to be stress or related to stress. I am not prepared to accept her word in this respect, given the findings I have already made with respect to her credibility. Everybody experiences stress; the only question is how much stress a person has, whether the person has the ability to cope with it, and whether it affects that person’s ability to work. I have no doubt that the grievor experienced and probably still experiences stress. She is the mother of five children who are of different ages. She is a professional and a Crown prosecutor, and her husband is also a professional. That said, there is absolutely no evidence to suggest that she could not work the hours required of her.

[239] In Herbert v. Deputy Head (Parole Board of Canada), 2018 FPSLREB 76 at paras. 392 and 393, I stated as follows:

392 In Central Okanogan, the Supreme Court set out that the search for accommodation is a multi-party inquiry. While in some cases, the multi-party search can be dealt with simply by a short letter or note from a family physician and can be easily implemented by an employer, in other cases, the facts will dictate a requirement for a more fulsome process and much more extensive discussion, input, and co-operation. This is one of those cases.

393 In his testimony before me, Dr. Suddaby stated that most psychiatrists and psychologists make accommodation recommendations that are not appropriate because they do not know enough about the workplace or the job at issue. He stated that when all the stakeholders involved communicate effectively with the appropriate level of disclosure, it is likely that the employee will be in a better position. The input of all stakeholders is important but highly unusual in our healthcare system. Dr. Suddaby’s comments are particularly well placed, especially when dealing with the grievor and his situation.

 

[240] Medical doctors deal with the health of people. Like other professionals, they may specialize in a particular area. As set out in Herbert, sometimes, a simple note from a family physician is sufficient to assist in a workplace accommodation process. Other times, as also stated in Herbert, “... most psychiatrists and psychologists make accommodation recommendations that are not appropriate because they do not know enough about the workplace or the job at issue.”

[241] None of the medical notes provided by the grievor, either from Dr. Naiman or Dr. Brown, is particularly helpful. They do not identify a disability or a physical or mental ailment. What they appear to be is no more than writings by someone who has some relationship with the grievor, acting as her advocate. I did not hear any evidence from either doctor; nor were any of their records put forward. Much of the evidence related to them was from the grievor, the value of which I have already commented upon in the section earlier about her credibility. It need not be restated.

[242] For these reasons, the grievor did not establish a prima facie case that she was discriminated against on the basis of disability.

5. Hours of work and overtime

[243] It is clear to me that the undercurrent or theme in this case is time. I heard about time in its many guises. Time commuting, time docketed at work, compressed working hours, leave hours, time to attend appointments and meetings, overtime, and overwork and the mismanagement of time. The picture I have been painted is of a professional who has too many things to do in the too few hours of each and every day. It is a picture that is all too common for so many millions of working parents in this country. However, in this case, it is a theme that is found, in one or more of its many forms in the allegations of discrimination advanced by the grievor.

[244] As I heard and saw the evidence, both during the course of the hearing and in reviewing it in writing this decision, the term that recurred over and over was “time management”. We all have to manage our time. Some do it better than others, and others have less things that need managing. It is rather elastic and fluid, depending on everyone’s particular facts. What became clear very early in this case was that the grievor had many things to manage, some of which were work-related, and many others of which were not. A 7-day week has 168 hours. The grievor is supposed to give a minimum of 37.5 of those hours as work to the employer; that is a little more than one-fifth of the total time in the week.

[245] Entered into evidence were several of the grievor’s PREAs and an extract from her PREA for 2011-2012. They all had in common a theme: the grievor expending far too much time on tasks. In addition, the oral evidence of Ms. Gruppuso was along that same vein, stating that the grievor spent excessive amounts of time on tasks that should have taken less time. The grievor admitted in cross-examination to setting very high standards and working evenings and weekends to satisfy herself that she was doing the best job she could and meeting those exceptionally high standards. The documentary evidence clearly indicates that even after the grievance was filed and the grievor had gone on sick leave, her supervisors were instructing her to do less. Ms. Gruppuso testified that she had reduced the grievor’s workload in comparison to some of her colleagues.

[246] The grievor worked a compressed schedule. She did it by choice; she did not have to. Based on her evidence, I suspect that she chose to work the compressed schedule as it provided for 13 additional working (expressed as “compressed days”) days off during the course of the year, which she could use for whatever she wanted. I did not hear what she used them specifically for; however, from the evidence, I surmise that they were used for things such as appointments and meetings and for covering off religious obligations that would otherwise fall on a workday. However, choosing to work a compressed schedule added additional work time to each and every day that, by the grievor’s evidence was already jammed full with things she either had to do, or wanted to do.

[247] The grievor often referenced working excessive hours and overtime. She also made these references in correspondence she exchanged with the employer. In one email, she referenced working 60-hour weeks and 30-hour weekends, and in another, she referenced over 400 hours in excess of the normal working hours per year. She referred to them as “Torquemada”, her point was that she wanted to work the hours set out in the collective agreements. She used this term Torquemada in both her evidence before me and, an email to Ms. Gruppuso dated December 2, 2015, in which she stated as follows:

...

OVERTIME – which is a further but related problem. It is somewhat perverse to be discussing operational requirements and accommodation in the context of 60+ work week hours and 31 hour weekends when my collective agreement specifies regular weekly work hours of 37.5/week. Our entire team is subjected to overwork. It often takes its toll first on those needing accommodation, like canaries in the coal mine.

...

These Torquemada hours and a long commute all week are an easy barrier to address where there is understanding and will. It is not undue hardship for the employer to adhere to the regular hours of work or they would not have signed such a contract with my union. It has not been a barrier for them to let me telework for 10 years nor other employees 5 days a week for blue [sic] reason.

...

 

[248] “Torquemada” is defined in the New Dictionary of the American Language, Second College Edition, as the first Grand Inquisitor during the Spanish Inquisition. When asked by counsel for the employer about this reference, her answer referred to tortuous hours of work.

[249] A close look at the grievor’s iCase dockets for July of 2015 discloses an unusual pattern of very high daily dockets, particularly in the weeks of July 20 and 27. I suspect that she could explain why there were such unusually high daily docketed hours during that period, including the 11 hours docketed on Saturday, July 25, and the 18.98 hours on Sunday, July 26. She did not explain this.

[250] Although the grievor might have worked some overtime during fiscal 2015-2016, given that on one occasion, she worked a 61.17-hour week, and on another, she worked 30 hours on a Saturday and Sunday, a close review of her iCase dockets did not disclose that she worked excessive hours. The total number of potential working hours in that fiscal year, taking into account all statutory holidays and weekends, and not taking into account any form of leave, is 1867.5. Four weeks of vacation would amount to 150 hours. Five weeks would amount to 187.5 hours. The grievor’s leave records for 2015-2016 disclosed that she was advanced 162.50 hours of vacation leave. Assuming any other employee with 162.50 hours of leave uses it, his or her personal and volunteer days, and no other leave, the employee would have to docket 1690 hours of work.

[251] The iCase dockets disclose that the grievor docketed 1456.325 hours of work, not taking into account December. The most work the grievor ever docketed per month in 2015-2016 was 209.42 hours in July of 2015. If I add the amount for the month of December of 2015 (without any deduction for leave, despite the leave records disclosing that she used 39.755 hours of leave that month) and add it to her total for the rest of the year, her total docketed hours would be 1665.745. That is still 36.755 hours less than what someone who took 4 weeks of vacation and both personal days would have worked. In short, it is hard to see how the grievor equates the hours she worked in 2015-2016 as Torquemada, when her docketed records show that she did not meet the minimums.

[252] The iCase dockets disclosed that only during one week did the grievor docket in excess of 60 hours. It was the week of October 4, 2015, which disclosed 61.17 hours of work docketed. Those same iCase dockets also disclose only one weekend during which the grievor worked anything resembling 31 hours, which was the weekend of July 25 and 26, 2015, which totalled 29.98 hours, albeit on the Friday, July 24, the grievor also docketed 12.67 hours. It was the only weekend during 2015-2016 that disclosed time worked of close to 30 hours.

[253] In her email dated March 31, 2017, the grievor states that she worked 463.92 hours more than required in the collective agreement that was in effect at the time. While iCase dockets were entered into evidence for fiscal year 2015-2016, none was entered for fiscal years 2016-2017, 2017-2018, or 2018-2019. The grievor filed her grievance in April of 2016. It was well within her power to either keep a copy of her iCase dockets for the forthcoming years or request a copy of them and produce them to the hearing.

[254] All of that said, a review of the collective agreements, the deals entered into with the employer by the grievor’s bargaining agent, discloses that the extra work she complained of was something she and her colleagues would have agreed to. It was somewhat disingenuous to complain of this, given that it was negotiated and set out in the collective agreement.

[255] At the outset of this decision, I set out the relevant sections of the three collective agreements and the relevant portion of the arbitral award. The issue of overtime was the subject of an arbitral award made by an arbitration board established by the predecessor of this Board, the PSLRB (Association of Justice Counsel v. Treasury Board, 2009 CanLII 58615). It awarded the lawyers who formed the bargaining unit covered by the 2010 collective agreement overtime, and the overtime provisions became part of the 2010 collective agreement. This aligned the lawyers with other unionized TB employees. Their overtime provisions were very similar to the other collective agreements entered into between the TB and other bargaining agents across the federal public service.

[256] However, this changed with the 2012 collective agreement. The lawyers agreed to give up their paid overtime seemingly in exchange for a salary increase. While 37.5 hours per week would be the regular working hours, the collective agreements no longer provided for overtime. There was nothing in the 2012 collective agreement that limited the employer from requiring the lawyers to work overtime, for no extra pay.

[257] Employees are paid a fixed amount based on an hourly or annual amount. The annual amount is paid for working fixed, regular workdays as set out in the collective agreement. In the case of the grievor and her colleagues, it is 37.5 hours per week over the course of the fiscal year, less statutory holidays and the paid leave that each employee is entitled to. An entry-level employee, for example, receives the equivalent of 3 weeks of 37.5 hours per week of paid vacation; after that, it increases after so many years of service. However, the base number of hours to be worked does not change.

[258] The grievor legitimately requested and is allowed to work a compressed schedule. At the same time, it is clear that she believes that working more than the regular minimum hours set out in the collective agreements is inappropriate. I expect that the result appears more onerous and unfair to her because the entire purpose of her working compressed hours is to reorganize her time such that she has in essence the created 13 extra working days away from work. This becomes somewhat meaningless when she is later required to work additional extra hours, including during her compressed day, and, not be compensated for them, in either salary or time in lieu.

[259] I say “appears” because she is being treated no differently from any other lawyer, based on the collective agreement negotiated by the AJC and agreed to by its members. The difference is the choice of working a compressed schedule. The collective agreements are clear. This is not the employer acting in a manner that is discriminatory. It is the result the grievor’s own personal choice and of the operation of the agreement reached between the AJC and the TB and the nature of the work of a Crown prosecutor, litigator, or trial lawyer, which often requires those lawyers to work overtime that lawyers who have more solicitor-like duties would not have to and do not work. The lawyers who are subject to the collective agreements are all governed by the same work time requirements, the grievor has simply chosen to do hers differently.

[260] I also say appears, because what appears to further compound the time management situation for the grievor, is that in covering off the time she has taken off in conjunction with her religious beliefs, she has chosen to make it up by working additional hours. In her evidence she referenced having to find an additional 55 hours to make up for the days off for religious observance.

[261] Fifty-five extra hours off, translates to 7.33 days for a person working a 7.5 hour work day or 7 days for someone like the grievor who is working a compressed schedule. Either way, it is done by adding extra hours to a work-day. But this doesn’t come without problems, as, by adding even an extra half an hour to a workday, to come up with an additional 55 hours would mean the grievor would be working 8.395 hours every work-day for 110 days.

[262] During the fiscal year, 2015-2016, there were 242 working days. If you subtract the grievor’s vacation leave, personal day, volunteer day and FRL, that would leave 213 working days. This means that for roughly half the year the grievor is working an almost an additional hour everyday, as opposed to her colleagues who work a regular 7.5 hour work-day. However, this is how the grievor has chosen to complete her work, not some form of discriminatory practice of the employer.

6. Intersectional discrimination

[263] At paragraphs 143 and 144 of Baylis-Flannery, the Human Rights Tribunal of Ontario stated as follows:

[143] An intersectional analysis of discrimination is a fact-driven exercise that assesses the disparate relevancy and impact of the possibility of compound discrimination, as per the analysis of the British Columbia Human Rights Tribunal in Comeau v. Cote, [2003] B.C.H.R.T.D. No. 32 (QL), and of this Tribunal in Morrison, supra.

[144] ... The common theme of these secondary sources, as argued by Commission counsel, is that reliance on a single axis analysis where multiple grounds of discrimination are found, tends to minimize or even obliterate the impact of racial discrimination on women of colour who have been discriminated against on other grounds, rather than recognize the possibility of the compound discrimination that may have occurred.

 

[264] At paragraph 48 of Turner, the Federal Court of Appeal stated as follows:

[48] In his written submissions to the Tribunal, the appellant also referred to the concept of intersecting grounds of discrimination, which, at a basic level, holds that when multiple grounds of discrimination are present, their combined effect may be more than the sum of their individual effects. The concept of intersecting grounds also holds that analytically separating these multiple grounds minimizes what is, in fact, compound discrimination. When analyzed separately, each ground may not justify individually a finding of discrimination, but when the grounds are considered together, another picture may emerge.

 

[265] As set out by the British Columbia Human Rights Tribunal and the Federal Court of Appeal, even cases suggesting intersectional discrimination must have as their basis some foundation in evidence, to establish a prima facie case. Merely alleging several different forms of discrimination does not in any way alleviate this first basic step.

[266] The grievor failed to establish in any way a prima facie case of discrimination. For the most part, the evidence presented largely dealt with her responsibilities on the home front that were in many ways inextricably linked to her religious beliefs. However, when one carefully analyzes the facts brought forward, her grievance is with respect to the employer changing a manner in which she was allowed to carry out her duties: the use of telework. The ending of the telework arrangement did not in some way establish a prima facie case of discrimination.

7. The grievance claim with respect to leave credits

[267] As set out earlier, entered into evidence were the grievor’s iCase dockets for the year 2015-2016. Also entered into evidence were her leave records for the fiscal years including 2016 through the end of 2018.

[268] In her grievance, the grievor grieved that the employer contended, in the March 3, 2016 meeting, that she owed leave credits due to her compressed schedule, and requested as relief that the employer refrain from demanding or recovering those leave credits back from her.

[269] As I heard no evidence of how the action of the employer was a breach of the collective agreements, or what leave credits were in issue, this claim is denied.

8. The COVID-19 pandemic and the videoconference hearing platforms

[270] The grievance in this matter was filed in March of 2016. The hearing started in person in Toronto in April of 2019 and continued in December of 2019, again in Toronto. The pandemic became a crisis in early 2020. By mid-March 2020, the country was largely under a stay-at-home order. The Board cancelled all its hearings, effective the week of March 16, 2020, up to and including the end of July of 2020, which was the Board’s entire schedule at that time. The Board began hearing cases via videoconference platforms such as Zoom and Microsoft Teams in late August and September of 2020. Since then, all its hearings that could not proceed in writing have proceeded in this manner.

[271] While I am aware that courts are now hearing cases via videoconference platforms and that lawyers may be attending via videoconference from their homes, this does not alter the facts of the grievor’s case, as the pandemic is a catastrophic world health crisis in which emergency measures had to be implemented. The fact that courts and administrative tribunals have adjusted to this fashion of work does not somehow alter the facts of this case to establish prima facie discrimination, given that none existed.

[272] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

V. Order

[273] The grievance is denied.

[274] Exhibit G-1, Tabs 7, 14, and 39, are ordered sealed.

[275] The grievor shall review the JBD and provide the Board, within 30 days of the date of this decision, a corrected, redacted JBD to replace the JBD on file, if necessary.

[276] Exhibit G-1 is ordered sealed for 30 days from the date of this decision.

October 28, 2021.

John G. Jaworski,

a panel of the Federal Public Sector

Labour Relations and Employment Board