Date: 20241211

Files: 566-34-41066 and 41067

 

Citation: 2024 FPSLREB 172

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

 

the estate of John Kielley

Grievor

 

and

 

Canada Revenue Agency

 

Employer

Indexed as

The Estate of John Kielley v. Canada Revenue Agency

In the matter of individual grievances referred to adjudication

Before: David Jewitt, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Zachary Rodgers, counsel

For the Employer: Peter Doherty, counsel

Heard via videoconference,

June 20 to 23, 2023.

REASONS FOR DECISION

I. Introduction — what this case is about

[1] This grievance is about a term employee who was absent from work because of a recognized disability and was denied an extension to his term employment because of it.

[2] John Kielley (“the grievor”) joined the Canada Revenue Agency (CRA) in the latter part of his life. He was looking for a second career as a taxpayer services agent (SP-04) in the CRA’s Newfoundland Tax Centre. On May 22, 2018, his term employment was not extended because of a temporary medical absence related to his dialysis treatments.

[3] Before the grievor’s CRA employment, he served 11 years with the Canadian Armed Forces. Throughout his employment, he had kidney disease. To accommodate his work schedule, he arranged to have his dialysis treatments done at home in the evenings so that he could work during the day.

[4] He disclosed his disability when he applied to work for the CRA and to his team leader at the call centre because his condition prevented him from working mandatory evening overtime. He was reassured that his medical condition would not affect his employment.

[5] In January 2018, he developed a serious infection on his leg that was caused by his ongoing dialysis. To treat it, he had to go to the hospital five days a week, to receive hyperbaric treatment, to help speed the healing.

[6] He filed a medical note with the employer on January 8, 2018, and went on paid sick leave for two weeks and then on sick leave without pay (LWOP) until his employment ended on May 22, 2018, when his term contract was not renewed.

[7] At the same time as his term employment ended, the employment terms of the other taxpayer services agents on his team were extended. The employer did not extend the grievor’s term because he was unable to provide a medical certificate confirming that he would be able to return to work during the term of the next contract renewal, as required by its policy on granting extensions.

[8] On June 6, 2018, the grievor filed a grievance in which he claimed that the employer breached the relevant collective agreement and that it discriminated against him, contrary to the provisions of the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA), when it decided to not extend his term employment beyond May 22, 2018, because of his disability.

[9] In his grievance, the grievor claimed damages under the CHRA because the employer refused to extend his term employment because of his disability.

[10] After the grievance procedure was completed and the grievance was referred to the Federal Public Sector Labour Relations and Employment Board (“the Board”) for adjudication, Mr. Kielley unfortunately passed away, on December 25, 2021.

[11] Therefore, the names of the parties to this grievance have been amended to reflect that the Estate of John Kielley (“the Estate”) is pursuing this grievance and advancing his damages claim against the employer for discrimination under the CHRA. From this point on, references to “the grievor” refer to Mr. Kielley personally.

[12] Because the grievor passed away before this matter came to a hearing, the first issue to decide is whether the Estate has legal standing to continue to litigate his grievance before the Board and to pursue his claim for human rights damages.

A. The Estate issue

[13] Counsel for the grievor submitted that the Board has jurisdiction to hear the grievance and that the Estate could continue it on the grievor’s behalf. Counsel for the employer did not oppose that proposition in the present circumstances of this case but he did not agree that the Board has jurisdiction in any other case where a deceased grievor’s claims are rooted in the CHRA. Because this is an issue going to the Board’s jurisdiction, the jurisprudence that the parties cited will be reviewed, and a formal decision on the Board’s jurisdiction will be made.

[14] Given the importance of this issue, I have decided to review the jurisprudence that the parties filed, and provide a preliminary ruling for the benefit of future adjudicators, who may be confronted with an objection to their jurisdiction in future, similar fact situations.

[15] At common law, there is a legal maxim that originated in medieval England and that is known by the Latin expression actio personalis moritur cum persona, meaning that a personal right of action dies with the person. Its principal application is with personal tort actions, which relate to a plaintiff or claimant’s private character, such as defamation, which the courts have declared end with the plaintiff or claimant’s death.

[16] The rule has been abolished in civil actions in England and all common law jurisdictions in Canada, by statute.

[17] However, recent jurisprudence in Canada has questioned whether an estate has legal standing to make or continue damage claims for discrimination made under human rights legislation. See Pankoff v. St. Thomas (City), 2019 HRTO 993.

[18] In 2007, in a class-action case concerning discrimination against same-sex partners under s. 15(1) of the Canadian Charter of Rights and Freedoms (enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.); “the Charter”), the Supreme Court of Canada (SCC) held that an estate has no jurisdiction to advance individual “claims for damages”; see Canada (Attorney General) v. Hislop, 2007 SCC 10.

[19] In 2020, the Canadian Human Rights Tribunal (CHRT) dealt with this issue in First Nations Child & Family Caring Society of Canada v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), 2020 CHRT 7.

[20] Compensation had been awarded to individuals who had died before receiving their entitlements but who otherwise would have been entitled to damages. The jurisdictional question was raised as to whether an estate has legal standing to claim and receive a share of the damages ordered paid to victims of discrimination under the CHRA.

[21] In First Nations Child & Family Caring Society of Canada, the Attorney General argued that although Hislop dealt with Charter rights concerning discrimination against same-sex partners, it also stood for the proposition generally that “… the estate of an individual is not a legal entity capable of experiencing discrimination …”.

[22] The CHRT disagreed, and at paragraphs 107 and 109, it stated as follows:

[107] The Panel also adopts the reasoning in Canada (Attorney General) v. Morgan, [1992] 2 FC 401(FCA) at para. 49 where MacGuinan J.A (dissenting on other grounds) wrote “A strict tort or contract analogy should not be employed, since what is in question is not a common law action but a statutory remedy of a unique nature”.

…

[109] On this point, the Supreme Court of Canada, ruled that human rights tribunals and courts cannot limit the meaning of terms in human rights legislation that are meant to advance the quasi-constitutional purposes of the CHRA: “the Canadian Human Rights Act is a quasi-constitutional document and we should affirm that any exemption from its provisions must be clearly stated” (Canada (House of Commons) v. Vaid, 2005 SCC 30 at para. 81).

 

[23] At paragraph 110, the CHRT also quoted with approval an earlier decision of its former vice-chair, in Stevenson v. Canadian National Railway Company, 2001 CanLII 38288 (CHRT). At paras. 31 to 33, he discussed the CHRT’s ability under the CHRA to deal with a complaint after the complainant had died, stating as follows:

[31] In my opinion, having regard to the regime of the Act, one must conclude that a human rights complaint filed under the Act is not in the nature of and does not have the character of an “action” as referenced in the actio personalis principle of law. The Act is aimed at the removal of discrimination in Canada, not redressing a grievance between two private individuals.

[32] If CN has its way, the death of the complainant would extinguish not only the interests of that complainant, but also all the other interests involved in the complaint, including the very significant public interest.

[33] Should the maxim actio personalis, a maxim that has its origins in medieval common law, a maxim whose anachronism is illustrated by the fact that in England and all common law jurisdictions in Canada the rule has been abolished, be allowed to override the purpose and objectives of the Canadian Human Rights Act? I think not.

 

[24] I find the CHRT’s reasoning equally applicable to the Board’s jurisdiction. The sole issue before the Board is a claim of discrimination in employment by reason of an acknowledged disability under ss. 7 and 15 of the CHRA. The grievance that made this claim was filed and processed entirely by the grievor when he was alive. The Estate seeks to advance his human rights damages claim at adjudication.

[25] The maxim actio personalis moritur cum persona does not prevent adjudicating the grievor’s claims under human rights legislation. I find the Estate has legal standing to continue the grievance that he filed in June 2018, and the Board has jurisdiction to determine the claim for damages for discrimination raised in that grievance under the CHRA.

[26] The main issue in this grievance under the CHRA can be stated as follows: Did the employer discriminate against the grievor, contrary to ss. 7 and 15 of the CHRA, when it refused to extend his term employment because of his disability?

B. What is not at issue

[27] Before examining the claims in the grievance, it is important to note what this case is not about. It does not challenge the Board’s well-settled jurisprudence that not renewing a term contract does not constitute a termination, dismissal or layoff that is capable of being adjudicated under s. 209 (1) of the Act. The Board has no jurisdiction to order the employer to extend or renew a term contract after it expires (see Dansereau v. National Film Board, 1978 CanLII 3697 (FCA), [1979] 1 F.C. 100; Pieters v. Treasury Board (Federal Court of Canada), 2001 PSSRB 100 at para. 45; Ikram v. Canadian Food Inspection Agency, 2012 PSLRB 4 at para. 8; Chouinard v. Deputy Head (Department of National Defence), 2010 PSLRB 133 and Loiselle v. Treasury Board (Service Canada), 2021 FPSLREB 101 at paras. 17 to 19.

[28] The grievor did not seek any staffing remedy; nor did he make a claim in the grievance for lost wages or for an order or declaration to extend his term contract at law. Rather, he asked the Board to exercise its jurisdiction under the CHRA and award damages for discrimination because the employer offered extensions to the term contracts of other term employees in the same position as his but did not offer him an extension because he was on sick leave related to his disability.

C. The core issue

1. How to interpret and apply the SCC’s “foreseeable-future” undue-hardship model to a term-employment relationship

[29] The employer conceded that its actions were prima facie discriminatory under the CHRA because its decision to not extend the grievor’s term contract was related to his disability. Its actions were based upon a revised labour relations policy governing granting term extensions to employees on sick leave at the grievor’s place of employment.

[30] Because the employer conceded that its actions were prima facie discriminatory, the main issue for the Board is to determine if the employer met its onus to prove that it reached the point of undue hardship in its efforts to accommodate the grievor’s disability when it decided to not extend his term contract because of his sick leave related to his disability.

[31] From the employer’s perspective, because the grievor could not produce a medical certificate confirming that he would be able to return to work within the term of the next contract extension being offered at the time, it had reached the point of undue hardship, according to its interpretation of the “foreseeable future” model that the SCC first enunciated in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 (“Hydro-Québec”). Based on its analysis of the facts and jurisprudence, the employer submitted that it had met its onus to prove undue hardship and therefore did not discriminate, and accordingly, the grievor’s damages claims should be dismissed.

[32] From the grievor’s perspective, the CHRA protections to be free from discrimination in employment relationships on the basis of disability is a “quasi-constitutional” and individual right applicable to all employment relationships, whether indeterminate or term.

[33] With respect to the employer’s policy and its interpretation of the “foreseeable future” model for determining undue hardship when term employees are absent on sick leave, the grievor submitted that the “foreseeable future” model that the SCC first enunciated in Hydro-Québec was designed to be flexible and must be adapted to the individual circumstances of each case.

[34] The grievor argued that the totality of the evidence demonstrated that he was able to return to work in the foreseeable future but that the employer refused to take that evidence into account, based on its policy and its interpretation of undue hardship and the foreseeable future model. He submitted that it failed to meet it’s onus of rebutting its prima facie admission of discrimination. Therefore, the grievance should be allowed, and damages should be awarded.

[35] Obviously, the parties have two very different theories of what constitutes undue hardship when considering extensions of term contracts to term employees absent on sick leave. Therefore, based on the grievor’s individual circumstances, the central legal issue in this case is determining how to apply the “foreseeable future” model that the SCC enunciated in Hydro-Québec to the grievor’s term employment, which included regular term-contract extensions.

D. The decision

[36] For the reasons that follow, I have decided that the employer did not meet its onus of proving on a balance of probabilities that it reached the point of undue hardship when it refused to grant the grievor a further extension to his term employment while he was on sick leave.

[37] I find that the employer’s policy, “Term Extensions while on Sick Leave”, used an improper “foreseeable future” model to assess the evidence available about the grievor’s ability to return to work in the foreseeable future, which caused it to wrongfully deny him an extension to his term employment.

[38] I further find that because of the restrictions and application of the employer’s policy, it failed to consider all the relevant medical evidence, and it wrongly concluded on the facts that the grievor would be unable to return to work in the foreseeable future. Unfortunately, that false assumption led it to deny him any further extensions, due to its theory that it reached the point of undue hardship in its efforts to accommodate his disability.

[39] Before reviewing the applicable jurisprudence on how to interpret and apply the “foreseeable future” model, it is important to first understand the context of term employment and the granting of term-employment extensions at the grievor’s place of employment.

II. The business model and nature of term employment at the Newfoundland CRA call centre

[40] The grievor was not the only term employee working as a taxpayer services agent at the CRA’s Newfoundland Taxpayer Services Call Centre.

[41] Approximately half of the 720 to 800 taxpayer services agents employed at the CRA’s Newfoundland call centre are term employees. Each year, under normal business circumstances, it hires approximately 120 term employees.

[42] Upon their hiring, and in their term contracts, it is made clear to term employees that there is no guarantee of continuing employment with the CRA beyond the term set out in the contract. However, each term contract also contains a clause that states that the term of employment may be lengthened or shortened, depending on operational requirements.

[43] Based on CRA’s evaluation of an employee’s performance and forecast of the work requirements, it offers term-contract extensions or renewals with a new expiry date to the term employees it needs during the next upcoming phase of the taxation year.

[44] At different points of the tax season, team leaders are responsible for making recommendations to management as to which term employees on their teams are performing well and should be offered an extension or contract renewal.

[45] The Call Centre reaches what is termed its trough or lowest demand for taxpayer services agents’ services in the fall, between the months of October and December. Many term employees are laid off or not offered an extension to their employment terms during the trough.

[46] Those term employees who do not have their term contract extended through the trough cease to be employees and are placed in what is called a rehiring pool, to be considered for rehiring in January for the next taxation year, if there is sufficient work demand and the employee had a positive work evaluation from their team leader and manager.

[47] Wayne Fagan, the assistant director of the CRA’s call centre division, stated in an investigation report filed at the hearing that the goal and hope of most term employees is to become core-term employees, which means that they have performed their tasks well, have received advanced or cross-training in the job, and have passed their 12-month probation period.

[48] Core-term employees are employed year-round and avoid seasonal layoffs in the future. For the term employee, the longer the period of continuous employment, the more likely it will be that they will become a core-term employee.

[49] Most of the taxpayer services agents appointed permanently or indeterminately at the call centre are hired from the group of core-term employees.

[50] During the grievor’s first year of employment, the tax data centre was undergoing a period of expansion. Because of the expansion of services, he and his other term colleagues remained employed continuously for their entire first year by means of a series of term-contract extensions. He completed his probationary period in January 2018, after 12 months of continuous employment.

[51] In her testimony, the grievor’s manager, Connie Lush, put it this way:

The call centre was dependent on term employees to cover peaks and flows of work over the taxation year.

Hiring term employees was really the most financially responsible way to staff otherwise the employer would have to hire 700 people and leave 400 twiddling their thumbs.

 

[52] For the employer, term employees provide cost-effective operational flexibility to address changing seasonal demands during the tax season without having to go through lengthy appointment processes and lay-off or workforce-adjustment procedures. Term employment is of mutual benefit to it and the employees.

III. CRA staffing policies for term employees at the call centre

[53] The CRA’s Procedures for Staffing document sets out a number of procedures and entitlements for term employees (see section 4.5, “Managing term employees). These entitlements include Extension of term employees (section 4.5.1), Cumulative service (section 4.5.2), Mandatory review at two years (section 4.5.3), Five-year administrative conversion (section 4.5.4), notice or pay in lieu for Early end of employment for term employees (section 4.5.5), and Rehire pool eligibility (section 4.5.6).

[54] The concept of cumulative service provides the basis for a term employee’s entitlement to increasing employment benefits and job security. The probation period is 12 months of cumulative service. A mandatory review of the temporary employment is conducted after 2 years of cumulative service, to determine if a permanent appointment is required. And a term appointment must be converted administratively to a permanent appointment after 5 years of cumulative service.

[55] “Cumulative service” is defined in part 4.5.2 as the calculation of periods of eligible temporary employment for which there is no break in service of more than 30 consecutive calendar days. However, an LWOP of longer than 30 consecutive calendar days granted by reason of a prohibited ground set out in the CHRA, e.g., maternity or paternity leave, would be included as a period of eligible employment.

[56] In summary, the business model at the CRA’s Newfoundland call centre uses a sophisticated and well-integrated pattern of staffing that involves constantly hiring, training, evaluating, and extending term employees with staffing directions and collective-agreement provisions that define and track continuous service for a term employee for passing probation, progressing through increasing periods of notice or pay in lieu, and considering or outright recognizing that service, to convert an employee’s status from term to indeterminate.

[57] Significantly, a break in service of longer than 30 consecutive calendar days will interrupt a term employee’s cumulative progress toward permanent employment. For most new term employees, for the first couple of years, the break occurs naturally during the trough in October to December. If they performed well, they will be considered for rehiring from the rehire pool in December or January, when the work demands pick up once again for taxpayer services agents’ services.

[58] An LWOP of longer than 30 consecutive calendar days will constitute a break in service for an employee, unless it is granted because of a prohibited ground, such as LWOP related to a disability. In the grievor’s case, not extending his employment because of his medical circumstances meant that his continuous-service accumulation toward permanent employment was broken after 30 days.

IV. The CRA’s labour relations policies for term employees on sick leave at the call centre

A. The old policy

[59] Before the grievor’s sick leave request in 2018, management testified that the policy that it applied when extending term employees on sick leave was to offer term extensions until their health improved and they were able to return to the workplace, as long as the contracts of other term employees working at the same level and in the same job were also extended.

[60] The policy of offering extensions to term employees on sick leave applied until there was no longer an operational need for that class of term employees because of a downturn in work. When other, healthy, term employees were no longer offered extensions, term employees on sick leave were similarly no longer offered them. The term contracts for both groups of employees were allowed to expire, without renewal. Those who performed up to standard were placed in the rehire pool, to be offered re-employment in the future, when operational needs changed.

[61] Ms. Lush, the grievor’s manager, testified that approximately one year before his sick leave, a meeting was held with Labour Relations, and they were advised that the policy had changed and that they should no longer routinely offer term extensions to term employees on sick leave.

B. The new policy

[62] The new labour relations policy references the “foreseeable future test” and was summarized in a July 2018 information notice to managers that read as follows:

Term Extensions while on Sick Leave

…

The Atlantic Region has been following the practice of reviewing these types of situations on a case by case situation to determine if an extension is appropriate. Generally if an employee is out on sick leave and they can provide medical information to show that they will be returning to work prior to the end of their term contract, or at a minimum “in the foreseeable future”, then the term would be extended the same as others in the same position. However if there is medical information to support that there is no foreseeable return to work, the decision can be made to allow the term to come to its natural end, and to inform the employee that if/when they are medically cleared to return to work, to contact management and they would be re-hired [sic] with the next group.

…

The employer’s duty to accommodate generally does not extend to requiring it to retain employees who are no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future. The performance of work in exchange for remuneration is a basic obligation of the employment relationship. In the current context, it could be argued the “foreseeable future” should include a situation where a term employee would be unable to work for the entirety of the contract. Whether a tribunal would decide that there was no discrimination may depend on factors including the length and other circumstances of any past or existing contractual relationship (including past accommodations); whether there was evidence of a need for accommodation in order for the employee to be able to work in the future; the required duration of the future contract; and whether the employee was unable to work for an indefinite or fixed or readily ascertainable period.

…

 

[63] Ms. Lush, the grievor’s manager, testified that the decision to grant or deny a term-employment extension was hers to make, but she would have required a really good reason to not follow the new labour relations policy in the grievor’s case.

[64] I have no hesitation concluding that the revised policy was why the employer denied the grievor any further extensions of his term employment while he was on sick leave. Later in this decision, I will return to examine the assumptions and rationale that the policy relied upon and the employer’s human rights obligation to accommodate term employees on sick leave to the point of undue hardship.

V. History of the grievor’s term employment

[65] The grievor was employed continuously, without a break in service, from January 3, 2017, to May 22, 2018, via 7 term-contract extensions. He passed his probationary period after 12 months of continuous employment as a term employee.

[66] The seven term contracts were of varying lengths, which presumably was based on the operational workload. They were as follows:

1) From January 3 to May 1, 2017, at 25 hours per week; the term length was 120 calendar days.

2) From May 2 to August 4, 2017, at 37.5 hours per week; the term length was 94 calendar days.

3) From August 5 to September 8, 2017, at 37.5 hours per week; the term length was 35 calendar days.

4) From September 9 to October 27, 2017, at 37.5 hours per week; the term length was 49 calendar days.

5) From October 28 to November 17, 2017, at 37.5 hours per week; the term length was 21 calendar days.

6) From November 18, 2017, to March 29, 2018, at 37.5 hours per week; the term length was 133 calendar days.

7) From March 30 to May 22, 2018, at 37.5 hours per week; the term length was 52 calendar days.

 

[67] Each of his term contracts contained an end date. However, each one also contained a clause stating that the length of employment “… might be lengthened or shortened, depending on operational requirements and [his] performance.”

[68] All his term contracts were extended before they expired, and he remained continuously employed and actively working in his position until January 2018, when he went on sick leave for treatment for an infection caused by his dialysis treatments.

[69] After going on sick leave that January, the employer extended the grievor’s term employment one last time, from March 20 to May 22, 2018, at the same time as it extended the term contracts of other term employees working in the same position.

VI. The grievor’s sick leave and communications with the employer about his return to work

[70] The grievor’s kidney disease did not interfere with his ability to be trained and progress in his job until January 2018, when he began to experience side effects from dialysis and developed a large serious ulcer on his leg. To help heal the infection, he was required to be in the hospital six days each week, to receive hyperbaric treatments.

[71] On January 8, 2018, he provided the employer with the following note from his treating physician. The note was signed by Dr. Sean Martin: “To whom it may concern, Mr. John Kielley is to remain off work indefinitely for medical reasons. He will remain off work until further notice.”

[72] On January 24, 2018, the grievor exhausted his paid sick leave and was placed on LWOP.

[73] The employer’s pay centre sent him a letter on February 14, explaining the process for seeking long-term disability benefits, should he wish to apply.

[74] On March 20, the employer offered the grievor, while he was on sick leave, a further term contract renewal at the same time it offered the same renewal to the other term employees working in the same position. The renewal extended his employment on LWOP until May 22, 2018. When the contract renewal was made, the grievor was not asked to provide any medical note advising of a fixed return date before being offered the extension; nor was he asked to provide medical confirmation that he would be able to return to work within the foreseeable future.

[75] The next communication between the grievor and the employer occurred on April 16, 2018. He wrote to update his team leader, Preston Farrell, and advised him as follows: “Things are going ok so far but I think it’s going to be a while yet before I’m back to work. It’s such a slow process and I have to admit it’s driving me crazy dealing with this.”

[76] He also asked Mr. Farrell how he might follow up with the long-term disability provider because he had misplaced its phone number. He added this: “I don’t suspect I will need it for long but I am trying to get it sorted out.”

[77] Mr. Farrell responded and asked, “Are your doctors giving you any idea when you may get back to work?”

[78] On April 17, the grievor replied with this:

…

Unfortunately, the doctors will not commit to anything right now except to say that it is coming along well. Everything is progressing but they say it’s a very slow process.

I’m doing 34 hours a week of treatments – and believe me, I can’t wait to get back to work! It’ll be like a vacation from all this medical stuff!

I will let you know as soon as the doctors give me some indication.

…

 

[79] After that update, on April 19, Mr. Farrell wrote to Rochelle Oliver, who was a regional labour relations advisor, and asked for advice on the grievor’s situation. He also asked if the employer should consider having an “Occupational Fitness Assessment” form (OFAF) completed to determine the work that the grievor might be capable of doing. He wrote as follows:

…

Extending Employees on Long Term Leave

Good Day. One of my employees, John Kielley, is off on long term leave (Jan 8th, 2018) due to complications from kidney dialysis. He is currently extended until May 22nd and in a recent email from him, John indicated that he still doesn’t have a timetable to return to work from his doctors. I was wondering if we keep extending John as long as we are extending others with a similar background or should I start looking to see what John is capable of, in terms of work, at this point. Maybe an OFAF? Thanks. Preston Farrell

…

 

[80] Ms. Oliver responded on April 24 with this advice, which was consistent with the new labour relations policy:

Hi Preston, as per our conversation yesterday, given that the employee has been on leave due to illness since January, 2018 with no anticipated return to work date, we would not recommend extending his current contract. I would suggest contacting the employee to advise that as he’s unable to return to work we are not extending him right now. However, he will remain in the rehire pool. When he is capable of returning to work he should contact us and if we are hiring we would look at bringing him back on strength. We would also require medical clearance at that time.

…

 

[81] This was an important communication with Labour Relations. Mr. Farrell later stated that he felt that there was a tone in Ms. Oliver’s response that closed the door on the grievor’s opportunity. After her email, everything hinged on the grievor providing a medical return-to-work certificate before his contract expired that confirmed a return-to-work date within the term of the new contract renewal. Mr. Farrell wondered why management would not extend the grievor’s contract, even just to keep his spirits up.

[82] In April and May, the grievor continued to follow up with his doctors, as he had promised to find out if they could provide an estimated return-to-work date.

[83] On April 30, the grievor wrote to Mr. Farrell, stating this: “Preston, My Dr’s [sic] are looking into getting a note regarding when I can go back to work. Just hang tight, I’ll see how quickly I can get it. John”.

[84] Shortly after that, on May 2, Mr. Farrell responded and communicated the advice that he had received from Ms. Oliver, as follows: “Hi John, A full clearance will be required from your doctor. Once you have that clearance please let us know. Once we start rehiring employees, you will be considered at that point.”

[85] On May 4, Mr. Farrell and the grievor concluded their email communications about his possible return to work with the following exchange:

Hey Preston,

As much as I tried, I guess there will be no note for a couple of more weeks as I ended back here (in hospital) again. Related, but a different issue this time.

I appreciate your support and the efforts you’ve made to keep me on but I guess I have to accept whatever management decides.

I’ll call you when this foolishness at the hospital settles down.

And in case I forget to say so, good luck over at NVCC!

John

 

[86] Mr. Farrell responded the same day with this: “Hi John, Sorry to hear that you are back in hospital, but you will get through it, you are a battler. I am going to give you my cell number …. Please feel free to call me anytime if you want to discuss anything. Good luck! Thanks. Preston”.

[87] On May 11, Mr. Farrell left the call centre for a position at the St. John’s National Verification and Collections Centre and ceased being the grievor’s immediate supervisor.

[88] The grievor was unable to obtain a medical note from his doctors before the end of his contract on May 22, 2018. The employer offered extensions to the term employment of other taxpayer services agents in the same position as the grievor for three months, from May 22 to September. It did not offer any further extensions to the grievor, and his employment ended on May 22, 2018.

[89] On June 6, 2018, he filed the grievance, stating this:

I am grieving the decision by management to not extend my contract because of my disability. I believe that this decision by management is discrimination under human rights legislation and contravenes my rights as an employee.

Corrective action requested – Mesures correctives demandées

I am asking for my employment to be extended the same as if I was currently in the workplace.

Any other remedy to make me whole.

 

[90] Later, the extension request was withdrawn, and the remedy was restricted to damages.

[91] He also provided a statement at that time to support his grievance, as follows:

Allegations:

My contract was not extended due my medical situation.

Facts:

I went on sick leave in early Jan and was told by my TL (as told to him by “management”) that unless I could get a doctor’s note stating when I can come back and be 100% my contract would not be renewed (contract ended 22 May 18) There has [sic] been no performance issues prior to this.

[Emphasis in the original]

 

VII. Post-termination medical evidence

[92] After the grievor was terminated on May 22, medical evidence as to his ability to perform the normal functions of his job on a part-time or modified basis continued to be prepared for the employer’s consideration during the grievance procedure. At the hearing, the employer objected to the admissibility of all that medical information, except for the grievor’s long-term disability application, which was approved in November 2018. A brief summary of this post-termination evidence is outlined as follows.

[93] On July 27, 2018, the grievor’s doctors, who had been treating him at the Health Sciences Centre and who provided his original medical note on January 8, 2018, provided the following medical note:

To whom it may concern

…

This is a letter regarding Mr. John Kielley who [sic] we have been treating at the hyperbaric medicine service for some time. His wounds have healed dramatically, and he is mobile without walking aids of any sort. From our perspective he can return to work on an ease back schedule as required.

If you have any other questions or concerns, please do not hesitate to contact.

…

 

[94] When the director of the Newfoundland call centre first heard this grievance at the second level of the grievance procedure on August 2, he was quite concerned about the statement in the grievance that the grievor was advised that he would have to provide a note stating that he could return to work full-time before he could return. The director indicated that it was new and troubling information to him and that had there been an OFAF confirming that the grievor could return part-time, it would have been considered.

[95] As a result, and as part of the grievance procedure, the employer directed that an OFAF be completed to determine the grievor’s fitness to work, any limitations or restrictions related to the job duties, and any accommodations that the employer could arrange that would help ensure a successful return to work. This was the same form that Mr. Farrell had asked Ms. Oliver about in April.

[96] In addition, the employer also ordered an investigation by the Discrimination and Harassment Centre of Expertise (DHCE) in response to the grievor’s grievance. In the investigation process, the grievor advised the investigator that he received unwritten medical clearance to return to work part-time on May 29, 2018.

[97] However, he stated that he did not follow up or provide management with any medical documentation at that time, as he understood from Mr. Farrell in April 2018 that he was not permitted to return to work on a part-time basis.

[98] On September 7, 2018, the OFAF was completed by the grievor’s physician, as the employer requested. It confirmed that the grievor was fit to return to work with limitations 2.5 days per week, gradually increasing and reassessing every 2 weeks.

[99] The DHCE’s investigation completed in September 2019. It concluded that there had been a miscommunication between the grievor and his team leader. The team leader had advised him that he required a full medical clearance, not that he had to be medically cleared to return to work full-time before the employer would offer him further employment. In those circumstances, the investigator found that the employer did not engage in discriminatory actions with respect to the specific allegations raised at the second-level grievance hearing, namely, the employer required the grievor to be fit to work full-time before offering him a renewal of his term employment.

[100] Both parties filed the investigator’s final report on consent, on the basis that I could consider the evidence and statements that they made, including the grievor in the investigation, at the hearing but that I was not bound by the investigator’s finding that no discrimination occurred because it dealt with an entirely different legal issue than the core issue before me. That issue is whether the employer discriminated against the grievor when it decided to not offer him a term-contract renewal, because of his disability.

VIII. The long-term disability application

[101] As noted earlier, the grievor was provided forms to apply for long-term disability in March 2018, when his paid sick leave was exhausted. On November 9, 2018, he was approved for long-term disability benefits until age 65, retroactively to April 24, 2018. The benefits provider, Sun Life, concluded that based upon the application filed in April, he met the definition in its policy for being totally disabled from performing his “own” occupation.

[102] In its confirmation of approval sent to the employer, Sun Life advised that it had “… determined that John’s condition will not allow him to resume work in the foreseeable future.” The grievor went on long-term disability once his application was approved in November and never returned to work.

IX. Legal analysis

A. The nature of term compared to indeterminate employment

[103] Because this case requires an analysis of the undue-hardship jurisprudence as applied in cases of indeterminate employment relationships, a brief review of the nature of term versus indeterminate employment relationships will be undertaken before considering that jurisprudence’s application to the grievor’s term-employment context.

[104] At common law, an employer’s obligations to an employee employed under a fixed term-employment contract cease when that contract expires. An employer has no obligation to offer a new term contract, and similarly, an employee employed on a fixed-term contract has no obligation to work for an employer after their term contract expires.

[105] The basic principles of contract law apply in this type of employment. That means that if the employer still has work at the end of the term contract and wants to continue to employ the same term employee to perform that work, then a new employment contract must be offered, negotiated, and accepted on whatever terms the two parties negotiate and agree to.

[106] The new employment contract could be for another fixed term, or it could be extended for a series of term contracts. At some point, given sufficient ongoing work and if the employee proves satisfactory, they might receive an offer to become a permanent employee with the obligations and benefits of permanent or indeterminate employment.

[107] In cases of permanent or indeterminate employment, it is a fundamental term of the employment contract that the contract can be terminated only upon reasonable notice or for cause. This common law employment obligation to continue a permanent employee’s employment continues unless the contract is what is termed “frustrated” because for some reason, the employee is no longer able to perform the normal functions of the job.

[108] The human rights obligation to accommodate an employee’s disability to the point of undue hardship defines when the employment relationship can be terminated for term or permanent employees who are unable to work due to absences caused by disabilities.

B. The CHRA

[109] The CHRA was enacted in 1977, to give effect to the principle that all individuals should have an equal opportunity as members of society without being prevented by discriminatory practices based upon the prohibited grounds, which include “disability” (see s. 2 of the CHRA, in the part entitled “Purpose of Act”).

[110] The protections in ss. 7 and 15 of the CHRA to be free from discriminatory practices in employment apply equally to term or permanent employment relationships and include the type of employment practice described in this case in which for operational reasons, the employer routinely offers term-contract extensions to term employees, to maintain a trained and adequate workforce.

[111] Section 7 of the CHRA describes the nature of discriminatory employment practices as follows:

7 It is a discriminatory practice, directly or indirectly,	7 Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
(a) to refuse to employ or continue to employ any individual, or	a) de refuser d’employer ou de continuer d’employer un individu;
(b) in the course of employment, to differentiate adversely in relation to an employee,	b) de le défavoriser en cours d’emploi.
on a prohibited ground of discrimination.

 

[112] Section 7 of the CHRA sets out the right for employees to be free from discriminatory practices in the course of their employment. Section 15 imposes obligations on an employer to accommodate employees with disabilities to the point of undue hardship, unless it can prove that its practice was based on a bona fide occupational requirement (see s. 15(1)(a)).

[113] For a discriminatory practice in employment to be considered based upon a bona fide occupational requirement, “… it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost” (see s. 15.2 of the CHRA).

[114] To satisfy its duty to accommodate an employee’s disability to the point of undue hardship in a chronic absenteeism case, the employer must individually assess each employee’s medical condition and make any accommodations that may help the employee attend work in the foreseeable future.

[115] When an employee’s medical condition prevents them from returning to work in the foreseeable future, the termination of their employment in such circumstances is non-discriminatory because it is based on a bona fide occupational requirement, as set out in s. 15(1)(a) of the CHRA, namely, the requirement that the employee is medically capable of doing the job for which they were hired.

[116] To provide guidance as to when the point of undue hardship is reached in cases involving the termination of a permanent employee because of chronic absences caused by disability, in Hydro-Québec in 2008, the SCC set out the “foreseeable future” model. In the reported jurisprudence, the “foreseeable future” model has been applied in situations of indeterminate employment contracts with no fixed termination date.

[117] The model essentially states that the employer is relieved of its contractual obligation to continue an employment relationship when the employee’s history of absenteeism and an assessment of the available medical information reasonably leads to the conclusion that the employee’s disability can no longer be accommodated and that they will not be capable of returning to work within the foreseeable future.

[118] The key question in this grievance is how to interpret and apply the duty to accommodate to the point of undue hardship and the “foreseeable future” model in the context of the grievor’s individual medical circumstances and his term-employment relationship, which was based upon a series of renewable term contracts.

C. The application of the duty to accommodate in incapacity cases — the foreseeable-future model in indeterminate employment relationships

[119] In 2008, in Hydro-Québec, which set out the “foreseeable future” model, the SCC emphasized the importance of conducting an individualized assessment and provided the following guidance:

…

[17] Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties — or even authorize staff transfers — to ensure that the employee can do his or her work, it must do so to accommodate the employee. Thus, in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, [2007] 1 S.C.R. 161, 2007 SCC 4, the employer had authorized absences that were not provided for in the collective agreement. Likewise, in the case at bar, Hydro-Québec tried for a number of years to adjust the complainant’s working conditions: modification of her workstation, part‑time work, assignment to a new position, etc. However, in a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship.

[18] Thus, the test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. In these circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non‑discriminatory. I adopt the words of Thibault J.A. in the judgment quoted by the Court of Appeal, Québec (Procureur général) v. Syndicat de professionnelles et professionnels du gouvernement du Québec (SPGQ), [2005] R.J.Q. 944, 2005 QCCA 311: [TRANSLATION] “[In such cases,] it is less the employee’s handicap that forms the basis of the dismissal than his or her inability to fulfill the fundamental obligations arising from the employment relationship” (para. 76).

[19] The duty to accommodate is therefore perfectly compatible with general labour law rules, including both the rule that employers must respect employees’ fundamental rights and the rule that employees must do their work. The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.

…

 

[120] In Hydro-Québec, the SCC held that the quasi-constitutional rights set out in human rights legislation to be free from discrimination, and the general labour laws requiring that employees to be capable of doing the work to maintain their indeterminate employment for which they are hired, are perfectly compatible. The employer’s duty to accommodate ends when the employee is no longer able to fulfil the basic obligations associated with the employment relationship for the foreseeable future.

[121] After that decision was rendered, in virtually all cases of undue hardship involving chronic absenteeism, the relevant evidence is assessed and analyzed to determine if, on a balance of probabilities, the employee is “… no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.”

[122] In some cases, depending on the illness or disability involved and the medical information available, it can be a very difficult assessment for an employer to make. Medical treatments by their very nature are designed to improve or alleviate the medical conditions that caused the employee to be absent in the first place. However, outcomes and a definitive prognosis for the foreseeable future may be difficult for doctors to predict.

[123] In situations involving permanent employment relationships, the period to use to determine the foreseeable future can also vary significantly based on the workplace involved, the different employees’ medical conditions, and the ongoing prognosis for improvement or decline over the foreseeable future.

[124] It is simply not possible to determine in advance when the “foreseeable future” model will crystallize and the employee’s termination will be justified as non-discriminatory.

[125] In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 (“McGill”), the collective agreement provided for terminating an employee after a three-year leave of absence, and the employee in that case had been absent for in excess of three years. At paragraphs 22 and 28, the SCC stated this:

22 The importance of the individualized nature of the accommodation process cannot be minimized. The scope of the duty to accommodate varies according to the characteristics of each enterprise, the specific needs of each employee and the specific circumstances in which the decision is to be made. Throughout the employment relationship, the employer must make an effort to accommodate the employee … The obligation of the employer, the union and the employee is to come to a reasonable compromise. Reasonable accommodation is thus incompatible with the mechanical application of a general standard. In this sense, the Union is correct in saying that the accommodation measure cannot be decided on by blindly applying a clause of the collective agreement. The arbitrator can review the standard provided for in the collective agreement to ensure that applying it would be consistent with the employer’s duty to accommodate.

…

28 In short, it cannot be concluded that the accommodation provided for in the collective agreement is a complete answer to the complaint of an employee claiming a more generous accommodation measure. But it is no more appropriate to say that the benefit incorporated into the collective agreement should not be taken into account in the overall assessment of the accommodation granted by the employer.

 

[126] Here is a summary of the key principles from the SCC’s teachings on the duty to accommodate and the point of undue hardship in termination cases involving disability in permanent employment relationships:

1) The duty to accommodate requires accommodation to the point that an employer is able to demonstrate “that it could not have done anything else reasonable or practical to avoid the negative impact on the individual” (see Moore v. British Columbia (Education), 2012 SCC 61 at para. 49).

2) “The use of the term ‘undue’ infers that some hardship is acceptable; it is only ‘undue’ hardship that satisfies this test” (see Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at 984).

3) “The importance of the individualized nature of the accommodation process cannot be minimized. The scope of the duty to accommodate varies according to the characteristics of each enterprise, the specific needs of each employee, and the specific circumstances in which the decision is to be made” (see McGill, at para. 22).

4) “Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided” (see Hydro-Québec, at para. 17).

5) In cases involving chronic absenteeism or the incapacity of indeterminate employees, “… if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship” (see Hydro-Québec, at para. 17).

 

[127] As I already stated, the question in this case is how to analyze and apply the SCC’s principle of undue hardship to an employment practice of extending term contracts based on operational requirements when a term employee is absent from work because of medical reasons related to their disability.

X. The parties’ positions

A. The employer’s position

[128] The employer’s argument rests mainly on the principles that the SCC set out in Hydro-Québec. In that case, the employer argued that the Court held that an employer’s duty to accommodate ends when the employee is unable to fulfil the normal requirement of the job.

[129] The employer also relied on the recent Board decision in Babb v. Canada Revenue Agency, 2020 FPSLREB 42 at paras. 1, 4, 171, 256, and 279 (upheld in 2022 FCA 55; “Babb FCA”). In that case, the Board upheld the employer’s decision to terminate an indeterminate employee, following Hydro-Québec, because the employee was not able to establish that he was capable of returning to work in the foreseeable future.

[130] Counsel for the employer submitted that the foreseeable-future jurisprudence that analyzed undue hardship in accommodating indeterminate employees was provided to the Board as a “model” on how it should decide if the employer reached the point of undue hardship when it decided to not renew the grievor’s term employment.

[131] The employer submitted that generally, the new labour relations policy correctly set out its obligation to accommodate a term employee absent on sick leave. It had no further obligation to renew a term contract unless the employee could provide a medical return-to-work certificate before the existing term expired that confirmed that they would be able to return to work during the term of the next contract renewal.

[132] The employer submitted that no medical evidence confirmed that the grievor would be able to return to work during the life of the next contract. The only medical note, provided on January 8 when he went on sick leave, stated, “Mr John Kielley is to remain off work indefinitely for medical reasons. He will remain off work until further notice.”

[133] There was evidence and there were email exchanges in April and May between the grievor and the employer that demonstrated that he knew that he had to obtain a return-to-work date, to have his contract renewed. He tried but he was not able to secure one from his doctors before his existing contract ended on May 22. From that information, it was reasonable for the employer to conclude that he could not return to work in the foreseeable future.

[134] The employer raised an objection to the “post termination” medical evidence filed by the grievor’s bargaining agent and dated July and September 2018. It confirmed that he could return to work on an ease back basis during the life of the next contract, but it did not have or could not have had that information before May 22, when the employer made its decision to let the grievor’s term employment lapse.

[135] However, the employer submitted that it was open for me to consider post-termination evidence that “shed light” on the decision’s reasonableness when it was made. From that perspective, the employer argued that Sun Life’s November 2018 decision to approve the grievor’s April 18 application for long-term disability benefits was admissible on the basis that Sun Life’s assessment of his medical condition reached back in time and “shed light” on the question of his ability to work in the foreseeable future. The issue of post termination evidence is dealt with later in this decision at paragraph 172.

[136] Counsel for the employer argued that based upon the evidence available to the employer on May 22, it discharged its onus of proving that its decision was non-discriminatory because the grievor could not produce a medically approved return-to-work date before his term contract ended. The only medical evidence available at that time was that he was to “remain off work indefinitely for medical reasons”

[137] Counsel for the employer also submitted that the employer did not just sit on its hands and make no effort to accommodate the grievor but that importantly, it did extend his employment after he went on sick leave in January for one further two-month term contract, from March 21 to May 22.

[138] Accordingly, the employer argued that its decision was reasonable and non-discriminatory and that it was based on operational concerns and was not a case of not accommodating the grievor to the point of undue hardship, because it is not possible to accommodate an employee who is incapable of performing the basic obligations of the job.

[139] With respect to remedy, and in the event that I find that the employer failed to discharge its burden, it submitted that I must take into account what it did to accommodate the grievor’s disability and that I must discount the damage awards that the grievor relied on because they were for the terminations of indeterminate employees. Furthermore, had his contract been renewed, it would have been only until August.

[140] All these factors in the employer’s submission demonstrate that human rights damages, if awarded, should be at the lower end of the scale.

B. The grievor’s position

[141] Counsel for the grievor argued that the human rights duty to not discriminate in employment relationships on the basis of disability is a “quasi-constitutional” right that is equally applicable to indeterminate and term employees. The fact that the employee is employed under a series of term contracts does not absolve the employer from its duty to accommodate their disability to the point of undue hardship. The grievor lost his employment because of his disability. This uncontested fact requires the employer to establish its defence under s. 15 of the CHRA that it had reached the point of undue hardship.

[142] Counsel submitted that the parties have two competing theories as to what constitutes undue hardship in this case. The employer’s theory, relying on the “foreseeable future” model in Hydro-Québec, is that undue hardship exists when there is no medical information confirming a return to work during the term of the next contract renewal.

[143] The grievor submitted that that is not the standard and that “foreseeability” must be examined in the individual circumstances of each case. The employer had the onus of establishing on the facts that there was no reasonable likelihood that the grievor would be able to return to work in the foreseeable future. It could not impose a foreseeable-future standard based on the length of the next contract renewal.

[144] Counsel for the grievor submitted that the central issue is whether the employer had reached the point of undue hardship before ending the employment relationship.

[145] It was acknowledged that the information that the employer had on May 22 when it finalized its decision to not renew the grievor’s contract was important but that really, it acted on an absence of information. All it had was a 20-word medical note that was filed in January, when the grievor first went on sick leave.

[146] There was no hardship on the employer to reach out to the grievor’s physicians and ask them to fill out a medical form such as an OFAF before ending the employment relationship. That information could have gone either way, but it would have provided much more information about the foreseeable future in his case.

[147] As it turns out, the employer did request an OFAF in June, after the grievor’s employment had ended, during the grievance procedure. It was received in September, and it certified that the grievor was fit to return to work, with restrictions.

[148] Counsel for the employer argued against considering this evidence because it was not available when the employer made its decision. Counsel for the grievor argued that the employer could not exclude this evidence from being considered “post termination” evidence since the employer ordered it during the grievance procedure, to address the allegations raised in the grievance.

XI. Analysis and decision

A. The employer used an improper model to assess the grievor’s ability to return to work in the foreseeable future

[149] I have decided that the employer did not meet its onus of establishing that it reached the point of undue hardship because it used an improper model when it assessed the available evidence and concluded that the grievor would not be able to return to work in the foreseeable future.

[150] The employer’s policy on granting extensions to term employees on sick leave states this:

…

… Generally if an employee is out on sick leave and they can provide medical information to show that they will be returning to work prior to the end of their term contract, or at a minimum “in the foreseeable future”, then the term would be extended the same as others in the same position. However if there is medical information to support that there is no foreseeable return to work, the decision can be made to allow the term to come to its natural end, and to inform the employee that if/when they are medically cleared to return to work, to contact management and they would be re-hired [sic] with the next group.

…

 

[151] Ms. Lush testified that her understanding of the new policy meant that unless an employee on sick leave could produce a medical note confirming a return-to-work date within the time frame of the new contract renewal, then that employee would not have their employment extended. She stated, “Bottom line there was no availability for the contract — that is the reason we didn’t offer the extension.”

[152] That position, as stated by Ms. Lush and contained in the new labour relations policy, was consistent with an employer’s common law obligations to a term employee. There is no obligation at common law to offer an employee a term contract if they are unavailable to do the work being offered.

[153] However, in my view, the employer’s new policy for granting extensions to term employees on sick leave conflates its common law obligations to term employees with its obligations to accommodate term employees with disabilities to the point of undue hardship when granting extensions of term employment for operational reasons. Specifically, the policy misinterprets how the “foreseeable future” model should be applied when considering extensions of term employment.

[154] In the circumstances of this case, given that the employer’s operations are dependent upon hiring term employees continuously to fulfil its projected operational needs, and as noted below, I find that it’s old policy of granting extensions to term employees absent on sick leave, as long as it extended employment for other term employees in the same position, consistent with its duty to accommodate term employees on sick leave. But it is not so for its new policy.

[155] The non-discriminatory foreseeable future time frame to apply when analyzing whether a term employee’s illness will permit them to return to work in the foreseeable future is the length of time in which there will be an operational need for the employer to extend term employees generally who are working in the same position. The employer’s new policy effectively states that if an employee cannot prove that they can return from sick leave within the term of the next contract renewal, then they cannot come back at all. That limits a term employee’s entitlement to be on sick leave to the expiry date of the next term-contract extension.

[156] As counsel for the grievor pointed out, there really would have been no undue hardship to the employer had it extended the grievor’s sick leave, as long as there was work that he could potentially have returned to when he was able to perform the duties of the job. The accommodation that the employer is asked to make in these circumstances is simply to extend the LWOP. There is no hardship continuing that status for a term employee with a disability, and it protects their future employment opportunities, to accumulate service toward enhanced employment benefits that come from continuous and cumulative service, as well as potential permanent employment opportunities if and when they are medically cleared to return to work.

[157] The employer’s older policy, which focused on operational need as a basis for granting extensions, also accommodated its need for a clear medical prognosis before taking steps to end the employment of a term employee with a disability. As in the grievor’s case, some illnesses may take longer than the length of the next term contract to resolve but nonetheless can resolve within a time frame when the employer’s operational need still requires term employees. This time frame can be accommodated without undue hardship.

[158] The employer’s revised policy increases the pressure on an employee with a disability, such as the grievor, to obtain a return-to-work medical opinion to the fixed date when their current contract expires. And that opinion must certify that they will be able to return to work within a fixed period. The employer suggests that this is the appropriate model to define the “foreseeable future” time frame for term employees employed as taxpayer services agents, like the grievor was, at its Newfoundland Call and Data Centre.

[159] That revised policy has several problems. The overarching one is that it attempts to predetermine the point of undue hardship for granting any future extensions. The time frame proposed would be equal to the length of the next term contract — which the employer deems is the foreseeable future time frame for a term employee. If the employee is not able to return to work within that time frame (i.e., the foreseeable future), then the employer takes the position that it has reached the point of undue hardship and does not have to take any further steps to accommodate the employee’s disability.

[160] The grievor’s history of contract extensions varied from a low of 21 to a high of 133 calendar days. His final term contract was 52 days. Halfway through that contract, and while he was on sick leave, he was given notice that he had to obtain a medical certificate before his contract expired, or his employment would not be renewed. It was not consistent with the employer’s human rights obligations to predetermine a point in time by policy, when undue hardship would be reached by using the variable and arbitrary periods of future contract renewals to calculate how long a term employee could be medically absent before being deemed unable to do their job for the foreseeable future.

[161] The model set out in the revised labour relations policy essentially means that unless the term employee absent on sick leave can provide a medical certificate before their existing contract expires that confirms a return-to-work date within the next term contract being offered, then they will be deemed unable to return to work in the foreseeable future, and the resulting termination of their employment will be deemed non-discriminatory. The new policy, in my view, does not seem to remove the barriers that term employees with disabilities face in the call centre workplace but instead appears to increase them.

[162] In a work environment such as the CRA’s Newfoundland call centre, in which the operations depend on term employees and rely on term-contract extensions to meet the fluctuating seasonal-work demands, the foreseeable future of the work requiring term extensions could easily extend for many months beyond the term of the next contract renewal. It seems to me that the foreseeable future of the need for term employees in the same position is a much more appropriate and non-discriminatory time frame to use to evaluate whether an employee on sick leave will be able to return within the foreseeable future, as the SCC intended the term to be used in Hydro-Québec. This model allows employees on sick leave the time they would otherwise be employed operationally to obtain medical clearance to return to work with their colleagues. If there is a downturn in the work, and the employer decides that it no longer needs to offer term extensions to term employees in the same position, then there would be no discrimination if the term employee on sick leave in the same position is treated the same way and is not offered an extension. In this scenario, all term employees would be treated equally. They all would suffer the same contractual consequences of having their service broken, and they would all would enjoy the same possibility of being “rehired” as it is termed, when the workload increases.

[163] Since I have found that the employer used an improper foreseeable-future model to assess the grievor’s capacity to return to work in the future, it’s argument that its actions were non-discriminatory because it had reached the point of undue hardship, based on the principles of Hydro-Québec has to fail.

[164] The employer’s policy wrongfully precluded considering all the relevant medical evidence as to the grievor’s ability to return to work in the foreseeable future.

[165] There is a further difficulty associated with applying the employer’s policy on term extensions for employees on sick leave. Because it requires a term employee who is absent on sick leave to produce a medical certificate before the current term contract expires, it becomes the mandatory and arbitrary time frame that that employee must adhere to, to come up with a medical return-to-work certificate. If an employee, like the grievor, was either unable to convince his doctors to provide such a certificate within the short time frame or alternatively was unable to complete the medical assessments necessary to determine a medically approved return-to-work date in the foreseeable future, then in accordance with the policy, no extension would be granted, and their employment would be terminated by reason of the expiry of their term contract.

[166] This is precisely what happened to the grievor, despite his persistent and continuous efforts to obtain a medical certificate clearing him to return to work. Rather than considering his individual circumstances and providing him more time to obtain an up-to-date medical certificate, Labour Relations advised Mr. Farrell that if the grievor could not produce a return-to-work medical note before May 22, then no extension should be granted.

[167] As Mr. Farrell stated, after Labour Relations became involved, everything hinged on securing a medical opinion before May 22, which is what the policy required.

[168] The SCC has emphasized repeatedly that the duty to accommodate must take into account individual circumstances, but in this case, the policy was applied mechanically, and no exception was considered in the grievor’s case, even after updated medical information was provided.

[169] Recently, in Babb FCA, the Federal Court of Appeal made the following comments about the importance of flexibility:

…

[49] … As discussed in Hydro-Québec, when narrowing in on the employer’s duty to accommodate, the duty implies that the employer must be flexible in applying its standard if such flexibility enables the employee in question to return to work and does not cause the employer undue hardship (Hydro-Québec at para. 13).

…

 

[170] The following exchange on May 4, between Mr. Farrell and the grievor about his difficulty obtaining a medical before the deadline imposed by the policy, demonstrates the lack of flexibility and consideration of the grievor’s individual circumstances that the employer’s labour relations policy permitted. He promised an updated medical note in a short time, but there was no latitude under the policy to grant even a few more weeks to obtain one:

Hey Preston,

As much as I tried, I guess there will be no note for a couple of more weeks as I ended back here (in hospital) again. Related, but a different issue this time.

I appreciate your support and the efforts you’ve made to keep me on but I guess I have to accept whatever management decides.

I’ll call you when this foolishness at the hospital settles down.

And in case I forget to say so, good luck over at NVCC!

John

 

[171] Because no medical note was provided before May 22, the grievor’s employment ended without the employer considering any further relevant medical information that he was able to produce shortly after that, as follows:

· On August 2nd during the second level grievance hearing the grievor indicated that he received verbal clearance from his doctors to return to work part-time, on May 29th 7 days after his employment ended.

· On July 27, the grievor’s doctors confirmed in writing that his wounds had healed, and he was cleared to return to work on an ease-back basis.

· In September 2018, the OFAF that the employer had also requested during the grievance procedure was completed, and it confirmed that the grievor was fit to return to work, with limitations, on an ease-back basis.

 

[172] At the hearing, the employer objected to the admissibility and relevance of that medical evidence on the basis that it was post termination evidence, and it relied upon the principle in the SCC’s decision in Cie minière Québec Cartier v. Quebec (Grievances arbitrator), [1995] 2 SCR 1095 at paras. 3, 13 and 14 which suggests that “post termination” evidence should not be considered unless it can shed light on the reasonableness of the decision when it was made.

[173] However, I find that it is not the principles of post-termination evidence but rather the improper directives and definition of foreseeable future in the employer’s policy that precluded it from considering this relevant medical evidence. Furthermore, this policy was applied without any exception to take into account the grievor’s individual circumstances.

[174] Had the employer applied a non-discriminatory analysis to granting extensions of employment to term employees on sick leave, then the grievor too would have been afforded an extension and would have been able to produce the very medical information that the employer sought as to his future return to work. In fact, the medical notes confirmed that he could have returned to work in some capacity in the foreseeable future. In this context, I find that the medical information that the grievor produced post-termination relevant and admissible.

[175] When that medical information is taken into account, there is no basis to support the employer’s argument that it reached the point of undue hardship. This information demonstrates that the grievor was able to return to work within the foreseeable future and, in fact, quite likely within the time frame of the next contract extension.

[176] The parties’ evidence as to the length of the next contract extension was surprisingly vague, but it was accepted that employment for tax service agents in the same position as the grievor was extended at least until September and possibly through the trough in the fall into the next tax season.

[177] There was a general consensus that the Call Centre was in a period of expansion at that time and Mr Farrell, the grievor’s team lead, testified that the grievor was very close to being in a position to remain employed year round. The Employer’s decision to not offer any further extensions to his term employment denied him that future employment opportunity.

[178] For all the foregoing reasons, the grievance is allowed. I find that the Employer acted contrary to the CHRA when it refused to grant the grievor a further extension to his term employment while he was on sick leave.

XII. Remedies

[179] At the hearing, the Estate requested the following relief:

· a declaration that the employer acted in a manner contrary to the CHRA;

· monetary compensation for pain and suffering that the grievor experienced because of the employer’s discriminatory practice; and

· any other remedies deemed fair and just in the circumstances.

 

[180] Paragraph 226(2)(b) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2), grants the Board the power to give relief in accordance with paragraph 53(2)(e) and subsection 53(3) of the CHRA, which read as follows:

…	[…]
53 (2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:	53 (2) À l’issue de l’instruction, le membre instructeur qui juge la plainte fondée, peut, sous réserve de l’article 54, ordonner, selon les circonstances, à la personne trouvée coupable d’un acte discriminatoire :
…	[…]
(e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.	e) d’indemniser jusqu’à concurrence de 20 000 $ la victime qui a souffert un préjudice moral.
…	[…]
(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice willfully or recklessly.	(3) Outre les pouvoirs que lui confère le paragraphe (2), le membre instructeur peut ordonner à l’auteur d’un acte discriminatoire de payer à la victime une indemnité maximale de 20 000 $, s’il en vient à la conclusion que l’acte a été délibéré ou inconsidéré.
…	[…]

 

[181] I do not find anything in the employer’s behaviour in this situation that was willful or reckless, so I do not award any damages under s. 53(3) of the CHRA.

[182] In Rogers v. Canada Revenue Agency, 2016 PSLREB 101, at paragraphs 104 to 107, Vice Chair Marie-Claire Perrault of this Board reviewed the principles considered by the Canadian Human Rights Tribunal (CHRT) and this Board when awarding compensation for pain and suffering under section 53(2)(e) for the CHRA as follows:

104 Compensation for pain and suffering under s. 53(2)(e) and special compensation under s. 53(3) of the CHRA have varied greatly, in cases before both the Canadian Human Rights Tribunal (CHRT) and this Board and its predecessor, the Public Service Labour Relations Board (“the former Board”).

105 In Stringer v. Treasury Board (Department of National Defence), 2011 PSLRB 110, the adjudicator reviews a number of decisions from both the former Board and the CHRT and comes to the following conclusion at paragraph 36:

36 When analyzing the eight decisions referred to by the parties (disregarding Hughes), it became apparent that most of them do not include a detailed analysis of the rational [sic] used by the Tribunal or the adjudicator to arrive at the specific amount ordered for pain and suffering and for special compensation, if applicable. However, it is clear that the seriousness of the psychological impacts that discrimination or the failure to accommodate had on the complainants or the grievors is the main factor that justified each decision. It is also clear that recklessness rather than wilfulness was the principal ground used to grant special compensation to the grievors or the complainants.

106 In Kirby v. Treasury Board (Correctional Service of Canada), 2015 PSLREB 41, the employer did not fulfil its duty to accommodate. The adjudicator awarded $10 000 for pain and suffering and $2500 for special compensation. The second amount was at the lower end of the scale, as some effort to accommodate had been made.

107 In Lloyd v. Canada Revenue Agency, 2009 PSLRB 15, the adjudicator found that the employer’s lack of inquiry had resulted in insufficient accommodation; the employee was awarded $6000 for pain and suffering. In Lloyd v. Canada Revenue Agency, 2015 PSLREB 67, the same employee was again awarded compensation under the CHRA, this time in the amount of $7000, because the employer had subjected her to a permanent lateral move that was later reversed. The Board found that the action was not reckless but that it was discriminatory, since it subjected the employee to adverse treatment without taking into account her needs as the action was taken with insufficient input from her physician.

 

[183] In my view, the psychological impact and distress caused by the discrimination in this case, is significant. At the hearing, Mrs Kielley testified that in June when the grievor found out he was not going back to the CRA despite all his efforts to return, she said “He looked at me in disbelief saying they are not going to re-hire me because I don’t have a note that I can be back 100%. He told me he didn’t understand. He showed up for his shifts and didn’t understand why they were holding this against him.” After it happened she said “He swirled downhill. He barely ate. He lost all interest in all his hobbies. He didn’t participate in family activities. He wasn’t John after that. He looked defeated and acted defeated and seemed to sink into a depression.”

[184] She testified further about the impact on the family. “Then I got laid off at the end of June and it was devastating financially for the family. The neighbours helped us pay our bills and came together and had a fund raiser for the family. As a result we didn’t lose our house. Both kids were told they had to find part-time jobs. It was a devastating decision for everyone.”

[185] When asked about why the loss of employment was so hard on him, she said “John was managing and he was holding his job while on dialysis. He was disabled but he had an injury which was taking longer to heal. Dialysis was not the issue. He had an injury that was going to resolve itself and he was going to get back to where he was before and it did get better but with the decision of the employer there was no winning.”

[186] While there is some uncertainty about how long he could have remained employed for operational reasons at the call centre, the wrongful denial effectively ended his opportunity to be employed for the balance of his life.

[187] Given the impact that this decision had on the grievor’s life, I find that the Estate of John Kielley is entitled to an award of $15,000 in damages to be paid within 90 days of the date of this decision for discrimination for pain and suffering under s. 53(2)(e) of the CHRA because the grievor was wrongfully denied an extension to his term employment due to his disability.

(The Order appears on the next page)

XIII. Order

[188] The grievance is allowed.

[189] The employer is directed to pay to the Estate of John Kielley $15,000.00 in compensation for pain and suffering under paragraph 53(2)(e) of the Canadian Human Rights Act within 90 days of the date of this decision because the grievor was wrongfully denied an extension to his term employment due to his disability.

[190] I will remain seized of this grievance for 90 days from the date of this order to resolve any issues arising from its implementation.

December 11, 2024

David Jewitt,

a panel of the Federal Public Sector

Labour Relations and Employment Board