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The grievor had a history of discipline; a 1-day suspension for a 10-minute tirade directed against managers and union representatives and a written warning for an angry outburst against a manager who had questioned an unauthorized vacation day. Between these two incidents was a three month hiatus in which the grievor failed to attend work. A psychologist's report revealed that her absence was based on feelings of anger, resentment and hurt, but not on any medical condition. While the psychologist recommended that the employer hold a meeting to facilitate the employee's return to work and to repair the work relationship, the employer chose not to follow his recommendations. After her return, the employee attended Bill 168 training. In a grievance settlement over the written warning she agreed to attend anger management counselling in exchange for compensation and was offered a clean slate if she could remain discipline free for the next year. 

Over the next seven months, the grievor was absent frequently from work, in part because she had injured her shoulder.  Two days after her completion of anger management counselling, the employee came to the work to attend a meeting with management and union representatives designed to facilitate her return to work with modified duties.  It was just before this meeting that the grievor uttered the death threat to the president who was outside the building having a cigarette. The small talk turned hostile when the grievor began accusing him and other union representatives of ruining her career and that of her husband. When the president took offense at her accusations of a recently deceased union rep, he said "Don't talk about Brian. "Yes", she uttered, "and you will be too".

 The decision to terminate was made after the employer conducted an investigation under Bill 168.  The termination was upheld by the arbitrator using the following criteria:

• Record of prior discipline
• The context of the incident
• Premeditation or Spontaneous Event
• Whether there was genuine remorse
• Whether there was actual harm
• Whether there was provocation
• If there was an apology and genuine acceptance of responsibility for the act
• If there is willingness and ability to correct behaviour
• The Safety of the Workplace
• Seniority, other mitigating circumstance, and the financial hardship caused by discharge

The arbitrator also outlined several ways in which Bill 168 has changed  the way arbitrators must arbitrate cases involving workplace harassment.

1. The first "clear and significant change" concerns the new classification of threatening language, which affects the burden of proof.  Previously, arbitrators needed to be convinced that the utterer was not speaking in jest and/or that the receptor was at least intimidated by the threat. Under Bill 168, the complainant must prove one thing: that a threat was uttered. "There need not be evidence of an immediate ability to do physical harm, There need not be evidence of intent to do harm. No employee is required, as the receiver of the words, to live or work in fear of attach. No employee is required to look over their shoulder because they fear that which might follow" (234). 
2. The second change concerns the obligations and responsibilities of the employer.  Before, the employer might get away with disregarding, minimizing or turning a blind eye to allegations of violence. "That option no longer exists in Ontario", says the arbitrator.  Now, the employer has a duty to report,  investigate and resolve all allegations of violence. The investigations must still be conducted in a full and fair way and the resolution must be determined in a reasonable and measured way using traditional criteria to determine penalty: history of discipline, level of seniority, the seriousness of the misconduct, the impact of the misconduct on others, the likelihood of improvement of the grievor's behaviour and the likelihood of restoration of the employment relationship.  Employers must not regard Bill 168 as a zero tolerance legislation (243)
3. Bill 168 changes the way arbitrators determine the appropriateness of discipline given out for uttering threats the workplace. While they will likely use the traditional criteria as outlined in Dominion Glass (1975):  [A) Who was threatened or attacked? B) Was this a momentary flare-up or a premeditated act? C) How serious was the threat or attack? D) Was there a weapon involved? E) Was there provocation ? F) What is the grievor's length of service G) What are the economic consequences of a discharge on the grievor? H) Is there genuine remorse I) Has a sincere apology been made? J) Has the grievor accepted responsibility for his or her actions?] they will place greater weight on the seriousness of the incident, given the new classification of threatening language
4. To the Dominion glass list, however, arbitrators will add the following question: "To what extent is it predictable that the misconduct demonstrated here will be repeated?" 

Facts

The applicant is a financial advisor whose employment was terminated from Investia Financial Services for insubordination.  He appealed this termination to the ORLB on the grounds of that the termination was made in retaliation for his filing a harassment complaint against the company. 

The applicant’s alleged harassment began with two emails from compliance officers who, in accordance with their job duties, pointed out to Mr. Conforti some technical issues affecting a client file, in one case, and the advisor's daily deposit, in the other. The applicant took great offense to being corrected by compliance officers and found that their criticisms amounted to harassment.  He responded to each with anger (using capital letters in one) and indignation (demanding to know the employee's identity and authority in the other).  

A customer service manager responded on behalf of one of the compliance officers asking the applicant to treat his employees with respect; they were simply doing their job.  The applicant felt harassed by this correction, and responded that the manager was both incompetent and disrespectful.  

On behalf of the Customer Services Manager, the Assistant Chief Compliance Officer responded in an email addressed to all parties in which he reprimanded the applicant for verbally abusing his staff and apologized to his staff for having to put up with the applicant’s non-sense (sic). The applicant responded to this email with a scathing indictment of the Assistant Chief Compliance Officer’s language skills (because of the misspelling of “nonsense”. This was followed up by a formal harassment complaint which contained such veiled threats as “I’m sure that at that opportunity Investia/IA Executives will wish to re-visit the unique situation where the perpetrators of harassment, its investigators, its judges and its executioners, were all and one the same people”.  Two days after sending that harassment complaint, the applicant’s employment was terminated.

Issues

1. Has Bill 168 changed the way the OLRB deals with harassment cases?
2. Does the complaint fall within the jurisdiction of the OLRB
3. Does the complaint have prima facie merit?

Answers

1. Yes
2. No
3. No

Reasons

1. Bill 168 changes the way the OLRB deals with certain aspects of workplace harassment claims under the Occupational Health and Safety Act. The OHSA (as amended) puts only two legal obligations on employers:  a) To create a workplace harassment policy and program b) To provide workers with information and instruction as appropriate.  The OLRB can therefore hear cases which allege the failure of the employer to fulfill these two obligations. The OHSA does not, however, oblige employers to keep the workplace harassment free, nor does it give employees any particular rights to be free from harassment in the workplace or to be free from reprisal for filing harassment claims.   This means that the OLRB  does not have jurisdiction over those kinds of issues, which would be better dealt with in a grievance arbitration or through the courts.
2. Since this case involves a claim of reprisal due to filing a harassment complaint, it does not fall within the jurisdiction of the OLRB.
3. Even if it did fall within the jurisdiction of the OLRB, this case has no prima facie merit. The Board found that the emails sent by the compliance officers were not harassing messages but neutral work-related assignments. It also found that the applicant had a history of using “unprofessional and derogatory language” and of filing “unreasonable and unfounded harassment complaints”.  It found that, on the face of things, the employer acted reasonably in terminating the belligerent applicant.

Facts

 An employee of Ludlow Technical Products Canada filed a complaint with the OLRB under Section 50 of the OHSA. Section 50 reads as follows:

 (1) No employer or person acting on behalf of an employer shall, (a) dismiss or threaten to dismiss a worker; (b) discipline or suspend or threaten to discipline or suspend a worker; (c) impose any penalty upon a worker; or (d) intimidate or coerce a worker, because the worker has acted in compliance with this Act or the regulations or an order made there under has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.

 The employee claimed that her employer failed to investigate her workplace harassment complaint and that it failed to comply with its posted harassment policy and the procedure outlined in the Employee handbook.   Since filing her complaint, the employer has refused to file her claims for WSIB and STD.  

 Issues

1. Does the OLRB have the jurisdiction to hear this case under Section 50 of the OHSA?
2. Can the OLRB hear any kind of claim involving workplace harassment under Section 50 of the OHSA?
3. Is there any forum which has the jurisdiction to hear a case involving the employer’s failure to investigate a complaint of workplace harassment? 

Answers

1. No
2. Yes
3. Yes

Reasons

1. The worker in this case was not acting in compliance with the OHSA when she filed a harassment complaint because the OHSA does not give workers the right to file such complaints without fear of reprisal (like it does for workplace violence).  Also the worker was not seeking enforcement of the OHSA because nothing in the OHSA imposes a duty upon the employer to create a harassment-free workplace.
2. The OLRB can hear claims filed by workers who suffered reprisals for complaining about the employer’s failure to create a workplace harassment policy, or about its failure to include specific legislated things in the policy, such as measures and procedures for workers to report incidents of workplace harassment to the employer. 
3. Disgruntled employees whose employers do not investigate workplace harassment claims have recourse to the courts and to grievances.

NB: The Board member quoted heavily from the Investia case [2011] which had analogous grounds and circumstances, except that the employee in that case had been terminated and was actually found to be the subject (and not the object) of harassment.

Facts

The grievor was a long term employee of Tennaco Canada who was a recovering alcoholic, whose wife has recently died and who had a history of angry outbursts in the workplace.  After being caught smoking in the workplace, he became angry and kicked in a door. He immediately apologized to his supervisors, took responsibility for his actions, paid for the damage, and expressed remorse. His letter of termination mentioned that he was fired in accordance with Bill 168. Following his termination, he began counselling with an anger management professional and continued to attend AA meetings.  At his grievance hearing, he once again expressed remorse, took responsibility for his actions, and expressed gratitude for his termination which for him was a “blessing in disguise” because it taught him to appreciate the consequences of his inability to control his anger.

Issue:

Was termination too harsh a penalty, given these mitigating factors?

Decision

Yes

Reasoning

Unlike the arbitrator in the City of Kingston Case, this arbitrator determined that termination was too harsh a penalty, given the grievor’s personal circumstances (recent widower, recovering alcoholic, anger management issues), his acceptance of responsibility, his remorse and the steps he took to fix his behaviours (alcoholism and anger issues).

Order

Because of all these mitigating factors, the arbitrator ordered the employer to allow the grievor to return to work. However, to underscore the seriousness of his misconduct, he was not awarded compensation for the time he had missed since his termination. He also set upon him a long list of conditions, including the appointment of intermediaries (for both the union and management) to facilitate his return to work.

Facts:

Mr. Ausama Mohamed was a high achieving Arts and Sciences undergraduate who transferred from the University of Regina to the University of Saskatchewan for his third year of studies. His career goal was to become a dentist.  Believing he had all the necessary prerequisites, Mr Mohamed began applying to various dentistry schools while taking what he considered to be “easy” courses at the University. These courses included three geography classes, a geology class and a health sciences class. Soon after sending out his applications to dentistry school, the student began receiving rejection notices from various dentistry schools which informed him that he did not, in fact, have all the prerequisite science courses.  These letters arrived in the weeks before his final exams. Anxious and depressed, he made a series of bad choices:

• He asked for and received permission to defer three geography exams (Geography 113.3, 114 and 101.3) scheduled on three different dates (April 12^th, 22^nd and 23^rd) by informing each of the three professors that he had been delayed in Halifax.  This was not true.  In fact he wrote his geology exam, at the University, on April 21^st.    
• He cheated on one of his geography exams (101.3). When the final exam was given to the class, one copy went missing. On the day of the make-up exam for Mohamed and another student, the professor became suspicious when Mr. Mohamed began asking questions from that exam just minutes before the exam was due to start.  The professor quickly changed several questions on his computer and printed off two new versions of the original final exam which she gave to two students. The first handed in the modified exam whereas Mr. Mohammed handed in the original.
• Mr. Mohamed was also accused of falsifying the facts he presented to appeal his heath sciences professor’s decision not to allow him to defer his final exam

On May 10, 2004, Mr. Mohamed received a letter from the University notifying him that his three geography professors were charging him with academic dishonesty.  This was followed, four days later, with another letter notifying him that his health sciences professor was also filing charges against him.

The student wrote a memo addressed to the hearing committee denying all charged and expressing anger, hurt and indignation. At the hearing on June 23, when faced with evidence concerning the Halifax detour alibi, Mr. Mohamed admitted that his requests for deferral of his three geography exams were falsified.  He claimed that his dishonest requests for referral arose from a mental disability; he had been very stressed about the rejection letters from dentistry schools. The committee found that on a balance of probabilities, the student had cheated on the exam, even though he strongly denied having committed this offense. Due to insufficient evidence, he was not found responsible for academic dishonesty in the health sciences class.

In the end, the committee found that Mr. Mohammed had violated three rules of academic integrity:

Article 12 (m)

Providing false or misleading information with the intent to avoid or delay writing an examination or fulfilling any other academic requirement

Article 12 (j)

Seeking to acquire or acquiring prior knowledge of the contents of any examination question or paper with the intention of gaining an unfair advantage

Article 12 (k)  

Possessing or using notes or other sources of information or devices in an examination not permitted by the course instructors

His penalty for the infractions under 12 (m), he was suspended for four years and given 0 in each of the geography classes. For the infractions under 12 (j) and (k), he was expelled from University.  The committee stated, in its reasons, that it had not considered the student’s report of “severe stress” as a mitigating factor because he could have sought accommodation through legitimate routes: “seeking extensions from the instructor, deferred examinations, appeals on medical or compassionate grounds” (para 21)

In an Appeals hearing in September 2004, Mr. Mohamed brought a psychiatrist who stated that the student had been suffering from depression at the time he committed offences of academic dishonesty. The appeal committee upheld the decision of the hearing committee, reiterated the penalty and recommended that the student seek counselling to come to terms with what he had done and the consequences of his misconduct. It did not offer reasons, nor did it refer to the evidence of the psychiatrist.

Arguments

Mr. Mohammed appealed this decision to the University visitor, who chose to have the Courts deal with the issue. The student argued that the appeals committee should have provided reasons in its ruling. And that the university should have considered the student’s depression as a mitigating factor in its decisions?

Issues

1. Should the appeals committee have provided reasons?
2. Was it reasonable for the appeals committee not to consider the student’s mental disability as a mitigating factor in its deliberations?
3. Should hearing committees ever take into account personal attributes or circumstances (such as mental disability) in hearings about academic dishonesty?

Decision

1. Yes
2. Yes
3. Yes

Reasoning

1. The appeals committee is obligated by common law to provide reasons or recite evidence upon which it came to its decision. It failed to do so.  The Court found, however, that in this case “nothing would be gained in requiring the appeal board to provide additional reason on the issue of academic dishonesty”. It also found that the student should have requested reasons rather than seeking to set aside the decision based on lack of reasons.
2. The Court found that the Appeals committee had not considered the students mental disability as a mitigating factor. It also found that this was reasonable for four reasons

                                 I.             the time that it would take to assess the psychiatric evidence would interfere with what is supposed to be an expeditious process

                                II.            Committee members are not trained to analyse expert evidence

                              III.            The quality of psychiatric evidence depends on the credibility of the subject

                              IV.            Most students do not have the means to access expert evidence.

1. Yes. “The foregoing is not intended to suggest that a hearing committee should never take into account the personal attributes or circumstances of the person who committed the act of academic dishonesty. As noted on the university website at para 28 above, when a student readily admits the mistake, and cooperates with the hearing committee, thereby accepting responsibility, different considerations may arise.

COMMENT

The implication here is that had Mr. Mohamed admitted his mistake, cooperated with the committee, accepted responsibility for his misconduct, they may have taken his mental disability into consideration

Facts:

Ms. Priya Singh enrolled in the Diploma in Accounting Program (DAP) at the University of British Columbia in 2007.   She had completed a bachelor of art’s degree in history from UBC in 2004. Based on her weak transcript, she was put on academic probation for the DAP; she was required to receive an average of 65% in order to remain in the program. In her first year, Ms. Singh completed five courses, passing one and failing the remaining four.  In the fall semester, she was told that she would be required to withdraw from the program after writing her last deferred exam in April 2008.

In BUSI 294, one of the four courses for which she obtained a failing grade, Ms. Singh had been offered an accommodation for a mental disability. In the Spring semester of 2007, she had suffered panic attack during an exam. The University arranged for her to rewrite the exam in December 2007 under the proviso that if she failed to write that make-up exam at that time, she would fail the course.  Rather than write the exam in December 2007, Ms Singh instead rewrote the exam in April 2008, without authorization, after auditing the course without permission.  The University refused to mark the exam.

Ms. Singh appealed from her four failures.

• For BUSI 294, She claims that she refused to write the make-up exam in December because the Access and Diversity Office had failed to make arrangements for her (she required private space and extra time). Therefore, the University should grade her April exam.
• For the remaining three exams, she claimed that her mental disability (a general anxiety disorder) had negatively affected her ability to pass her exams. She should therefore be offered the opportunity to rewrite the exams or else withdraw retroactively from the course.  

The Appeals Committee requested documentation from both the Access and Diversity Office and the Faculty. The Access and Diversity Office stated that the student had failed to request accommodation for the December exam in a timely manner but recommended that the University allow the student to withdraw retroactively from the three other classes, on the basis of her disability. The Faculty concurred with the assessments and recommendations of the Access and Diversity Office. It therefore agreed to allow the student to withdraw retroactively from three of the four failed courses, but held that she maintain a failing grade in BUS 294.

Not satisfied with these recommendations, Ms. Singh contacted the Access and Diversity Office and requested that it modify its recommendations regarding BUSI 294.  The Office did not seek to modify its recommendations and informed Ms. Singh that “once an appeal statement is submitted we do not comment further on it”. Ms. Singh interpreted this to mean that the Office wanted to change its recommendation but had been refused.  At the hearing of the Appeals committee, Ms. Singh made arguments based on that interpretation and then expanded the relief she was seeking to include the expunging of all 19 failing grades from her undergraduate transcript based on her mental disability.

The Appeals committee determined that Ms. Singh be allowed to withdraw retroactively from three of the four failed DAP courses.  For BUSI 294, it refused to allow her to be evaluated based on the writing of an unauthorized exam. Similarly, it refused to expunge the 19 failing grades from her undergraduate transcript. Ms Singh requested and was refused extra time to collect further evidence supporting the latter request.

Ms. Singh appealed from the Appeals Committee’s decision. The Court decided not to interfere with the University’s decision. She then appealed the lower court’s ruling to the Appeal Court.

Arguments

• To the Court of Appeal, Ms. Singh argued

1. That the Access and Diversity Office was barred from changing its recommendations, that the Appeal’s committee thereby excluded evidence and that as a result the process was unfair.
2. That the Appeal’s committee should have adjourned the hearing to give her more time to collect evidence to support her request to have her failing grades expunged
3. That the Appeal’s committee did not give full effect to her evidence of mental disability

 Issue

• Is there any basis for interfering with the lower court’s decision to uphold the University’s decision?

Decision

•  No

Reasoning:

The Court addressed all three arguments:

1. The evidence does not establish that the Access and Diversity Office was prohibited from modifying its recommendation. It does establish that the Appeals Committee considered all the evidence before it.
2. Ms. Singh was “afforded every opportunity to present her case” and the Appeals Committee was not obliged, by the rules of procedural fairness, to extend the hearing.
3. The Court of Appeal deferred to the Appeals Committee’s judgement, using the standard of reasonableness.  “It cannot be said that the decision in this case was unreasonable. There was evidence supporting the decisions reached by the Appeals Tribunal. Nor, in my view, was the decision a perverse one, as Ms. Singh seems to suggest. It was open for the for the Appeals Committee to grant a right to withdrawal from recent courses without otherwise reopening an academic record that stretched back many years. Equally, it was open to it to deny relief to Ms. Singh in respect of exam accommodation where she had chosen not to comply with the well-publicized rules of the university. Finally, the fact that the Appeals’ Committee was indulgent in respect of certain requests for extraordinary relief did not compel it to be similarly indulgent tin respect of others. “

Facts:

This case took place at York University where Ms. Caroline Fisher was a visiting student from the University of New Mexico.  She enrolled in advanced classes in French literature, Spanish grammar and English literature. Her home university had sent York a report detailing a list of accommodations for Ms. Fisher, who had a learning disability.

The University expeditiously provided Ms. Fisher with all accommodations recommended by her home university with one exception; the French department failed to submit her exam accommodation form until December. The delay, which the student did not report to York’s Learning Disability Program (LDP) in a timely manner, resulted in the student not being able to write a French exam.

At the beginning of the fall 2004 semester, Ms. Fisher made supplementary requests for accommodation, including the provision of subject-matter tutoring. The University’s general policy was not to provide such tutoring, which it found to be incompatible with the maintenance of the academic standards; at York, students were required to master course material on their own.  The Assistant Vice President of Student Affairs finally provided her with funding for subject-matter tutoring in January 2005, but Ms. Fisher never used it.

Ms Fisher’s foreign language professors granted some, but not all, of the extra accommodations that Ms Fisher requested once in Toronto. The policy at York was to allow professors to disapprove any accommodation put forward by the LDP that, in their opinion, compromised academic standards. In this case, Ms. Fisher’s Spanish professor refused to allow the student use a word processor with spell and grammar check in her “Advanced Spanish Language and Grammar” class.  Her French professor refused to allow Ms. Fisher to do her oral presentations in English or to study French translations of English texts in her French literature class.   She did, however, allow Ms. Fisher to do her oral presentations in a private setting and granted her permission not to interact with other students in class.   

Both professors talked to Ms. Fisher early in the fall semester when they noticed she was struggling with the subject matter of their classes. Her Spanish professor, who discovered that Ms. Fisher did not have the normal prerequisite courses and that she had not done a placement test, asked her if she was enrolled in the right class.  The student claims that she became impatient with her in class and, one day, told her “spit out” her answer, thus humiliating her in front of her fellow students. The professor denied these charges, and the student failed to corroborate her claims.   Similarly, her French professor talked to her about her concerns and asked her to do the French language placement test (modified to accommodate her disability) to ensure she was in the right class. Furthermore, the student claims that she, too, humiliated her in front of the class on the grounds of disability; one day, the student came to class when the class was writing an exam; she was asked to leave since she was not writing the exam with the class.

By mid-October, Ms. Fisher stopped attending her French and Spanish classes. She failed her Spanish exam, but claimed that this was due to unsatisfactory accommodation; there were distracting noises in the room she wrote the exam and she was not afforded the correct amount of time.  She failed to write her French exam, because accommodations had not been put in place due to the French department’s failure to submit its exam accommodation form and her delay in reporting this delay to the LDP.  

As a result, the LDP encouraged Ms. Fisher to withdraw from York and to try to recuperate her tuition, but she declined to do this. She continued to try to find funding for subject-matter tutors, but was faced with the reality that most such bursaries were for Canadian students. The University eventually found some funding in January 2005; but the student failed to use of it.

The University Ombudsman got involved in January 2005. She called a meeting attended by the dean, the French professor, the French department head, the director of the LDP and the vice-president Student affairs. The French department argued that the student “did not have the requisite language skills to succeed in the French course and that the best way to determine her level was the placement test. Only then could they accommodate her. The LDP recommended that Ms. Fisher be allowed to withdraw from the two language courses and permitted to take directed reading courses instead (this was deemed impossible because she did not qualify to take directed reading courses and she did not have the requisite language skills to succeed in such courses).  In the end, the group decided to present Ms. Fisher with two options:

1. Withdraw from courses and petition for reimbursement of her tuition
2. Complete the courses with the accommodations currently in place

The student did not withdraw from the courses. Nor did she attend classes, submit assignments or write exams. She left York without paying her residence dues. She received B+ in her English Class.

She filed a complaint with the OHRTD claiming that the University discriminated against her on the ground of learning disability when it failed to provide her with subject-matter tutoring, a computer with spell and grammar check, the right to present in English and to work on English texts in translation. She claimed that the professors harassed her with demeaning comments and with imposing the language exam as a means of trying to get rid of her 

Issues

1. Did her professors discriminate against the applicant on the basis of her disability?
2. Does the refusal of the respondent to provide subject-matter tutoring at its own expense to students with learning disabilities violate its obligation under the Code to make all reasonable efforts to accommodate the applicant up to the point of undue hardship?

Decisions

1. No
2. No

Reasoning:

1. The Tribunal found the refusal to allow certain accommodations (the right to use spell/grammar check in a grammar course and the right to study English books in translation in a French course), and the request to write the language proficiency exam, were motivated only by their obligation to maintain the integrity of academic standards. They had the right to question whether she was enrolled in the proper course (“If a professor cannot ask a student if she has enrolled in the proper course for fear of allegations of discrimination, no one would be in a position to ensure that a student is enrolled in the appropriate course for her skill level) and to ask her to leave the classroom when others were writing the exam (she herself required a quiet exam room without distraction as part of her accommodation).  As for the general comments about degrading and humiliating comments, the tribunal found that the professors’ arguments were more credible the those of the applicant. 
2. The tribunal found that York’s policy on not funding subject matter tutoring for students with learning disabilities was a) rationally connected to the maintenance of academic standards;  b)  was adopted in good faith; (c) that the respondent made all reasonable efforts to accommodate Ms. Fisher up to the point of undue hardship

Rational connection to the maintenance of academic standards?

York’s policy was that accommodation “must not alter the academic standards by which success in a course is determined”.  In light of this principle, it held that subject-matter tutoring was distinct from skills-tutoring. Subject-matter tutoring was “incompatible with the maintenance of academic standards” (45) which require all students to master subject matter, on their own, both inside and outside the classroom. On the other hand, skills-tutoring, such as training in language and essay-writing skills, was compatible with the maintenance of academic standards, because they allowed students with learning disabilities to express more effectively the subject matter they had acquired on their own. Similarly, examination accommodations (extra time, separate space, computer access) do not alter academic standards.

Standard adopted in good faith?

The Tribunal assessed the “good faith” of the Respondent by looking at its comprehensive disability professionals, services and policies, all of which point to its “strong commitment to equal access to education for all students regardless of disability”.

Reasonable efforts to accommodate to the point of undue hardship?

Two components were assessed: Substantive and the Procedural. The University was found to have gone above and beyond its duty to accommodate on the substance level but was faulted for the procedural aspect of its accommodation process.

Substantive component

• The Respondent provided all accommodations requested by the home University.
• Subject-matter tutoring was not mentioned in the report sent by the home University
• The respondents even went beyond what was recommended by the LDP. For example, Professor Pioffet allowed the applicant to work alone in class and to do her oral presentations in her office rather than in class. The Assistant VP Student Affairs eventually offered her funding for subject-matter tutoring

  Procedural Component

The process was not perfect. There were two matters of concern: the delay in returning the exam accommodation form (December) and the delay in providing funding for subject-matter tutoring (December 2004).   However, the Tribunal ruled that “the human rights standard is not one of perfection”.  Moreover, the applicant failed to cooperate/participate in the accommodation process when she failed to inform the LDP of the delay, when she refused to write the French proficiency test and when she failed to use the funding for subject-matter tutoring.

The French Department did not return the exam accommodation form in a prompt and timely manner.  However, the student failed to inform the LDP before December of this delay.  This failure constitutes a mitigating factor :”It is not unduly onerous to require that the person with the disability advise the appropriate authority of any problems which arise in obtaining the recommended accommodation. Without this, it would be very difficult for a large bureaucracy to remedy situations which must inevitably rise” (52

Student Affairs did not offer funding for subject-matter tutoring in a prompt and timely manner. However, this delay is mitigated by the following factors:

•  The University’s policy not to funding this kind of tutoring
• The Student’s lack of background and proficiency in French and Spanish was problematic - even with tutoring on subject matter, she did not have the prerequisite background to pass the course
• The French professor’s perceptions that the student was struggling.
• The student’s refusal to take the French proficiency test that had been modified to accommodate her disability. Asking her to write the test was reasonable because the respondents had legitimate concerns about her proficiency  and wanted, in good faith, to help her enrol in a course appropriate to her skills level

Facts:

The applicant, Emma Arenson, has a learning disability. In 2009, she filed an application against the Law School Admission Council Inc. (LSAC), which administers the LSAT in Canada claiming that it failed to provide her with accommodation for her learning disability-related needs.   

When the applicant first filed her complaint, LSAC refused to provide a complete response on the grounds that the case did not fall under provincial jurisdiction.  The Tribunal ruled that although LSAC was an American-based company with no employees in Ontario, its provision of services in Ontario brought it under the jurisdiction of the Ontario Human Rights Tribunal.   It ordered LSAC to provide a complete response to Arenson’s application. The Tribunal refused to grant Arenson an interim remedy which would have allowed her to write the exam in 2010, because it is was not necessary to make an immediate ruling in order to make justice prevail.

In 2010, after receiving the full response from LSAC, the Tribunal ordered the LSAT service provider to compensate the applicant financially ($5000) and to grant her the opportunity to retake the LSAT exam at no addition cost. It was finally ordered to provide an individual assessment of Arenson's accommodation requests which included:

• Double time
• Provision of a reader, a meeting with the reader before the exam,
• The use of a computer with a writing program, a spell check and a printer
• Provision of standard breaks plus five minute breaks between sections
• Access to a private room in which to write the test.

The individual assessment of these requests was to be conducted in good faith and in adherence to the following policies, reproduced below in bold.   

THE POLICIES

Evaluating Reports

• Absent a misrepresentation of by Arenson’s Evaluator, LSAC will grant the requested test accommodation where she submits the following documentation
  • The Evaluator Form and Evaluation Report that addresses Arenson’s condition and how it affects her ability to take the Law School Admission Test (LSAT) under standard conditions
  • Documentation of a history of use of the requested accommodation or comparable accommodation on other standardized testing, or by an accredited university or college; and
  • The Candidate form
  • If Arenson does not have the documentation in paragraph 1(a)  (ii) above, LSAC will give considerable weight to the recommendation of Arenson’s Evaluator where the Evaluator provides the documentation required in the Evaluator Form and the Evaluator Report of Arenson’s condition and how it affects Arenson’s ability to take the LSAT under standard conditions.
    • LSAC shall provide breaks during test sections where Arenson’s evaluator has submitted documentation that establishes the need for this accommodation. If Arenson is granted the accommodation of breaks “as needed” the proctor will stop the clock during the breaks.
    • LSAC is not required to provide an accommodation that would fundamentally alter what the LSAT is intended to test; jeopardize exam security; or, in the case of auxiliary aides and services, result in undue hardship.

Comment:

This decision clarifies the rights and responsibilities of both parties in the individual assessment of accommodation requests based on learning disability:

The rights and responsibilities of the applicant:  

• The applicant had the right to receive an individualized assessment, conducted in good faith, of her accommodation requests
• The applicant has the responsibility to provide documentation: an evaluation report, documentation of the history of the accommodation, and a candidate form
• The service provider has the responsibility to conduct an individualized assessment of the candidate’s request for accommodation
• The service provide has the right to documentation: an evaluation report, documentation of the history of the accommodation, and a candidate form
• The service provider has the right to reject accommodation requests which compromise academic standards, exam security or cause other undue hardship (in the case of auxiliary aides and services)

The rights and responsibilities of the applicant:  

•   The service provider has the responsibility to conduct an individualized assessment of the candidate’s request for accommodation
• The service provide has the right to documentation: an evaluation report, documentation of the history of the accommodation, and a candidate form
• The service provider has the right to reject accommodation requests which compromise academic standards, exam security or cause other undue hardship (in the case of auxiliary aides and services)

Facts:

 The grievor was a lab technician at the University of Western Ontario with a service record of seven years. In January 2006, he was assigned to a cancer research project which conducted experiments on live rats. His duties included the anaesthetizing, vivisection, dissection and euthanasia of rats. This was his first experience doing this kind of work with live animals. While he had no conscience moral issues with the work he was doing, he began to develop psychological and physical symptoms when he perceived signs of pain and suffering in the anaesthetized rats.  He began to obsessively associate images of the suffering rats with images of his young daughter.  His supervisor, with whom he discussed his stress, anxiety, nausea and insomnia, assured him that these symptoms would pass with time. This was not true for him.   After a month, he was forced to go on sick leave.  His doctor provided a certificate notifying the university that “due to medical reasons, he is unable to continue the work he is currently doing”.  He returned to work in the spring of 2006 after taking a course of anti-anxiety medication and receiving 15 weeks of Short Term Sick Leave Benefits. 

In June 2006, the employer sent him correspondence indicating that the University now considered that his 15-week absence was due not to disability but to an unconscious aversion of his duties. A grievance was filed in which the Union claimed that the University had failed to accommodate the Grievor’s medical limitations.

At the preliminary hearing, the Union provided medical documentation stating such things as follows:

Functional Abilities Form

Reason for absence: Anxiety related to workplace situation

Rehabilitation/Treatment Required: Yes

Treatment Plan: Could not continue working at previous job, better since he has discontinued job. Stress related to death of animals in experimentation

Complete Recovery Expected: Yes

Estimated Return to Work Date: Needs new work

Comments: In previous work could not mentally handle death of many animals in experiments

Note

He had stress anxiety nausea insomnia related to dissection, death and research on rats. He medically had to leave his position. His medical symptoms improved after leaving the position

Note

He was suffering a psychological impairment while working with animal experimentation. He was suffering extreme anxiety to the point of nausea and insomnia. He could not function at work and voluntarily left his job. He did not want psychological counselling as he was okay when he was not working. He was seen in the office Feb 9, and March 3 and a work related note was given. Later when his job did not change, he vol8ntarily left work as his psychological anxiety prevent him from functioning with the animal experimental, /He was also seen August 4 and Sept 5, 20006. The nausea and insomnia were related to anxiety related to the job situation and he could not function. When not working he was okay. We could work but not in a job where there was animal experimentation.

Arguments

 The College argues that there is a difference between disability, which prevents an employee from doing his work, and stress triggered by having to do work to which he objects.   It maintains that the grievor had an unconscious aversion to killing animals, an aversion which manifested itself as a set of symptoms. It referred to a set of analogous cases in which disgruntled employees unsuccessfully claimed discrimination on the basis disability (Beauregard 2004 and Rogers Sugar 2001)

The Union argues that if the College believed that the grievor did not suffer from a disability, it should have exercised its right to an independent medical exam to prove its point.

Issue

Did the grievor suffer from a disability?  

Decision

Yes

Reasoning:

The arbitrator pointed to the Supreme Court’s definition of disability in the City of Montreal Case [2000]   in which the court stated that disability goes beyond the biomedical realm to include a socio-political dimension. (26)  It also points to City of Mississauga [2005] where the arbitrator outlined three considerations for determining whether an illness amounts to disability (whether the condition was permanent or temporary, whether it was an ailment suffered by most people from time to time, and the extent to which the condition […] interfered with the person’s ability to participate fully in society.” On the other hand, the arbitrator clarified that not all medical conditions amount to disability, citing two cases:

1. The Beauregard case (2004) in which the employee’s symptoms were caused by his strong aversion to work but did not amount to a disability and;
2. The Rogers Sugar case [2001]  In which an employee’s acute stress disorder,  triggered by her employer’s rodent control program, was not found to be a disability which caused her to leave work.

The arbitrator said “the facts of this case go beyond a strong aversion to assigned duties” (31). It was not the aversion that prevented the grievor from working but rather a medical condition that he suffered as a result of having to carry out his duties. The Arbitrator said that while job duties caused the Grievor’s stress, this does not disentitle him to accommodation. Furthermore, stress that results in an inability to work is a medically accepted form of disability. Finally, since the Employer failed to question the doctor’s documentation or to conduct  its own independent medical assessment, the arbitrator had no other choice but to accept the medical evidence presented at the preliminary hearing. 

Facts:

The applicant was a plumber in the Plant department of the University of Waterloo who had a stress-related disability.  In his application to the HRTO, he claimed that he experienced discrimination in the workplace based on this disability.  More specifically, from 2001 to 2004, he was overlooked for promotion, transferred to a different area, demoted from a lead hand position, refused overtime pay, accused of falsifying his time sheet, refused recourse to a grievance. He also claimed that the employer breached his human rights when it questioned a doctor’s note requesting accommodation in the form of “intermittent time off” over a period of 8 weeks so that he did not have to return to the doctor’s office every single time he needed time off due to disability.  The employer did not have the right, he argued, to require him to provide further medical information or clarification of the accommodation request.

The applicant called four witnesses to testify on his behalf. The witnesses painted a negative picture of the applicant, who challenged and disregarded university policies and practices. For example, one stated employees were required to provide a medical note for every absence due to sickness.   

Issues

1. Did the employee’s accommodation request (intermittent time off) comply with University practice?
2. Did the employer have the right to question the employee’s doctor’s note?
3. Did the employee suffer any differential treatment in the workplace attributable to disability>

Decisions

1. No
2. Yes
3. No

Reasoning:

1. The University’s practice was to demand a medical note for every absence. The applicant’s attempt to side-step this requirement was an infraction of that practice.
2. The Employer has the right to demand clarification of doctor’s notes which are vague and unreasonable.  The term “intermittent” could be interpreted as second hour throughout the day, every second day, every second week?  Such a vague and infinitely interpretable accommodation request was unreasonable and the employer had the right to challenge it.  
3.  The Tribunal acknowledged that the applicant found the University’s policies, practices and actions t be unfair. However, he failed to provide evidence that any of those elements discriminated against him on the ground of mental disability. Any employer in similar circumstances would experience the same kind of treatment.

Facts:

The Collective agreement at Laurentian University allows for faculty members to be absent from work due to sickness for up to six months.  Members on paid sick leave must provide the university with a doctor’s certificate stating that they cannot work and providing a return date. The employer has the right to request more detailed information, but only if members request accommodation for a disability or if they exceed the predicted return date.  The University also has the right to request an independent medical assessment by a physician of its choosing.

When the University received, from a number of members, medical certificates which provided very vague return dates (such as “time indefinite” or “until further notice”) it sent out letters requesting the following information:

• A detailed description of the sickness (short of a diagnosis);
• A detailed description of the professional tasks (teaching, research, administration) that the member could or could not do, due to the illness;
• An assessment of whether the member could return to work if certain undoable tasks were reduced and other doable tasks were increased; and
• A concrete proposal for accommodation measures that could facilitate the member’s accelerated return to work. 

A number of members filed grievances and the Union brought forward a policy grievance, which is the subject of this case.  The Union argued that the employer was essentially asking its members for a second medical certificate outside the circumstances prescribed by the collective agreement. The University argued that they were justified in asking for supplementary information because it was exercising rights and responsibilities that extended beyond the sick leave clauses into other clauses (such as management rights, discrimination and health and safety clauses).  

Issue

• Was the university acting in contravention of the Collective Agreement when it requested further a second medical certificate from the members in the name of human rights, health and safety and managerial rights?

Decision

• Yes

 Reasoning

“The collective agreement here contains a comprehensive process to deal with sick leave. This specific language cannot be sidestepped in the way the employer has attempted to do here. Nor is the employer assisted by the general provisions in other parts of the collective agreement, including the management rights clause, health and safety language, the non-discrimination clause or general provisions about absences, which cannot override the specific provisions related to sick leave” (28)

Facts:

The grievor, Dr. George Fu, was a full time instructor in the Water Quality Technology Department of the Faculty of Engineering Technologies. He was hired in July 2003 by Okanagon University College as an assistant professor, tenure-track.  In 2004, Okanagon University College split into two institutions, the Okanagon College and British Columbia Okanagon University. This split caused Dr. Fu a great deal of disappointment and stress; his department was placed in the college and not the university. His employment was terminated in 2006.

When he was hired, his committee acknowledged that his English skills were very poor.  Dr. Fu was provided with an English tutor, a diminished teaching load and smaller class sizes. This accommodation did not seem to help.  In his first two years at the college, his scores on teaching evaluations were consistently poor; students were “dissatisfied” particularly with his ability to ask and answer questions clearly. In his first two annual reports, his dean underscored the College’s dissatisfaction with the professor’s teaching evaluations and insisted that he improve his English skills through enhanced tutoring and other English language training opportunities. Dr. Fu failed to take measures to improve his English; in fact he discontinued using his English tutor. Instead he concentrated on applying for (and receiving) grants submitting applications for jobs at the British Columbia Okanagon University.

In April 2005, the acting dean, after consulting with the union and the grievor, conducted a “summative evaluation”. His report concluded that Dr. Fu’s “effectiveness as a professor is severely compromised by broken English, mispronunciations and a lack of crucial vocabulary” and that he would not be recommending his promotion for candidacy to the president.  

Days after sending the report to Dr. Fu, the dean received a call from the grievor’s doctor (April 2005) explaining that his patient was suffering from severe depression and lowered cognitive function and was therefore unable to attend work. Before going on sick leave, he was called to a meeting with the union president and the dean in which they agreed to extend Dr. Fu’s probation for one year. The agreement stated that Dr. Fu would be recommended for a promotion (2-year appointment candidacy) on condition that his scores on the student evaluations reached a given “acceptable” level overall and specifically on questions relating to his ability to ask and answer questions clearly and that he do well on two summative evaluations conducted in the Fall and Winter Semesters.

After a month’s absence, Dr. Fu returned to work with a medical note indicating that while he was allowed to attend work; his doctor recommended that he not yet return.  Over the summer months, he saw a psychiatrist who recommended that he not teach in the fall. Dr. Fu was too afraid to take more time off, given the memorandum of agreement. His performance that year was poor. His fall and winter student and summative evaluations did not meet the standard agreed upon in the Memorandum of Agreement.  The report written by the associate dean in April 2006 stated that “both the choppy style in presentation and the language deficiencies are highly detrimental to a satisfactory learning experience”. It concluded that “Dr. Fu is not suited for a teaching position at Okanagan College.” (40).

Before making its final decision on Dr. Fu’s future (July 2006), the College received (May 2006) a letter from Dr. Fu’s psychiatrist who strongly advised the college to take into consideration Dr. Fu’s mental disability when making decisions about his future. She wrote that Dr. Fu suffered from a mental disability which “definitely affected his work performance over the past year, in particular, his productivity, and his ability to communicate with his students and colleagues.”  At arbitration the psychiatrist reinforced that while Dr. Fu’s disability did not affect his accent, it did negatively impact upon his ability to communicate with his students.

Arguments

The College believes that Dr. Fu’s disability is beside the point; it is not connected to his inability to communicate in English.  The Union, which had never been advised about Dr. Fu’s mental disability until after his termination, claimed that the Memorandum of Agreement constituted a discriminatory barrier to Dr. Fu based on mental disability because his severe depression prevented him from reaching the arbitrary standards set forth within.  

Issues

1. Was the summative evaluation process flawed?
2. Is there a prima facie case of discrimination?
3. Was the Memorandum of Agreement discriminatory?
4. Did the College attempt to accommodate Dr. Fu’s disability?
5. Should Dr. Fu be reinstated in a continuing appointment? 

Decisions

1. Yes
2. Yes
3. No
4. No
5. No

Reasoning:

1. The process was flawed.  There were a number of breaches of the collective agreement; for example the dean relied in part upon informal interviews with students and colleagues and he failed to give Dr. Fu sufficient notice before attending his class in the winter semester. There were also breaches to the MOA itself; the dean failed to provide a report  at the end of the fall semester, as prescribed by the MOA, and the summative evaluations were not carried out according to plan (in the winter, only three classes were attended, in the fall, only one). 
2. Dr. Fu had a mental disability (depression), suffered adverse consequences at work (termination), and his mental disability was a contributing factor (according to psychiatrist report).  
3. The standards imposed upon Dr. Fu within the Memorandum of Agreement were “arbitrary and discriminated against Dr. Fu”. No other instructors at the college were required to achieve the score imposed on the complainant, and several professors received lower overall averages.  Furthermore, over time, there was improvement in Dr. Fu’s scores, how ever slight. 
4. The college did nothing to accommodate Dr. Fu; in fact, it chose to ignore medical documentation both in April 2005 and in July 2006 indicating that a mental disability was affecting his ability to think and to communicate. It made no attempt to accommodate Dr. Fu (i.e. the MOA does not constitute an accommodation, as it is itself discriminatory)
5. The Arbitrator agreed with the Union accepted that “the ability to communicate effectively in English is rationally connected to an individual’s performance as an instructor”.  It also accepted the College’s evidence that Dr. Fu spent his time applying for grants and university jobs rather than improving his English.  The Arbitrator therefore accepted the “College’s concern that Dr. Fu - absent his disability- might not be suitable for a candidacy appointment”. He ruled that the professor be reinstated on probation, that he start teaching only after he has provided a medical certificate showing that he is able to teach, and that his assessment be carried out by persons other than those involved with his summative evaluations (the dean and associate dean).

Facts:

 The facts of this case are identical to those of Okanagon College v. Okanagan College Faculty Assn (2007). In that case, the Union, relying on the Fidler (2006) analysis, argued that Dr. Fu was entitled to damages for mental stress caused by employer’s actions.  The Arbitrator found that the Fidler analysis was not relevant because, according to Dr.Fu’s doctor’s notes, there was no correlation between the deterioration of the working relationship and deterioration of his mental health, which appeared to improve over time.

The arbitrator did state however that Dr. Fu may be entitled to damages to dignity under the Human Rights code. This case deals with the Union’s claim for such damages.

Arguments

 The College argues that there was no finding of “injury to dignity” related to discriminatory conduct. As such, the College is not obliged to pay damages.

Issues

1. Did Dr. Fu suffer an injury to his dignity, feelings and/or self respect?
2. If yes, was this injury related to discriminatory actions of the employer?
3. Was the injury suffered “reasonably foreseeable”?

Decisions

1. Yes
2. Yes
3. Yes

Reasoning:

1. The arbitrator pointed to the facts outlined in the 2007 case that establish “that he suffered actual injury to his dignity, feelings and self respect”. This is the paragraph he cited:  “Dr. Fu was asked in direct examination about the effect the termination had on him and his family. He answered that he had been “kept in uncertainty” during the one year extension, and that the period from April to July 2006 (i,e, between the second summative evaluation and his termination) was “a terrible time for us to wait for the result”. Dr. Fu said his most serious concern was that the College’s decision would bring back his severe depression and the “hell” he had experienced. Additionally, his family had a difficult time with his wife “crying all the time” and his three children “never seeing a smile from their parents” Dr.Fu said he and his wife were fortunate to have support from their families but explained how “all our relatives suffered”.
2. The arbitrator found that this injury occurred when the employer terminated the employee using the results of a “fundamentally flawed summative evaluation” and the “discriminatory conditions in the MOA” 
3. The arbitrator said it was.

Damages

The Arbitrator ordered the College to pay Dr. Fu $3500 in damages. It based its decision in the Morris decision [2004], in which the victim was paid $5000 in damages for a similar injury but whose circumstances were different/worse (As compared to Morris, Fu had a much shorter service record and as compared to Morris’ employer

When can a university fire a non collegial professor whose behaviours are directly affected by a mental disability?

Facts:

The complainant in this case, Dr. Simiak Rezaei, worked as a tenure-track Associate Professor at the University of Northern British Columbia’s Computer Science Program. 

His initial appointment was from September 2003 to August 2006.  In February 2006, the University decided not to renew his appointment on the basis that the professor had not met one of the criteria (set out in the Collective Agreement) of “satisfactory contribution to the life of the academic unit”.  The letter of termination specified that Dr. Rezaei had behaved “in ways which are disruptive and which negatively affect the Program and that behaviour has followed a pattern over time”.

The professor grieved the termination but refused to agree with the agreement reached in March 2007 between the Union and the Employer. This agreement included a leave of absence, a payment and the professor’s resignation effective December 2007.

In August 2008, Dr. Razaei provided the Union with medical reports stating that he had mental disability which caused his disruptive behaviours at the university from 2003 to 2006. The Union brought the reports forward to the University, which refused to revisit the settlement. When the Union refused to grieve that decision on behalf of the professor, the professor filed an application with the Tribunal.    

Dr. Rezaei argues that three facts should have triggered the University/union’s duty to inquire whether he had a mental disability when he was working at the University:

1)      The outrageousness of his behaviour ought to have alerted the respondents to consider that he was suffering from a mental disorder

2)      A reference, made by a consultant hired to write to interview members of the department on the question of collegiality, to Dr. Rezaei’s narcissism

3)      A  letter written to the respondent in 2006 setting out possible explanations for his behaviour, including a childhood stutter

The Respondents applied to have the case dismissed based on the grounds that the applicant had no reasonable prospect for success.

Issue

-          Based on the information available before the2007 agreement, did the respondents have a duty to inquire whether or not the professor had a disability?    

Decision

-          No

Reasoning

-          Based on principles used in other cases, especially Alexander v Northern Health Authority [2008] which dealt with an employee terminated for similar reasons[1], i.e. non collegial communications, the tribunal found that the respondents did not have such a duty because…

• The impugned communications   were not “so far out of the norms of communication among individual holding firm views on matters of dispute amongst them or so indicative of distress as to have put the respondents on inquiry whether Dr. Rezaei’s behaviour was affected by a mental disability” (70)
• The consultant’s reference to Dr. Rezaei’s narcissism was not a given as a medical diagnosis but a lay description of the professor’s personality.  Moreover, the professor’s disability was not related to a narcissistic personality disorder.
• Dr. Rezaei’s reference to a childhood stutter was not enough to put the University on alert. It was one of many reasons put forward by the professor to explain his behaviour, none of which included disability. Moreover, the professor’s disability is not related to his childhood stutter.