Toronto District School Board v Canadian Union of Public Employees, Local 4400

BETWEEN:

IN THE MATTER OF CERTAIN GRIEVANCES PURSUANT TO A COLLECTIVE AGREEMENT

TORONTO DISTRICT SCHOOL BOARD

-and-

CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 4400

AWARD

(“the Board”)

(“the Union”)

Sole Arbitrator Christopher White

For the Board: Daniel Fogel Hicks Morley Hamilton Stewart Storie LLP

Sean Reginio Hicks Morley Hamilton Stewart Storie LLP Armin Sohrevardi Hicks Morley Hamilton Stewart Storie LLP Abe Nasirzadeh TDSB Labour Relations Advisor

For the Union: Ian McKellar Dewart Gleason LLP Amani Rauff Dewart Gleason LLP

Terri Preston Vice President, CUPE 4400, Unit B Hellen Yousufzai Steward Coordinator, CUPE 4400, Unit B

Dates of Hearing: November 11, November 16 and November 23, 2020

January 8, January 14, February 11, March 9, March 11, April 23,

April 29, May 21, June 8 and July 5, 2021

Additional Written Submissions received July 9, 23 and 30, 2021 Additional Documentary Evidence received January 18, 2022

Date of Award: June 8, 2022

INTRODUCTION

I was appointed by the parties as sole arbitrator of some thirteen (13) grievances filed by the Union on behalf of its member (“the Grievor”). While I do not wish to understate the complexity of the issues in dispute, I think it is fair to say that the Grievor’s medical situation and the Board’s response to that situation constitutes the nexus that has permitted the consolidation of the various grievances. At the outset of this proceeding the parties expressed their hope that the grievances might be dealt with in a manner that might allow the Grievor and the workplace parties to focus on building a functional ongoing employment relationship.
In furtherance of that goal, the parties did agree on a process that saw them filing Will-say statements on behalf of their witnesses with cross-examinations and re-examinations being conducted on a viva voce basis. While that may have shortened the proceedings somewhat, I do note that I was eventually provided with some thirteen (13) Will-say statements that, with attached documents, comprised some 3,800 pages as well as six (6) Books of Documents that can only be described as “voluminous”. Counsel for the parties did their very best to present the evidence and their submissions in a coherent and efficient manner but the quantity of the evidence and the need to review it, and the parties’ arguments, in a detailed and thoughtful manner has meant that achievement of an expeditious process has been challenging.

THE GRIEVANCES
The Grievances, in chronological order, are as follow:
- Grievance B-1229 (October 3, 2013)
  
  I/We the undersigned claim that:
  
  the Board has violated the collective agreement, including but [not] limited to Articles, D, Articles R, Appendix D and any other relevant provision or legislation by unjustly requiring the grievor to provide a doctor’s note for every absence.
  
  The Union reserves the right to rely on any other articles of the collective agreement that may also apply in all of the circumstances.
  
  Therefore I/we request that:
  
  the Board cease and desist in this practice, plus full and acceptable redress.
- Grievance B-1847 (February 14, 2018)
  I/We the undersigned claim that:
  the Board has violated the Collective Agreement, including but not limited to Articles D, Articles L, Articles P, any relevant past practice, the corresponding provision of any relevant previous collective agreements and any other relevant provision or legislation by impeding the member in selecting a supply instructor for his class when absent. The Union reserves the right to rely on any other articles of the collective agreement that may also apply in all of the circumstances.
  
  Therefore I/we request that:
  
  The Board cease and desist in this practice, offer an apology for the exhibit[ed] behaviour, plus full and acceptable redress.
- Grievance B-1910 (May 29, 2018)
  
  I/We the undersigned claim that:
  
  by failing to accommodate the grievor the Board has violated the Collective Agreement, including but not limited to Articles D, Articles EE, the Human Rights Code, the corresponding provision of any relevant previous collect agreements and any other relevant provision or legislation. The union reserves the right to rely on any other articles of the collective agreement that may also apply in all of the circumstances.
  
  Therefore I/we request that:
  
  the Board cease and desist in this practice, reimburse all lost wages and benefits including but not limited to sick leave, plus full and acceptable redress.
- Grievance B-1914 (November 12, 2018)
  
  I/We the undersigned claim that:
  
  the Board has violated the Collective Agreement, including but not limited to Articles D, Articles R, Appendix D, Articles C6.00, the corresponding provision of any relevant previous collective agreement and any other relevant provision or legislation by failing to refresh the grievor’s sick leave credits at … 100% of wages on the first day of the fiscal year or the first day of employment. The Union reserves the right to rely on any other articles of the collective agreement that may also apply in all of the circumstances.
  
  Therefore I/we request that:
  
  the Board cease and desist in this practice, reinstate the sick leave provision pay any lost wages (sic), plus full and acceptable redress.
- Grievance B-1946 (February 9, 2019)
  
  I/We claim the Board has violated the Collective Agreement, including but not limited to Articles D, Articles L, Articles R, Appendix D, Articles C6.00 of the central terms, the corresponding provision of any relevant previous collective agreement and any other relevant provision or legislation by making unreasonable demands for medical information. The Union reserves the right to rely on any other articles of the collective agreement that may also apply in all of the circumstances.
  
  Therefore I/We request that the Board cease and desist in this practice, plus full and acceptable redress.
- Grievance B-1947 (February 19, 2019)
  
  I/We the undersigned claim … that the Board has violated the Collective Agreement, including but not limited to Articles D, Articles L, Articles R, Articles C6.00, the corresponding provision of any relevant previous collective agreement and any other relevant provision by unjustly requesting the grievor provide further medical information through an FAF. The Union reserves the right to rely on any other articles of the collective agreement that may also apply in all of the circumstances.
  
  Therefore I/We request that the Board cease and desist in this practice, plus full and acceptable redress.
- Grievance B-1948 (February 19, 2019)
  
  I/We the undersigned claim … that the Board has violated the Collective Agreement, including but not limited to Articles D, Article H, Articles L, DSB policy, the Human Rights Code, the corresponding provision of any relevant previous collective agreement and any other relevant provision by subjecting the grievor to Harassment, thereby causing mental and physical pain and suffering. The Union reserves the right to rely on any other articles of the collective agreement that may also apply in all of the circumstances.
  
  Therefore I/We request that the Board cease and desist in this practice, plus full and acceptable redress.
- Grievance B-1949 (February 25, 2019)
  
  I/We the undersigned claim that by requiring the grievor to provide medical information that is unreasonable, invasive, unjust and above and beyond the Sick Leave/Short Term Leave and Disability Plan, we further claim the Board also breached the grievor’s confidentiality with respect to his medical information, the Board has violated the Collective Agreement, including but not limited to Article D, Articles K, Articles L, Appendix D, Articles C6.00, the Human Rights Code, the corresponding provision of any previous relevant
  collective agreement and any other relevant provision or legislation. The Union reserves the right to rely on any other articles of the collective agreement that may also apply in all of the circumstances.
  
  Therefore I/We request that the Board cease and desist in this practice, plus full and acceptable redress.
- Grievance B-1965 (April 18, 2019)
  
  I/We claim the Board has violated the Collective Agreement, including but not limited to Articles B, Articles D, Articles L, Articles R, Appendix D, Articles C6.00 of the central terms, the corresponding provision of any relevant provision or legislation by making unreasonable demands for medical information. The Union reserves the right to rely on any other articles of the collective agreement that may also apply in all of the circumstances.
  
  Therefore I/We request that the Board cease and desist in this practice, plus full and acceptable redress.
- Grievance B-2054 (February 11, 2020)
  
  I/We the undersigned claim that by failing to accommodate the grievor, the Board has violated the Collective Agreement, including but not limited to Articles B, Articles D, Articles L, Articles EE, the Human Rights Code, the corresponding provision of any relevant previous collective agreements and any other relevant provision or legislation. The union reserves the right to rely on any other articles of the collective agreement that may also apply in all of the circumstances.
  
  Therefore I/We request that the Board cease and desist in this practice, plus full and acceptable redress.
- Grievance B-2055 (February 11, 2020)
  
  I/We the undersigned claim that the Board has violated the Collective Agreement, including but not limited to Articles D, Articles L, TDSB policy, the Human Rights Code, the corresponding provision of any relevant previous collective agreements and any other relevant provision or legislation by subjecting the grievor to harassment and a reprisal thereby causing mental and physical pain and suffering. The Union reserves the right to rely on any other articles of the collective agreement that may also apply in all of the circumstances.
  
  Therefore I/We request that the Board cease and desist in this practice, plus full and acceptable redress.
- Grievance B-2056 (February 11, 2020)
  I/We the undersigned claim that the Board has violated the Collective Agreement, including but not limited to Articles D, Articles M, the OHSA, the corresponding provision of any relevant previous collective agreement and any other relevant provision or legislation by failing to provide the grievors (sic) with a safe work environment. The Union reserves the right to rely on any other articles of the collective agreement that may also apply in all of the circumstances.
  
  Therefore I/We request that the Board cease ad desist in this practice, plus full and acceptable redress.
- Grievance B-2078 (April 14, 2020)
  
  I/We the undersigned claim … that the Board has violated the Collective Agreement, including but not limited Articles D, Articles H, Articles Y, Articles EE, the corresponding provision of any relevant previous collective agreements and any other relevant provision or legislation by unjustly and arbitrarily implemented (sic) a reduction to the grievors return to work schedule (reduced to two days per week). The Union reserves the right to rely on any other articles of the collective agreement that may also apply in all of the circumstances.
  
  Therefore I/We request that the Board cease and desist in this practice, plus full and acceptable redress.
  
  (emphasis added in bold)

Counsel for the Union provided particulars of the Grievances to counsel for the Board by letter dated August 28, 2000 which stated, in part, as follows:

RE: request for production

grievance nos. B-1229 (medical monitoring) B-1847 (supply list)

B-1910 (fail to acommodate) B-1914 (sick leave)

B-1946, B-1949 (medical monitoring, medical information) B-1947 (medical monitoring)

B-1965 (medical information) B-1948 (harassment)

B-2054 (fail to accommodate) B-2055 (harassment)

B-2056 (health and safety) B-2078 (return to work)

We are counsel for the union in these matters. I understand you are counsel for the School Board.

The grievor is an essential skills upgrading assessor and instructor in the School Board’s literacy and basic skills program. He has worked for the School Board since September 21, 1992.

The following are the particulars of his grievances: …..

no.

topic

particulars

B-1229

medical monitoring

This grievance relates to the School Board’s requiring medical substantiation for each of the grievor’s absences beginning in October 2013.

The grievor had begun to experience heightened symptoms of mental illness in the spring of 2013,and accessed his sick leave and short term disability leave program (“STLDP”) days.

The School Board did not express any concerns regarding absenteeism until October 1, 2013,when the grievor’s supervisor advised that she would require a medical note for his one-day absence on September 30, 2013, and for every absence going forward.

When the union inquired into this, the School Board took the position that it had the right to ask for medical substantiation of every absence. It cited efficiency concerns within the department.

The union’s position is that this policy is unreasonable, discriminatory and inconsistent with the collective agreement and the grievor’s privacy rights. Further, the School Board’s efficiency issues arise out of its own practices.

B-1847

supply list

This grievance relates to an email from School Board supervisor G. S. to the grievor in which she advised that she would be taking over the entering of his absences into the system and selecting a regular supply instructor for his class in the future.

Ms. G.S. told the grievor that “the students get very upset when they end up with a different supply instructor each night”.

The grievor had always entered his absences into the system himself and had arranged for specific instructors in order to ensure program continuity.

The union’s position is that the School Board’s treatment of the grievor was disrespectful and discriminatory on the basis of disability.

B-1910

fail to accommodate

On March 20, 2018, the union provided the School Board with a letter from the grievor’s psychotherapist recommending that the School Board accommodate the grievor by arranging for a mental health worker to meet with the grievor at his workplace on a weekly basis. The School Board advised on July 19, 2018 that it would not arrange for or pay for a mental health worker.

The union’s position is that the School Board has failed to accommodate the grievor to the point of undue hardship.

B-1914

sick leave

This grievance relates to the School Board’s failure to provide the grievor with a new allocation of 11 sick leave days and 120 STLDP days at the start of the 2018/2019 fiscal year as required by article C6.00.

The union’s position is that the grievor does not fall within any of the exceptions in article C6.00 that would allow the School Board to require 11 consecutive days of attendance from the grievorprior to providing him with a new allocation.

B-1946, B-1949

medical monitoring/ medical information

As a result of the School Board’s failure to provide the grievor with a new allocation of sick leave and STLDP days in the 2018/2019 fiscal

year (see B-1914 above), the grievor was without pay for a number of days in that fiscal year.

In late December 2018, the union asked the School Board whether it could accommodate the grievor by providing him with the flexibility to bank lieu time on the days that he was feeling well to use on the days that his disabilities prevented himfrom working.

In response, the School Board on December 31,2018 asked the grievor to provide it with a cognitive functional abilities form (a “FAF”) by January 15, 2019. The union requested an extension of this timeline, as the grievor could not make an appointment with his specialist on such short notice. The School Board extended the deadline to January 24, 2019.

On January 24, 2019, the grievor’s psychotherapist provided a note saying that he had not had enough time to complete the FAF.

On January 28, 2019, the School Board sent the grievor a “final” request for a medical update, setting a deadline of February 4, 2019 and advising that failure to provide documentation by that date might result in a decision to “not support ongoing absence” and cut off sick leave access.

The grievor provided a letter and FAF from his psychotherapist on January 31, 2019.

On February 12, 2019, the School Board asked the grievor for a FAF again.

On February 13, 2019, the grievor’s psychotherapist provided the School Board with a note and a FAF.

On February 21, 2019, the School Board sent the grievor a questionnaire for his physicians, apparently copying his program manager, Ms. C. V., and asking a number of inappropriatequestions in the accommodation context including one that revealed his diagnosis:

On March 25, 2019, the School Board sent the grievor another request for medical information.

On April 1, 2019, the grievor’s physician provided the School Board with a note explaining that the grievor would be off work for medical reasons andhad been referred for additional treatment.

On April 9, 2019, the School Board sent a ‘second and final medical request’ in which it threatened to cut off sick leave.

On April 12, 2019, the School Board emailed thegrievor advising that medical received to date was insufficient, and improperly quoted article R

Please confirm if [the Grievor] is actively participating in ongoing treatment plan? If not, please explain.
If so, and no improvement noted, given the length of his ongoing concerning absences, has augmentation of treatment been considered? If not, please explain.
The medical documents indicate“[diagnosis]”. Has [the Grievor] beenprovided with tools and resources to tap into and identify triggers and/or attend to symptoms when symptoms exacerbates?

of the collective agreement to indicate that the grievor must provide medical on a monthly basis.

The union’s position is that the School Board’s continuous and progressively more invasive medical requests, coupled with threats, are unreasonable, discriminatory and inconsistent with the collective agreement, and in violation of the grievor’s privacy rights.
6
B-1947
medical monitoring
The grievor submitted a FAF to the School Board on January 31, 2019.

The grievor was subsequently absent from work for six days due to illness, from February 4 to February 11, 2019. Despite the fact that the grievor had just submitted a FAF to the School Board, the School Board asked him for another FAF rather than a medical note, as would normally be sufficient on the sixth day of an absence.

The union’s position is that this was an unreasonable medical request, and that the School Board is discriminating against the grievoron the basis of his mental health disability.
7
B-1948
harassment
The School Board’s continuous and invasive demands for medical information, coupled with commentary that a reasonable person would interpret as being critical of the grievor because of his absenteeism, amounts to harassment of the grievor and discrimination on the basis of disability.

The grievor had provided sufficient information to substantiate his need for accommodation and his absences, and the School Board unreasonably continues to request more, and at short intervals.

Further, the School Board has failed to adequately investigate whether the grievor’s program manager Ms. C. V. received a copy of a medical questionnaire that revealed the grievor’s diagnosis (as is indicated on the face ofthe letter enclosing the medical questionnaire).

On April 16, 2019, the grievor submitted a SchoolBoard workplace harassment and human rights incident reporting form naming School Board Disability Claim Administration manager Ms. S. B. as respondent and enclosing descriptions of 15 incidents of harassment. On July 10, 2019,he submitted a further form naming the School Board as respondent enclosing descriptions of 59 incidents of harassment.

On August 26, 2019, the School Board responded advising that the complaint did not “meet the threshold of workplace harassment anddiscrimination”. The union inquired into what that threshold was, but the School Board did notclarify.
8
B-1965
medical information
This grievance concerns the School Board’s continued requests for FAFs from the grievor in March 2019.

The union’s position is that these requests were unreasonable, discriminatory, and insensitive.
9
B-2054
failure to accommodate
This grievance relates to the School Board’s continuing failure to accommodate the grievor.

The grievor’s psychotherapist recommended that the School Board modify the grievor’s workspace so as to minimize distractions and increase the grievor’s ability to concentrate.

At the return to work meeting, the union and the School Board canvassed various accommodation options, including setting up partitions to divide the office space, moving the grievor to another part of the building, or switching the grievor’s office with one of his colleagues’ offices.

The School Board did not implement any of these options. It took the position that there is no roomfor the grievor to move elsewhere in the building.While a partition was considered, it would only have been set up on one side of the grievor’s workspace. The grievor’s colleague could not bemoved because, according to the School Board,she had been in her office for several years. Ultimately, the School Board provided the grievorwith noise-cancelling headphones.

The union’s position is that the School Board has continued to fail to accommodate the grievor to the point of undue hardship.
10
B-2055
harassment
The School Board, the union, and the grievor had a return to work meeting in December 2019.

Despite this, the School Board asked for an updated FAF on January 21, 2020.

The grievor asked for clarification as to why more information was required. The School Board responded that it needed to monitor the grievor’s progression with regard to restrictions/limitations.

The union’s position is that the School Board has engaged in a pattern of harassing behaviour toward the grievor with its continuing medical requests and has further failed to address the grievor’s harassment complaints.

B-2056

health and safety

The grievor did not hear a fire alarm due to the headphones that the School Board had told him to use instead of modifying his workspace pursuant to his specialist’s recommendation.

When the grievor filled out a health and safety concern form, the School Board’s response was that headphones were the grievor’s choice and were not supposed to block out sound that way. On the day that the grievor raised his concern, the School Board sent him another request for amedical update.

The union’s position is that the School Board has failed to take every reasonable precaution toensure the safety of the grievor, has not taken thegrievor’s safety concern seriously, and has reprised against the grievor for raising the concern.

B-2078

return to work

The grievor submitted a cognitive FAF clearing him to return to work beginning November 19, 2019 on a graduated basis. The grievor’s psychotherapist cleared the grievor to return to five days per week of work by the 13th week of his return. The grievor was back at work beginning on December 4, 2019, so he has beencleared to return to five days per week since, at the latest, March 4, 2020. The School Board has refused to allow the grievor to work more than two days a week.

The union’s position is that the School Board has discriminated against and failed to accommodatethe grievor, in breach of the collective agreement.

In the particulars for Grievance B-1948 the Union referenced two complaints submitted by the Grievor to the Board’s Human Rights Office pursuant to its policies on each of April 16, 2019 and July 10, 2019. Each of these sets out specific incidents of alleged harassment by the Board and its representatives and were attached by the Grievor to his first Will-say statement in connection with his evidence related to Grievance B-1948. On the first day of hearing, November 11, 2020, the Board agreed that the Grievor’s first complaint of April 16, 2019 raised issues that it had understood through the grievance process to be the subject matter of Grievance B-1948 and, therefore, could be tendered as relevant evidence. With respect to the second complaint of July 10, 2019, the Board took the position
that the Grievor’s statements respecting it, together with the attached complaint, should be struck from his Will-say on the basis that they constituted an expansion of the Grievance in question and that they were untimely as they detailed incidents that took place between 2015 and the end of 2019. Further, neither complaint should be considered in connection with the allegation that the Board’s Human Rights Office had not dealt with the complaints properly as that would constitute an improper expansion of Grievance B-1948. Finally, the Board took the position that the reference to an alleged breach of the Grievor’s confidentiality related to an incident that took place a few days following the filing of the Grievance in question and, therefore, any reference to that issue would similarly constitute an improper expansion of Grievance B-1948.
The parties provided extensive submissions and caselaw on the Employer’s motion and, on November 13, 2020, I provided an interim ruling that stated inter alia:
1. As noted above, this is a bottom-line decision provided to allow this matter to proceed on a timely basis. I am not prepared to strike paragraphs from the Grievor’s Will-say and Supplementary Will-say as requested by the Employer. In my view, the language of Grievance B-1948 and the statements made by the Union at the Step 1 grievance meeting are broad enough to encompass the claims that are reflected in both the April and July Complaints. While it might be arguable that the Grievor should have to detail each of the matters that is the subject of those Complaints in his Will-say rather than simply attaching his Complaints, the end result would be the same and it would be inefficient, costly and unnecessary for such a duplication of effort.
2. The Grievor’s allegations that post-date the filing of Grievance B-1948 that raise matters that are said to constitute harassment such as the alleged breach of his confidential medical information a few days following the filing of the Grievance are admissible on the basis that the grievance is of a continuing nature.
3. Finally, it remains open to the Employer to argue that the Grievor’s allegation that the Human Rights Office failed to handle his Complaints properly represents an improper expansion of Grievance B-1948 but that is an issue that can be dealt with at the conclusion of the hearing.
THE COLLECTIVE AGREEMENT
The Collective Agreement between the parties is structured to include both central provisions (that govern school boards across the province and bargaining units represented by the Canadian Union of Public Employees) and local provisions that have been negotiated by this Employer and Union. Various sections of the Local provisions in the Collective Agreement between the parties are referenced in the Grievances as set out below:

ARTICLE B – PURPOSE
ARTICLE D – MANAGEMENT RIGHTS
ARTICLE E – UNION SECURITY
ARTICLE H – REPRESENTATION

Representation for Return to Work, Accommodation or Harassment
Employer to facilitate a return to work with medical restrictions and the Employee will be so notified.

ARTICLE K – DISCIPLINE AND DISCHARGE
(48) hours notice is to be given and Union representatives must be present.

ARTICLE L – PROTECTION AGAINST HARASSMENT AND DISCRIMINATION
ARTICLE M – HEALTH AND SAFETY
ARTICLE P – STAFFING

Supply Staff
ARTICLE R – SICK LEAVE
(For Sick Leave Provisions see Part A - Central Terms - Article C6.00)
ARTICLE Y – WAGES
…..

ARTICLE EE – ACCOMMODATION

EE.1 The Employer and the Union both recognize their obligations under the Human Rights Code to attempt to accommodate, short of undue hardship, an Employee within the bargaining unit who is incapable due to disability to perform the essential duties or meet the essential requirements of his/her job. It is also recognized that the Employee has an obligation to provide satisfactory medical evidence to the Employer concerning his/her incapability or restrictions. A request by the Employer that an Employee be examined by the Employer’s doctor shall not be made unreasonably.
Accommodation may include assigning the Employee to an available vacant position in the bargaining unit, without posting, provided that the Employee has the qualifications, skills and ability to perform the regular duties of the position. It is understood that such transfer shall not alter the bargaining unit seniority date of any Employee. Further, should such transfer be to a
position with a lower wage classification, the Employee will be paid at the applicable rate in the lower wage classification.
APPENDIX D

Notwithstanding the provisions as outlined in Article Q.40 and except as otherwise amended by the is Collective Agreement the Employer’s policy for Leaves of Absence without pay will remain in effect.

ADMINISTRATIVE PROCEDURE – LEAVE OF ABSENCE WITHOUT PAY

Short Term Leaves

A leave of absence without pay for a period of two (2) weeks or less may be granted to an Employee by the Central Co-ordinating Principal/Manager, Contracted Services and Partnership Development.

The Employee must apply in writing to the Central Co-ordinating Principal/Manager, Contracted Services and Partnership Development two (2) weeks in advance of the leave of absence without pay, giving reasons and details regarding the purpose of the proposed leave.
Such leave will be considered for one of the following reasons:
1. Attending a drama or music festival in which the Employee is a participant.
2. Participating in tournaments or athletic track and field meets related to Olympic Games or finals of provincial, national, or international competitions approved by the Board.
3. Caring for a member of the Employee’s immediate family in the case of serious illness when the Employee has been unable to obtain other proper care for such member.
4. Attending the funeral of a relative or close friend,
5. Observing religious Holy Days.
6. Attending the graduation of a child from a recognized post-secondary institution.
7. Under special compassionate circumstances for reasons approved by the Central Co-ordinating Principal/Manager, Contracted Services and Partnership Development.
  
  Note:
  A short term leave of absence without pay will be covered by a Supply Employee, where deemed necessary by the Central Co-ordinating Principal/Manager, Contracted Services and Partnership Development in consultation with the appropriate Program Manager.
  
  Long Term Leaves
  
  A leave of absence without pay for a period of more than two (2) weeks up to a maximum of one (1) year may be granted to an Employee by the Central Co-ordinating Principal/Manager, Contracted Services and Partnership Development.
  The Employee must apply in writing to the Central Co-ordinating Principal/Manager, Contracted Services and Partnership Development four (4) weeks in advance of the leave of absence without pay, giving reasons and details regarding the purpose of the proposed leave. Such leave will be considered for one of the following reasons:
  1. For the purposes of attending an educational institution for professional / job related upgrading courses. Proof of enrolment must accompany the leave request.
  2. Under special compassionate reasons approved by the Central Co-ordinating Principal/Manager, Contracted Services and Partnership Development.
  Note:
  1. The date of return from a leave of absence without pay for a period of more than two
    (2) weeks will be determined by the Central Co-ordinating Principal/Manager, Contracted Services and Partnership Development. At that time, the Employee will return to their assignment, if it exists subject to the Redeployment Process.
  2. An Employee may request an extension of the leave for one (1) additional school year.
  3. Employees wishing to return during the second year of an extended leave will be returned to the Employee’s position, if it exists, subject to Q.38.
  4. A leave of absence for twenty-four (24) consecutive months or more will result in the loss of seniority per Article O.3.3 of the Collective Agreement.
8. Additionally, a number of the Grievances cite Article C.6.00 from the centrally negotiated provisions of the Collective Agreement. Article C.6.00 is, in turn, referenced in Article R – Sick Leave, as set out above, and that provision states:
  
  C6.00 SICK LEAVE
  
  C6.1 Sick Leave/Short Term Leave and Disability Plan Definitions:
  The definitions below shall be exclusively used for this article.
  
  “Full year” refers to the ordinary period of employment for the position.
  
  “Permanent Employees” – means all employees who are not casual employees, or employees working in a long-term supply assignment, as defined below.
  
  “Long Term Supply Assignment” means, in relation to an employee,
  1. a long term supply assignment within the meaning of the local collective agreement, or
  2. where no such definition exists, a long term supply assignment will be
    defined as twelve (12) days of continuous employment in one assignment.
    
    “Casual Employees” means,
    1. A casual employee within the meaning of the local collective agreement,
    2. If clause (i) does not apply, an employee who is a casual employee as agreed upon by the board and the bargaining agent, or
    3. If clauses (i) and (ii) do not apply, an employee who is not regularly scheduled to work.
      
      Notwithstanding the above, an employee working in a Long Term Supply Assignment shall not be considered a casual employee for purposes of sick leave entitlement under this article while working in the assignment.
      
      “Fiscal Year” means September 1 to August 31.
      
      “Wages” is defined as the amount of money the employee would have otherwise received over a period of absence.
      1. Sick Leave Benefit Plan
        
        The Board will provide a Sick Leave Benefit Plan which will provide sick leave days and short term disability coverage to provide protection against loss of income when ill or injured as defined below. An employee, other than a casual employee as defined above, is eligible for benefits under this article.
        
        Sick leave days may be used for reasons of personal illness, personal injury, personal medical appointments, or personal dental emergencies only.
        
        Employees receiving benefits under the Workplace Safety and Insurance Act, or under a LTD plan, are not entitled to benefits under a school board’s sick leave and short term disability plan for the same condition.
      2. Sick Leave Days Payable at 100% Wages
        
        Permanent Employees
        
        Subject to paragraphs d), e) and f) below, Employees will be allocated eleven (11) sick days at one hundred percent (100%) of wages on the first day of each fiscal year, or the first day of employment.
        Employees on Long Term Supply Assignments
        
        Subject to paragraph d) below, Employees completing a full-year long term supply assignment shall be allocated eleven (11) sick days payable at one hundred percent (100%) of wages at the start of the assignment.
        An employee completing a long term supply assignment that is less than a full-year will be allocated eleven (11) sick days payable at one hundred percent (100%) reduced to reflect the proportion the long term supply assignment bears to the length of the regular work year for the position.
      3. Short-Term Disability Coverage – Days Payable at 90% Wages Permanent Employees
        Subject to paragraphs d), e) and f) below, permanent Employees will be allocated one hundred and twenty (120) short-term disability days at the start of each fiscal year or the first day of employment. Permanent Employees eligible to access short-term disability coverage shall receive payment equivalent to ninety percent (90%) of regular wages.
        
        Employees on Long Term Supply Assignments
        
        Subject to paragraph d) below, Employees completing a full-year long term supply assignment shall be allocated one hundred and twenty (120) shortterm disability days payable at ninety percent (90%) of wages at the start
        of the assignment. An employee completing a long term supply assignment that is less than a full-year will be allocated one hundred and twenty (120) short-term disability days payable at ninety percent (90%) of wages reduced to reflect the proportion the long term supply assignment bears to the length of the regular work year for the position.
      4. Eligibility and Allocation
        
        A sick leave day/short term disability leave day will be allocated and paid in accordance with current Local practice.
        Any changes to hours of work during a fiscal year shall result in an adjustment to the allocation.
        
        Permanent Employees
        
        The allocations outlined in paragraphs b) and c) above will be provided on the first day of each fiscal year, or the first day of employment, subject to the exceptions below:
        
        Where a permanent Employee is accessing sick leave and/or the short-term disability plan in a fiscal year and the absence continues
        into the following fiscal year for the same medical condition, the permanent Employee will continue to access any unused sick leave days or short-term disability days from the previous fiscal year’s allocation.
        
        A new allocation will not be provided to the permanent Employee until s/he has returned to work and completed eleven (11) consecutive working days at their regular working hours. The permanent Employee’s new sick leave allocation will be eleven (11) days at 100% wages. The permanent Employee will also be allocated one hundred and twenty (120) short term disability days payable at ninety percent (90%) of regular salary reduced
        by any paid sick days already taken in the current fiscal year.
        
        If a permanent Employee is absent on his/her last regularly scheduled work day and the first regularly scheduled work day of the following year
        for unrelated reasons, the allocation outlined above will be provided on the first day of the fiscal year, provided the employee submits medical documentation to support the absence, in accordance with paragraph (h).
        
        Employees on Long Term Supply Assignments
        
        Employees completing long term supply assignments may only access sick leave and short term disability leave in the fiscal year in which the allocation was provided. Any remaining allocation may be used in
        subsequent long term supply assignments, provided these occur within the same fiscal year.
        
        Employees employed in a Long Term Supply Assignment which is less than the ordinary period of employment for the position shall have their sick leave and short term disability allocations pro-rated accordingly.
        
        Where the length of the long term supply assignment is not known in advance, a projected length must be determined at the start of the assignment in order for the appropriate allocation of sick leave/short term disability leave to occur. If a change is made to the length of the assignment, an adjustment will be made to the allocation and applied retroactively.
      5. Refresh Provision for Permanent Employees
        
        Permanent Employees returning from LTD or workplace insurance leave to resume their regular working hours must complete eleven (11) consecutive working days at their regular working hours to receive a new allocation of sick/short-term disability leave. If the Employee has a recurrence of the same illness or injury, s/he is required to apply to reopen the previous LTD or WSIB claim, as applicable.
        The Local union and Local school board agree to continue to cooperate in the implementation and administration of early intervention and safe return to work processes as a component of the Short Term Leave and Long
        Term Disability Plans.
        
        In the event the Employee exhausts his/her sick/short-term disability leave allocation from the previous year and continues to work part-time, their salary will be reduced accordingly and a pro-rated sick/short-term allocation for the employee’s working portion of the current year will be provided. The new pro-rated sick/short-term leave allocation may not be used to top-up from part-time to full-time hours. Any changes to hours of work during a fiscal year shall result in an adjustment to the allocation.
        
        For the purposes of d) and e) of this article, eleven (11) consecutive working days of employment shall not include a period of leave for a medical appointment, which is related to the illness/injury that had been the reason for the employee’s previous absence, but days worked before and after such leave shall be considered consecutive. It shall be the employee’s obligation to provide medical confirmation that the appointment was related to the illness/injury.
      6. WSIB & LTD
        
        An Employee who is receiving benefits under the Workplace Safety and Insurance Act, or under a LTD plan, is not entitled to benefits under a school board’s sick leave and short term disability plan for the same condition unless the employee is on a graduated return to work program then WSIB/LTD remains the first payor.
        
        For clarity, where an employee is receiving partial benefits under WSIB/LTD, they may be entitled to receive benefits under the sick leave plan, subject to the circumstances of the specific situation. During the interim period from the date of the injury/incident or illness to the date of the approval by the WSIB/LTD of the claim, the employee may access sick leave and short term leave and disability coverage. A reconciliation of sick leave deductions made and payments provided, will be undertaken by the school board once the WSIB/LTD has adjudicated and approved the claim. In the event that the WSIB/LTD does not approve the claim, the school board shall deal with the absence consistent with the terms of the sick leave and short term leave and disability plans.
      7. Graduated Return to Work
        
        Where an Employee is not receiving benefits from another source and is working less than his/her regular working hours in the course of a
        graduated return-to-work as the Employee recovers from an illness or injury, the Employee may use any unused sick/short-term disability allocation remaining, if any, for the portion of the day where the Employee is unable to work due to illness or injury. A partial sick/short-term leave day will be deducted for an absence of a partial day in the same proportion as the duration of the absence is to an employee’s regular hours.
        
        Where an employee returns on a graduated return to work from a WSIB/LTD claim, and is working less than his/her regular hours, WSIB and LTD will be used to top up the employee’s wages, as approved and if applicable.
        
        Where an employee returns on a graduated return to work from an illness which commenced in the previous fiscal year,
        
        and is not receiving benefits from another source;
        and is working less than his/her regular hours of work;
        and has sick leave days and/or short term disability days remaining from the previous year
        
        The employee can access those remaining days to top up their wages proportional to the hours not worked.
        
        Where an employee returns on a graduated return to work from an illness which commenced in the previous fiscal year,
        and is not receiving benefits from another source,
        and is working less than his/her regular hours of work,
        and has no sick leave days and/ or short term disability days remaining from the previous year
        
        The employee will receive 11 days of sick leave paid at 100% of the new reduced working hours. When the employee’s hours of work increase during the graduated return to work, the employee’s sick leave will be adjusted in accordance with the new schedule. The Employee will also be allocated one hundred and twenty (120) short term disability days payable at ninety percent (90%) of regular salary proportional to the hours scheduled to work under the graduated return to work.
        The new pro-rated sick/short-term leave allocation may not be used to topup from part-time to full-time hours.
      8. Proof of Illness
        
        A Board may request medical confirmation of illness or injury and any restrictions or limitations any Employee may have, confirming the dates of absence and the reason thereof (omitting a diagnosis). Medical
        confirmation is required to be provided by the Employee for absences of five (5) consecutive working days or longer. The medical confirmation may be required to be provided on a form prescribed by the Board.
        
        Where an Employee does not provide medical confirmation as requested, or otherwise declines to participate and/or cooperate in the administration of the Sick Leave Benefit Plan, access to compensation may be
        suspended or denied. Before access to compensation is denied, discussion will occur between the Union and the school board.
        Compensation will not be denied for the sole reason that the medical practitioner refuses to provide the required medical information. A school Board may require an independent medical examination to be completed by a medical practitioner qualified in respect of the illness or injury of the Board’s choice at the Board’s expense.
        
        In cases where the Employee’s failure to cooperate is the result of a medical condition, the Board shall consider those extenuating circumstances in arriving at a decision.
      9. Notification of Sick Leave Days
        
        The Board shall notify employees and the Bargaining Unit, when they have exhausted their 11 days allocation of sick leave at 100% of salary.
      10. Pension Contributions While on Short Term Disability Contributions for OMERS Plan Members:
        When an employee/plan member is on short-term sick leave and receiving less than 100% of regular salary, the Board will continue to deduct and remit OMERS contributions based on 100% of the employee/plan member’s regular pay.
        
        Contributions for OTPP Plan Members:
        When an employee/plan member is on short term sick leave and receiving less than 100% of regular salary, the Board will continue to deduct and remit OTPP contributions based on 100% of the employee/plan member’s regular pay.
        
        If the plan employee/plan member exceeds the maximum allowable paid sick leave before qualifying for Long Term Disability (LTD)/Long Term Income Protection (LTIP), pension contributions will cease. The employee/plan member is entitled to complete a purchase of credited service, subject to existing plan provisions for periods of absence due to illness between
        contributions ceasing under a paid short term sick leave provision and qualification for Long Term Disability (LTD)/Long Term Income Protection (LTIP) when employee contributions are waived. If an employee/plan member is not approved for LTD/LTIP, such absence shall be subject to existing plan provisions.
      11. Top-up Provisions
    Employees accessing short term disability leave will have access to any unused sick leave days from their last fiscal year worked for the purpose of topping up wages to one hundred percent (100%) under the short term disability leave.
    
    This top-up is calculated as follows:
    Eleven (11) days less the number of sick leave days used in the most recent fiscal year worked.
    
    Each top-up from 90% to 100% requires the corresponding fraction of a day available for top-up.
    
    In addition to the top-up bank, top-up for compassionate reasons may be considered at the discretion of the board on a case by case basis. The topup will not exceed two (2) days and is dependent on having two (2)
    unused Short Term Paid Leave Days/Miscellaneous Personal Leave Days in the current year. These days can be used to top-up salary under the short term disability leave.
    
    When employees use any part of a short term disability leave day they may access their top up bank to top up their salary to 100%.
    
    THE STATUTES
9. A number of the Grievances reference the Ontario Human Rights Code (“the Code”) and, while specific sections were not cited, without limiting the generality of the reference, the following sections are of particular relevance in this proceeding:
  
  Employment
  
  5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability
  Harassment in employment
  
  (2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
  
  Reprisals
  
  8 Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
  
  Definitions re: Parts I and II 10 (1) In Part I and in this Part, “disability” means,
  1. any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
  2. a condition of mental impairment or a developmental disability,
  3. a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
  4. a mental disorder, or
  5. an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)
  “harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome; (“harcèlement”)
  
  Disability
  
  17 (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
  Accommodation
  1. No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
    
    Determining if undue hardship
  2. In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations.
10. The Occupational Health and Safety Act (“OHSA”) is also cited in one of the Grievances and, again, while no specific section has been identified, without limiting the generality of the reference, the following sections are of particular relevance in this proceeding:
  
  Duties of employers
  
  25 (1) An employer shall ensure that,
  1. the equipment, materials and protective devices as prescribed are provided;
  2. the equipment, materials and protective devices provided by the employer are maintained in good condition;
  3. the measures and procedures prescribed are carried out in the workplace;
  4. the equipment, materials and protective devices provided by the employer are used as prescribed; and …..
    
    Idem
    
    (2) Without limiting the strict duty imposed by subsection (1), an employer shall,
    
    (a) provide information, instruction and supervision to a worker to protect the health or safety of the worker; …..
    
    (c) when appointing a supervisor, appoint a competent person; …..
    
    (h) take every precaution reasonable in the circumstances for the protection of a worker;
    
    Program, harassment
    1. information and instruction that is appropriate for the worker on the contents of the policy and program with respect to workplace harassment; and
    2. any other prescribed information.
    BOARD POLICY
11. Finally, two of the Grievances reference the Board’s policies and, again, while no specific policy is identified, each of the Grievances state that the issue in dispute involves the alleged harassment of the Grievor. I have been provided with the Board’s policies titled “Human Rights”, “Workplace Harassment Prevention” and, finally, “Workplace Harassment Prevention and Human Rights Procedure”. I do not propose to include these policies in their entirety but would set out the complaint process in the final document referenced. That process is as follows:
  (a) Responsibility
  1. Supervisory/Managerial staff investigating a matter under this procedure, has responsibility for ensuring they are following this procedure and are appropriately trained to investigate the matter. If in doubt, please contact the HRO for advice.
  2. All persons investigating matters under this procedure, including external investigators, will have regard for these procedures. Slight variations in process may be acceptable, as deemed appropriate by the HRO.
  3. The person conducting the investigation, whether internal or external to the workplace, must not be directly involved in the alleged incident(s) or complaint(s) of harassment/discrimination, and must not be under the direct control of the alleged harasser, in accordance with the OHSA.
  1. Timelines
    1. Complaints made under these procedures must be made within one year of the
      date of the alleged incident(s) or the last incident of harassment/discrimination in a series of incidents. Permission to proceed with a complaint outside of this
      timeline may be obtained in consultation with the Human Rights Office. The
      HRO must be satisfied that the delay was incurred in good faith and no substantial prejudice or unfairness will result to any person affected by the delay. Complaints regarding sexual harassment/assault will also be assessed on a case by case basis.
    2. Incidents/complaints brought to the attention of Supervisory staff or the HRO will be acknowledged in writing within seven (7) business days of receipt or
      knowledge of the incident/complaint.
    3. The complainant will be advised by supervisory staff or the HRO of the next steps regarding their complaint within ten (10) business days of acknowledging the incident/complaint.
    4. Generally, matters assigned for investigation will be investigated within 90 (and up to 150) days of being assigned, depending on the availability of parties to the complaint, complexity of the matter – number of parties, nature of allegations,
      time of year the complaint is received (e.g., summer for school-based complaints) etc. Any delays in timelines will be communicated to complainants and respondents including the reasons for the delay.
    5. While the process may begin for complaints received in May/June or throughout the summer for school-based complaints, ultimately the complaint may be held in
      abeyance until the following September due to the lack of availability of school based staff, representatives etc. during that time. In such cases, the
      HRO/Supervisory staff will advise the parties as soon as practical.
    6. If an investigation is initiated, the investigator will prepare a written draft summary of the findings of the investigation and forward to the complainant and respondent (if multiple parties, each will receive individual summaries). Parties will have seven (7) business days to respond.
    7. The investigator will take any responses to the draft summary into consideration and issue a final summary to the parties within seven (7) business days of the draft response due date.
    8. Final summaries will also be forwarded to the next level manager for the complainant and respondent at the time the final summary is provided to them, along with any recommendations to follow-up with Employee Services if findings are made or other specific follow-up is otherwise required.
    9. Any actions that will be taken as a result of the findings of the investigation must be communicated in writing to the Complainant and Respondent within ten (10) business days of supervisory/managerial staff receiving the summary of findings.
    10. Any action (disciplinary or remedial etc.), that will be taken by supervisory/managerial staff as a result of the findings of an investigation must be
      outlined on the Action Plan Template sent by the HRO, signed and sent back to the HRO within ten (10) business days of receiving the summary of findings.
    11. The HRO will monitor the Action Plans to ensure the agreed upon action is taken by supervisory/managerial staff.
    12. Supervisory staff, the HRO and any investigator conducting an investigation under this procedure, will have regard for these timelines. From time to time there may be delays; however, it is incumbent upon the responsible party (supervisory staff, HRO or other investigator) to advise the parties of the delay and any reasons why.
  1. Request for Review of A Final Investigation
    
    A complainant or respondent may request to the Executive Superintendent Equity, Engagement and Well-being, that a Review of the Investigation be undertaken. The intent to submit a formal “Request for Review” must be made to the Human Rights Office in writing within seven (7) business days of the issuance of the final written summary of investigation findings. The actual document to be submitted for consideration of a review, outlining the ground(s) for the review (see below), and all relevant details must be submitted to the Human Rights Office within 15 business days of notifying the HRO of the intent to request a review.
    
    The grounds for review are:
    - The investigators did not comply with these procedures
    - New evidence has become known to the complainant or respondent after the final decision but before the expiry of the seven (7) days limitation period for requesting a review.
  No review of the final decision will be undertaken with regard to the claim that the conclusions drawn by the investigator(s) based on findings of fact were incorrect.
  
  The Executive Superintendent Equity, Engagement and Well-being shall convene a reviewer(s) and the reviewer will report its findings to the Executive Superintendent Equity, Engagement and Well Being who will affirm or amend a final decision or require that a new investigation be undertaken. The decision of the Executive Superintendent, Equity, Engagement and Well Being is final.
  
  A response from the Executive Superintendent Equity, Engagement and Well Being regarding the Request for Review, shall be forwarded to the requester within 30 days of convening a reviewer.
  Wherever possible and appropriate, where a party to a complaint is facing disciplinary action as a result of investigation findings and has requested a review of the investigation, the disciplinary action shall be postponed until the outcome of the review.
  
  FACTUAL BACKGROUND
12. The Employer is the largest public school board in the Province of Ontario (and Canada) serving some 247,000 students in over 580 schools across the City of Toronto. Additionally, the Employer supports over 130,000 individuals through its Adult and Continuing Education programs. Services to the public are provided through nearly 25,000 permanent and occasional teachers and almost 20,000 permanent and supply/casual support staff. Pursuant to the Collective Agreement between the parties applicable to these Grievances, the Union represents a bargaining unit comprising:
  All instructors employed by the Employer as Literacy Basic Skills Instructors (formerly called Adult Basic Education Instructors), English as a Second Language/LINC Instructors, International Language Instructors, Concurrent Program Instructors, Black Cultural Program Instructors, Seniors’ Day-time Instructors, Native Language Instructors, Aboriginal Cultures and Traditions Instructors, Parenting Workers, and General Interest Instructors in Adult Programs…
13. As a member of the bargaining unit, the Grievor has been employed since 1992 as an Essential Skill Upgrading (“ESU”) Assessor as well as a Literacy and Basic Skills (“LBS”) Instructor. As set out in the Grievor’s original Will-say statement, it was not in dispute that his duties in these roles were as follow:
  
  I have a number of duties as an ESU Assessor. I conduct outreach activities and deliver program presentations. I also conduct initial interviews and literacy assessments of potential students (or “learners”) and place them at ESU delivery sites that are appropriate to their skill levels. I refer learners who are not eligible for ESU to more appropriate programs.
  
  As an LBS Instructor, I provide reading, writing, numeracy and self-direction instruction,
  conduct ongoing goal setting and evaluation processes, develop programs that meet the identified goals, and plan day-to-day activities, among other duties.
14. It is also not in dispute that the Grievor has never been the subject of any workplace discipline nor that he is subject to an ongoing disability within the meaning of the Code. That disability is described by the Grievor in his Will-say Statement as follows:
  1. I have major depressive disorder, generalized anxiety disorder, and post-traumatic stress disorder. I first began experiencing symptoms related to my mental disabilities in the spring of 2013. The symptoms worsened upon my return to work in September 2013. A copy of a discharge summary from Homewood Health Centre (with highly personal information redacted) setting out certain of my diagnoses, dated June 11, 2014 is at Tab “C” to this will-say statement.
  2. My mental disabilities are in part related to work and have been aggravated by the School Board’s response to my requests for accommodation and its constant requests for medical information.
15. The discharge summary from Homewood Health Centre referenced in the Grievor’s Will-say Statement states, in part, as follows:
  
  Admission Date: April 16, 2014 Discharge Date: June 11, 2014 Program: INTEGRATED MOOD and ANXIETY PROGRAM (IMAP)
  Discharge Diagnosis:
  
  Axis I: Major Depressive Disorder (Most Responsible Diagnosis)
  Generalized Anxiety Disorder
  
  Axis II: Obsessive-Compulsive Personality traits
  
  Axis III : Gastro-intestinal Reflux Disorder (GERD), Obesity, Obstructive Sleep Apnea (on Continuous Positive Air Pressure (CPAP), Hypertension, Fractured right 3rd digit, Cigarette Smoking
  
  Axis IV: (Problem Areas)
  Access to Services Housing
  _X_ Primary support group Economic
  Legal _X_ Social environment
  Educational _X_Occupational Other: None relevant.
  Axis V: Global Assessment of Functioning
  Previous Year: 60 On Admission: 45 On Discharge: 65
  
  I take judicial notice that there are five axes of the Diagnostic and Statistical Manual of Mental Disorders IV (DSM IV) that was utilized in the Homewood Health Center Discharge Summary (the DSM IV had been replaced by the DSM V in May 2013 and does not utilize this Axis system of assessment ). Axis I are clinical disorders, Axis II are personality disorders, Axis III are general medical disorders, Axis IV are psychosocial and environmental factors and Axis V is the Global Assessment of Functioning. The Global Assessment of Functioning used a rating scale of 0 – 100 to summarize how well an individual was functioning overall. The following summarizes the ratings:
  
  91 – 100 No symptoms. Superior functioning in a wide range of activities, life's problems never seem to get out of hand, is sought out by others because of his or her many positive qualities. [Note that this range is not included in some versions of the GAF]
  81 – 90 Absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns.
  71 – 80 If symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).
  61 – 70 Some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.
  51 – 60 Moderate symptoms (e.g., flat affect and circumlocutory speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).
  41 – 50 Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job, cannot work).
  31 – 40 Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed adult avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school).
  21 – 30 Behavior is considerably influenced by delusions or hallucinations or serious impairment, in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day, no job, home, or friends)
  11 – 20 Some danger of hurting self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute).
  1 – 10 Persistent danger of severely hurting self or others (e.g., recurrent violence) or persistent inability to maintain minimal personal hygiene or serious suicidal act with clear expectation of death.
16. Subsequent to the hearing dates in this case, the Grievor participated in an Independent Medical Evaluation (IME) carried out by a psychiatrist, Dr. Allan Peterkin, through CIRA Health Solutions on November 24, 2021. Dr. Peterkin’s report dated December 10, 2021 was provided to me by consent of the parties on January 18, 2022. Under the heading “History of Present Illness”, Dr. Peterkin states:
  
  [The Grievor] suggests that he suffered from anxiety and depression over the years since childhood (see below).
  
  He has been followed by Dr. B. McDermid, a GP-psychotherapist for a number of years, who has diagnosed him with Generalized Anxiety Disorder and Dysthymic Disorder (Persistent Depressive Disorder).
  
  Dr. McDermid, in his clinical notes, has commented on features like “suicidal impulsivity”, “defensive reactivity” and anger management issues but has not posited a personality profile/diagnosis.
  
  [The Grievor] was formally treated at the Homewood Centre in 2014…
  
  A number of questions were referred to Dr. Peterkin by the parties and, with respect to diagnosis, he responded:
  1. Within the scope of your medical discipline, what is the general nature of the illness/injury? Please identify if the condition(s) is/are acute or chronic in nature?
    
    [The Grievor] exhibits features of Generalized Anxiety Disorder, Persistent Depressive Disorder (with anxious distress), and query Cluster B personality traits.
    His anxiety state has been chronic … and his chronic depressive features have included a sensitivity to perceived rejection.
  2. Within the scope of your medical discipline, do you concur with the medical diagnosis/impairment descriptions that have been provided to date?
    
    Yes, I concur with the medical diagnosis/impairment descriptions that have been provided to date, However, there is mention of PTSD in his psychotherapy file and he does not currently meet criteria for PTSD.
  3. Within the scope of your medical discipline, can the examinee reported symptoms be supported by the existence of objective clinical pathology?
    
    Current symptoms are described above, and [the Grievor] describes significant clinical improvement, also noted by his therapist.
  4. Within the scope of your medical discipline, do you suspect functional overlay requiring psychological attention or assessment? If yes, please explain and provide recommendations.
    
    It is possible that [the Grievor] became more avoidant of the workplace as his anxiety mounted. He may have also responded in a defensive, inflexible way when he perceived criticism or exclusion/rejection within the workplace, highlighting longstanding personality vulnerabilities.
17. Two incidents involving parties external to the employment relationship occurred during the Grievor’s work history. I was not advised that either of these events resulted in grievances or other direct claims by the Grievor against the Employer. As set out in his Will-say these incidents are described as follow:
  1. I had a traumatic experience on May 21, 2009 when the School Board’s Bickford Centre
    went into lockdown. Per protocol, the ESU program officer and I locked the ESU office door, pulled the blinds down, turned off the lights, and positioned ourselves away from the door. We heard banging on the door. I pleaded with the program officer not to open it. Pursuant to the School Board’s protocol, we were to keep the door locked until we received an “all clear” notification. The program officer opened the door anyway. We found members of the Toronto Police Service Emergency Task Force (the equivalent of a SWAT team) pointing their tactical guns at us. After the program officer explained that we were staff, the officers escorted side entrance of the Bickford Centre. As we left the school, I saw more officers with guns pointed at us. I put my hands in the air and screamed that I was staff, and not to shoot. The officers lined me and other staff up against the buildings along Bloor Street and made us provide them with identification. They then had us stand within a police-taped area of Christie Pits Park until they gave us permission to leave. This unexpected event was very traumatic and has had a significant effect on my mental health.
  2. I transferred from the Bickford Centre to Burnhamthorpe Collegiate Institute (“Burnhamthorpe CI”) in or around October 2015.
  3. On September 12, 2018, I experienced an incident at Burnhamthorpe CI that was similar to the one that had occurred at the Bickford Centre. After a shooting took place on the property
    adjacent to the Burnhamthorpe CI, the school went into “hold and secure” status and ultimately a lockdown. My colleagues and I had been told to lock ourselves in the Hub Room during such situations. Because the security camera footage is located in the Hub Room, my colleagues and I were then told to move to the ESU reception area. Someone opened the door to the office, and I turned around to see, once again, an Emergency Task Force Officer standing in front of me with the point of his rifle six inches from my face. The incident was traumatic for me, and triggered memories of the 2009 lockdown.
    
    GRIEVANCE B-1229 (October 3, 2013)
18. This Grievance predates those others before me by some four years and five months. In his Will-say, the Grievor writes, in part:
  1. I had a number of absences at the end of the 2012/2013 school year because symptoms related to my mental disabilities had flared up in April 2013. Some mornings I woke up feeling too depressed to get out of bed. I attended work during periods of illness
    during that school year in order to keep up with my work, but that resulted in extended periods of recovery. My supervisor at the time, Program Officer Ms. G.S., questioned me on a number of occasions during the 2012/2013 school year as to why I was at work when I was clearly ill. I had been absent on one working day of the 2013/2014 school year prior to September 30, 2013. …
  2. I was absent from work for one day due to illness on September 30, 2013. I attended work the next day, on October 1, 2013.
  3. On October 1, 2013, Ms. G.S. asked me for a medical note substantiating my absence the previous day. She told me that this request had come from "way above". At 2:27
    p.m. she sent me an email reiterating this request, …
  4. On October 2, 2013, when I asked Ms. G.S. whether I could leave work to attend my family physician's office in order to obtain the medical note she had requested, she said that it did not make sense for me to take time off in order to obtain a medical note, but that from that point forward I would be required to provide a medical note to substantiate each and every absence.
  5. Union Unit B Vice-President Terri Preston inquired into this issue. On October 2, 2013, Ms. C.V. advised Ms. Preston that I would need to provide notes for each of my absences. She cited my attendance record, stating that I had had a string of Monday absences, and asserted that the School Board's efforts to meet contractual targets to ensure continued program funding was "impacted when our staff are so frequently absent."
    She went on to say that "the effectiveness and efficiency of the work that's required to meet targets cannot but be diminished when the incumbent is so often absent" and that the School Board "would like to explore options that support [the Grievor] but do not impact negatively on our program". A copy of Ms. C.V.'s email is at Tab "G" to this will-say statement.
  6. In my over 20 years with the School Board by that point, neither Ms. C.V. nor any other School Board representative had raised concerns with me regarding my attendance.
  7. I felt singled out and harassed by the School Board's actions in requiring that I provide a medical note substantiating each of my absences.
  8. I felt further targeted when I learned that the School Board was blaming me fo r the efficiency problems in the ESU department.
19. Ms. G.S.’ Will-say provided the following information with respect to Grievance B-1229:
  1. On October 1, 2013, I sent the Grievor an email requesting a doctor’s note for the Grievor’s absence on September 30, 2013.
  2. In light of the Grievor’s recent absences all occurring on Mondays, I informed my supervisor of the observed pattern of absences. Due to the absences being less than three consecutive days, the Grievor had not provided any information from his doctor(s) to support his absences, apart from stating that his absence was due to “personal illness”. As such, due to the concern about the possibility of abuse of sick leave, I was directed to request medical notes for absences going forward for a brief period.
20. The ESU Program Coordinator, Ms. C.V.’s, Will-say stated as follows:
  1. On October 2, 2013, I sent an email to Ms. Terri Preston, Union Representative, noting concerns with the Grievor’s most recent absences. Specifically, I noted that the Grievor’s last five absences had occurred on Mondays with little notice and that the only reason occasionally provided for these absences was “Personal Illness”. Further, during the previous school year, the Grievor had been absent from his daytime Assessor role on 32 days and absent from his evening Instructor assignments on 22 days, again with no more than “Personal Illness” provided by way of explanation on occasion (Tab K).
  2. In this email, I provided some of the rationale for the need to monitor and manage attendance in the ESU department in particular:
    
    We are putting significant effort into meeting the contractual targets that will ensure ongoing [MLTSD] funding, both for the number of learners we must serve and the outcomes those learners are expected to attain. These are difficult targets to meet, and our efforts are impacted when our staff are so frequently absent. The effectiveness and efficiency of the work that’s required to meet targets cannot but be diminished when the incumbent is so often absent.
    In view of this, we would like [the Grievor] to provide a note for his absences, as
    Indicated in R.1.5.1 [of the Collective Agreement]
  3. I note that these absences were occurring in the context of a program whose funding is dependent on annual targets being met, including targets in relation to number of learners registered and learner satisfaction survey results. These targets are further described at pages 23 and 24 of the MLTSD’s Program Guidelines for LBS, which can be found at Tab L. For the reasons provided above, sporadic absenteeism on short notice can have significant impacts on the viability of the LBS programming. Sporadic absenteeism of an ESU Assessor, particularly with little notice, also has negative impacts on the program since it is difficult to replace Assessors on short notice. As a result, learner recruitment events and assessment meetings sometimes must be cancelled due to Assessor absences. This, too, can lead to reduced enrolment.
  4. I did not send my email to the Grievor and did not intend to blame the Grievor for absences required due to illness or disability. I simply explained these ramifications to Ms. Preston in order to provide context and explanation for the request to provide doctor’s notes moving forward.
  For ease of reference, Article R.1.5.1 of the Collective Agreement as referenced by Ms. C.V. provides:
21. In cross-examination, the Grievor agreed that it was “fair to say” that a failure to provide consistent instructors can be a challenge for the learners supported by the program although it should be noted that the Grievor took issue with the mechanisms employed by the Employer to deliver consistency. Further, he noted that he was aware that program was funded by the Ontario Ministry of Labour, Training and Skills Development as he was “…constantly reminded by management that student numbers and successful outcomes are critical to continued funding”.
22. It became clear during cross-examination of the Grievor that the genesis of Grievance B-1229 were his feelings of harassment and being targeted engendered by the content of Ms. C.V.’s email to Ms. Preston. It is worth noting that the Grievor stated that those attendance issues that he experienced in the spring of 2013 had started following an “expectations meeting” with Ms. C.V. While I was not advised of the specifics of this meeting, nor was there any suggestion that it had been the subject of a grievance, it would seem to be part of a pattern of the Grievor’s difficulties with Ms. C.V. that ran through their relationship in the workplace. With respect to Ms. C.V.’s email to Ms. Preston, the Grievor testified that he recognized he was not being ascribed sole blame for the Employer’s concerns but noted that he was being blamed for contributing to it. When asked whether the Employer’s concern
  with his absenteeism at this time was “legitimate”, the Grievor replied that while it could be, “from a statistical view”, it was not legitimate when viewed in context as the pattern should not have caused the Employer to “jump to a conclusion”. Rather, the Grievor stated, Ms. C.V. should have recognized that he was a human being and met with him to discuss the issue.
23. In the course of her cross-examination Ms. C.V. was asked about her email to Ms. Preston that linked the Grievor’s absenteeism to difficulties that the Employer might have in meeting targets for student numbers and outcomes set by the Ministry. Ms. C.V. agreed that her conclusion that continuity of instructors was not based on statistical data but was, rather, based on her “common sense” and experience of many years in the field delivering or managing adult learning and literacy programs. Ms.
  C.V. was asked how the request for notes from the Grievor in 2013 would support the Employer’s goals related to program delivery and funding. She replied, “It’s tricky, but we are relying on instructors to be present to serve learners. That’s the source of our funding and consistency of attendance at work is important”. In response to a further question as to whether she thought that getting notes from the Grievor might cause him to attend work, Ms. C.V. replied “My thinking was not that Machiavellian”. She denied the suggestion that the Employer believed the Grievor was engaging in sick leave fraud but, rather, “…just wanted to ensure that the absences were bona fide”.
  
  GRIEVANCE B-1847 (February 14, 2018)
24. With respect to this Grievance, the Grievor’s Will-say states as follows:
  1. I was absent due to illness beginning in the fall of 2017.
  2. On February 6, 2018, Ms. G.S. sent me an email that stated as follows:
    
    During your extended absence, it is best for the program if I look after entering your absences into SFE [i.e. SmartFindExpress] and ensuring a regular supply instructor is arranged for your class.
    When you specify a supply in SFE, there is no guarantee this individual will actually pick up the assignment. If s/he doesn’t, then SFE calls other available instructors and this results in inconsistency with the class. The students get very upset when they end up with a different supply instructor each night, and they have called to tell me so.
    Should you need to extend your absence past Feb 22, I would like to advise you that I will look after arranging the supply instructor for your Bathurst Heights evening class and ask that you do not enter your absence for this class into SFE, but simply advise me that you will be absent.
  3. The School Board had, until this point, allowed me to enter my absences into SmartFindExpress and arrange for the supply instructor of my choosing to fill in for me during my absence. This was consistent with an item listed in my job description (Tab A). I had tried to ensure continuity in programming for my students by choosing the same supply instructor each
    time if possible. Copies of emails between me and Ms. G.S. dated April 13, 2011, describing this practice, are collectively at Tab “J” to this will-say statement.
  4. The School Board had not brought any students’ concerns regarding continuity to my attention previously.
  5. Ms. G.S.’ email made me feel guilty and ashamed of the fact that I had disabilities. It made me feel hurt and disrespected. The tone of her email was, to me, insensitive and demeaning.
25. Tab A to the Grievor’s Will-say as referenced above is a job posting form dated August 19, 2014 for the ESU Assessor role. Tab B to the Will-say is an undated job posting form for the LBS Instructor role. In the Summary of Duties for each position there is language stating that it is a responsibility of the employee to call a replacement from the “Board approved Unit B Supply list” to ensure coverage “as required”. Tab J to the Grievor’s Will-say as referenced above is an exchange of emails between the Grievor and Ms. G.S. from the spring of 2011 in which the latter provides the Grievor with detailed instructions as to how he can utilize the SmartFindExpress system to find a replacement instructor in the event of his absence and, in particular, how the Grievor can identify a specific instructor to be contacted for the assignment in question. It may be noted that the Grievor was not dealing with ongoing attendance issues in 2011 as he states in his Will-say that his “…attendance record was strong until the 2012/2013 school year”. Additionally, the Grievor indicated that the SFE system was just being introduced and there were “… a lot of frustrations at the time”.
26. Ms. G.S.’ Will-say provided a lengthy and detailed statement respecting Grievance B-1847. In it, she describes the SmartFindExpress (“SFE”) system as a software program used to coordinate replacements when an employee is to be absent. Ms. G.S. stated that when an employee will be absent for extended period of time she offers to manage the SFE system for them as this relieves the employee of that obligation while they are ill and allows the Employer to ensure there is consistency in the assignment of replacement staff. It was her evidence that the Grievor “…prefers not to engage in this conversation or obtain assistance in this way”. Ms. G.S’ Will-say includes the following statement:
  
  On a number of occasions, the Grievor chose not to pre-arrange supply Instructors to cover his absences. Consequently, there was inconsistency in the supply Instructors covering the class and learners made telephone and voicemail complaints to me about the decline in thequality of their evening class experience.
27. Ms. G.S.’ Will-say alleged that the Grievor mismanaged the SFE process on an ongoing basis in the 2016/17 school year to the point that it was causing her ability to complete her other job duties “…significantly more difficult”. It was stated that a particular problem arising from the alleged mismanagement was inconsistency in the assignment of replacement staff. Ms. G.S.’ Will-say
  provides a number of specific examples of the problems alleged to have arisen in the 2016/17 school year.
28. In the 2017/18 school year, Ms. G.S. indicated that the Grievor managed the SFE system properly during the fall but that problems arose again in the new year. A detailed review of these issues is set out in Ms. G.S.’ Will-say and ultimately led to her sending the Grievor the email that prompted the filing of Grievance B-1847.
29. In his cross-examination the Grievor agreed that having Ms. G.S. assume responsibility for arranging his replacements in 2018 was helpful giving his ongoing absence due to disability. However, the Grievor took issue with the statements made in Ms. G.S.’ email, noting that he takes great pride in his work and resented the insinuation that he hadn’t been arranging a consistent replacement. Specifically, the Grievor found the statement that his students were upset to be problematic as he cared very much about them. Asked by Employer counsel if he would not want to know about his students’ concerns if, in fact, Ms. G.S. had heard from them, the Grievor replied, “Of course I want feedback”.
  
  GRIEVANCE B-1910 (May 29, 2018)
30. With respect to this Grievance, the Grievor’s Will-say states, in part as follows:
  1. I was unable to attend work beginning in approximately the autumn of 2017.
  2. On March 19, 2018, my medical psychotherapist Dr. Brian McDermid completed a functional abilities form (“FAF”) – Cognitive for me to submit to the School Board’s DCA [Disability Claim Administration] office that recommended that I return to work on a graduated basis beginning March 20, 2018. Dr. McDermid enclosed a letter with the FAF – cognitive detailing recommendations for my return to work, including the accommodation that the School Board arrange for me to have weekly meetings with a mental health worker. A copy of this FAF, with it enclosure, is at Tab “K” to this will-say statement.
  3. I returned to work on March 27, 2018.
  4. The School Board took until July 19, 2018 to respond definitively to my psychotherapist’s request that I be accommodated through weekly meetings with a mental health worker. It stated that it was not prepared to fund the request, categorizing the accommodation as “treatment”. It advised that it would allow me to meet with a mental health worker in the workplace should I wish to do so, and that the funding for such services could be covered through the healthcare system or through my personal benefits. Copies of the email exchanges between Ms. Smith from the Union disability office and the School Board’s DCA office spanning from April 17, 2018 to July 23, 2018 is at Tab “L” to this will-day statement.
  5. The School Board’s suggestion that I provide the funding for the mental health worker is untenable. I cannot afford to pay for fee-for-service providers out-of-pocket. I called organizations that might provide the services of a mental health worker and discovered that the average fee was $150 per hour.
31. The Grievor’s Will-say continues on with a review of the benefits to which he is entitled under the Collective Agreement. He notes that “mental health worker” is not one of the categories set out in the list of professionals covered by the benefit plan and, further, that the maximum annual payment for health professionals is $750 which “…is not sufficient to create the relationship of trust and therapeutic rapport that allows me to benefit from the services of a mental healthcare provider given the significant hourly cost of such services”.
32. Finally, the Grievor’s Will-say as it respects this Grievance goes on to conclude:
33. The School Board employs staff that provide support to students with mental illness or mental health issues, but has never offered to connect me with such individuals.
34. The School Board’s refusal to implement my psychotherapist’s recommendations affected my sense of psychological safety and caused me mental distress. I felt demeaned, unimportant, and disrespected. I could not understand why my employer did not support me.
  1. As noted in his Will-say, the Grievor’s psychotherapist, Dr. Brian McDermid completed a Functional Abilities Form – Cognitive provided by the Employer on March 19, 2018. In that document, Dr. McDermid made the following statement, “Graduated Return to Work beginning March 20, 2018” and referred readers to a detailed letter attached to the FAF. It is important to set out the entirety of the letter provided for the Employer’s consideration:
    
    This is a follow up to the note provided on February 22, 2018, announcing [the Grievor’s] intention to begin his graduated retum to work plan beginning March 20, 2018.
    
    The Grievor’s mood and resilience has improved over the past several months. We
    have continued to meet regularly, as possible, and he has continued to maintain several daily practices which have promoted a sense of wellbeing. He believes the optimal application of the previously recognized accommodations will provide the supports required for a successful return to work.
    
    We would ideally assume that the workplace would be a relatively conflict free zone and that he will be returning to a job where the expectations are well-known. His relative, steady-state, would suggest he is now more able io manage the expectations of his work situation. It is nevertheless possible that he would not be able to manage undue
    or unanticipated work place pressures, These could be related to past situations where he has experienced situations that are outside the normal level of stress that would be anticipated in most normal work situations.
    Additionally, and related to the above, [the Grievor] would respectfully request that his supervisor accept that neither he, nor the fellow employee who is seemingly unable to acknowledge [the Grievor’s] presence is likely to benefit from additional ongoing failed attempts on the part of their supervisor requesting that they be friendly to one another. Continual attempts and suggestions to "make nice” 'at this point are odious
    reminders of the problem. [The Grievor] is able to accept that this individual would rather not acknowledge his presence in the customary fashion.
    
    I would note that [the Grievor] had provided a copy of a checklist of useful accommodations developed by the Mental Health Association of Canada for employees returning to the workplace.
    
    He understood that the accommodations considered and promoted therein may be differentially applied in specific workplaces. This document, nevertheless stands as a model to enhance the likelihood that employees with disabilities will be well supported once back at work. Specifically, he would endorse the following, but he notes that if his workplace is not amenable to this recommendation, that he would not want the absence of this support, to keep him from returning to work,
    1. Weekly meetings with a mental health worker
    2. Utilizing the following tool: www.workplacestrategyformentalhealth.com
      
      Of course, I will continue to meet and work with [the Grievor]. We have already begun a discussion related to the benefits provided to some individuals with similar vulnerabilities and disabilities who have found considerable emotional support through developing a relationship with a personal support dog, I believe this is now accepted at most workplaces, and I have recommended he explore this further with the appropriate individuals at his workplace to determine if there are any specific policies he needs to be aware of.
      
      [Proposed graduated return to work schedule follows]
      (emphasis added)
  2. I was provided with a Will-say from the Employer’s Coordinator of Disability Management, Ms.
    T.G. that detailed the exchanges between the Grievor’s Union representative, Ms. May Smith, and members of the DCA as referenced in the Grievor’s Will-say. It is unnecessary to set out the detail of that exchange other than to note that the Employer’s “definitive response” denying the Grievor’s request that it pay the cost for the mental health worker was set out in an email from Ms. D.K. of the DCA to Ms. Smith on July 19, 2018. The content of the Employer’s email(s) was subsequently referenced in an email from Ms. T.G. to Ms. May the following year on July 25, 2019 as follows:
    
    To be more case specific, [the Grievor] requested that the Mental Health worker be funded by the TDSB. The TDSB had multiple discussions about this request and took one step further by
    contacting the internal professional support head for feedback. In addition, external providers EAP [Employee Assistance Program], CAMH [the Centre for Addiction and Mental Health] and GWL [Great West Life – the Employer’s benefit provider] were contacted to fully understand the multifaceted complexities of the request.
    
    As the services provided by a mental health worker are considered to provide specialized mental health counselling services therefore considered treatment, the Board was not prepared to fund such a request. It was stated the Supervisor and the Disability Case Administration would continue to support [the Grievor] with further accommodations to meet with a Mental Health worker in the workplace should he wish to do so. [The Grievor’s] treating practitioner is qualified to vet, secure and make the referral is s/he feels, it is applicable. The funding of such counselling services maybe covered through the health care system or via his personal benefits.
    
    Once again, the TDSB is pleased to continue to accommodate [the Grievor] as he proceeds through his medical condition. It is my understanding that the DCA at the time indicated that once [the Grievor] was under the care [of] the appropriate health practitioner, to notify the DCA accordingly so that she could work on implementing the recommended visits. The visits occurred Oct 17, 24, 31 and Nov 5, 2018.
  3. In cross-examination, the Grievor stated that he believed the recommendation of weekly meetings with a mental health worker originated with him. In response to Employer counsel’s comment that Dr. McDermid’s letter also stated that this was not a necessary requirement for a return to work, the Grievor responded “Maybe, but I don’t really recall either way”.
  4. Dr. McDermid’s clinical note from January 22, 2018 was put to the Grievor. In that clinical note the following exchange between the participants is set out (the Grievor’s statements are in quotation marks in the clinical note):
    
    “if we do not hear from Mt. Sinai by Feb, I would like to put together a RTW plan.” What would make this more successful than the last RTW?
    “Honestly, I don’t think I’ll ever get a mental health worker there, to meet with me once weekly there for a period of time, but that would ideally be helpful.” In other words, while he’s saying it would be helpful, it’s not a condition.
    
    The reference to Mt. Sinai above, was an outpatient mental health and wellness program operated by Mt. Sinai Hospital to which the Grievor had applied. Ultimately, the program was not available to him.
  5. Dr. McDermid was also cross-examined on many of the issues in dispute in this arbitration. There were extensive exchanges between Employer counsel and Dr. McDermid regarding the respective roles to be played by the physician and the workplace parties in cases where accommodation of disability is
    required. It was put to Dr. McDermid that an employer is seeking an assessment of the patient’s functional restrictions and limitations together with the physician’s recommendations in order that it might properly determine how those restrictions and limitations might allow the employer to meet its obligation to provide accommodation and the witness generally agreed with that proposition. Next, it was put to Dr. McDermid that the obligation to design the accommodation was that of an employer and not the employee. Dr. McDermid replied that this was not the entirety of the process and that sometimes the patient will have a good sense of their limitations. He went on to say “We don’t necessarily accept their view but it has value”. Dr. McDermid stated that “in the main”, most employers go forward with his recommendations even in cases where he may not set out specific restrictions and limitations. That said, Dr. McDermid agreed that an employer request for restricts and limitations was reasonable and any recommendations made should be based on the physician’s objective analysis.
  6. Turning to the role of the patient in assessing what accommodations might be proposed, Dr. McDermid stated that he would develop his own idea of what was reasonable in a given case. With respect to a patient’s wishes, he said “People can ask for the sky and the moon but if a request is reasonable, I tend to support it”. Generally, Dr. McDermid described his process of determining what recommendations might be made as one of “collaboration” with the patient. For this reason, the discussion was two-way so as to support the patient’s trust in the process and so that realistic steps might be proposed that would have a greater chance of success.
  7. With respect to the recommendations set out in the FAF in paragraph 33, above, it is worth noting that both the weekly meetings with a mental health worker and the utilization of the Workplace Strategy for Mental Health tool were originally suggestions of the Grievor. Similarly, it was the Grievor who identified the possibility of using an emotional support dog as set out in Dr. McDermid’s letter. Ultimately, the Grievor was unable to undertake this strategy as it turned out his partner was allergic to dogs. Lastly, it was the Grievor that had previously identified and provided the CMHA checklist for employers as referenced by Dr. McDermid.
  8. It was put to Dr. McDermid that his clinical note had quoted the Grievor as saying that a weekly meeting with a mental health worker would “ideally be helpful” and he was asked for his understanding of that statement. Dr. McDermid responded that, while the Grievor was not happy [with the prospect that the request might not be granted], he had concluded that he would “simply have to adapt to this reality” and, therefore, it was not “a condition” [of a return to work]. The witness went on to say “He had not been accommodated and he was giving up hope for what he thought would be very helpful”. Dr. McDermid was asked “You thought it would be nice, but not required?’ to which he replied, “It would be extraordinarily helpful”.
    
    GRIEVANCE B-1914 (November 12, 2018)
  9. Grievance B-1914 alleges that the Grievor’s sick leave bank was not properly “refreshed” in the fall of 2018 when he experienced some further absences. In that regard, the Grievor’s Will-say states:
35. The ‘standard’ school year for ESU assessors commenced on or around September 11 until the 2019/2020 school year. However, ESU Assessors have been commencing work on or around August 26 for at least a decade, ‘supplying’ in their own positions for the period prior to the beginning of the ‘standard’ school year. The School Board acknowledged this when, commencing at the beginning of the 2019/2020 school year, it increased the standard school year for the ESU Assessor job classification from 38 to 40 weeks per year, and began treating the two weeks of ‘supply work’ as part of the standard school year for ESU Assessors. The 2019/2020 school year commenced on August 26, 2019 for ESU assessors. A copy of a letter I received from Ms. Visser, dated June 19, 2019, is at Tab “P” to this will-say statement.
36. I was absent from work for part of the day on June 21, 2018 and the whole day on June 22, 2018. I attended work on June 26, 2018 and August 27 through 28, 2018. August 28, 2018 was the final day that I was scheduled to work before the beginning of the new fiscal year on September 1, 2019 (see the School Board’s records as to my attendance at Tab “E”).
37. I attended work on September 4, 11, and 12, 2018 (see the School Board’s records as to my attendance at Tab “E”). I was absent due to illness on September 10, 2018.
38. My absences on June 21 and 22, 2018 were for reasons related to my mental disabilities.
  A copy of a medical note from Dr. McDermid advising that I would not be able to attend my evening assignment for the rest of the school year due to my psychological stressors and capacity, dated May 15, 2018, is at Tab “Q” to this will-say statement.
39. I did not access a sick leave or short-term leave and disability (“STLDP”) day on June 22, 2018 because I had exhausted my allocation of sick leave and STLDP days.
40. I was absent on September 10, 2018, due to a bout of upper respiratory/bronchial infection. As this is a recurring condition, I did not attend at my physician’s office when I first became ill. I generally seek medical attention two to three weeks from the onset of my symptoms. I later attended a walk-in clinic when my symptoms did not subside.
41. A copy of my pharmacy’s patient medical history report for me, listing the prescription medications that I was taking for my upper respiratory/bronchial infection, dated September 1 to October 31, 2018, is at Tab “R” to this will-say statement. Copies of notes from the walk-in clinic
  I attended dated October 2 and 9, 2018, are collectively at Tab “S” to this will-say statement. A copy of an email that I sent to Ms. S.R. of the DCA office explaining that I was physically unwell, dated September 16, 2018, is at Tab “T” to this will-say statement.
42. The School Board did not provide me with a new allocation of sick leave and STLDP days
  at the beginning of the 2018/2019 fiscal year, nor did it advise me that my absences due to illness would be unpaid. I became aware of this upon reviewing my paystub in October 2018.
43. School Board Employee Services Officer Ms. C.S. advised me by email on December
  18, 2018 that the School Board was requiring me to attend work for 11 consecutive working days in order to receive a new allocation of sick leave and STLDP days for the 2018/2019 fiscal year because, even though I was absent for different reasons, “the original medical condition that had [me] absent last year [was] still continuing in addition to a new medical condition this year”. A copy of Ms. C.S.’ email is at Tab “U” to this will-say statement.
44. The School Board did not provide me with a new allocation of sick leave and STLDP days until on or around January 21, 2019. All of my absences until January 21, 2019 were unpaid. I experienced financial hardship because of this. I am the sole provider for myself and my partner,
  who also has a disability.
  1. In response the Employer provided the Will-say statement of Ms. S.B. who, at the times material to Grievance B-1914 was employed as a Disability Claims Officer in the DCA office. She states:
    
    Entering the 2018-2019 school year, it was unclear to the Disability Claims Administration office whether the Grievor would be returning to work in September.
    1. The Board received no medical notes from the Grievor in September 2018.
    2. The Board received a note from Dr. Maha Gerges, dated October 2, 2018, which stated:
      
      The above mentioned was seen today in the clinic for medical reason and he is unable to attend work from september [sic] 28 to October 9, 2018 (Tab C)
    3. The Board received a note from Dr. Gerges dated October 9, 2018, which stated:
      
      The above mentioned was seen today in the clinic for medical reason and he is unable to attend work from oct [sic] 9 to October 14, 2018 (Tab D)
    4. On October 31, 2018, Ms. S.R., Disability Case Administrator at the Board, sent Ms. Smith an email explaining that the Grievor was absent on June 22, 2018, the last scheduled day of his work assignment at BCALC (Tab E). Since the Grievor was absent on September 10, 13, 17-20, 24-26, and several days in October, he had not been provided with a new allocation of sick leave at this point.
    5. On November 3, 2018, Ms. Smith sent an email to Ms. S.R. claiming that the reason for the Grievor’s absence on September 10, 2018 was distinct from the reason he was absent on June 22, 2018, but Ms. Smith did not provide any information regarding the reason for either of the absences (Tab F).
    6. No reasons for the Grievor’s absences were provided by the Grievor nor the Union thereafter and, apart from the notes referenced above, no medical documentation was provided to confirm
      illness or injury, medical restrictions or limitations, dates of absence, or the reasons for the Grievor’s absences.
    7. In an email dated December 12, 2018, Ms. S.R. sent an email to Ms. C.P.another Disability Case Administrator at the Board, summarizing a discussion she had with Ms. C.S., Unit Staffing Officer at the Board, regarding the Grievor’s ineligibility for a sick leave refresh (Tab G). In the absence of updated medical information, the Board’s understanding was that the Grievor’s absences from work throughout and at the end of the 2017-2018 school year, as well as on September 10, 2018 and thereafter, were for reasons related to his mental health.
    8. In an email dated January 22, 2019, Ms. C.P.confirmed that the Grievor had now satisfied the 11 day refresh period and was therefore entitled to a new quota of leave entitlements effective January 22, 2019 (Tab H).
  2. The Employer further provided a Will-say of Ms. C.S. who is identified as a Unit Staffing Officer responsible for the staffing of the bargaining unit in which the Grievor was employed at the time material to this Grievance. Ms. Styles’ Will-say states, in part, as follows:
I am aware that the Grievor has alleged that he was absent at the beginning of the 2018- 2019 school year as a result of a different condition than the illness that caused his absences at the conclusion of the 2017-2018 school year. I engaged in discussion with Disability Claims Administration staff in the fall of 2018 to determine the Grievor’s entitlement to a sick leave refresh.
It was determined that the Grievor was not entitled to a sick leave refresh at the beginning of the 2018-2019 school year.
It was my understanding that the Grievor had not provided any medical documentation in support of his claim that the reason for his absence at the beginning of the 2018-2019 school year was unrelated to the reason for his absences during, and on his last regularly scheduled day of, the 2017-2018 school year.
Even if the Grievor had provided documentation demonstrating that he was physically ill early in the 2018-2019 school year, it was evident that the Grievor continued to have difficulty attending work at that time on account of the same condition that caused his absences at the end of the 2017-2018 school year. If the Grievor was also physically ill, it appeared unlikely that his absences at the outset of the 2018-2019 school year were entirely unrelated to his ongoing mental health condition(s).

In response to those paragraphs of Ms. C.S.’ Will-say statement above, the Grievor provided a Supplementary Will-say that stated, inter alia:
1. With respect to Ms. C.S.' assertion at paragraph 10 of her will-say statement that I did not provide any medical documentation in support of my claim that the reason for my absence at the beginning of the 2018–2019 school year was unrelated to the reason for my absence at the end of the 2017–2018 school year, and Ms. S.B.'s assertions at paragraphs 11 and 12 of her will-say statement that I did not provide documentation setting out the reasons for my absence, the School Board did not ask me for such documentation or advise me that the documentation I had submitted was insufficient. It advised me that it had determined that my absences in September to be a continuation of those from the previous fiscal year on December 18, 2018.
2. With respect to Ms. C.S.' assertion at paragraph 11 of her will-say statement that it was “evident that [I] continued to have difficulty attending work at that time on account of the same condition that caused [my] absences at the end of the 2017–2018 school year”, I did not have difficulty attending work in September 2018 as a result of symptoms related to my mental health disabilities. The only reason for my absence at the beginning of the 2018–2019 school year was the symptoms related to the upper respiratory illness from which I was suffering.
In cross-examination, the Grievor confirmed that he had been absent for some 147 days in the 2017/18 school year and stated that the medical reasons were a combination of mental health issues and bronchitis. He further confirmed that his last scheduled date in that year was June 22, 2018 (although he worked a supply shift on June 26) and that he was absent on June 22 for reasons related to his mental health. The following school year commenced on September 10, 2018 and the Grievor agreed that he missed a “great deal of time” in the 2018/19 school year due to both mental health issues as well as bronchitis. In particular it was the Grievor’s evidence that he was having a “bad time” in September and October of 2018 dealing with his bronchitis.
As set out in paragraph 17, above, it should be noted that on September 12, 2018 the Grievor was involved in the second of two incidents involving his being confronted by armed police officers in the course of a school lockdown. Additionally, I note the Grievor’s statement in his Will-say made in connection with those grievances that post-date Grievance B-1914 in which he writes:

46. I have "good days" and "bad days" in terms of how the symptoms associated with my mental disabilities affect me. A "bad day" is one in which my symptoms are worse and make it considerably more difficult for me to carry out my day-to-day activities. I was absent from work on a number of these "bad days" in September through December 2018. Because the School Board had refused to provide me with a new allocation of sick leave and STLDP days for the 2018/2019 school year, my absences on these days were unpaid.

It is clear from the totality of the evidence that this evidence respecting “good days” and “bad days” is made respecting the Grievor’s mental health condition.
As noted in Ms. S.B.’s Will-say at paragraph 42, above, the Grievor was being assisted by Ms. May Smith of the Union in his dealings with the DCA during the fall of 2018. On December 28, 2018, Ms. Smith directed an email to representatives of the DCA handling the Grievor’s file in which she wrote:

[The Grievor] holds two positions and has had some issues with being absent directly related to his medical condition. He has according to the employer exhausted his sick time and hasn't been unable (sic) to refresh by working the 11 consecutive days due to "bad days" as they relate to his mental health condition. He has discussed this with his Physician. The union and the member would appreciate some flexibility and would like to ask that [he] be able to accumulate lieu time on "good days", and be able to use it at the last minute, rather than take a sick day. We would like to ask for the option of working on Saturday if he misses a day during the week, rather than take a sick day (BCALC is open on Saturdays and there is always work that can /needs to be done). Of course it would need to be made clear by the employer that there could be day(s) where neither option would work, and [the Grievor] would have to take a sick day. Although [the Grievor] is having some struggles "getting up to speed" this arrangement would assist this member and the employer overcome some of the issues faced with regards to his RTW, absenteeism and accommodation. I would appreciate a response to if the employer would be open to providing this flexibility with regards to this member's accommodation?
(emphasis added)
In cross-examination, Ms. S.B. advised that three different representatives of the DCA had responsibility for the Grievor’s file during the fall of 2018. While she was the individual to whom each reported and she acted as a resource to them, Ms. S.B. did not have day-to-day carriage of the Grievor’s file. She was able to confirm from the Employer’s records that the Grievor sent two emails to his DCA representative in September 2018 respecting his absences, as follow:

September 16, 2018 Good evening.
I am physically unwell, so my start date will most likely be delayed by at least one week. I am truly looking forward to returning to my instructor position.
I have advised Kerry Price and have requested Lindita to supply for me.

and

September 23, 2018

I went to a walk-in clinic today and what I thought I was dealing with was confirmed. I won’t be in tomorrow. Ms. C.V., I will try to get Lindita to cover for me tomorrow.
I have been prescribed medication that will hopefully “kick in” and allow me to be present this Wednesday at night school.
Ms. S.B. stated in cross-examination that the Employer was not saying that the Grievor’s absence on September 10 was not for a physical ailment, only that the Employer had been provided with no medicals that would support this. She noted that the notes from a Dr. Gerges [of the Milton Family Care Centre] dated October 2 and 9, 2018 supported the Grievor’s absence for “medical reasons” but did not stipulate that reason as being physical rather than being connected to his mental health. It was Ms. Bertin’s evidence that, although she was unaware of what the DCA representative may have said to the Grievor or the Union, there is no record that either was advised by the Employer that the Grievor’s medical notes would be insufficient to start a “refresh” of his sick leave benefits. But, in any event, Ms.
S.B. stated that the obligation remained with the Grievor to provide the documentation necessary to support such a step and that had never occurred. Ultimately, the Grievor’s medically-related absences between September 10, 2018 and January 21, 2019 were unpaid.

GRIEVANCE B-1946 (February 9, 2019)
GRIEVANCE B-1947 (February 19, 2019)
GRIEVANCE B-1949 (February 25, 2019)
GRIEVANCE B-1965 (April 18, 2019)
GRIEVANCE B-2055 (February 11, 2020)
Each of the foregoing Grievances alleges the Employer engaged in improper medical monitoring and requests for medical information so as to constitute harassment. The Grievor’s Will-say grouped these Grievances together for the purpose of providing his evidence in chief and, accordingly, I will deal with them in the same manner. The Grievor’s Will-say states as follows:
1. The School Board has constantly and, in my view, unreasonably, required me and my medical psychotherapist to provide it with medical information and complete medical questionnaires, often including invasive questions, at short intervals from at least December 2018 to present. It has done so during periods where I was on medical leave and was not requesting an accommodation from the School Board. The School Board's medical monitoring has caused me mental distress. I felt, and continue to feel, targeted and harassed by the relevant DCA office representatives. I feel that the School Board's response when my medical psychotherapist recommends an accommodation is to, rather than find ways to implement that recommendation, delay the process by requesting more and more medical information.
2. I have "good days" and "bad days" in terms of how the symptoms associated with my mental disabilities affect me. A "bad day" is one in which my symptoms are worse and make it considerably more difficult for me to carry out my day-to-day activities. I was absent from work on a number of these "bad days" in September through December 2018. Because the School Board
  had refused to provide me with a new allocation of sick leave and STLDP days for the 2018/2019 school year, my absences on these days were unpaid.
3. On December 28, 2018, Ms. Smith sent an email to DCA office representatives Ms. C.P. and Ms. S.B. requesting that the School Board allow me some flexibility to work on "good days" that fell on Saturdays, to accumulate lieu time which I could then use on a "bad day" rather than take an unpaid sick day. On December 31, 2018, Ms. S.B. "note[d] that [I] ha[d] been unable to attend work regularly" and called Ms. Smith to discuss. On the same day, Ms. Smith responded to Ms. S.B. confirming that she had explained that my main stressor was the work environment and interactions with others in both of my positions. Ms. S.B. responded that "[g]iven this clarification i.e. that both supervisors in both positions are causing [the Grievor] stress [... ] I would suggest that we do indeed ensure current medical information is received as to [the Grievor's] ability to return to work, specifically any medical restrictions and limitations (I have attached FAF-Cognitive form)." Ms. S.B. set a deadline of January 15, 2019, which was later extended to January 24, 2019, for receipt of my FAF - cognitive. On January 2, 2019, Ms. Smith advised Ms. S. B. that I felt that I had already provided adequate medical and wanted a letter explaining why a FAF - cognitive was needed. Ms. S.B. responded that she had explained in her previous email that she needed clarification on the workplace issues and that it was "prudent that we obtain
  an understanding of medical status with respect to [the Grievor's ability to return to the work with medical restrictions and limitations, if any included and the duration". A copy of this email exchange is at Tab "V" to this will-say statement.
4. On January 23, 2019, Ms. S.B. emailed me and Ms. Smith asserting that lieu time could not be used to cover an absence due to illness and asserted that "further and sufficient medical information [was to be] explored to determine what if any further case management may be required to determine what if any reasonable accommodation needs may be required outside of the "lieu time process". A copy of Ms. S.B.'s email is at Tab "W" to this will-say statement.
5. On January 25, 2019, I sent Ms. S.B. an email advising that Dr. McDermid had been unable to complete the FAF and that my next appointment with him would be on January 31, 2019. I enclosed a medical note from Dr. McDermid dated January 24, 2019 (Dr. McDermid mistakenly wrote '2018') explaining that he did not have enough time that day to complete the FAF. A copy of my email and the enclosed note is at Tab "X" to this will-say statement.
6. On January 28, 2019, Ms. S.B. responded to my email with a medical request titled "RE:
  FINAL ATTEMPT- MEDICAL REQUEST [bold in original]" in which she advised that the "failure to provide the requested medical documentation by [February 4, 2019] may result in a decision not to support ongoing absence and access to sick leave due to personal illness". A copy of Ms.
  S.B.'s email is at Tab "Y" to this will-say statement. Ms. Smith responded to this email inquiring as to why the 'final' medical request letter had been sent given that the note that I had provided from Mr. McDermid (Tab "Q"). To my knowledge the School Board has not responded to Ms.
  Smith's email.
  (emphasis in original)
7. On or around January 31, 2019, I submitted a completed FAF- cognitive to Ms. S.B., a copy of which is at Tab "Z" to this will-say statement.
8. On February 1, 2019, Ms. Smith forwarded Ms. S.B. notes from Dr. McDermid to supplement my FAF - cognitive. A copy of this email chain is at Tab "AA" to this will-say statement.
9. On February 10, 2019, I sent Ms. S.B. an email advising that, as I had been absent for six consecutive working days, I would obtain a medical note when I saw Mr. McDermid on February 14, 2019. Ms. S.B. responded by requesting a FAF:
  
  Given your most recent absences, return to work for a short period of time, I am concerned that a medical note will not be able to provide us with sufficient information to be able to assist you in the event there is opportunity for potential work accommodation.
  
  For this reason, and not to delay the process, I would ask that you have your attending physician complete the attached Functional Abilities Form(s) whichever is applicable and return completed following your visit this Thursday.
  
  A copy of Ms. S.B.'s email, dated February 12, 2019, is at Tab "BB" to this will-say statement.
10. On February 12, 2019, Ms. Smith sent Ms. S.B. an email asking why she was requesting yet another FAF when one had just been submitted. Ms. S.B. responded that the reason was that my medical psychotherapist had stated that I was working, which she said was not the case. A copy of this email chain is at Tab "CC" to this will-say statement.
11. On February 13, 2019, I sent Ms. S.B. an email attaching the last page of my earlier FAF
  - cognitive amended to include the date, a medical note substantiating my absence, and a new FAF-cognitive dated February 13, 2019. A copy of my email to Ms. S.B., with enclosures, is at Tab "DD" to this will-say statement.
12. On February 21, 2019, Ms. S.B. sent me an email enclosing a questionnaire which she required a response to by March 8, 2019. The questionnaire, a copy of which is at Tab "EE" to this will-say statement, made mention of my diagnosis, asked what I consider to be several over- invasive questions, and, at the bottom, appeared to copy Ms. C.V..
13. Ms. Smith emailed Ms. S.B. the next day advising of these concerns. Ultimately, Ms.
  S.B. agreed to remove one question but not others, and alleged that no copies of the letter had been sent to those who were listed as being copied in the questionnaire. A copy of
  this email chain is at Tab "FF" to this will-say statement. A copy of the re-issued questionnaire is at Tab "GG" to this will-say statement.
14. On February 27, 2019, I sent DCA office representative Ms. S.A., who was taking over carriage of my DCA file, an email enclosing a medical note, requesting a copy of the questionnaire with corrections to my last day of work and my years of seniority, and asking for a rationale as to why the School Board could not implement Dr. McDermid's recommendations concerning lieu time and provision of a support person. A copy of my email, and enclosed note, is at Tab "HH" to this will-say statement. I did not receive a response to this email.
15. On March 5, 2019, Ms. S.B. sent me a re-issued medical questionnaire, a copy of which is at Tab "II" to this will-say statement.
16. On March 25, 2019, Dr. McDermid wrote a further note to the School Board advising that he would provide it with a response as soon as possible. A copy of this note is at Tab "JJ" to this will-say statement.
17. On April 2, 2019, Ms. Smith provided Ms. S.A. with a medical note from Dr. McDermid dated April 1, 2019 that stated that I would "remain away from work for medical reasons" and had been "referred for additional services". Copies of Ms. Smith' s email and this medical note are collectively at Tab "KK" to this will-say statement. I had also advised my supervisors of my absence. A copy of an email exchange between myself and Ms. G.S.
  dated April 2, 2019 to April 3, 2019 is at Tab "LL" to this will-say statement.
18. In response to Ms. Smith's email, on April 9, 2019, Ms. S.A. advised that she would be sending me, and enclosed, a letter entitled "Re: SECOND AND FINAL MEDICAL REQUEST [bold in original]". In the letter the School Board requested a response to the March 5, 2019 letter by April 16, 2019, advising that "access to compensation and/or approval of sick leave may be suspended or denied" if it did not receive my medical documentation by its deadline. A copy of this letter, dated April 9, 2019, is at Tab "MM" to this will-say statement.
  (emphasis in original)
19. On April 11, 2019, I advised Ms. S.A. by email that a response to the questionnaire was forthcoming, but that the College of Physicians and Surgeons of Ontario provided physicians with a 60-day window within which to provide medical information or complete forms. I asked for an explanation as to why the School Board was constantly asking me for further medical documentation. Ms. S.A. responded the next day asserting that the medical notes that the School Board has were not sufficient and that it needed information to allow it to reasonably address work accommodations. A copy of this email exchange is at Tab "NN" to this will-say statement.
20. Dr. McDermid sent the School Board a letter dated April 18, 2019 detailing my inability to work at the time, my restrictions, and his advice with respect to an eventual return to work. A copy of this letter is at Tab "00" to this will-say statement.
21. On July 10, 2019, the School Board sent me what appeared to be a blanket letter requesting a medical update for the upcoming school year. I responded the next day
  advising that I do not generally check my School Board email during the summer as I am not on School Board payroll during that time, but that I would discuss her request with my medical psychotherapist. Copies of my email exchange with Ms. S.A., as well as the
  School Board's medical update request, are collectively at Tab "PP" to this will-say statement.
22. On July 17, 2019, I sent Ms. S.A. an email enclosing a medical note from Dr. McDermid. A copy of this email, with the enclosed note, is at Tab "QQ" to this will-say statement.
23. On August 9, 2019, Dr. McDermid completed a FAF-cognitive that stated that I was unfit to return to work at the time, and would be re-evaluated. A copy of his FAF is at Tab "RR" to this will-say statement.
24. On October 18, 2019, Ms. S.A. sent me a letter enclosing a FAF -cognitive and requiring that I provide her with a completed copy by November 1, 2019. A copy of this letter is at Tab "SS" to this will-say statement.
25. I emailed Ms. S.A. on October 31, 2019 advising that I had submitted the FAF to my psychotherapist on October 25, 2019. A copy of this email is at Tab "TT" to this will-say statement.
26. On November 14, 2019, I sent Ms. S.A. an email enclosing a FAF - cognitive dated November 6, 2019 and a letter from Dr. McDermid dated November 13, 2019. Copies of my email, the FAF - cognitive, and the letter are collectively at Tab "UU" to this will-say statement.
27. I returned to work on December 5, 2019.
28. On January 16, 2020, Ms. S.A. sent an email to Erica Russell of the Union's disability office asking that I fill out further FAFs. A copy of this email is at Tab "VV" to this will-say statement.
29. On January 21, 2020, Ms. S.A. followed up with me regarding her FAF request. I responded on January 28, 2020 asking for an explanation as to why she needed further medical. Ms. S.A.'s response was that the School Board needed to "monitor [my] progression with regards to [my] restrictions/limitations in order to continue to support [me]" because I was on a graduated return to work plan. A copy of this email exchange, dated January 21, 2020 to February 6, 2020, is at Tab "WW" to this will-say statement.
30. On February 20, 2020, Ms. S.A. sent me a letter entitled "Re: SECOND AND FINAL MEDICAL REQUEST [bold in original]", a copy of which is at Tab "XX" to this will-say statement.
  (emphasis in original)
31. Ms. Russell responded to Ms. S.A.'s letter the next day explaining that the timelines the School Board continued to impose were not in keeping with the standard expected of physicians. A copy of Ms. Russell's email is at Tab "YY" to this will-say statement.
32. On March 3, 2020, I advised Ms. S.A. that I had met with my medical psychotherapist that day and the medical information she had requested was not ready. I explained that I felt that I was being put in an awkward and anxiety-provoking situation in having to be the middleman between my medical psychotherapist and the School Board. Ms. S.A.
  responded the next day. She extended the due date for receipt of medical to March 11, 2020 but did not comment on the rest of my email. A copy of this email exchange is at Tab "ZZ" to this will-say statement.
33. On March 13, 2020, Dr. McDermid filled out a further FAF - cognitive, a copy of which is at Tab "AAA" to this will-say statement. I believe he provided this to the School Board on or around March 18, 2020.
34. On April 20, 2020, Ms. S.A. sent me a consent form for an independent medical examination (an "IME"), which she asked me to submit to a third-party organization. Ms. Russell responded to Ms. S.A. stating that I would be seeking legal advice with respect to the request. Copies of these emails, as well as the consent form, are collectively at Tab "BBB" to this will-say statement.
35. On May 28, 2020, Ms. S.A. sent me a second letter requesting that the consent form to be filled out and imposed a June 8, 2020 deadline. A copy of this letter, with the enclosed consent form, is at Tab "CCC" to this will-say statement.
36. On June 5, 2020, I emailed Ms. S.A. and her colleague Ms. P.D. asking for further
  information with respect to the IME and explaining that I believed the request was improper. On June 15, 2020, Ms. S.A. responded with a link to the third-party IME provider's website. She advised that while the IME is independent, the third-party provider would require my treatment providers' chart records. A copy of this email chain is at Tab "DDD" to this will-say statement.
37. On July 8, 2020, Ms. S.A. sent me a further letter again requesting that I provide her with a completed consent form and imposing a deadline of July 22, 2020. A copy of this letter, with its enclosure, is at Tab "EEE" to this will-say statement.
38. On July 21, 2020, Ms. S.A. sent me a 'revised' second request letter requesting that I provide her with a completed consent form by July 31, 2020. A copy of this letter, with its enclosure, is at Tab "FFF" to this will-say statement.
  
  It should be noted that paragraphs 74 to 82 of the Grievor’s Will-say deal with events that post-date the Grievances in connection with which they have been provided.
The Employer’s evidence in response to the Grievor’s Will-say above, is primarily found in the Will-say of Ms. S.B.. It was the Employer’s position that its requests for medical information that form the basis of the Grievances under consideration in this section must be understood in the context of the
dealings of the Employer with the Grievor and the Union in 2018. Accordingly, Ms. S.B.’s Will-say sets out some history of those dealings as well. Her Will-say states as follows:
1. In a medical note dated January 22, 2018, Dr. Brian McDermid, the Grievor’s treating physician, stated that “[The Grievor] will remain on leave as per my previous letter. This will again be reviewed in 30 days” (see Tab I).
2. In a medical note dated February 22, 2018, Dr. McDermid stated that “the planned RTW date for [the Grievor] is March 20th/2018” (see Tab J).
3. On March 15, 2018, the Grievor sent an email to Ms. D.K., Disability Case Administrator at the Board, stating that he would like to return to work on March 20, 2018. He stated that he was expecting to receive updated medical information from his doctor on March 19, 2018. In response, Ms. D.K. advised the Grievor that it usually took approximately five days to review medical documentation and determine whether a return to work can take place (Tab K).
4. On March 20, 2018, the Board received a letter from Dr. McDermid dated March 19, 2018 (Tab L), indicating that the Grievor’s return to work schedule should be as follows:
  1. Anticipated day of return is Tuesday, March 20, 2018
  2. First 2 weeks, Tuesday and Thursday 5 and ½ hrs/day (that’s 9-3 with a ½ hour lunch)
  3. Weeks 3 and 4 Tuesday, Thursday, Friday, hours as above
  4. Weeks 5 and 6, Tuesday, Wednesday, Thursday, Friday, same hours
  5. Weeks 7 and 8, Monday-Friday, same hours
  6. Weeks 9 and 10: resuming full duties, all assignments – including 9-3 every week day as well as second job of 6:30pm-9:00pm
5. Instead of completing the Functional Abilities Form – Cognitive (“FAF-Cognitive”) that was provided, Dr. McDermid provided a letter. Dr. McDermid stated that the Grievor’s “relative, steady-state, would suggest he is now more able to manage the expectations of his work situation. It is nevertheless possible that he would not be able to manage undue or unanticipated work place pressures” (Tab L).
6. Dr. McDermid’s letter also states that the Grievor would endorse weekly meetings with a mental health worker and utilization of an online mental health website for the Grievor but would not want the absence thereof to keep him from returning to work (Tab L).
7. Dr. McDermid’s letter does not provide any specific information about the Grievor’s abilities or restrictions, including in respect of attention and concentration, following directions, decision-making/supervision, multi-tasking, abilities to organize, memory, social interaction, or communication (Tab L).
8. In a medical note dated April 4, 2018, Dr. McDermid stated that the Grievor required a change in his daytime work hours from 8:00am to 2:00pm, instead of his usual hours of 9:00am to 3:00pm (Tab M).
9. In a medical note dated May 15, 2018, Dr. McDermid stated that the Grievor cannot return to his evening assignment for “medical reasons” and that this restriction was to be reviewed in September 2018. Dr. McDermid provided no additional information regarding this determination (Tab N).
10. In an email dated December 28, 2018, Ms. Smith requested that the Board exercise “some flexibility” and allow the Grievor to “accumulate lieu time on ‘good days’, and be able to use it at the last minute, rather than take a sick day” (Tab O). Later that day, I sent an email in response stating that I would like to review the file before determining how the Board would
  respond to this request (Tab P).
11. On December 31, 2018, I sent an email to Ms. Smith providing a list of resources for the Grievor’s consideration given the potential financial hardship caused by his continued absences. This included resources for EI, CPP Disability Benefit, Employee Assistance Program, and disability-related supports (Tab Q).
12. On December 31, 2018, I also emailed Ms. Smith regarding accommodation of the Grievor. Based on the medical documentation recently submitted by the Grievor (Tab L), I had understood that his challenges in the workplace were primarily with his day shift Assessor role. As a result, I suggested that a return to work be explored for the evening Instructor position. I also stated that I would speak to the Grievor’s supervisors in both positions to determine whether lieu time flexibility was an option. However, I also directed the Union to discuss this issue with the Grievor’s supervisor (Tab R).
13. I subsequently had a conversation with Ms. Smith in which she advised that the Grievor’s challenges were with the supervisors in both his day and evening positions. As such, I stated the importance of acquiring current medical information regarding return to work and medical restrictions and limitations. The Grievor’s concerns with supervisors in his evening position was not reflected in the prior medical documentation that was submitted. In order to acquire current medical restrictions and limitations so that appropriate accommodations could be determined, I provided an FAF-Cognitive for the Grievor to have Dr. McDermid complete (Tab R).
14. Later that day, Ms. Smith sent me an email responding to a prior discussion between us regarding the Grievor’s possible part-time return to work. Ms. Smith expressed concern that a part-time return to work would not resolve the environmental and interpersonal challenges the Grievor reported in both of his positions (Tab S).
15. An hour later, I sent an email response to Ms. Smith. I noted that, notwithstanding the continued environmental and interpersonal issues the Grievor raised, Dr. McDermid had cleared him for a return to work. I expressed a continued willingness to explore alternative accommodation options and have follow-up discussions with the Grievor’s supervisors (Tab S).
16. That same afternoon, Ms. Smith sent an email to me seeking an extension until January 24, 2019 to respond to my most recent request for medical documentation. We exchanged emails on that subject (Tab S). In an email dated January 2, 2019, I granted the extension (Tab T). In this email, I noted the need for medical documentation:
  The most recent medical we have on file stated end of August that a return to work with no restrictions was provided. Shortly thereafter, a medical note was received unable to work. Subsequently another note was received that “unable to work” was extended further.
  
  At this time, it is prudent that we obtain an understanding of medical status with respect to [the Grievor’s] ability to return to work with medical restrictions and limitations, if any included and the duration (Tab T).
17. On January 23, 2019, I sent an email to Ms. Smith concerning the lieu time request (Tab U). I had spoken to the Grievor’s supervisors to discuss the request. I also reviewed a document, provided to me by Ms. C.V., the Essential Skills Upgrading (“ESU”) Program Coordinator at
  the Board, titled the “Unit B – ESU Assessors and ESU Instructors who coordinate One-to-One Programs – Lieu Time Process” (“Unit B Lieu Time Process”). This document (attached at Tab U) stated that lieu time was not to be used when an employee was on sick leave.
18. On January 25, 2019, the Grievor provided a medical note from Dr. McDermid stating that he had not yet had the opportunity to respond to the Board’s most recent request for medical documentation (Tab V).
19. On January 28, 2019, I sent an email to the Grievor with a final attempt to acquire medical documentation. My email stated that medical information originally requested on December 31, 2018 had still not been received and that the due date for the medical documentation was extended for a second time to February 4, 2019 (Tab W). At this point, the Board had not received medical documentation from the Grievor since August of 2018.
20. In an email dated January 28, 2019, the Grievor accused me of “workplace violence” for using capital letters for the section header in my email, which said “RE: FINAL ATTEMPT – MEDICAL REQUEST” (Tab W).
  (emphasis in original)
21. The wording in my email, including capitalization of certain words, was standard in such circumstances. It was meant to assist in obtaining the required medical information and to ensure that the reader understands the potential consequences of failing to provide it. I explained to the Grievor in an email that same day that there was no intention to yell and expressed my wishes for a speedy recovery (Tab W).
22. On January 31, 2019, the Grievor submitted an FAF-Cognitive dated January 25, 2019 that was completed by Dr. McDermid (Tab X). When asked whether the Grievor had been referred to a specialist, Dr. McDermid responded on the form with “Yes” and “my sub-specialty is medical psychotherapy and psychiatry”. Dr. McDermid did not provide any information regarding restrictions and limitations. Instead, he wrote: “No current limitations. However, cognitive ability may fluctuate, which is to be expected with his medical condition”.
23. The FAF-Cognitive dated January 25, 2019 also contained the following notes from Dr. McDermid in response to a question about job demands and additional impairments:
  My patient does not currently have any impairments. He has been diagnosed with mood & anxiety disorder. I will add some comments at the end of this report to consider for accommodations, recommendations, best practices, etc. (Tab X).
24. Dr. McDermid also wrote “please see attached comments”, but no additional comments were attached (Tab X).
25. On January 31, 2019, the Grievor sent an email to me attaching an unsigned, electronic note presumably authored by Dr. McDermid (Tab Y). In this note, Dr. McDermid states that the Grievor would benefit from a flexible work schedule consisting of an ability to work from home and banking of hours to use rather than sick days. Dr. McDermid also states that it would be beneficial for managers and Disability Claims Administrators to partake in education on how to best manage/support him, and for the Grievor to have a job coach. Dr. McDermid also referred to the Grievor’s insurance benefits coverage for mental health supports.
26. On February 10, 2019, the Grievor sent an email to me stating that, given his six consecutive days absent from work, he would acquire a medical note from his doctor (Tab Z).
27. On February 12, 2019, I responded to the Grievor stating that, given his recent absences and overall challenges with a sustainable return to work, it would be most appropriate for the Grievor to complete an FAF-Cognitive (Tab Z). Notwithstanding the absence of any restrictions or limitations in the Grievor’s January 31, 2019 FAF-Cognitive, he had not been successful in returning to work. As such, I felt that an updated FAF was required to provide the specific restrictions and limitations that had been making it difficult for the Grievor to have a sustained return to work. I was also concerned that Dr. McDermid had misunderstood the Grievor’s circumstances when he noted in the January FAF that the Grievor was “at work @ this time”. I wanted to ensure that we were aware of any medical restrictions so that we could design a return to work plan which would be successful for the Grievor.
28. Later that evening, Ms. Smith sent me an email asking for the reasons for the requested FAF (Tab AA). In response, in an email dated February 13, 2019, I referred back to my original email, which referenced the Grievor’s difficulties with a sustainable return to work. I also noted that Dr. McDermid’s most recent note referred to the Grievor as working at the time, which was not accurate (Tab BB).
29. On February 13, 2019, the Grievor sent me an email providing an FAF-Cognitive completed by Dr. McDermid (Tab CC). In response to the question on the form regarding referral to a specialist, Dr. McDermid stated that “patients [sic] family MD has referred [the Grievor] to me as a family medicine specialist practicing in medical psychotherapy”. Again, Dr. McDermid did not provide any information regarding restrictions or limitations. He again wrote: “No current limitations. However, cognitive abilities may fluctuate, which is to be expected with his medical condition”.
30. In response to the question on the form regarding job demands and additional impairments, Dr. McDermid again provided the following opinion:
  Patient does not currently have an impairment. He has been diagnosed with a mood & anxiety disorder. I will provide ASAP additional recommendations, accommodations & best practices to better support this patient (Tab CC).
31. Rather than provide information concerning cognitive abilities, prognosis, and graduated hours, Dr. McDermid wrote that the Grievor was not on a “medical leave”, was “NOT CURRENTLY ON A ‘RETURN TO WORK’” and was “NOT ON A ‘MEDICAL LEAVE’”. This was
  concerning since the Grievor was clearly struggling with his attendance at work (Tab CC).
  (emphasis in original)
32. Instead of providing a return to work plan, Dr. McDermid provided a separate medical note stating that, “for medical reasons”, the Grievor had been absent from work since February 4, 2019 and that “I believe he will be able to return on Tuesday, Feb 19th, 2019” (Tab CC).
33. On February 21, 2019, I sent a letter to the Grievor requesting medical documentation. My letter provides the rationale for the request:
  
  This letter is in follow up to the most recent medical we received. We note you have been absent from work since January 2019 following a short return to work, after sporadic and extended absences September 2018 to date. For this reason, we are seeking clarification on your current medical status to ensure you are receiving optimal treatment and to support a sustained return to work when you are ready to return to work (Tab DD).
34. To this point, the information provided by Dr. McDermid had not included information about the Grievor’s restrictions and limitations. Without clear medical restrictions and limitations, the Board could not determine how to best accommodate the Grievor’s needs reasonably and safely. Contrary to the information being provided by Dr. McDermid, it was clear that the Grievor did in fact have limitations and impairments which resulted in significant absenteeism from 2015 until that time. It was not sufficient to advise that “cognitive abilities may fluctuate”. The Board needed the Grievor’s doctor to identify the specific medical limitations which led to such fluctuations and the ways in which those fluctuations manifested themselves. With that information, the Board would be in a position to determine whether steps could be taken to reduce the likelihood of fluctuations and to provide proper and reasonable accommodation when they did occur. Further, it was not at all useful to state that the Grievor was working, not on a “medical leave” and not on a “return to work”, when he was clearly unable to maintain regular attendance.
35. In an effort to provide the utmost clarity with respect to the information we required, I wrote a letter to Dr. McDermid containing a list of specific questions (Tab DD). My February 21, 2019 letter, which was provided to the Grievor, requested that Dr. McDermid respond to the following:
  1. Please provide the objective medical restrictions and limitations (both physical/cognitive) based on recent (i.e. last 1-2 weeks) and direct clinical assessment.
  2. Please confirm prognosis for sustained return to work in some or full capacity. Note: Hours of scheduled work: Mon.- Fri. 8:00am to 2:00p.m. plus Mon. and Wed. 6:30p.m. to 9:00 p.m.
  3. Please confirm if [the Grievor] is actively participating in ongoing treatment plan? If not, please explain.
  4. If so, and no improvement noted, given the length of his ongoing concerning absences, has augmentation of treatment been considered? If not, please explain.
  5. Any other chronic or non-chronic medical condition that prevents [the Grievor] from attending work on a regular basis? Please explain (Please do not include diagnosis)
  6. Are the restrictions and limitations identified in your response to question #1 above permanent? If so, is the medical condition chronic that would result in ongoing sporadic absences? If so, reasonably, how many days per month can we expect ongoing absences?
  7. Has [the Grievor] reached maximum medical recovery for the foreseeable future?
  8. Recent medical documents indicate no restrictions or limitations. Please explain why [the Grievor] remains off work from January 23, 2019 to date given no medical restrictions and limitations?
  9. The medical documents indicate “anxiety disorder”. Has [the Grievor] been provided with tools and resources to tap into to identify triggers and/or attend to symptoms when symptoms exacerbates?
  10. Please add any other information you believe may assist in this process.
36. This letter provided Dr. McDermid with some background on the Grievor’s absenteeism over the past few years and provided the rationale for requesting this information notwithstanding having received the January 31, 2019 and February 13, 2019 FAFs.
37. On February 22, 2019, Ms. Smith sent an email to me alleging that questions 3, 4, and 9 of the February 21, 2019 letter were inappropriate. Ms. Smith asserted that the reference to a diagnosis, which was provided to the Board in prior medical documentation submitted by the Grievor, should not have been made in the letter. Ms. Smith stated that Ms. C.V. being copied on the letter was a breach of confidentiality. Ms. Smith also requested that a new Disability Case Administrator be assigned to work on the Grievor’s file (Tab EE).
38. I did not send the letter to Ms. C.V., despite mistakenly listing Ms. C.V. as a copied recipient of the letter. In an email less than 10 minutes later, I reassured Ms. Smith and the Grievor that, though Ms. C.V. was identified as copied recipient, the letter was not sent or forwarded to
  anyone on the list of copied recipients, and that no confidentiality breach occurred (Tab EE).
39. Later that same day, I sent another email to Ms. Smith and the Grievor confirming again that the letter was neither sent nor intended to be sent to Ms. C.V. or anyone else identified as a copied recipient. I agreed to remove question 9, but retained questions 3 and 4 on the basis that they were appropriate, relevant, and reasonable. Furthermore, in response to Ms. Smith’s request to have a new DCA assigned to work on the Grievor’s file, I let Ms. Smith know that Ms. S.A., Disability Case Administrator at the Board, would soon be assigned to work on the file (Tab EE). It was always the intention to have a new employee that was a Disability Case Administrator take over this matter.
40. In response to the February 21, 2019 letter, the Grievor sent an email to Ms. S.A. on February 27, 2019 (Tab FF) complaining that the letter did not use sufficiently positive language when referring to him:
  
  The Ietter from Ms. S.B. first focused on statistics regarding my absences (which I will soon verify for accuracy). It is unfortunate that, as part of the letter she did not include something positive. Perhaps she could have included, "As a valued Employee (This is actually documented in RTW notes) we are concerned for you. Is there something that we could do to assist you?) Why is it that there was absolutely nothing positive in this letter?”
41. Dr. McDermid completed a doctor’s note dated February 27, 2019 stating that the Grievor would only be absent from work until and including March 8, 2019. Dr. McDermid stated that the Grievor was being referred to additional mental health services within Halton Region and said that he will provide a response in the future to the letter he received from the Board (Tab GG).
42. On March 5, 2019, I, on behalf of Ms. S.A., provided the revised version of my February 21, 2019 letter to the Grievor. The letter requested that Dr. McDermid respond to the
  same questions as those in the earlier iteration, with the exception of question 9 (Tab HH).
43. On June 5, 2019, Ms. G.S., ESU Program Officer at the Board, sent me an
email stating that the Board had expected an update from the Grievor during the prior week as part of his mutually agreed monthly check-ins, but had not received such an update. Ms.
G.S. also confirmed that June 5, 2019 would be the last night of the Grievor’s night school position at Bathurst Heights Secondary School until the school year began again in September (Tab II).
I was also provided with the Will-say of Ms. S.A. of the Employer’s DCA who provided the following evidence respecting the matters that are the subject of the Grievances under consideration in this section:
1. On March 5, 2019, Ms. S.B., Disability Case Officer of the Board at the time,
  provided a letter to the Grievor requesting medical information on my behalf (Tab A). The letter requested that Dr. Brian McDermid, the Grievor’s treating physician, respond to a list of questions designed to provide the Board with the information required to determine whether the Grievor was able to return to work and, if so, what accommodations should be made to best
  facilitate a successful and sustained return. This letter provided Dr. McDermid with some background on the Grievor’s absenteeism over the past few years and provided the rationale for requesting this information.
2. On March 7, 2019, the Grievor sent me an email stating that Dr. McDermid would be faxing a letter to the Board the next day stating his opinion that the Grievor’s medical leave should be extended until April 5, 2019 (Tab B).
3. On March 18, 2019, I sent an email to the Grievor notifying him that no fax from Dr. McDermid was received. I requested that the Grievor follow up with Dr. McDermid’s office (Tab B).
4. On March 21, 2019, Ms. May Smith, Union Representative, sent me an email stating that Dr. McDermid had not yet completed the medical documentation in question and that the Grievor had an appointment scheduled for March 25, 2019. Ms. Smith could not confirm whether the medical documentation would be submitted on March 25, 2019 (Tab B).
5. Dr. McDermid provided a note dated March 25, 2019 stating that he met with the Grievor but had not yet fulfilled the medical information request provided by the Board on March 5, 2019. Dr. McDermid said that he would be providing the information “as soon as possible” (Tab C).
6. In a medical note dated April 1, 2019, Dr. McDermid stated that the Grievor “will remain away from his place of work for medical reasons.” The note also mentioned that the Grievor was referred for additional services, but did not provide the nature of these additional services (Tab D).
7. On April 9, 2019, I sent an email to Ms. Smith confirming that the most recent medical information request had yet to be fulfilled (Tab E). Attached to the email was a “second and final request” letter for the requested medical information (Tab F). In this letter, the deadline to respond was extended until April 16, 2019. The original due date was March 27, 2019.
8. In an email dated April 11, 2019, the Grievor expressed concerns about the Board’s medical requests and the language used in the medical requests:
  
  Could you please explain to me why you are constantly asking for more medical documentation? I would ask that you not respond, "I am sorry you are unhappy [Grievor’s name]..." I find this rather demeaning and insulting.
  
  By the way, I am weII aware of the fact that I can file a Human Rights Complaint. My question to you is, are you aware of your Iegal and ethical responsibilities as outlined by the Human Rights Code?
  
  As well, I have requested two very important accommodations in the past which have been denied. Are you aware of the duty to accommodate under the HRC, as well as the very high bar to prove undue hardship (Tab G).
9. In an email dated April 12, 2019, I provided the Grievor with an explanation for the most recent medical request. Specifically, I stated that the medical notes the Grievor had provided were insufficient to enable the Board to reasonably ascertain whether certain accommodations were medically necessary. I provided the Grievor with an additional extension of 10 week to respond to the most recent medical information request (Tab G).
10. On April 23, 2019, the Board received a letter from Dr. McDermid dated April 18, 2019. In the letter, Dr. McDermid outlined a series of broad return to work concerns which the Grievor had previously identified, but failed, once more, to provide concrete information about the Grievor’s restrictions and limitations. The letter is difficult to follow, uses very vague language,
  and provides very little that is actionable (Tab H).
11. On July 10, 2019, I sent an email to the Grievor with a letter requesting medical documentation (Tab I). It is the Disability Claim Administration Office’s practice to request an annual update from any employee with an active disability management file entering the beginning of the new school year in September. In any event, given the Board had yet to receive concrete information regarding the Grievor’s restrictions and limitations, we did not know how to appropriately accommodate the Grievor for a return to work in September 2019. The Board had reason to believe that requesting this information would be of assistance for that purpose.
12. Later on July 10, 2019, the Grievor sent me an email regarding my medical documentation request. In the email, the Grievor said the following about Dr. McDermid:
  
  I doubt that he will be willing to complete an FAF at this time, as he would most likely feel it is premature. While I have expressed a desire to return to work in the fall, he and I have compiled an "action items" list in order to ensure a successful return to work. As we both know, Dr. McDermid submitted a thorough and concise letter at the end of May.
  
  We will review my progress at our next meeting and I will contact you via email (Tab J).
13. On July 17, 2019, the Grievor provided a medical note from Dr. McDermid. The note, dated July 16, 2019, stated that the Grievor met with Dr. McDermid on that date and that Dr. McDermid would further assess the Grievor at their next appointment on August 9, 2019 (Tab K).
14. Later that day, Ms. Smith sent me an email requesting an extension to respond to the Board’s most recent medical documentation request (Tab L).
15. On July 19, 2019, I responded to Ms. Smith’s email confirming that the Grievor’s July 17, 2019 correspondence regarding medical documentation had been received. I also granted an extension for submission of the requested medical documentation until August 12, 2019 (Tab L).
16. The Grievor submitted a Functional Abilities Form – Cognitive (“FAF-Cognitive”) dated August 9, 2019 that was completed by Dr. McDermid. Dr. McDermid stated that the Grievor had been referred to a specialist for secondary consultation and was involved in bi-weekly healthcare treatment. Instead of responding to the question regarding job demands and
  impairments, he simply stated “please refer to my letter of April 16, 2019”. Dr. McDermid did not
  provide any information regarding functional abilities including in the areas of attention and concentration, following directions, decision-making/supervision, multi-tasking, abilities to organize, memory, social interaction, or communication. The FAF-Cognitive stated that the Grievor was unfit to return to work at that time and would be reassessed in four to eight weeks. Dr.
  McDermid also provided no information regarding ability to work and potential return to work date (Tab M).
17. On August 21, 2019, I sent an email to Ms. C.V., Program Coordinator of the Essential Skills Upgrading program at the Board, advising that I had received medical documentation
  indicating that the Grievor was unfit to return to work at that time and would be reassessed in the coming weeks (Tab N).
18. On October 18, 2019, I sent an email to Ms. C.V. confirming that I had not recently heard from the Grievor about interest in attempting a return to work (Tab O). On October 18, 2019, I
  sent a letter to the Grievor enclosing an FAF-Cognitive for the Grievor to have completed, since the Board had not yet been updated with respect to the Grievor’s restrictions and limitations. I requested that the FAF-Cognitive be submitted by November 1, 2019 (Tab P).
19. The Grievor provided the Board with an FAF-Cognitive dated November 6, 2019 with an attached letter dated November 13, 2019, both of which were completed by Dr. McDermid. In response to the question in the form regarding impairments, Dr. McDermid stated as follows:
  
  Due to the nature of his illness, it is reasonable to expect a fluctuation of abilities in all of the above-mentioned categories. Once the accommodations are implemented, I suspect there will be a decline in frequency of fluctuations. It would be therapeutic to allow [the Grievor] to “self-direct” & ask his supervisor for assistance (Tab Q).
20. In a space designated for additional comments, Dr. McDermid stated as follows:
  
  [The Grievor] is ready to return to work having re-learned & re-integrated several practices & skills, which should assist him in combination with recommended accommodations, to successfully manage his daily activities (Tab Q).
21. In the letter dated November 13, 2019, Dr. McDermid advised that he and the Grievor collaboratively developed “several specific accommodations” which “are likely to provide for a more robust and effective RTW plan”. This letter was the first instance of Dr. McDermid referring to the location of the Grievor’s office as a trigger for him, notwithstanding the Grievor had been in that office since 2016 and the most recent lockdown experience had occurred in September 2018. It was also the first instance of Dr. McDermid referring to the opportunity to meet with a mental health professional as a required accommodation.
22. Dr. McDermid proposed the following Return to Work plan:
Assessor Assignment

Weeks 1 to 3 – Tuesdays and Thursdays (5.5 hours)

Weeks 4 to 6 – Tuesdays, Thursdays and Fridays (5.5 hours)\

Dr. McDermid notes that “for the first 4 classes he will need to ‘shadow’ the current Instructor. This will be considered the ‘work hardening’ period for this assignment.”

Weeks 7 to 9 – Tuesday to Friday (5.5 hours)

Weeks 10 to 12 – Monday to Friday (5.5 hours) Instructor Assignment Week 13 – Mondays and Wednesdays (2.5 hours) (Tab Q). …..
[n.b. – I have omitted three paragraphs dealing with accommodation issues that will be dealt with in the context of subsequent grievances]
1. The Grievor returned to work on December 10, 2019 and attended work on December 12, 17, and 19, 2019 in accordance with his graduated return to work plan (see Tab T).
2. During the week of January 6, 2020, the Grievor was scheduled to increase his workload to three days per week in accordance with the graduated return to work plan. However, the Grievor was absent on January 9, 2020, which meant that he only attended work on two days that week. The following week, the Grievor was again absent on January 16, 2020 (see Tab T). This second absence triggered my request for an FAF-Cognitive since it appeared that the Grievor was not, in fact, capable of returning to more than 2 days of work per week. That request is at Tab U.
3. On January 21, 2020, I sent an email to the Grievor asking when the FAF-Cognitive that the Board requested would be provided (Tab V).
4. On January 28, 2020, the Grievor sent me an email stating that he was confused about the need for another FAF-Cognitive and requested that the “current request for medical information” be provided to him (Tab W).
5. On January 31, 2020, I responded to the Grievor, stating that additional medical information was needed in order to determine whether any adjustments were needed and whether the return to work plan in place was effective. I noted the importance of Dr. McDermid checking off the boxes under the “abilities” section to confirm whether the Grievor had full or limited abilities based on those categories (Tab X).
6. On February 6, 2020, the Grievor sent an email to me advising that he would be seeing Dr. McDermid on February 11, 2020 and would be making an additional request regarding the medical documentation at that appointment (Tab Y).
7. On February 10, 2020, I sent an email to the Grievor following up on the requested medical information. I said I was sorry to hear that he found this process to be anxiety provoking and advised that I would be comfortable corresponding directly with the Grievor’s healthcare provider if that helped (Tab Z).
The Grievor was cross-examined at length about these grievances alleging that the Employer’s requests for updated or additional medical information constituted harassment. In almost every instance, the Grievor acknowledged that the requests by the Employer were “logical” based on the facts underlying the requests or were “understandable” if he were “in their shoes”. Rather, the Grievor focussed on how the requests for additional medical information made him feel at the time they were made. An example will assist. Dr. McDermid completed an FAF – Cognitive on January 31, 2019 that was supplied to the Board. Relevant sections read as follow:
1. Please identify the employee’s cognitive abilities at this time.
  
  No current limitations, however cognitive abilities may fluctuate, which is to expected with his medical condition.
2. In consultation with the job demands, please list any additional impairments to her/his occupation”:
  
  My patient does not currently have any impairments. He has been diagnosed with a mood & anxiety disorder. I will add some comments at the end of this report to consider as accommodations, recommendations, best practices etc.
3. Please identify this employee’s cognitive abilities at this time as it pertains to returning to work:
  
  My patient is at work @ this time.
  (typeface indicates handwriting)
  
  An attachment to the FAF – Cognitive was a letter from Dr. McDermid, subsequently provided by the Grievor to Ms. S.B., that states:
  
  [The Grievor] would benefit from a flexible work schedule (i.e.: working from home when possible; creating a bank of hours he may accrue on days when his psychological well-being is high, could be used when possible when his psychological well-being is very low (rather than using a sick day).
  
  It would be beneficial if his managers and any Disability Case Administrators working with him partake in education on how to best manage/support him. [The Grievor] will share and highlight policies he believes could generally be helpful, and most specifically helpful in this case. This reference for managers is taken directly from the Great West Life website.
  
  Important factors to consider include empathy, dignity, flexibility, choice, and empowerment, etc.)
  He would also benefit from a job coach (some with occupational therapy/mental health experience). He has requested something similar in the past.
  
  The employer agreed to this, but informed him he would have to cover the cost. His insurance will only cover $800 per year, which is inadequate. My patient has informed me that similar supports have been provided to employees with physical disabilities. Could this not be provided (and paid for) employees with a mental health disability?
  
  I do hope these notes will prove helpful and solidify his workplace wellbeing.
The Grievor was not at work during the period prior to the FAF-cognitive of January 31, 2019. In cross-examination the Grievor acknowledged that he was “not at 100%” despite Dr. McDermid’s statement that he had “no current limitations”. In response to a question about the doctor’s statement that he was working in the workplace, the Grievor replied that he was not on a specific leave nor was he engaged in a return to work plan and therefore must be considered to be “at the workplace”.
Subsequently, the Grievor returned to work for a short period of time and then was absent for a period of six consecutive work days. He provided an email to Ms. S.B. dated February 10, 2019 advising that he would be providing a medical note as he was “…aware of my obligations under the Central CA”. Ms. S.B. replied that evening as follows:

Given your most recent absences, return to work for a short period of time, I am concerned that a medical note will not be able to provide us with sufficient information to be able to assist you in the event there is opportunity for potential work accommodation. For this reason, and not to delay the process, I would ask that you have your attending physician complete the attached Functional Abilities Form(s) whichever is applicable and return completed following your visit this Thursday.
Following Ms. S.B.’s email above, the Grievor contacted his Union representative, Ms. Smith with the following email:

Why am I being asked to provide yet another FAF?

She already got the undated/unsigned additional information. I said I would get this to her this week.

I perceive this as harassment.

She has clearly stated that she does not feel it is part of her job to negotiate the flexible work hours.

Could you please file, yet another harassment grievance?
In cross-examination, the Grievor was asked whether Ms. S.B.’s request for a further FAF on February 10, 2019 “made sense in all the circumstances”. The Grievor responded “If I put myself in her shoes, which I am capable of doing, I can appreciate her asking for this. I can appreciate her request”. He was then asked whether his email to Ms. Smith (requesting that she file a harassment grievance) was an over-reaction, to which the Grievor replied “It was an emotional reaction”.
Ms. Smith did send an email to Ms. S.B. asking why a further FAF was being requested so soon to which Ms. S.B. replied, “For the reasons I outlined in my email and the fact that the doctor states [the Grievor] is working which is not the case”. In cross-examination it was put to the Grievor that Ms. S.B.’s response was logical to which he responded “Yes. If I put myself in her shoes it makes sense. I perceived it as harassment”. Asked how he viewed it in hindsight, the Grievor responded “I am not prepared to go further than what I’ve said”.
In her cross-examination, Ms. S.B. confirmed that the Employer does not seek an employee’s diagnosis in any request it may make for medical information. It was, however, the case that the Employer might seek information about an employee’s treatment plan depending on the complexity of the case and the manner in which treatments might impact the manner in which accommodation was provided. Ms. S.B. provided examples such as when treatments might impact the employee’s schedule in the workplace or when a treatment appeared not to be working at which the Employer would “go back to the employee or doctor”. She stated that every case in which accommodation was required was unique and if a condition was not “resolving”, the DCA might reach out to the doctor and discuss alternatives. Ms. S.B. emphasized that such steps were always taken with the employee’s knowledge and that “there must be transparency”.
Ms. S.B. was asked if there was any case in which the Employer might have a “better idea” than the employee’s doctor to which she responded that it is the physician that prescribes and that it was the Employer’s function to share observations from the workplace for the benefit of the employee/patient.
Ms. S.B. was referred to the third and fourth questions in the FAF sought by the Employer in February 2019, which stated:
1. Please confirm if the [the Grievor] is actively participating in ongoing treatment plan? If not please explain.
2. If so, and no improvement noted, given the length of his ongoing concerning absences, has augmentation of treatment been considered? If not please explain.
Ms. S.B.’s evidence was that she considered these questions reasonable given the Grievor’s “ongoing deterioration in absence history”. It was put to the witness that these questions were not simply advising the doctor of observations but, rather, were questions about the treatment plan. Ms. S.B. replied that the point of the letter was to understand why the Grievor’s return to work was not working
and to help him achieve that. With respect to the Employer’s request for a clarification of the FAF –Cognitive dated February 13, 2019, Ms. S.B. forwarded a letter to the Grievor that stated:

RE: Request for Clarification of Medical

This letter is in follow up to the most recent medical we received. We note you have been absent from work since January 2019 following a short return to work, after sporadic and extended absences September 2018 to date. For this reason, we are seeking clarification on your current medical status to ensure you are receiving optimal treatment and to support a sustained return to work when you are ready to return to work.

Please ensure your attending physician and your specialist complete the questionnaire below.

Dear Attending Physician and Specialist, Re: [Grievor’s Name and Date of Birth]

By way of introduction I am the Disability Case Administrator at the Toronto District School Board (TDSB) responsible for review of the absence file for your patient,[the Grievor]. [The Grievor] has been employed with the Toronto District School Board for over 20 years and currently employed in the capacity of an ESU Instructor and Assessor (see attached job descriptions for your review) working days and evenings.

[The Grievor] has been absent from the workplace on numerous occasions due to medical issues and has demonstrated concerning sporadic absences since at least 2015. As an example [the Grievor]has been absences (sic) from work below:

Sept 2015 to June 2016: approximately 22% (10 month period)
Sept 2016 to June 2017: approximately 75% (10 month period)
Sept 2017 to June 2018: approximately 80% (10 month period)
Sept 2018 to early Feb 2019: approximately 40% (5.5 month period)

Most recently [the Grievor] returned to work January 7, 2019 and absent again from January 23, 2019 from his evening assignment and February 4, 2019 from his day assignment, to date.

A medical document dated Jan 31, 2019 by Dr. McDermid states: “…no current limitations. However cognitive abilities may fluctuate, which is to be expected with his medical condition” and “…my patient is currently not on a return to work. He is working at workplace” Please note [the Grievor] has not been at work since January 23, 2019 from his evening assignment and February 4, 2019 from his day assignment.

A subsequent document dated February 13, 2019 states: “…For medical reasons the above patient has been absent from work from February 4, 2019. I believe he will be able to return to work February 19, 2019.” Another document from Dr. McDermid last seen on February 13, 2019 states: “My patient is not on a “medical leave” He has been absent for medical reasons over several
days…” Please note [the Grievor] has not been at work since January 23, 2019 from his evening assignment and February 4, 2019 from his day assignment and did not return to work on February 19, 2019.

To assist us in ensuring [the Grievor] is receiving optimal treatment with a goal towards sustained return to work we respectfully ask that you respond to the following questions:
1. Please provide the objective medical restrictions and limitations (both physical/cognitive) based on recent (i.e. last 1-2 weeks) and direct clinical assessment.
2. Please confirm prognosis for sustained return to work in some or full capacity. Note: Hours of scheduled work: Mon.- Fri. 8:00am to 2:00p.m. plus Mon. and Wed. 6:30p.m. to 9:00p.m.
3. Please confirm if [the Grievor] is actively participating in ongoing treatment plan? If not, please explain.
4. If so, and no improvement noted, given the length of his ongoing concerning absences, has augmentation of treatment been considered? If not, please explain.
5. Any other chronic or non-chronic medical condition that prevents [the Grievor] from attending work on a regular basis? Please explain (Please do not include diagnosis)
6. Are the restrictions and limitations identified in your response to question #1 above permanent? If so, is the medical condition chronic that would result in ongoing sporadic absences? If so, reasonably, how many days per month can we expect ongoing absences?
7. Has [the Grievor] reached maximum medical recovery for the foreseeable future?
8. Recent medical documents indicate no restrictions or limitations. Please explain why [the Grievor] remains off work from January 23, 2019 for his evening assignment and February 4, 2019 from his day assignment to date given no medical restrictions and limitations?
9. Please add any other information you believe may assist in this process.
Thank you in advance for your appreciated response to this request.
Ms. S.A. was cross-examined on a number of her communications with the Grievor respecting requests for medical information. It was put to her that her request for a further FAF on July 10, 2019 was made notwithstanding Dr. McDermid having provided a letter dated April 16, 2019 at a time when the Grievor had not been in the workplace for a number of months. Ms. S.A. responded that this was a “blanket request” as the Employer wanted to understand the possibility for a return to work by the Grievor at the beginning of the school year in September. She noted that the letter is not used in that way anymore but, rather, is sent on a “case by case” basis.
It may be noted that in her Will-say statement, Ms. S.A. also stated that there were a number of concerns with Dr. McDermid’s letter of April 16, 2019 that was described as not providing “…concrete information” about the Grievor’s restrictions and limitations. The letter is difficult to follow, uses very vague language, and provides very little that is actionable”. The text of Dr. McDermid’s letter reads:

I have been working with [the Grievor] to clarify the confusing messaging about his current medical status, related to his inability to “sustain” his work schedule on an ongoing basis, without undue interruption.

Currently, for medical reason, [the Grievor] is not at work. He has been advised not to return to the workplace until such time he believes he will be able to regularly manage the exigencies of his workplace and jobs. When [the Grievor] requested my support to continue working at the school board, it appeared he was capable. He was convinced he would be able to manage his workload. The decision to present for his job was based on his overall mood state and apparent functional capacity at the time. He in fact believed it would not be too difficult for him to achieve this goal at those times. I believe [the Grievor] understood at the time you made the earlier request for further information, that he was not on any “official leave” from work, that he was able to take appropriate sick days if he required. He too was taken off guard on numerous occasions over the number of events which he found were depleting to him, usurping his overall spirit and motivation. He also proposed a plan to manage and facilitate completing his more optimistic goals when aspects of full functionality were challenged by on the job triggers which he found depleting.

Despite having experienced several positive changes in his overall cognitive-emotional status, these positive changes have not translated into developing the capacity to be at the workplace on a sustained basis.

Some of his absences have been initiated by unforeseen, negative, triggering events. These events have sometimes resulted in complex negative reactions and the narrowing of his “window of tolerance”.

Additionally, some stressors and/or threats in his working environment, have translated into defensive reactivity and maneuvering, with subsequent closing down, and the concomitant unfortunate dilution and degradation of earlier positive changes and psychological experiences, frequently fostered with the therapeutic milieu. This could possibly be translated as the patient not having yet been adequately prepared for the working environment. However, I would suggest threats which are not necessarily born from within the individual patient psyche, but more within the matrices of the larger culture of work and the work-climate, may place some additional onus on the workplace to identify the appropriate responsibilities of the workplace, and/or to clarify and manage the potentially harmful aspects therein. Sometimes this can be translated into the need for additional rationally-based work-hardening tasks. However, in my experience, these interventions can only provide so much, when such quick defensive maneuvering, often in response to bullying, slights, and the real or perceived diminishment of his person, and/or safety, suggests at the very least the need for ongoing work, both with the complex nature of the patient and within the workplace itself.
To clarify, it is likely there is further need for the creation of humane and supportive structures and opportunities within the workplace, to support this worker upon his return. This should also diminish any likelihood that the employee would find himself in the position of the “victim blamed”. [The Grievor] has already recommended how specific additional supports could go a long way in helping him to achieve this goal.

In summary, the demonstrated glimmers of positivity over the past several months have not translated into [the Grievor] benefitting from increased levels of resiliency to the extent he could be considered capable of going back to work in a sustained manner. In addition to the recommendations herein he will also require developing further coping skills for a successful RTW. He is currently being referred to additional service providers in Halton Region, nearby his home.
In cross-examination, Ms. S.A.’s evidence was that accommodations of disability needed to be individualized and that it was possible that fluctuating abilities might lead to fluctuating restrictions. She stated that the Employer had to act on objective evidence and needed the “concrete” restrictions to be applied in a return to work. Asked whether it was possible that fluctuations might mean no return to work, Ms. S.A. stated that the Employer required a doctor’s medical to make that assessment. With respect to Dr. McDermid’s letter set out in the preceding paragraph, it was Ms. S.A.’s position that it did not address the Grievor’s ability to do his job. Ms. S.A. stated that Dr. McDermid’s assessment might be correct “but we need to know what an employee can actually do”. She confirmed that no one with medical training had reviewed the FAF’s provided by Dr. McDermid.65. Ms. S.A.’s email to the Grievor of January 31, 2020 in connection with a further request for an FAF made on January 21, 2020 stated, in part, as follows:

We require your medical physician to identify and check off the boxes under the abilities section whether they are full abilities or limited abilities. If your physician would like to add further information, they may do so under #2 or anywhere else they see fit.

It was put to the witness that Dr. McDermid did not view the boxes as allowing him to answer questions accurately due to fluctuations in the Grievor’s condition. Ms. S.A. maintained her position that the documentation provided by Dr. McDermid lacked the concrete information necessary to an assessment of what accommodation might be required.

GRIEVANCE B-1948 (February 19, 2019)

The particulars for this Grievance allege that the Employer harassed the Grievor through its “…continuous and invasive demands for medical information, coupled with commentary that a reasonable person would interpret as being critical of the grievor because of his absenteeism…”, amounting to harassment and discrimination on the basis of disability. The Grievance claims that the Grievor has experienced mental and physical pain and suffering as a result. In support of this Grievance, the Grievor’s Will-say states:
1. From the time of the lockdown of the Bickford Centre that I described earlier until my transfer to Burnhamthorpe CI in October 2015 (approximately six years) I locked the door to my office. Colleagues understood that I did this to maintain a sense of personal safety after the lockdown incident. My program officer at the Bickford Centre never questioned it, and indeed accommodated my needs and the needs of the learners by allowing me to put up a sign that I could flip to either its green or red side to inform them of whether I was in my office.
2. From the time of my arrival at Burnhamthorpe CI in October 2015 onward, the School Board gave me great difficulty in terms of implementing accommodations to create a sense of personal safety in my work environment. Various members of the School Board's management and DCA have subjected me to harassment and discrimination on the basis of my mental disabilities, as described in a School Board workplace harassment and human rights incident
  reporting form dated July 10, 2019 that I submitted to the School Board's Human Rights Office, a copy of which, with enclosed attachments, is at Tab "GGG" to this will-say statement.
3. As described above, Ms. S.B.'s response to my request for accommodation at the end of 2018 was to continuously subject me to unwelcome remarks and improper, invasive requests for medical information with unrealistic deadlines. She further breached my confidentiality by copying my manager on a letter that disclosed my medical diagnosis. I was distressed by Ms. S.B.'s intrusive questions and insensitive remarks. I once again felt the School Board was discriminating against me on the basis of disability.
4. On February 17, 2019, I submitted a completed School Board workplace harassment and human rights incident reporting form to the School Board's Human Rights Office. I named Ms.
  S.B. as a respondent. On April 14, 2019, I submitted a revised version of that form. A copy of
  my revised form dated April 16, 2019, with enclosed attachments, is at Tab "HHH" to this will say statement.
5. The School Board's Human Rights Office confirmed receipt and advised that it would be sending me formal acknowledgement within seven business days to inform me of next steps. I followed up on July 10, 2019, adding to my desired remedies and expressing my concern that I still had not received a response.
6. Also on July 10, 2019, I submitted the further School Board workplace harassment and human rights incident reporting form that is at Tab "GGG" to this will-say statement. I named the School Board as the respondent.
7. The following day, the Human Rights Office advised that my complaint was undergoing a threshold assessment to "determine whether it falls within the scope of the Human Rights Office and to determine the appropriate next steps". It explained that the Human Rights Office was dealing with a significant backlog. A copy of this email chain is at Tab "HI" to this will-say statement.
8. On August 26, 2019, the School Board's Human Rights Office advised that it had
  determined that my April 2019 complaint did "not meet the threshold of workplace harassment or discrimination" and that the complaint was now closed. It did not provide any further explanation.
  It also advised that my July 2019 complaint had been considered in conjunction with my April 2019 complaint. A copy of this email is at Tab "JJJ" to this will-say statement.
9. On September 10, 2019, Ms. Preston emailed the Human Rights Office inquiring into the criteria that it used to determine whether a complaint met the threshold. She followed up on October 4, 2019. The Human Rights Office responded on October 8, 2019 stating that a Senior Human Rights Officer would follow up. Finally, on November 5, 2019, Senior Human Rights Officer, Ms. V.P., advised:
  
  As per the email sent to the complainant on August 26, 2019, we explained that based on our process, we reviewed the contents of his complaint in detail, and determined that the complaint did not meet the threshold of workplace harassment or discrimination".
  
  She offered no further explanation as to what this threshold was. A copy of this email chain is at Tab "KKK" to this will-say statement.
10. In the attachments to each of my harassment and human rights incident reporting forms I submitted to the School Board, I described, and attached supporting documents for, Ms. S.B.'s and the School Board's pattern of medical monitoring, harassment, and discrimination on the basis of my disability. In the interest of being concise, I do not repeat the information that I set out in those forms and attachments, but I adopt their contents here.
The Grievor’s Complaint of February 17, 2019 filed with the Employer’s Human Rights Office, as amended on April 14, 2019, names Ms. S.B. as Respondent and identifies the Grievor’s allegation that Ms. S.B. had mishandled his file properly and, further, had copied Ms. C.V. with the Employer’s letter of February 21, 2019 that included the Grievor’s personal information provided for the consideration of his physician. It will be recalled that the Employer did not object to this Complaint being tendered into evidence on the basis that there was significant overlap with the matters raised through the instant Grievance as reviewed in paragraphs 5 and 6, above.
The Grievor’s Complaint dated July 10, 2019 names the Employer as Respondent and is more extensive both in terms of the nature and extent of the issues raised as well as the time period under consideration (dates of incidents ranged from February 16, 2016 to April 11, 2019). In all some 59 incidents were detailed and were provided to the Employer’s Human Rights Office together with supporting documentation. It may be noted that the matters that were the subject of the Incident Report naming Ms. S.B. as Respondent constitute a number of the incidents detailed in the Incident Report to which the Employer is a Respondent.
With respect to the Employer’s handling of the Complaints, the Will-say of a Senior Human Righs Officer with the Human Rights Office, Ms. V.P., was provided. Ms. V.P. stated that she has been engaged in the field of human rights investigations for some thirty-three (33) years including twenty
(20) years at the Ontario Human Rights Commission. In her Will-say, Ms. V.P. outlined the processes set out in the Employer’s “Workplace Harassment Prevention and Human Rights Procedure”, found at paragraph 11, above.
In determining that the Grievor’s Complaints did not constitute a prima facie case of discrimination or harassment and, therefore, did not meet the threshold for carrying out a full investigation of the Grievor’s allegations, Ms. V.P.’s Will-say stated:
1. In the [July 2019] Complaint, the Grievor alleges that the TDSB discriminated against and harassed him. The Complaint describes several enumerated “incidents”, almost all of which occurred in 2016 and 2017.
2. In his April 14, 2019 complaint, the Grievor alleged that the respondent, Ms. S.B., subjected him to discrimination and harassment. He made a number of allegations about Ms.
  S.B. in respect of the period from December 2018 through March 2019. They can be summarized as follows:
  1. Ms. S.B. did not accurately or fairly consider the information in the Grievor’s file regarding his workplace accommodation requests;
  2. Ms. S.B. continued to request more information and documentation, instead of assisting the Grievor with his accommodation;
  3. Ms. S.B. was not understanding of and refused to grant the Grievor’s request for extension to obtain medical documents; and
  4. Ms. S.B. did not advocate for or assist the Grievor with his accommodation request and, instead, was malicious and harassing in her email communications with him.
3. As per PR515, the HRO conducted a preliminary assessment of the alleged incidents in order to determine if, on their face, the allegations met the definitions of harassment or discrimination, and the next appropriate steps.
4. It is not the function of the HRO to investigate whether the Disability Claims
  Administration Office has properly exercised its discretion, as part of its role and responsibility, to ask for more information in a workplace accommodation process. It is not unusual for members of the Disability Claims Administration Office to seek more information in an effort to explore accommodation.
5. The Grievor included many incidents in his Complaint that were alleged to have occurred in 2016 and 2017. These fell outside the time limit, as indicated in PR 515. Some of these
  incidents also appeared to be the subject of grievances that had not yet been heard or resolved. To preserve resources and avoid inconsistent results, it is the HRO’s practice not to make a
  determination on complaints to the extent that they are also the subject of outstanding grievances (Tab E).
6. Based on the above, the HRO determined that the allegations did not meet the
  definitions of harassment or discrimination, many were untimely, and some were the subject of grievances filed on behalf of the Grievor. Therefore, the HRO recommended that the matter should not be investigated and the file was closed (Tab E).
7. Section 6.7 of PR515 governs the consideration of complaints (Tab D). The one year
  limitation period for filing a complaint corresponds to the time limit for filing an application under the Code. The Grievor did not put forward any explanation for the significant delay in bringing many of his complaints forward.
8. The purpose of a threshold assessment is to determine whether a complaint makes out a prima facie case of discrimination, harassment, or reprisal contrary to the TDSB’s Human Rights Policy (P031) (Tab F) or the TDSB Workplace Harassment Prevention Policy (P034)
  (Tab G). The threshold assessment assumes that the material facts set out in the Complaint are true and asks whether they are sufficient to form the factual foundation of a claim of discrimination or harassment. A guideline document was created in early 2020 which reflects the approach that the HRO has historically taken when conducting a threshold assessment.
  That document is at Tab H.
9. The HRO, when conducting a threshold assessment, considers any potential violation of the OHSA, the Code, and any of P031, P034 and PR515.
10. In my opinion, as set out in the threshold assessment, the timely events raised by the Complaint did not make out a prima facie case of discrimination or harassment. It appeared that a significant number of the allegations were related to the Board seeking information in order to provide accommodation, and asking questions and providing responses which the Grievor disagreed with.
11. In my opinion, the timely events raised by the Complaint, if proven to be true through an investigation, would not have been instances of discrimination. Specifically, the events alleged did not involve any practice or behavior that had a negative effect on the Grievor on the basis of his disability or any other prohibited ground. The events identified did not reflect a failure by the Board to meet its procedural or substantive duty to accommodate the Grievor’s disability.
12. It was also my view that that the timely allegations made in the Complaint, if proven to be true, would not amount to harassment. The Board did not engage in any pattern, or severe
  single instance, of inappropriate or harmful conduct. It was my view that the allegations made in the Complaint, at worst, referred to actions taken by the employer which appeared reasonable in the circumstances.
13. I also concluded that neither bullying nor reprisal was involved. The incidents described by the Grievor did not indicate any aggressive or repeated behaviour intended to cause harm,
  fear or distress to the Grievor. The incidents also did not suggest any harassment, intimidation, threats or discipline against the Grievor for filing any grievances, complaints, or claims against the Board. I determined that the Complaint did not demonstrate that the Board’s conduct was in any way retaliatory.
14. On August 26, 2019, the HRO sent an email to the Grievor stating that his Complaint did not meet the threshold for workplace harassment or discrimination (Tab I).
15. There was a very significant backlog of HRO complaints at this time as a result of organizational and staffing turnover. In the normal course, the HRO prefers to provide its threshold assessments within a shorter period of time.
Tab I to Ms. V.P.’s Will-say is an email to the Grievor from the Employer’s Human Rights Office dated August 26, 2019. That email, in turn, references an earlier email dated April 24, 2019 acknowledging receipt of the Grievor’s revised Complaint dated April 15, 2019 naming Ms. S.B. as a Respondent. The August 26, 2019 email to the Grievor states as follows:

Re: [The Grievor] vs Ms.S.B. - Workplace Harassment and Human Rights Formal Complaint (2019- HR-B-278)

Further to our email below, we have reviewed your workplace harassment and human rights formal complaint against Ms. S.B..

We apologize for the delay in processing your complaint, as we are currently experiencing a significant backlog. Having reviewed the contents of this complaint in detail, it has been determined that the complaint does not meet the threshold of workplace harassment or discrimination.

All individuals who participate in this process are entitled to be free from negative reprisal for having participated.

Moreover, all matters relating to the complaint process and contents are to be kept confidential.

As such, it is expected that you will not advise anyone in the workplace, or otherwise connected with the workplace, about this complaint, other than those who may need to know (such as the accountable managing authority).

This case is now closed with our office.

Should you have any questions in the above regard, please contact us.
By email dated September 10, 2019, Ms. Terri Preston on behalf of the Union, inquired what criteria were used to determine that the Grievor’s Complaint respecting Ms. S.B. did not meet the threshold of “a Human Rights issue”. Further, Ms. Preston noted that a second Complaint had been filed
by the Grievor in the summer and that he had not received a confirmation of its receipt by the Human Rights Office. Ms. Preston asked that confirmation of receipt be provided with a copy to the Grievor.
Ms. V.P.’s response to Ms. Preston was dated November 5, 2019 and reads, in part, as follows:

As per the email sent to the complainant on August 26, 2019, we explained that based on our process, we reviewed the contents of his complaint in detail, and determined that the complaint did not meet the threshold of workplace harassment or discrimination.

We believe that you may have a copy of this email as [the Grievor] responded to us and copied you on his response.

Also, we did receive further documentation (i.e. similar emails previously provided, additional/updated emails and remedies desired, etc.) from [the Grievor] in July 2019 and acknowledged receipt of these materials by email back then. These documents were reviewed as part of his complaint for which an assessment was made (as indicated above).
I was provided with Ms. V.P.’s Threshold Assessment. Section 1 of that document states:

Summary of Allegations Disclosed in Complaint

The complainant first submitted a complaint on February 17, 2019. He subsequently sent an email on April 14, 2019, indicating that the previous complaint submitted was incomplete and that he was now submitting a revised,
updated complaint. On July 10, 2019, the complainant submitted another complaint against the TDSB with no individual respondents named. A threshold assessment was conducted based on all of the above information submitted by the complainant.

In his complaint of April, 2019, the complainant alleges that the respondent, Ms. S.B., subjected him to discrimination and harassment based on disability, including a failure to accommodate him at the workplace. He made multiple allegations which can be summarized in the following – that between December 2018 and March 2019, the respondent:
- Did not accurately or fairly consider the information in his file regarding his workplace accommodation request
- Continued to request for more information and documentation, instead of assisting him with his accommodation
- Was not understanding of and refused to grant his request for extension on medical documents
- Did not advocate for or assist him with his accommodation request, and instead, was malicious and harassing in her email communications with him
In his complaint of July 2019, the complainant alleges that the TDSB also discriminated against him by failing to provide him with accommodation at the workplace. The complainant provided numerous incidents, almost all of which occurred in 2016 and 2017. The complainant also included incidents that were the same as those already provided in his complaint submitted in April 2019.
Section 2 of the Threshold Assessment references the statutes and policies applicable to the Complaint(s). Sections 3 and 4 then goes on to state:
1. Analysis
  
  As per PR 515, the Human Rights Office (HRO) conducted a preliminary assessment of the alleged incidents/complaint of harassment/discrimination in order to determine if on the face of the complaint, the allegations meet the definition of harassment/discrimination, and the next appropriate steps.
  
  It is not the function of the HRO to investigate whether the Disability Claims Office has properly exercised their discretion, as part of their role and responsibility, to ask for more information in a workplace accommodation process. It is not unusual and may even be reasonable for the respondent and/or her Office, to seek more information as part of this process.
  
  In addition, the complainant raised incidents that occurred in 2016 and 2017, which extend beyond the timeline requirement, as indicated in PR 515. Some of these incidents also appear to be the subject of a grievance. However, the status or outcome of this action is unknown.
2. Assessment/Recommendation
Based on the above, the HRO determines that the above allegations do not meet the definition of harassment, are untimely; and have been subjected to grievance action. Therefore, the HRO recommends that this matter should not be investigated.
With respect to the substance of the Grievor’s Complaints filed with the Human Rights Office, those alleging improper conduct on the part of Ms. S.B. are generally referenced in the evidence previously outlined. The Complaint dated July 10, 2019, as noted above, deals with a wider variety of incidents alleged to have taken place over a longer period of time and involving a number of other of the Grievor’s co-workers. The July 2019 Complaint is comprised of 59 alleged incidents and the document itself is some 255 pages in length including the attachments provided in connection with the allegations.
In essence, the Grievor’s Complaint of July 2019 alleges that the Employer failed to respond properly to his requirement for a safe, secure and supportive work environment that might allow him to carry out the essential duties and responsibilities of his roles on an ongoing basis. Some of the issues
involved challenges in dealing with peers who did not wish to cooperate with the Grievor’s need for a safe and secure work environment. An example of this was a female co-worker who did not wish that the door to the office she shared with the Grievor to be locked – the Grievor wanting security in the wake of the “SWAT team” incidents referenced in paragraph 17, above and the co-worker not wishing to be in a locked room with a male colleague. Some issues were related to the supervision style of managers to whom the Grievor reported – it was alleged that one supervisor was loud, inappropriate and worked in an unfocussed fashion that impeded the Grievor from carrying out his duties and responsibilities. Some of the issues arose from concerns about the communication style of those with whom the Grievor had work-related interactions, particularly with respect to accommodations related to his physical work environment. A related issue is the Grievor’s concern that his supervisors and managers lack the background and training to deal with accommodation issues where mental health concerns are engaged. Finally, a number of the incidents detailed in the July 2019 Complaint involve matters that are the subject of the preceding Grievances referenced above (e.g. the allegations respecting medical monitoring, the issues involving Ms. S.B.).
The foregoing paragraph is in no way to be understood as a detailed review of the allegations raised in the Grievor’s Complaint of July 2019, all of which I have carefully reviewed. Rather, it is intended to simply provide a general sense of the types of issues raised in that Complaint.
In response to the substantive aspects of the July 2019 Complaint, the Employer provided a Will-says from the Program Coordinator of the ESU program, Ms. C.V., and a Program Officer who was one of the Grievor’s supervisors, Mr. S.S.. Ms. C.V.’s Will-say denies she has made any improper communications to, or in respect of the Grievor, whether intentionally or unintentionally. With respect to the interactions between the Grievor and the female colleague who did not wish to share a locked office with him, Ms. C.V.’s Will-say states:
1. When the Grievor began working at BCALC [Burmanthorpe Collegiate] in October 2015, he shared an office with Ms. H. In the Spring of 2016, Ms. Preston approached Mr. S.S. and me to schedule a meeting to discuss some of the Grievor’s concerns regarding sharing an office with
  Ms. H. During this meeting, I was notified that the Grievor wanted a divider installed in the office between his desk and Ms. H’s. By this time, the Grievor had already started building a barrier with books, which prevented the Grievor and Ms. H. from seeing each other while
  working. I was also notified that the Grievor would like a lock installed on the door to the office.
2. On April 14, 2016, I sent an email to Ms. Preston confirming that a 4 foot by 4 foot wall divider had been located and that arrangements were being made to relocate the divider to BCALC for the Grievor’s use. I committed to further engaging in discussions regarding the office layout and potential installation of a door lock once Ms. H., who was then on a leave of absence, returned to work on May 1, 2016 (Tab CC).
3. Given the concerns the Grievor raised with respect to sharing an office space with Ms. H, Mr. S.S. and I initiated the process of seeking out alternative work spaces for
  him. The Grievor was supportive of our efforts to find him a new office space and he did not suggest that Ms. H be the individual who switched offices. Ms. D.M.
  Workplace Accident Investigations Officer at the Board, and Mr. S.S. located a space that could be retrofitted to suit the Grievor’s requested accommodations and, on May 12, 2016, I sent an email indicating this (Tab DD).
4. As noted in the list above, a great deal of operational effort went into creating the Grievor's new workspace.
5. Ms. H had shared this same office with various different ESU Assessors over a 16 year period without any issue. This included approximately 12 to 13 years with Mr. D.H. and several months involving a rotation of various supply assessors.
Mr. S.S.’s Will-say was lengthy and responded to many of the issues raised by the Grievor’s July 2019 Complaint. Essentially, Mr. S.S. stated that he went above and beyond in attempting to accommodate the Grievor’s requirement of a safe, secure and supportive work environment. Several examples are helpful. At one juncture in August 2016, Mr. S.S. purchased a door chime from Home Depot that was intended to assist with the resolution of the Grievor’s wish for a locking door to his workspace. From the Grievor’s perspective, “This was a profoundly negative experience for me. Furthermore, it is insulting to be offered a chime from Home Depot as an accommodation. I left feeling very unsettled and unsafe, both working [Burmanthorpe Collegiate] as well as with [Mr. S.S.]. From Mr. S.S.’ perspective, this was but one of many steps he was undertaking to deal with the Grievor’s requirements. His Will-say states, “I also turned my mind to ways to accommodate the Grievor’s concerns without involving a locked door. In late August 2016, I purchased a door chime from
Home Depot, which ensured that the Grievor was provided with an audible notification whenever the door was being opened”. Similarly, the Grievor described Mr. S.S.’ voice in the next office as loud and distracting such that his ability to focus on his work was interrupted with resulting distress to him. Mr. S.S., on the other hand, stated “Since the Grievor had said he was distracted by my voice while I was speaking in my office, I ensured that my office door was closed whenever I used the phone. As much as possible, I avoided using the phone when the Grievor was in the office working and made efforts to respond to the phone messages only at the end of the day after the Grievor had left the office”.
In cross-examination, Ms. V.P. confirmed that the incidents raised by the Grievor in the April 2019 Complaint to which Ms. S.B. was Respondent were timely under the Employer’s policy as being filed within one (1) year. Ms. V.P. further agreed that the final incident identified by the Grievor in his July 2019 Complaint against the Employer (an alleged failure by Ms. S.A. to respond to the Grievor’s
request for feedback regarding a document on mental health in the workplace that he had previously forwarded to Ms. T.G. of the DCA some two years previously) had been made within the one (1) year limitation identified in the Employer’s policy. When questioned how that would impact the balance of the Complaint, Ms. V.P. stated that it was the practice of the Human Rights Office not to investigate incidents occurring more than one (1) year prior to the Complaint. Accordingly, any incidents identified
by the Grievor as occurring more than one year prior to July 16, 2018 would not be investigated. Further, Ms. V.P. confirmed that incidents in 2018 and 2019 were not investigated. It was put to her that it was a continuing series of incidents being raised by the Grievor with the most recent of those taking place within the one (1) year limitation period of the policy. Ms. V.P. replied that the decision not to investigate in the circumstances was not a policy but, rather, was “the practice” of the Human Rights Office.
Ms. V.P. stated that the Employer’s policy also deferred Complaints when the matters in question were the subject of a Grievance. She advised that it was the practice of the Human Rights Office not to investigate Complaints in these circumstances unless the related grievance was being held in abeyance. It was put to Ms. V.P. that at the time the July 2019 Complaint was filed, the Grievor indicated that his grievance respecting the incidents in question were in abeyance. Ms. V.P. agreed that the fact that grievances had been filed were, accordingly, ought not to have been a factor in her assessment. Further,
she agreed that it was incorrect to have stated that the status of the grievances was “unknown” based on the Grievor having indicated in his Complaint that they were being held in abeyance.
With respect to the April 2019 Complaint to which Ms. S.B. was Respondent, counsel for the Union put to Ms. V.P. that the Grievor characterized certain of the incidents raised by him as constituting “harassment”. Ms. V.P. agreed that allegations of harassment had been made. It was then put to her that such claims were different than simply a question of the DCA’s “exercise of discretion”, a proposition with which Ms. V.P. also agreed.
It was then suggested to the witness that the Threshold Assessment did not, in fact, consider the Grievor’s complaint of harassment. Ms. V.P. disagreed stating that she did an analysis of the communications between the parties and concluded that it did not constitute harassment. She then advised that this finding is set out in the Assessment/Recommendation section of the Threshold Assessment although she stated that it was not “detailed”.
In re-examination, Ms. V.P. was asked what led her to the conclusion that the Complaint against Ms. S.B. did not constitute a prima facie case of discrimination or harassment. She stated that she had reviewed all the documents provided and found that the requests for information made to the Grievor were legitimate both as to purpose and means. She further confirmed that she had considered the Grievor’s allegation that Ms. S.B.’s actions were harassing in making her determination.

GRIEVANCE B-2054 (February 11, 2020)
GRIEVANCE B-2056 (February 11, 2020)
The Grievor’s Will-say grouped these Grievances together and stated as follows:
1. By FAF — cognitive dated November 6, 2019 (Tab "UU"), Dr. McDermid cleared me to return to modified work on November 19, 2019. Dr. McDermid explained, in responding to a question asking him to identify my 'cognitive abilities at this time':
  
  Due to the nature of his illness, it is reasonable to expect a fluctuation of abilities in any of the above-mentioned categories. Once the accommodations are implemented, I suspect there will be a decline in frequency of fluc[tua]tions. It would be therapeutic to allow [the Grievor] to "self-direct" & ask his supervisor for assistance[.].
  
  To my knowledge, the School Board did not at the time take the position that it would have any issue accommodating me on the basis of these fluctuations.
2. The FAF — cognitive attached a letter, dated November 13, 2019 (Tab "UU"), that recommended the following accommodations:
  1. moving my office out of close proximity to the area that had been designated as "command central" during a school lockdown; and
  2. the opportunity to meet with a mental health professional (psychologist/social worker) who could provide timely coaching to deal with on-the-job issues.
3. Dr . McDermid further set out the following graduated return to work schedule:
  
  [see paragraph 88 below for the graduated RTW schedule]
4. By November 18, 2019, the School Board had not scheduled a return to work meeting. Ms. Russell inquired into this. Ms. S.A.'s response was that the meeting would be on December 4 or 5, 2019. Ms. Russell asked whether, in the meantime, I would be returned to my position as Dr. McDermid had recommended. Ms. S.A. advised that I could not return to work prior to the meeting. A copy of this email exchange is at Tab "LLL" to this will-say statement.
5. At the return to work meeting, which took place on December 4, 2019, Ms. S.A. and Ms.
  C.V. indicated that there was no space to accommodate me by moving my office location. Ms. Russell inquired into the possibility of my switching offices with a colleague, Ms. H.. Ms.
  C.V. said that this was not possible as Ms. H. had been in her office for 14 years. As Ms.
  C.V. indicated that Ms. H.'s office was designed to be a two-assessor office, Ms. Russell suggested that that office be separated into two. Ms. S.A. said that I would then only have one exit. I indicated that that was already the case. I also advised that I was unable to concentrate in my office as I could hear conversations from Mr. S.S.'s office. Dr. McDermid and I had
  had discussions about how this was likely affecting my ability to work. Ms. C.V. committed to looking into the possibility of a separation of the office, and suggested noise-cancelling headphones and soundproofing of my current office. The Union's notes of this meeting are at Tab "MMM" to this will-say statement.
6. I returned to work on a graduated basis on December 5, 2019.
7. The School Board did not implement any of Dr. McDermid's recommendations. Instead, it provided me with noise-cancelling headphones and a white noise generator. It looked into soundproofing my office, but ultimately advised that only a portion of one wall could be soundproofed.
8. On January 10, 2020, I followed up with my Program Officer, Mr. S.S., to obtain an
  update as to the option of dividing Ms. H.'s office into two. I did not receive a response, despite a follow up email on February 6, 2020. A copy of this email chain at Tab "NNW' to this will-say statement.
9. Also on January 10, 2020, I did not hear an alarm for a fire drill because of my noise-cancelling headphones, so I did not exit the building. I submitted a health and safety concern/near miss incident form.
10. On January 20, 2020, Mr. S.S. emailed me enclosing his response to the health and safety concern/near miss incident form. He stated that I had not yet used my white-noise
  generator, which would deal with the problem of background sounds while not blocking out fire alarms and announcements. A copy of Mr. S.S.'s email, enclosing the form, is at Tab "OOO" to this will-say statement.
11. I responded to Mr. S.S.'s response by email dated January 20, 2020. I advised that
  I had used the white noise generator. I further expressed my concerns that what the School Board had set up was not in line with what Dr. McDermid had recommended. A copy of my email is at Tab "PPP" to this will-say statement.
12. On February 6, 2020, I submitted a completed School Board workplace harassment and human rights incident reporting form to the School Board's Human Rights Office, a copy of which, with enclosed attachments, is at Tab "QQQ" to this will-say statement. The complaint concerned the School Board's failure to follow Dr. McDermid's recommendations. I named Ms. S.A., Mr. C.V., and Mr. S.S. as respondents.
While Dr. McDermid estimated a return to modified work date of November 19, 2019 in the FAF –Cognitive form (with accommodations), he also referenced his more detailed letter dated November 13, 2019. The Grievor forwarded the FAF-Cognitive form together with Dr. McDermid’s letter to the Employer on Thursday, November 14, 2019. The Union’s Return to Work Representative, Ms. Russell, emailed Ms. S.A. the following Monday, November 18, 2019 asking if she could “…give the union an idea of when there will be a return to work meeting for [the Grievor]”. Ms. S.A. responded to Ms. Russell on November 21, 2019:

As per the medical documentation received, there are accommodation requests that need to be reviewed which is why it is important that we have the return to work meeting prior to [the Grievor’s] return to work. Once we have reviewed and established a return to work plan, [the Grievor] is able to return to work. This may even be possible for Dec. 5, Thursday.
I will send out a calendar invite for our meeting on December 4/2019.

Ultimately, the meeting was scheduled for December 4, 2019.
It is important to review Dr. McDermid’s letter dated November 13, 2019 in some detail. It reads:

To Whom It May Concern:

THE NEED FOR A SUSTAINABLE RTW

[The Grievor] is working on developing a sustainable RTW in conjunction with my assistance.

Upon examining [the Grievor’s] history and the current problems he has experienced in the work place, we have collaboratively developed several specific accommodations, which, when incorporated into his RTW, are likely to provide for a more robust and effective RTW plan. These accommodations are based on their likelihood of overcoming possible functional and or psychological limitations or risks of decompensation in these areas in future.

Required Accommodations:
1. [The Grievor] will likely function best on a day to day basis upon when there is recognition of physical and psychological safety in relation to the location of his office. Currently his office is in close proximity to an area within the school chosen as “Command Central” when there is an official school lockdown. As you may recall from his file the geographic location of his office had become an extreme trigger for him, related to his past experiences and involvement when swat teams had entered the school, rifles drawn. We would strongly recommend the actual location of his office be away from this area so that he will be less prone to memories of these earlier traumatic experiences.
  
  Second to this, the current office location provides only minimal sound proofing, thereby lowering his ability to focus and concentrate. His office should be located in a quieter part of the building. He can function autonomously. With an emphasis on provided a safe and quiet office he can focus/concentrate without undue interruption. This will assist him to maintain maximum productivity in his work. Directives for work priorities and new assignments can be emailed to him, clarified via voice mail if need be. This will better allow him to plan his priorities, pace his energy level, and monitor his psychological/emotional state, while incentivizing the overall completion of his work in a timely fashion. The accommodation of a locked office remains in effect.
2. He would benefit from having the opportunity to meet with a mental health professional (psychologist/social worker) who could provide timely coaching to deal with on-the-job issues which can come up in the workplace….AT THE TIMES WHEN/IF THEY DO COME UP. It is important the employer appreciate how this emphasis in addressing and RE mediating psychological/emotional pain is equivalent in importance to a person suffering from physical pain needing also to be recognized an appropriately dealt with through accommodation.
3. His current accommodations include:
  1. the use of computer (journaling, and mini-CBT sessions- “thought Records”) and mini-mindfulness sessions (ie. : 5 minute opportunities for “grounding” exercises that support and maintain a psychologically stable working environment.
  2. Maintaining the beginning of his workday one hour earlier, at 8:00 AM, and leaving the workplace one hour earlier as well. This will accommodate him by reducing the risk of psychological triggers of traffic congestion and support him to more frequently have a positive start to his day.
Of course, any RTW plan occurs in the context of a dynamic situation, sometimes posing new or unique issues, problems, stressors, and/or previously unidentified concerns related to a given disability in a workplace setting. Recognizing this possibility whereby unforeseen events or situations may arise that have not been accounted for in our current recommended accommodations is realistic, and may make it easier to promote further reasonable and fair refinements to these already recognized accommodations in future.

Alternatively, it is important that [the Grievor] continue to use his practices, mini-mindfulness, journaling, CBT, to help him structure his internal emotional landscape, thereby allowing him to function more positively in his workplace.

RTW – Assessor Assignment

Weeks 1 to 3 – Tuesdays and Thursdays (5.5. hours)

Weeks 4 – 6 – Tuesdays, Thursdays and Fridays (5.5. hours)

Weeks 7 – 9 – Tuesday to Friday (5.5. hours) Weeks 10 – 12 – Monday to Friday (5.5 hours) RTW – Instructor Assignment
Week 13 – Mondays and Wednesdays (2.5 hours)
Note: For the first 4 classes he will need to “shadow” the current Instructor. This will be considered the “work hardening” period for this assignment.
(all emphasis in original)
At the return-to-work meeting held on December 4, 2019, attendees included the Grievor, Ms. Russell, Ms. S.A., Ms. C.V. and Mr. S.S.. As well, Ms. Shafina Soobrattie was in attendance, for the Union as a note-taker. A review of those notes indicates a discussion between the parties focused on the physical aspects of the workplace such as location of the Grievor’s office, issues related to noise and the timetable to take steps for reconfiguration of any workspace to which the Grievor would be assigned.
The notes indicate that there were no concerns about accommodating the Grievor’s need for short “grounding” breaks during the day or allowing him to start and finish his work-day one hour earlier (i.e. those accommodations identified in section 3 of Dr. McDermid’s letter of November 13, 2019).
Ms. S.A.’s Will-say respecting these events states as follows:
1. In the letter dated November 13, 2019, Dr. McDermid advised that he and the Grievor collaboratively developed “several specific accommodations” which “are likely to provide for a more robust and effective RTW plan”. This letter was the first instance of Dr. McDermid referring to the location of the Grivor’s office as a trigger for him, notwithstanding the Grievor had been in that office since 2016 and the most recent lockdown experience had occurred in September 2018. It was also the first instance of Dr. McDermid referring to the opportunity to meet with a mental health professional as a required accommodation.
2. [Ms. S.A. sets out the proposed RTW schedule from Dr. McDermid’s letter above]
3. .The Board did not switch the offices of the Grievor and Ms. H., ESU Assessor at the Board, because the Grievor did not present satisfactory evidence of a medical restriction or limitation which required it. The Board also noted that the two offices were in close proximity to one another and, in either location, the Grievor would be exposed to police officers entering and searching the facility in the event of a lockdown. The [Burmanthorpe Collegiate] building had no space available in which the Grievor could work alone in silence and with a lockable door, apart from the space which had been converted from a photocopy room for that purpose in 2016. The distance between the Grievor’s office and Ms. H’s office is illustrated in the [Burmanthorpe Collegiate] floor
  map at Tab R.
4. Given the lacking, inaccurate, and often unhelpful information that had recently been received from Dr. McDermid concerning the Grievor, there was concern that Dr. McDermid’s recommendation to change the location of the Grievor’s office was not entirely objective or accurate.
5. On December 12, 2019, Ms. C.V. sent me an email stating that the blinds for the Grievor’s office had been installed and the white noise generator used for soundproofing the Grievor’s office had been received (Tab S). The Board’s Facility Services also began the process of scheduling the installation of acoustic tiling.
6. The Grievor attended a return to work meeting on December 4, 2019 and commenced work under his graduated return to work plan on December 5, 2019.
In her Will-say, Ms. C.V. states that the Grievor was provided with a white noise generator and noise-cancelling headphones in December 2019. She further states that in February 2020 acoustic tiling was installed on the wall between Mr. S.S.’ office and that being used by the Grievor.
In cross-examination it was put to the Grievor that during his session on December 10, 2019 with Dr. McDermid subsequent to the RTW meeting of December 4, he indicated that his only concern was that the Employer was not prepared to move his office assignment away from “the entry” of Burmanthorpe Collegiate. The Grievor responded that he recalled that the most important recommendation – being located away from “Command Central” was not granted at the RTW meeting. Dr. McDermid’s note of the December 10, 2019 session reads:

HR Meeting
He had met with HR S.A. (sic), C.V. (program mgr.), S.S. (sic) (his direct supervisor) last Wednesday

The only issue they had disagreed with in our recommendations was the room away from the entry. One suggestion was that he switch with colleague [Ms. H], however, she had been in that office since 2003. The group suggested using noise blocking headphones and the use of a “white noise machine”. He was very clear that the blind was still not put up in that office from three years ago. He’s decided to coast until he retires, being competent about his duties, but better paced, and without the same level of verve as in the past.

He believes that his case worker Erica [Ms. Russell] will continue to push his agenda. And his boss is willing to be flexible, to provide him the opportunities which will allow him to achieve his work goals.

His last complaint to the Board has not yet received a response. He has also been working on a currently 250 page human rights complaint about the very difficult to deal with, Human Rights Complaint. (sic)

He is now at two days a week. And his journaling is going to involve finishing the human rights complaint, on their time.

He describes the twenty little individual steps involved in getting himself ready and int[o] the day in the early AM, acknowledging his thoughts and laying them on the shelf until he’s ready to leave and then at work.

After the first day he realized (again) that the routine is good for him, and he going to manage his work life by keeping his responsibilities within the realm of what is financially feasible.

In cross-examination, the Grievor stated that he did not use the words “agenda” or “coasting” in his session with Dr. McDermid, noting that “coasting” is not in his work ethic vocabulary.

Ms. S.A. was cross-examined respecting paragraph 25 of her Will-say, as set out above, in which she assesses Dr. McDermid’s recommendation to change the location of the Grievor’s office as possibly not being “entirely objective or accurate”. Ms. S.A. testified that Dr. McDermid’s letter was not useful

because he did not “tick off the boxes”, a reference to the boxes on the Employer’s FAF – Cognitive form that asked health care providers to fill in a section that reads:

Please identify the employee’s cognitive abilities at this time:

Attention & Concentration:	Following Directions:	Decision-Making/ Supervision:	Multi-Tasking:
[ ] Full Abilities [ ] Limited Abilities: Restrictions	[ ] Full Abilities [ ] Limited Abilities: Restrictions	[ ] Full Abilities [ ] Limited Abilities: Restrictions	[ ] Full Abilities [ ] Limited Abilities: Restrictions
Abilities to Organize:	Memory:	Social Interaction:	Communication:
[ ] Full Abilities [ ] Limited Abilities: Restrictions	[ ] Full Abilities [ ] Limited Abilities: Restrictions	[ ] Full Abilities [ ] Limited Abilities: Restrictions	[ ] Full Abilities [ ] Limited Abilities: Restrictions

In the FAF- Cognitive form completed by Dr. McDermid and dated November 6, 2019 no boxes have been ticked off. Of course, Dr. McDermid did answer the following Question 2 in the form: “In consultation with the job demands, please list any additional impairments to her/his occupation:”. His response was:

Due to the nature of his illness it is reasonable to expect a fluctuation of abilities in all of the above-mentioned categories. Once the accommodations are implemented, I suspect there will be a decline in frequency of [fluctuations]. It would be therapeutic to allow [the Grievor] to “self-direct” & ask his supervisor for assistance.

Further, Dr. McDermid provided the letter dated November 13, 2019 as set out in paragraph 88, above.

It was put to Ms. S.A. in cross-examination that Dr. McDermid’s response cannot be characterized as an “inaccuracy”, to which she agreed but further stated that the lack of information “doesn’t tell us what [the Grievor] can or can’t do”. Ms. S.A. was asked “But what if his abilities fluctuate?”, to which she replied, “Then how do we accommodate?”. Ms. S.A. was then asked, “Because you say that Dr. McDermid’s information is inaccurate, you conclude that the [proposed] accommodations are not required?”. Ms. S.A. responded, “We don’t know if [the Grievor] needs what’s recommended if the doctor doesn’t answer the questions. There was no medical evidence supporting the “office switch”. That wasn’t appropriate based on the FAF. That’s not to say that Dr. McDermid is wrong – he’s just not giving us anything to support what he’s proposing”.
In her email to the Grievor dated January 31, 2020 requesting a further FAF-Cognitive, Ms. S.A. stated, in part, as follows:
We require your medical physician to identify and check off the boxes under the abilities section whether they are full abilities or limited abilities’. If your physician would like to add further information, they may do so under #2 or anywhere else they see fit”.

GRIEVANCE B-2078 – April 14, 2020
With respect to this Grievance, the Grievor’s Will-say stated as follows:
1. On February 20, 2020, Ms. S.A. advised that the School Board would not allow me to
  work more than two days per week. A copy of her email, and my response of the same date, are at Tab "RRR" to this will-say statement.
2. On February 23, 2020, Ms. C.V. advised that the DCA had done so because I had "been unsuccessful in demonstrating progression to three days per week and to four days per week as per the plan". A copy of this email chain, dated February 23, 2020 to February 25, 2020, is at Tab "SSS" to this will-say statement.
3. As described above, Dr. McDermid completed an FAF — cognitive on March 13, 2020 (Tab "AAA") that stated that I was to be working three days per week and that the two-day/week schedule was employer-imposed.
4. In late March 2019, during the COVID-19 pandemic, the Union requested that I be returned to a five-day/week schedule as none of the barriers that prevented me from attending work in person applied to my working from home. The School Board did not do this.
5. In response to a Union follow-up email, Ms. S.A. advised on April 9, 2020 that the School Board was planning to arrange a meeting with me.
6. At the meeting, on April 16, 2020, the School Board refused to return me to full-time work on the basis that Dr. McDermid had said that my abilities were prone to fluctuation. The School Board advised that it would require my consent to an IME. A copy of my notes of this meeting, redacted to protect labour relations privilege, are at Tab "TTT" to this will-say statement.
7. To date, the School Board has not returned me to more than two days' worth of hours per week.

Dr. McDermid’s FAF – Cognitive dated March 13, 2020 employed the following format:

Please identify the employee’s cognitive abilities at this time:

Attention & Concentration:	Following Directions:	Decision-Making/ Supervision:	Multi-Tasking:
[ ] Full Abilities [ ] Limited Abilities: Restrictions [√] Fluctuating Abilities	[ ] Full Abilities [ ] Limited Abilities: Restrictions [√] Fluctuating Abilities	[ ] Full Abilities [ ] Limited Abilities: Restrictions [√] Fluctuating Abilities	[ ] Full Abilities [ ] Limited Abilities: Restrictions [√] Fluctuating Abilities
Abilities to Organize:	Memory:	Social Interaction:	Communication:
[ ] Full Abilities	[ ] Full Abilities	[ ] Full Abilities	[ ] Full Abilities
[ ] Limited Abilities:	[ ] Limited Abilities:	[ ] Limited Abilities:	[ ] Limited Abilities:
Restrictions	Restrictions	Restrictions	Restrictions
[√] Fluctuating	[√] Fluctuating	[√] Fluctuating	[√] Fluctuating
Abilities	Abilities	Abilities	Abilities

[√] Fluctuating Abilities is handwritten in original

As noted in the Grievor’s Will-say, Dr. McDermid further states that the Grievor should “resume recommended RTW, as outlined in Nov. 2019 [FAF-Cognitive], starting with 3 days per week (right after March break). My patient is currently only working 2 days per week (Employer imposed)”. In response to the question “Complete recovery expected?”, Dr. McDermid has written “See notes from Nov. 19 [FAF – Cognitive]”. Finally, Dr. McDermid has included a third typewritten page that states:

As previously stated ([FAF – Cognitive] of Nov. 6, 2019), due to the nature of [the Grievor’s] illness, it is not unreasonable to expect some fluctuations in these areas. Once the recommended accommodations (medical of Nov. 6, 2019) are implemented, I expect that there will be less fluctuations.

I cannot provide any further information, as this would require a diagnosis to be revealed.

It is important to note that [the Grievor] has not asked for any modifications in duties. It is my understanding that there are o issues with his performance at work.

He is asking for patience, dignity, support, inclusion and understanding on the part of the employer.

It is not uncommon for an employee with a mental health disability to be provided with autonomy (self-direction). It is also not uncommon for an employer to support this. In fact, it is one of the key elements of a successful RTW/accommodation process.

As well, inclusion is another key element.

I cannot comment on progress with regards to accommodations that, to date, have not been provided.
[The Grievor] and I have spent some time discussing how things went awry with his RTW. We discussed both what was going on for him, as well as how he perceived the employer contributed to this.

I can provide the following progress:

- [The Grievor] has spent time analyzing why the RTW went awry.

-He has discussed certain strategies on how he will be more likely to present himself at the workplace.

-Furthermore, he has discussed with me some strategies he will use to cope with the working environment while waiting for accommodations to be put in place, while at the same time maintaining as sustainable RTW. He and I will continue to discuss/monitor these strategies in upcoming sessions.

My patient has expressed and shown documentation that he feels demonstrates how the actions of his employer have contributed to a failed RTW. He has also expressed that he feels it has been an “uphill battle, psychologically damaging”, as well as “emotionally distressful/draining”. He has also expressed the fact that he feels there has been no inclusion throughout the whole process.

It is not within my purview to comment what the employer has/has not done. I will leave this in the hands of his union representatives, or whatever other course of action he so chooses.

My responsibility is to provide psychological support, as well as tools/strategies for him to move towards “healing” and sustaining his RTW.

The work environment plays a significant role in this (see medical of April 2019).

On a final note, I would ask that you review all of the medical I have submitted to the employer, dating back to August 2016.
The Grievor provided notes of a lengthy telephone meeting that took place on April 16, 2020 between him and representatives of the Union and the Employer. In that meeting Ms. Russell for the Union took the position that, as employees of the Board were then working remotely from home during the pandemic, the Grievor’s return-to-work schedule proposed by Dr. McDermid could, and should, be implemented. In essence, any issues related to the Grievor’s location within the workplace were moot. The representative who handled virtually all of the communication for the Employer was a Disability Case Officer, Ms. P.D., of the DCA. With respect to the Union’s position that the implementation of the Grievor’s RTW plan should continue, the Grievor’s notes quote Ms. P.D. as saying “As I said for us, there is a disconnect when we’re seeing someone have full functioning/full cognitive ability, but the doctor is saying they need to be accommodated somewhere else. If you’re medically cleared to RTW, what does the location of [within] your school have anything to do with your medical?”. Ms. Russell is
quoted as replying “Because the location is causing physical and cognitive issues”. In this meeting, the Employer further states that it is seeking the Grievor to consent to an independent medical evaluation (IME). Ms. P.D. is quoted as saying that the Grievor would remain on the two (2) days per week schedule until the IME that will “…get this all sorted out in terms of what is medical/ what is not medically warranted and clarity on whether [the Grievor] needs further treatment, recommendations, prognosis, all of that”. Ms. Russell replied that it was the Union’s position that the Grievor had demonstrated that he could work well from home as there were none of the workplace issues at play and that the parties could revisit how a RTW would proceed once the pandemic “changed course”. In the result, the Grievor schedule was maintained at two (2) days per week and, eventually, an IME took place resulting in Dr.
Peterkin’s report at paragraph 16, above.
Ms. S.A. also provided notes of the telephone meeting of April 16, 2020. While the Grievor’s notes have the look and feel of a transcript of a recorded conversation, Ms. S.A.’s appear to be notes written in the aftermath of the call. They are typed and noted as having been “entered” on April 17, 2020, the day following the call. With respect to the first exchange noted in the preceding paragraph, Ms. S.A.’s notes state, in part, as follow:

-Erica [Russell] state that the union’s position is that hours should be increased as [the Grievor] is able to work from home and be paid full as everyone else is being accommodated
-DCO [Ms. P.D.] stated that in these unprecedented circumstances, we are still following normal RTW principles as the worker is still expected to RTW performing their essential duties of their job.
The medical speaks to how we move forward with the RTW plan. DCO pointed out inconsistencies in the medical. She read all the cognitive restrictions which were ticked off as “fluctuating abilities”. She said fluctuation suggests that there is unpredictability … for an employer so how can accommodate or plan work for a person who has fluctuating abilities from day to day. Pointed out the options that MD could have ticked off on the form and MD put a new box and indicated “fluctuation” for all areas of cog abilities. Objective medical speaks to what’s on the forms and we do apply those restrictions when we are looking at a progressive return to work plan. This suggests the worker can have days where they are not able to perform their duties, so how would the employer be able to appropriately assign work.
It should be noted that neither Ms. Russell nor Ms. P.D. provided Will-says in this matter and that none of the witnesses providing Will-says were cross-examined respecting the meeting of April 16, 2020. Further, it should be noted that Grievance B-2078 was filed with the Employer two (2) days prior to the meeting of April 16, 2020.
With respect to the matters raised in Grievance B-2078, Ms. S.A.’s Will-say states as follows:
1. During the week of January 6, 2020, the Grievor was scheduled to increase his workload to three days per week in accordance with the graduated return to work plan. However, the Grievor was absent on January 9, 2020, which meant that he only attended work on two days that week. The following week, the Grievor was again absent on January 16, 2020 (see Tab T).
  This second absence triggered my request for an FAF-Cognitive since it appeared that the Grievor was not, in fact, capable of returning to more than 2 days of work per week. That request is at Tab U.
2. On January 21, 2020, I sent an email to the Grievor asking when the FAF-Cognitive that the Board requested would be provided (Tab V).
3. On January 28, 2020, the Grievor sent me an email stating that he was confused about the need for another FAF-Cognitive and requested that the “current request for medical information” be provided to him (Tab W).
4. On January 31, 2020, I responded to the Grievor, stating that additional medical information was needed in order to determine whether any adjustments were needed and whether the return to work plan in place was effective. I noted the importance of Dr. McDermid checking off the boxes under the “abilities” section to confirm whether the Grievor had full or limited abilities based on those categories (Tab X).
5. On February 6, 2020, the Grievor sent an email to me advising that he would be seeing Dr. McDermid on February 11, 2020 and would be making an additional request regarding the medical documentation at that appointment (Tab Y).
6. On February 10, 2020, I sent an email to the Grievor following up on the requested
  medical information. I said I was sorry to hear that he found this process to be anxiety provoking and advised that I would be comfortable corresponding directly with the Grievor’s healthcare provider if that helped (Tab Z).
7. On February 19, 2020, I sent the Grievor an email following up on the requested medical documentation (Tab AA).
8. On February 20, 2020, a “second and final request” letter was issued (Tab BB). In the email enclosing this letter, I referenced the Grievor’s demonstrated inability to comply with the graduated return to work plan recommended by Dr. McDermid and confirmed that the Board would be keeping the Grievor at two scheduled days of work per week until it received medical evidence confirming that he could work more days per week. I felt it was important that we be assured that additional work, beyond two days per week, was safe and suitable for the Grievor before scheduling him for it (Tab BB). The Board did not want to exceed the Grievor’s restrictions and limitations.
9. My February 20, 2020 letter further summarized the Board’s efforts to acquire medical information:
  
  On January 21, 2020, medical information was requested for an update on your status. I followed up and we corresponded on this medical request on January 31, 2020, February 10, 2020 and February 19, 2020. You were to see your practitioner to have the forms completed on February 11, 2020. To date, we have not received the requested information (Tab BB).
10. On February 25, 2020, Ms. C.V. sent an email to the Grievor expressing concern regarding the Grievor’s unsuccessful attempt to sustain the recommendations outlined in the graduated return to work plan that was agreed to in November 2019 (Tab CC). The Board continued to await objective medical information regarding the Grievor’s restrictions and limitations.
11. On March 3, 2020, the Grievor sent an email to me stating that he met with Dr. McDermid on that day and that the medical information requested was not ready (Tab DD).
12. On March 4, 2020, I sent an email to Ms. C.V. confirming that the Grievor had failed to submit the requested medical documentation within the expected timeframe and that the Grievor had been provided with an extension until March 11, 2020 to submit the medical documentation. In this email, I also summarized some of the accommodations that had been implemented for the Grievor (Tab EE).
13. On March 4, 2020, I sent an email to Ms. Russell following up on my several attempts to acquire medical information from the Grievor. I also noted that the due date for the medical documentation had been extended to March 11, 2020 (Tab FF). On the same day, I sent an email to the Grievor reiterating the importance of acquiring the requested medical documentation (Tab GG).
14. On March 11, 2020, Dr. McDermid completed an FAF-Cognitive. For all cognitive abilities, Dr. McDermid reported “Fluctuating Abilities”. Dr. McDermid failed to provide any concrete information about the Grievor’s actual restrictions and limitations. In response to a question regarding a graduated return to work plan, Dr. McDermid stated the following:
  
  Resume recommended RTW, as outlined in Nov 2019 CAF, starting with 3 days per week (right after March Break)... (Tab HH)
15. This was unhelpful. Not only did Dr. McDermid fail to provide restrictions and limitations, or any information which would assist the Board in designing accommodations suitable to the
  Grievor, but without explanation he simply asserted that the very return to work plan which had recently failed should be continued.
16. In an email dated April 15, 2020, the Grievor criticized my use of red text in an email. The Grievor said the following:
  
  You responded to my questions in red. As I understand, as per email etiquette, using red denotes anger. Is this the impression you wish to impart on me? (Tab II)
  
  Board Request for an IME
17. In the spring of 2020, it became clear to the Board that it was not able to rely on the Grievor’s own doctor to provide a clear, objective and accurate assessment of the Grievor’s functional restrictions and limitations and, as such, that an independent medical evaluation
  (“IME”) would be required in order to obtain the information required to effect a safe return to work with suitable accommodations.
18. Over the several years that he treated the Grievor, Dr. McDermid provided the Board with medical documentation that was unhelpful, inconsistent, and confusing. Dr. McDermid appeared to be acting as an advocate for the Grievor. Given the very significant number of absences the Grievor had in recent years and the lack of practical guidance Dr. McDermid had
  provided, an IME was necessary to get to the bottom of the issues preventing the Grievor from a sustainable return to work.
19. On April 16, 2020, the Board, the Union, and the Grievor met to discuss the Grievor’s work arrangements. At the meeting, Ms. P.D., Disability Case Officer at the Board,
stated that the Grievor would remain at two days of work per week until an IME could be arranged to provide clarity with respect to the Grievor’s medical restrictions and limitations. Ms.
P.D. stated that the Board required the Grievor’s consent to engage the IME process and
that a letter concerning this request would follow shortly. The notes I recorded at this meeting can be found at Tab JJ.
The Grievor was cross-examined on the implementation of his RTW plan at the beginning of January 2020. He agreed that he was scheduled to work three (3) days in the week of January 6 but was absent for one (1) of those days. In the following week, he worked one (1) of the three (3) days contemplated by his RTW. It was following that second week that Ms. S.A. asked the Grievor through Ms. Russell for an updated FAF-Cognitive form. It was put to the Grievor that this request for an updated medical was “fair and reasonable”. He responded, “If I was in their shoes, perhaps. But not in my view”. It was then suggested that the Employer had “little medical information” to which he disagreed. The Employer then put to the Grievor that the Employer had been acting on the basis of his medicals and “it doesn’t work out” to which the Grievor replied “Correct”. The Employer then asked “So, in their shoes….?”, following which the Grievor continued “…it was reasonable to seek more”.
The Grievor was then taken to Dr. McDermid’s FAF-Cognitive dated March 13, 2020 in which he proposes that the Grievor be scheduled for three (3) days per week following the March break. The Grievor was asked, “That’s the plan that just failed?” to which he replied “Yes”. In a subsequent exchange it was put to the Grievor that the RTW plan that had been proposed had just failed, so was that not concerning? The Grievor responded, “Somewhat, but there was not even a meeting to discuss this”.

THE INDEPENDENT MEDICAL EVALUATION
As noted at paragraph 16, above, the parties provided me with the IME report of Dr. Peterkin dated December 10, 2021. In addition to the excerpts set out at paragraph 16, the following questions and answers are of note:
1. Within the scope of your medical discipline, what are the present medical barriers to the examinee's recovery, if any?
  
  There are no current medical barriers to [the Grievor’s] recovery.
2. Within the scope of your medical discipline, what are the examinee's present physical/ cognitive restrictions, related to their essential job duties? Are these restrictions temporary or permanent, please explain and elaborate on duration for these
  restrictions. If you have identified cognitive restrictions, please clearly outline the level (high/ medium / low cognitive function) in the various areas (memory, concentration, focus, ability to socially interact/ communicate; decision making etc).
  
  At this stage, there are no absolute cognitive limitations or restrictions.
3. Within the scope of your medical discipline, what is the examinees short term I long term prognosis related to their ability to Return to Work (RTW) in their own occupation for both positions and sustain regular work tendance? Please explain in detail.
[The Grievor] is currently working 2 days per week. The prognosis for full-time return is excellent at this time. However, he may need to revisit the feasibility of working his second job (with disabled adults) and to refuse new shifts until he has demonstrated ability to return to his full-time position at TDSB successfully and is fully stabilized.
…..
1. Within the scope of your medical discipline, has maximum medical recovery (MMR) been achieved? If not, please indicate an anticipated time frame. If MMR has been reached, please provide an explanation for concluding that the condition is stable and stationary and unlikely to change. Does the worker have permanent restrictions related to their ability to perform their essential duties?
  
  [The Grievor] has achieved near maximum medical recovery, and would now be able to progress towards a full-time resumption of duties at this time. There are no permanent restrictions required from a psychiatric perspective. …..
2. Within the scope of your medical discipline does the worker have a chronic condition (medical condition that requires ongoing treatment/consultation with an appropriate treating specialist) that could affect their ability to attend work regularly? If so, is it well controlled and manageable?
  
  [The Grievor’s] anxiety and mood disorders would be seen as chronic conditions requiring ongoing treatment, but should not currently impede regular workplace attendance. Fair but firm expectations around workplace attendance must be clearly articulated as a part of his return to full-time work plan. It is encouraged that [the Grievor] work with his employer in this regard.
  It is important to note that [the Grievor’s] longstanding generalized anxiety and emotional reactivity stems from [non-work-related issues] and that this was re-activated by perceptions of harassment, unfair treatment, and rejection. He appears to have done significant psychotherapeutic work regarding these vulnerabilities.
3. Within the scope of your medical discipline, if the worker has a chronic condition, what would be the frequency of medical related absences that can be expected? How
  many absences (# of days in a month)? What is the worker's prognosis for sustained regular work attendance?
  
  Regular absences from the workplace should no longer be anticipated. Prognosis for sustained regular work attendance appears good. As mentioned his engagement in other part-time worked should, however, be reconsidered until he can demonstrate a return to his position at TDSB in a successful manner.
4. Within the scope of your medical discipline, does the worker require a medically warranted accommodation pertaining to their work? If so, is it temporary or permanent? Please provide details and any recommendations/strategies to assist in meeting their accommodation needs.
  
  Regarding accommodations, [the Grievor] is currently working 2 days per week. A normal fulltime schedule for him would be Monday through Friday, 8:00 a.m. to 2:00 p.m. with 6:30 to
  9:00 p.m. Mondays and Wednesdays. It is suggested that the Monday and Wednesday evening shifts continue to be virtual at this time.
  
  Regarding a return to work plan, his psychotherapist had proposed the following, which appears reasonable:
  
  Weeks 1 and 2 - 5.5 hours/day, 2 days per week (Tuesday and Thursday)
  Weeks 3 and 4 - 5.5 hours/day, 3 days per week (Tuesday, Thursday, and Friday) Weeks 5 and 6 - 5.5 hours/day, 4 days per week (Tuesday, Wednesday, Thursday, and Friday)
  Weeks 7 and 8 - 5.5 hours/day, 5 days per week (Monday, Tuesday, Wednesday, Thursday, and Friday)
  Weeks 9 and 10 — 5.5 hours/day, 5 days per week + 8 hours/day, 1 day per week (Wednesdays)
  Weeks 11 - resume regular schedule.
  
  Building in 5-minute "grounding" breaks or micro-breaks were recommended by Dr.
  McDermid as he participates in his accommodation plan. His duties and tasks should
  increase as his hours increase for ease in transition. [the Grievor] may work with his employer regarding his return to work plan. As mentioned above, fair but firm expectations around workplace attendance and behaviour must be clearly articulated as a part of his return to
  full-time work plan.
  
  His treating psychotherapist should be asked to monitor [the Grievor’s] progress and provide updates as required.
5. Within the scope of your medical discipline, what is the worker's anticipated RTW in their own occupation for both positions? What is the anticipated modified RTW date (if applicable); Full RTW date (Regular hours/duties)? Please provide details on recommendations for modified work plan I duties (if required).
  
  [The Grievor] is currently working modified hours, and a resumption of full-time is outlined above.
6. Within the scope of your medical discipline and based on your assessment and review of his medical on file and based on the employer's accommodations that have been in place thus far, are there any additional accommodations that are medically warranted? Please provide recommendations if applicable.
  
  No, within the scope of my medical discipline and based on my assessment and review of
  his medical file and on [the Grievor’s] accommodations that have been in place thus far, there are no additional accommodations that are medically warranted.
7. Within the scope of your medical discipline, and based on your objective and subjective assessment of [the Grievor’s] perception of his workplace accommodations thus far, will [the Grievor] be able to successfully perform his essential duties I hours in his existing work environment (private office space)? If no, please explain why? If his prognosis to RTW at full duties (in both jobs) is guarded or poor, please advise if the
barriers to his RTW are a result of objective medically supported information or nonmedical factors?

It is expected that [the Grievor] will be able to successfully perform his essential duties and hours in the existing work environment.

Of note, [the Grievor] mentions that he is now open to sharing his office, but that he now has been assigned a private office, which suits him at this time. He is, however, less insistent on having a locked door to his office at this time.

LEGAL AUTHORITIES
In the course of their submissions, the parties provided with a number of authorities and citations are as follow (in the balance of the Award cases will be referenced by name and the corresponding letter below):

Union Book of Authorities
1. Telus Communications Co. and TWU (2006-362), Re, 2010 CarswellNat 6231 (Arb) (Lanyon)
2. Hopkins v Kay, 2015 ONCA 112
3. Jones v Tsige, 2012 ONCA 32
4. Hamilton Health Sciences Corp. v ONA, 2007 CarswellOnt 9197 (Arb) (Surdykowski)
5. St. Joseph's General Hospital Elliot Lake v ONA, 2008 CarswellOnt 10140 (Arb) (Sheehan)
6. St. Lawrence Lodge v ONA, 1985 CarswellOnt 2693 (Arb) (Emrich)
7. London (City) v CUPE, Local 101, 1983 CarswellOnt 2497 (Arb) (Langille)
8. ONA v Sault Area Hospital, 2011 CarswellOnt 12072 (Arb) (Steinberg)
9. British Columbia Teachers' Federation v British Columbia Public School Employees' Assn, 2004 CarswellBC 4120 (Arb) (Taylor)
10. Peace Country Health v UNA, 2007 CarswellAlta 2612 (Arb) (Sims)
11. Air Canada v CALEA (1981), 1981 CarswellNat 977 (LRB) (Burkett)
12. United Parcel Service Canada Ltd v Teamsters, Local 141, 1981 CarswellOnt 2035 (Arb) (Burkett, McRae, Winkler);
13. Metropolitan Toronto (Municipality) v CUPE, 1990 CarswellOnt 1088 (CA)
14. Re Council of Printing Industries of Canada and Toronto Printing Pressmen and Assistants' Union No. 10 et al., 1983 CarswellOnt 1372 (CA);
15. Bell Canada v Unifor, Local 34-0, 2016 11753 (CA LA) (Surdykowski)
16. ADT Security Services Canada Inc. v International Brotherhood of Electrical Workers, Local 636, 2007 73918 (ON LA) (Surdykowski)
17. Hamilton-Wentworth District School Board v Fair, 2016 ONCA 421
18. CUPE, Local 4400 v Toronto District School Board (Shaw), 2003 CarswellOnt 4410 (Arb) (Howe)
19. Central Okanagan School District No 23 v Renaud, [1992] 2 SCR 970
20. Canadian Union of Public Employees Local 4400 v The Toronto District Board (Re Patricia Paterakis) (4 August 2020), Ont Arb (McLean)
21. McDonald v Mid-Huron Roofing, 2009 HRTO 1306 (Keene)
22. British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3
23. Lee v Kawartha Pine Ridge District School Board, 2014 HRTO 1212 (Hart)
24. ADGA Group Consultants Inc. v Lane, 2008 39605 (ON SCDC)
25. Canadian Union of Public Employees, Local 4400 v Toronto District School Board (Morrissey), 2016 26730 (ON LA)
26. British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), [1999] 3 SCR 868
27. David M Beatty, Donald J Brown & Adam Beatty, Canadian Labour Arbitration, 5th ed, (Toronto: Thomson Reuters Canada, 2006, loose-leaf), ch 4, 4:2100
28. Humber River Hospital v. Ontario Nurses’ Association, 2019 28702 (ON LA) (Gedalof)
29. Timmins District Hospital v Ontario Nurses Association, Local 010, 2012 97804 (ON LA) at 25 (Marcotte)
30. Hamilton Health Sciences Corp. v ONA, 2007 CarswellOnt 9197 (Arb) (Surdykowski)
31. Toronto Hydro-Electric System Ltd. and Society of United Professionals (Attending Physician Statement), Re, 2019 CarswellOnt 12143 (Arb) (Goodfellow)
32. Insurance Corp. of British Columbia and COPE, Local 378, Re, 2010 CarswellBC 4097 (Arb) (Burke)
33. CEP, Local 1-S v SaskTel, 2011 CarswellSask 514 (Arb) (Pelton)
34. Complex Services Inc. v OPSEU, Local 278, 2012 CarswellOnt 3177 (Arb) (Surdykowski)
II. Donald JM Brown & David M Beatty, Canadian Labour Arbitration, 5th ed (Toronto: Thomson Reuters, 2006) (loose-leaf revision 2020-9), ch 7:6142
1. Molson Breweries v Canadian Union of Brewery & General Workers, 2005 CarswellOnt 6993 (Arb)
2. Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517 (Div Ct)
3. Tele-Direct (Publications) Inc. v OPEIU, Local 131, 1989 CarswellOnt 5023 (Arb) (Foisy)
4. Donald JM Brown & David M Beatty, Canadian Labour Arbitration, 5th ed (Toronto: Thomson Reuters, 2006) (loose-leaf revision 2020-9), ch 8:3320
5. Canada Post Corp. v CUPW, 2003 CarswellNat 4726 (Arb) (Picher)
6. Cranbrook Regional Hospital and BCNU, Re 2004 Carswell BC 3952 (Arb) (Gordon)
7. Toronto District School Board and Canadian Union of Public Employees, Local 4400 (unreported) (14 October 2020) (Davie)
  
  Employer Book of Authorities
8. Assn of Justice Counsel v. Treasury Board, 2018 LNFPSLREB 38 (K. Rogers)
9. Board of Governors of Laurentian University and Laurentian University Faculty Association (Bougrine), 2014 31328 (ON LA) (Fishbein)
10. Buttar v. Halton Regional Police Services Board, 2013 HRTO 1578 (Hart)
11. Cara Operations Ltd. (c.o.b. Toronto Flight Kitchen) v. Teamsters Chemical, Energy and Allied Workers Union, Local 647 (Palmieri Grievance), [2005] O.L.A.A. No. 302 (Luborsky)
12. Caterplan Services Inc and NAPE, Re, 1998 CarswellNfld 394 (Fagan)
VV. Central Care Corp. v. C.L.A.C., 2011 CarswellOnt 1682 (Knopf)
WW. Complex Services Inc v. OPSEU, Local 278, 2012 CarswellOnt 3177 (Surdykowski)
XX. Fanshawe College v. O.P.S.E.U., 2002 CarswellOnt 5407 (Burkett)
1. Ferenczy v. Conseil des ecoles publiques de l’Est de l’Ontario, 2018 HRTO 53 (Martel)
2. Garrie v. Janus Joan Inc, 2012 HRTO 1955 (Flaherty, Renton, Truemner)
AAA. Grand Erie District School Board v. OSSTF, District 23, 2008 CarswellOnt 2342 (Knopf) BBB. Hamilton Health Sciences Corp. v. O.N.A. (2007), 167 L.A.C. (4th) 122 (Surdykowski)
CCC. Kinark Child & Family Services Syl Apps Youth Centre v. Ontario Public Service Employees Union, Local 213, 2012 97669 (Marcotte)
DDD. Kubota Metal Corp. Fahramet Division (Davies) and USW, Local 9393, Re, 2012 CarswellOnt 13497, 112 C.L.A.S. 150 (Trachuk)
EEE. Lambton Kent District School Board v. EFTO , 2007 CarswellOnt 8844 (Etherington) FFF. McAran v. Teranet Inc., 2018 HRTO 647 (Overend)
GGG. McMaster University (Coscarella Grievance) v. Service Employees International Union Local 2, Brewery, General and Professional Workers' Union, [2009] O.L.A.A. No. 389 (Anderson)
HHH. Moore v. British Columbia (Ministry of Education), 2012 SCC 61 (SCC)
III. Motor Coils Manufacturing Ltd. and Unifor, Local 520 (Steacy), Re, 2015 CarswellOnt 10254 (Manwaring)
JJJ. OLG Point Edward Casino v. Teamsters, Local 879, 2012 CarswellOnt 7084 (Jesin)
KKK. Ontario Energy Board v. Society of United Professionals, 2020 64845 (ON LA) (Parmar)
LLL. Ontario Public School Boards’ Association, The Crown and The Elementary Teachers’ Federation of Ontario, 2016 69703 (Kaplan)
MMM. Ontario (Community Safety and Correctional Services) v. Ontario Public Service Employees Union (Cross et al), 2015 60421 (ON GSB) (Misra)
NNN. Ottawa (City) Board of Education v. OSSTF (1984), 14 L.A.C. (3d) 102 (Shime)
OOO. Peel Regional Police Services Board v. Peel Regional Police Assn, 2011 CarswellOnt 16233 (Trachuk)
PPP. Proboard Ltd v. CEP, Local 49-0, 2001 CarswellOnt 5977 (Burkett)
QQQ. Renaud v. Central Okanagan School District No 23, 1992 CarswellBC 257 (SCC) RRR. Scaduto v. Insurance Search Bureau, 2014 HRTO 250 (Scott)
SSS. Sheikh v. Nigam, 2019 HRTO 753 (McKendy)
TTT. Teranet Inc and OPSEU, Local 507 (Morana), Re, 2014 CarswellOnt 4900 (Shime) UUU. Toronto (City) and TCEU, Local 416 (Balchand), Re, 2015 CarswellOnt 13916 (Stout)
VVV. Toronto (City) v. CUPE, Local 79 (Wilson), Re [2001] O.L.A.A. No. 668 (Starkman)
WWW. Toronto District School Board and CUPE, Local 4400 (Pro-rating of Sick Leave Credits), Re, [2019] 141 CLAS 266 (Sheehan)
XXX. Toronto District School Board and OSSTF (13-50), Re, 2020 CarswellOnt 247 (Nyman)
YYY. Toronto District School Board v. CUPE, Local 4400, re Sick Leave Refresh (Award) (2020) (Davie) ZZZ. Toronto District School Board v. ETFO (2007), 162 LAC (4th) 385 (Picher)
AAAA. Vance v. University of Guelph, 2020 HRTO 803 (D. Thorne)
BBBB. York Region District School Board (Gooder) and OSSTF, Re (2019 CarswellOnt 1380) (Herman) Additional Authorities Cited
CCCC. Toronto District School Board and Elementary Teachers’ Federation of Ontario (Elementary Teachers of Toronto), 2019 110785 (ON LA) (Parmar)
DDDD Delta Catalytic Industrial Services v. I.B.E.W., Local 105, 2022 CarswellOnt 8685 (Surdykowski) EEEE Nelson v. Lakehead University, 2008 HRTO 41 (Martin)
FFFF Alexander Place and Service Employees International Union, Local 1 Canada, 2020 88353 (Sheehan)

UNION SUBMISSIONS
The Union commenced its argument by noting that the work performance of the Grievor has never been criticized or disciplined and that his attendance record was fine until the 2012/13 school year when symptoms related to his mental health began to manifest themselves in connection with the workplace. In part, those mental health challenges have been “…exacerbated by events in the workplace
and the Employer response to his medical issues”. The Union reviewed the events involving lockdowns at the Bickford Centre in 2009 and at Burmanthorpe Collegiate in 2018 when the Grievor found himself facing armed members of SWAT teams. As stated by the Union, these incidents inform a lot of the issues that eventually arise in the grievances.

GRIEVANCE B-1229
Grievance B-1229 was filed in connection with the Employer’s request for medical notes in the fall of 2013. The Union stated that the Grievor did have some “extended recovery periods” in the spring of that year associated with mental health difficulties. In the school year starting in the fall of 2013, the Grievor’s symptoms worsened but he had only missed one (1) day, September 30, 2013, before Ms. G.S. requested a medical note for that absence the following day. While she subsequently stated that he need not go to the doctor to get a note for the September 30 absence, he was advised he would be required to provide medical notes for future absences. When the Union inquired why notes would be necessary, Ms. C.V. provided a response to Ms. Preston at the Union, that included comments respecting negative performance and funding consequences for the ESU program related to employee attendance. In the result, the Grievor complied with the request for notes and provided them for all but three (3) absences
The Union submitted that the Grievor’s attendance in prior years had demonstrated no issues, that there was no evidence of sick leave fraud and that the Employer witnesses could not explain how the requirement of sick leave notes related to the efficiency or effectiveness of the ESU program. In the result, the Grievor felt harassed and blamed for the alleged efficiency problems. The Union further submitted that the request for notes in 2013 was a breach of the Grievor’s privacy rights.
On this latter point the Union submitted that employers do not have a free-standing right to medical notes. Such an entitlement must flow from statute or the Collective Agreement (see: A. Telus Communications Co. and TWU (2006-362, Re; B. Hopkins v. Kay; and C. Jones v. Tsige). Further, personal health information as defined by section 2(1) of the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”) may not be collected except as provided for in section 28(2) of that legislation. It was the Union’s position that the level of disclosure required by the Employer from the Grievor in this case was not necessary for the administration of sick leave benefits and, therefore, did not meet the statutory test. Further, the Union pointed to the Personal Health Information Protection Act, 2004 (“PHIPA”) for the principle that medical information can only be collected where it is reasonable and necessary to the purpose for which it is gathered. (see: D. Hamilton Health Sciences Corp. v. ONA).
It was the Union’s position that the Collective Agreement between the parties in 2013/14 provided a limited right to request medical information in Article R. 1.5:
Where that right is discretionary, the reasonableness of any request must be assessed (see: E. St. Joseph's General Hospital Elliot Lake v ONA; F. St. Lawrence Lodge v. ONA; and F. London (City) v. CUPE, Local 101; H. ONA v. Sault Area Hospital. It was argued that these cases stand for the proposition that requiring notes for all future absences means that no discretion is being exercised by the Employer in respect of any given absence and is, therefore, improper and unreasonable. The Employer has, effectively, fettered its own discretion through the blanket requirement. In this Collective Agreement it should be noted that the parties have determined that a medical note for absences in excess of three (3) days is mandatory which underlines the importance of the discretionary nature of requests in the case of shorter absences. As Ms. C.V. confirmed that there was no suggestion of any fraud on the part of the Grievor, it was submitted that there is no rationale that can support the blanket request to the Grievor for notes and the Grievance must be allowed.

GRIEVANCE B-1847
Grievance B-1847 was filed in connection with Ms. G.S.’ email of February 6, 2018 in which she advised the Grievor that she would assume responsibility for assigning his instructor replacements while absent. In the words of the Grievor, this email “…made me feel guilty and ashamed of the fact that I had disabilities. It made me feel hurt and disrespected. The tone of her email was, to me, insensitive and demeaning”.
In argument the Employer referenced the Grievor’s job description in which one task for instructors is calling replacements to ensure coverage as required. It further submitted that, with the introduction of the SmartFindExpress system, an employee simply needs to enter an absence in SFE which will then find a replacement. Finally, it was noted that the Grievor had been advised by Ms. G.S. in a 2008 email that he was not responsible for arranging another supply instructor when he was absent as a supply but, rather, should simply enter the absence in SFE. In Ms. G.S.’ 2018 email she stated that she will look after finding the Grievor’s replacement as “inconsistency” in staffing made students “upset”. In its review of the replacements arranged by the Grievor through the fall of 2017 when he was absent on an ongoing basis, the Union argued that he had been doing a good job in arranging for consistent relief. The Grievor’s evidence was that no student concerns had been raised by them or the Employer prior to Ms. G.S.’ email.
Accordingly, it was the Union’s position that there was no evidentiary basis established for the Employer decision to take away the duty of assigning replacements during his absences. In the circumstances, the Grievor’s feelings of guilt, embarrassment and having been demeaned were understandable and arose from the Employer’s exercise of its rights in a discriminatory, arbitrary manner.
As such, the Grievor has suffered adverse effect pursuant to section 5 of the Human Rights Code which, in turn is incorporated into the Collective Agreement through Article L.2. Finally, it is in breach of an implied requirement in the Management Rights clause found at Article D that the Employer not act in bad faith in the exercise of those rights (see: K. Air Canada v. CALEA and P. ADT Security Services Canada Inc. v. International Brotherhood of Electrical Workers, Local 636).
In accordance with the principles set out in those cases, it was argued the Employer decision to take a job duty away from the Grievor must be objectively rational and not merely speculative. It was submitted that no evidence existed here that would support the decision made by the Employer. And, when the Employer did make that decision, its communication to the Grievor was made in an insensitive manner. For these reasons it was submitted that the instant Grievance should be allowed.

GRIEVANCES B-1910, B-2054 AND B-2056
The Union made its argument respecting these three Grievances related to accommodation and health and safety issues together. In its summation of the evidence respecting accommodations in the workplace, the Union submitted:
- That the Employer failed to accommodate the Grievor through its failure to fund weekly meetings with a mental health worker as recommended by Dr. McDermid commencing in March 2018, notwithstanding the Employer’s provision of such supports to students
- That the Employer failed to accommodate the Grievor through its failure to provide appropriate office space that was away from the area of Burmanthorpe Collegiate that would act as the Command Centre in the event of a lockdown and, further, that the minimal sound-proofing in the office space provided impacted the Grievor’s ability to concentrate
- That the accommodations that the Employer purported to have provided the Grievor (e.g. room dividers, installation of windows, not requiring the Grievor to report to Burmanthorpe Collegiate prior to off-site assignments, an “orange watch” intended to allow the Grievor to signal fragility, provision of a computer table, access to extra space in the guidance office, an ergonomic study of his workspace, training on human rights issues for managers and staff, development of a safety plan etc.) were either insufficient, introduced for reasons independent of the Grievor’s accommodation or not, in fact, provided to him.
With respect to the Employer’s cross-examination of Dr. McDermid in which it was suggested to him that his recommendations did not reflect independence and objectivity, the Union submitted that Dr. McDermid was consistent and believable in his position that, while he incorporated patient suggestions and input, his recommendations ultimately reflect his own professional skill and judgment.
The Union took the position that Dr. McDermid’s recommendations constituted reasonable requests supported by the evidence and his clinical expertise. On the other hand, officers of the Employer’s DCA, such as Ms. S.B., were not medical professionals and their role was to receive and assess medicals rather than to diagnose and substitute their own recommendations.
With respect to the issues related to the Grievor’s return to work commencing in late 2019, the Union reviewed Dr. McDermid’s proposed schedule provided in November 2019 together with the dealings between the parties following its receipt. Further, the Union noted those elements of the return to work meeting of December 4, 2019 that dealt with the issues related to the location and soundproofing of the Grievor’s workspace.
The Union noted that the provisions of the Human Rights Code related to accommodation are incorporated into the Collective Agreement through Article L.2. In turn, section 17 of the Code requires the Employer to accommodate the Grievor’s disability up to the point of undue hardship. With respect to the interpretation of this language the Union submitted that undue hardship does not mean any hardship and that some hardship may occur that is not “undue” (see: Q. Hamilton-Wentworth District School Board v Fair). With respect to any argument that the Employer might advance that the cost of accommodations sought by the Grievor should be considered in any assessment of undue hardship the Union noted the size of this Employer and what it submitted was the relatively small cost of intervention (see: R. CUPE, Local 4400 v Toronto District School Board (Shaw); S. Central Okanagan School District No 23 v Renaud; T. Canadian Union of Public Employees Local 4400 v The Toronto District Board (Re Patricia Paterakis)).
The Union further noted that the duty to accommodate includes both procedural and substantive components. It is not enough for an employer to prove that accommodation was not possible or constituted undue hardship; the employer must also demonstrate that its actions were appropriate in examining what accommodation was necessary and what options existed to facilitate accommodation (see: T. Canadian Union of Public Employees Local 4400 v The Toronto District Board (Re Patricia Paterakis); U. McDonald v Mid-Huron Roofing; V. British Columbia (Public Service Employee Relations Commission) v BCGSEU; W. Lee v Kawartha Pine Ridge District School Board; and V. ADGA Group Consultants Inc. v Lane), It was submitted that the caselaw stands for the proposition that it is an employer’s job to originate a solution and, while the union and the disabled employee have a role to play, the accommodation process must start with the employer.
Of course, the Union submitted that the Employer breached both its procedural and substantive obligations in this case. In assessing the allegation that substantive obligations had not been met the Union pointed to the decision of the Supreme Court of Canada in V. British Columbia (Public Service Employee Relations Commission) v BCGSEU, (hereafter referred to as “Meiorin”). It was submitted that in this decision the Court rejected a de minimis test in determining what might constitute undue hardship
for the employer. Rather, such a determination required clear, objective proof and evidence that was impressionistic must be considered insufficient (see also: Y. Canadian Union of Public Employees, Local 4400 v Toronto District School Board (Morrissey); and Z. British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights)).
In this case it was argued that the Employer had relied on Dr. McDermid’s assessment of the Grievor’s abilities as “fluctuating” to ground its determination that the provision of a mental health worker or the restructuring/relocation of the Grievor’s workspace was not a required accommodation. The Grievor’s fluctuating abilities are clearly tied to his mood disorder and the nature of that condition militates against the inflexible, “cookie-cutter” approach to accommodation employed by the Employer in this case. It was submitted that the Union, the Grievor and Dr. McDermid have all cooperated to provide suggested accommodations that would have allowed the Grievor to work with his fluctuating condition.
The Employer’s rejection of providing support through a mental health worker was based on its characterization of that support as “treatment” was improper as it would be, in fact, an accommodation of the Grievor’s disability that would facilitate his being able to work. “Treatment” was Dr. McDermid’s role.
With respect to the location of the Grievor’s workspace, the failure to move the Grievor’s location away from the area serving as Command Central in the event of a lockdown was a substantive breach of the Employer’s obligation to accommodate. Further, the Employer failed to accommodate the Grievor by not implementing the proposal advanced on his behalf by Ms. Smith that would have allowed him to accrue lieu time on his “good days” that he could then access on “bad days”, rather than requiring him to employ sick time. To the extent that the Employer’s policies governing lieu time did not contemplate such a mechanism did not obviate its obligation to consider and implement such a proposal as part of an accommodation.

GRIEVANCE B-1914
This Grievance alleges a breach of the Employer’s obligation to “refresh” the Grievor’s sick leave entitlement for the 2018/19 school year. In its review of the evidence, the Union stated that, up until 2019, the standard school year for ESU assessors commenced on or around September 11. At the same time, for the prior decade or so, assessors had commenced work on or around August 20, acting as “supplies” for their own positions in the period prior to September 11. In the 2019/20 school year this changed when the ESU year was increased from 38 to 40 weeks, thus picking up the approximately two-week period when they had worked as supplies.
In its review of the evidence, the Union stated that the Grievor was absent on a part day on June 21, 2018 and a full day on June 22, 2018. He then worked on each of June 26, 27 and 28. The Grievor next worked on September 4, 2018. Following that date he was absent on September 10, worked the 11th and 12th before being absent once more on September 13, 2018. Each of his days of absence noted above were identified as “approved unpaid absences”.
It was the Grievor’s evidence that his absences in June 2018 were in connection with his mental health disability but that his absence on September 10 was due to a recurrence of bronchitis, a condition with which the Grievor dealt on an intermittent basis. It was further his evidence that he did not seek medical assistance for bronchitis unless it lasted more than two (2) or three (3) weeks. In this case, the Grievor stated that he went to a walk-in clinic on October 2 and October 9, 2018. Contemporaneously, he told his supervisor, Mr. S.S., and Ms. S.R. of the DCA, that he was physically unwell. In an email dated September 16, 2018 to Ms. S.R. he stated, in part, “I am physically unwell, so my start date will most likely be delayed by at least one week”. In an email dated September 23, 2018 to Mr. S.S., Ms. C.V., Ms.
S.R. and Ms. G.S., he wrote, in part, “I went to a walk-in clinic today and what I thought I was dealing with was confirmed. I won’t be in tomorrow. … I have been prescribed medication that will hopefully ‘kick in’ and allow me to be present this Wednesday at night school”.
The Union noted that throughout this period, the Employer did not seek a medical note in connection with the Grievor’s absence and did not advise him that his access to a new allocation of sick leave hinged on whether his absence was due to a different reason than his absences at the end of the prior school year in June 2018. In fact, it was not until December 18, 2018 that the Employee Services Manager, Ms. C.S., advised the Grievor that he would be required to attend work for eleven (11) consecutive days prior to being eligible for a new allocation of sick leave. The Employer rationale for this position was set out in Ms. C.S.’ email of that date in which she stated:

As you were absent on your last regularly scheduled work day last work year and again on the first work day this year for an assignment, you are required to complete an 11 day refresh period. I understand that you’ve indicated that there is a different reason for being absent, however, the original medical condition that had you absent last year is still continuing in addition to a new medical condition this year.
Contrary to Ms. C.S.’ understanding, the Union asserts that the Grievor’s absences through the fall of 2018 were related entirely to recurring issues with his bronchitis and that mental health issues played no role during this period. It was the Union’s position that the Employer called no evidence to support a contention that the Grievor’s absences in the fall of 2018 were related to mental health. Ms. S.R. was not called as a witness in this proceeding and it was Ms. S.B.’s evidence in cross-examination that only Ms. S.R. would know whether the Grievor was asked for a doctor’s note to confirm that his absence in September 2018 was related to a new medical condition. The Union pointed to Ms. C.S.’ evidence in
cross-examination that she did not review the medical file for the sufficiency of any documentation as that was Ms. S.R.’s role.
In any event, the Grievor did not receive a new allocation of paid sick leave until January 21, 2019 following his completion of eleven (11) continuous dates of attendance. As a result of the Employer’s failure to refresh the Grievor’s sick leave, the Union asserted he remained unpaid for 25 days of absence in the fall of 2018 which resulted in financial hardship for him.
In support of its position that the Grievor was properly qualified for a sick leave refresh, the Union pointed to prescriptions for bronchitis that were filled on September 23, 2018, together with an email sent to his family physician that same day in which he sought to reschedule an appointment for September 27 in which the Grievor wrote, in part, “I went to a walk-in clinic today .. yet another sinus infection”.
The Union reviewed the Collective Agreement language set out in Article C.6.1 of the Central Collective Agreement (see: PP. Toronto District School Board and Canadian Union of Public Employees, Local 4400) and submitted that the Grievor was entitled to a sick leave “refresh” at the beginning of the 2018/19 fiscal year (i.e. September 1) on the basis that his absence on the first day of the new fiscal year was for a different reason, bronchitis, than his absence on the last day of the prior fiscal year, mental health. In this regard, the Union referenced the final paragraph of Article C.6.1(d) in respect of permanent employees that provides:

If a permanent Employee is absent on his/her last regularly scheduled work day and the first regularly scheduled work day of the following year
for unrelated reasons, the allocation outlined above will be provided on the first day of the fiscal year, provided the employee submits medical documentation to support the absence, in accordance with paragraph (h).
The Union argued that the Employer’s failure to consider this issue (or at least to advise the Grievor of their position) until December 18, 2018 resulted in a lost opportunity for him to provide the medical information necessary for the sick leave refresh to be implemented. It does not now lie in the Employer’s mouth to argue there is no proof when they were silent at the time that the medicals might have been requested. Further, it was submitted that I should draw an adverse inference from the Employer’s failure to call Ms. S.R. as a witness in this proceeding.
Further, the Union submitted that when the Grievor supplied for himself, following the end of the 2017/18 school year and prior to the 2018/19 school year, there were no absences due to mental health issues and this corroborates the position that there is simply no evidence that his mental health would
have resulted in his absences in September 2018 as opposed to the bronchitis that he identified in his evidence.
The Union submitted that a reading of Article C.6.1 on its plain and ordinary meaning, the Grievor qualified for his sick leave refresh (see: BB . Humber River Hospital v. Ontario Nurses’ Association and
CC . Timmins District Hospital v Ontario Nurses Association). Further, separate and apart from anything that may, or may not, have been provided to the Employer at the time of its decision, the Union argued that the evidence presented in this arbitration can form the basis of the decision and, should I be satisfied that the Grievor’s absence at the beginning of the 2018/19 school year was due to bronchitis, a refresh of his sick leave entitlement should be ordered (see: PP. Toronto District School Board and Canadian Union of Public Employees, Local 4400).

GRIEVANCES B-1946, B-1947, B-1965, B-1949 and B-2054
These Grievances were dealt with together as pertaining to the Employer’s dealings with the Grievor in the 2018/19 school year and onwards. The Union started its analysis by referencing Ms. Smith’s email of December 28, 2018 to Ms. S.B. in which she asked the Employer to consider allowing the Grievor to accumulate lieu days by working on those Saturdays when his symptoms were better (“good days”) and then apply those to “bad days”, rather than using an unpaid sick day. This email in turn prompted an exchange between Ms. Smith and Ms. S.B. about the nature of the stressors the Grievor was identifying in his roles as assessor and instructor. The upshot was that on December 31, 2018, Ms. S.B. then requested a new FAF-Cognitive from the Grievor. In response to Ms. Smith’s email stating that the Employer already had adequate information, Ms. S.B. maintained the request on the basis that it was “prudent” in the circumstances. It should be noted that on January 23, 2019, the Employer denied the Grievor’s request to accumulate lieu days as proposed by Ms. Smith.
The Union then reviewed the exchanges between the parties set out in the Factual Background above that eventually resulted in the Employer being provided with Dr. McDermid’s FAF-Cognitive dated January 31. 2018. It was in this FAF that Dr. McDermid made the statements indicating that he was at work when that was not, in fact the case.
The Union next reviewed the dealings between the parties following the Employer’s receipt of Dr. McDermid’s FAF- Cognitive dated January 31, 2018. Ultimately, the Employer received the further FAF-Cognitive from Dr. McDermid that was described by Ms. S.A. as containing little that was “actionable”. The Union emphasized that at the time all of these FAF-Cognitive forms were being requested by the Employer, the Grievor was off work with no prospect of an RTW in the short term. Therefore, it was argued that the only purpose for these medicals was to substantiate the Grievor’s absence. The nature and extent of the information requested was unnecessary for that purpose as there was nothing the Employer was being required to do during this period.
Moving to the summer, the Employer forwarded a form letter dated July 10, 2019 to the Grievor seeking medical updates respecting the upcoming school year. In response Dr. McDermid provided another FAF-Cognitive dated August 9, 2019 that indicated the Grievor was “unfit to return to work at any capacity at this time” and advising that he would re-assessed in 4 – 8 weeks’ time. The Employer sought a further update from the Grievor in late October, 2019. The Employer was subsequently provided with Dr. McDermid’s FAF – Cognitive dated November 13, 2019, as detailed above.
Pursuant to this most recent FAF – Cognitive from Dr. McDermid, the Grievor commenced a RTW on December 5, 2019. That RTW led to the parties’ further exchanges respecting medical information commencing in January 2020 when the Employer took the position that the Grievor’s RTW had not been successful on the terms set out in Dr. McDermid’s FAF-Cognitive from November 2019. That, in turn, led to the parties’ dealings respecting the Grievor’s “fluctuating abilities” that have been detailed above, together with the request for an IME, proposed by Ms. S.A. on April 20, 2020.
It was submitted by the Union that the Employer’s requests constituted an “enormous volume” of demands on the Grievor and his physician. The Grievor and Dr. McDermid struggled as best they could in the face of these requests. By this point, Article C.6.1 included new language as follows:

h) Proof of Illness

A Board may request medical confirmation of illness or injury and any restrictions or limitations any Employee may have, confirming the dates of absence and the reason thereof (omitting a diagnosis). Medical confirmation is required to be provided by the Employee for absences of five (5) consecutive working days or longer. The medical confirmation may be required to be provided on a form prescribed by the Board.

The right of the Employer to request medical confirmation for absences of less than five (5) days was discretionary and this, in turns, requires a determination as to whether that discretion has been reasonably exercised. Whether there is a legitimate need for the requested information must be made on a case-by-case basis but it is important to distinguish the need for information related to accommodation from that related to substantiation of a medical absence. In the words of the Union, employers cannot hide behind the rationale of accommodation to seek medical information to which they would not reasonably be entitled otherwise to substantiate a medical absence. Further, requests for medical notes constitute the “lowest level” of an employer’s entitlement to medical information (see:
DD. Hamilton Health Sciences Corp. v ONA; EE . Toronto Hydro-Electric System Ltd. and Society of United Professionals (Attending Physician Statement), Re, ; FF . Insurance Corp. of British Columbia and COPE, Local 378, Re, ; GG . CEP, Local 1-S v SaskTel; and HH. Complex Services Inc. v OPSEU, Local 278).
In this case, the Union stated that the Grievor was absent as of February 2019, formally off as of April 2019 and not back until December 5, 2019. Despite this history, the Employer kept seeking more and more FAF- Cognitive reports. Such reports were not reasonably necessary to substantiate the
Grievor’s absence and were not part of any accommodation discussions during this period. In the period when accommodation was being discussed as occurred between September 2018 and April 2019, it was argued that the Employer “over-reached” with its requests. Further, in those cases where the Grievor and Dr. McDermid provided updates on the status of reports that had been requested, the Employer continued with unnecessary follow-ups that simply increased the Grievor’s stress and anxiety.
The Union submitted that the Employer also breached its obligations to the Grievor by seeking information to which it was not entitled in the Questionnaire forwarded to the Grievor on February 13, 2019. And, it is the Union’s position that there is no evidence negativing the Grievor’s belief that this letter was improperly forwarded to Ms. C.V. thereby giving her access to his confidential medical information. For all these reasons, the Union asks that the Grievances in question be allowed.

GRIEVANCE B-1948
The Union asserted that there were two matters at issue pursuant to this Grievance. First, the Grievor was harassed by members of the Employer’s management team and it failed to intervene to prevent such harassment. Second, there was a failure of the Employer’s Human Rights Office to properly assess and investigate the Grievor’s Complaints filed against Ms. S.B. and the Employer.
On the first ground, the Union started by reviewing the difficulty the Grievor experienced with Ms. H. respecting the locking of the door to the office space they shared at Burmanthorpe Collegiate. It was the Union’s position that, while not questioning the legitimacy of Ms. H’s concern that she not be required to work in a locked office with the Grievor, the Employer chose to prefer Ms. H’s interests over those of the Grievor and failed to consider the Grievor’s needs as constituting a legitimate accommodation need. The handling of this situation by the Employer stands as representative of the types of problems experienced by him over the years and reflected in his Complaints to the Human Rights Office.
In February 2019, the Grievor filed his initial Complaint against Ms. S.B. and later provided a revised copy on April 16, 2019. The Complaint against Ms. S.B. stated that it was not then the subject of any other proceeding such as a grievance or complaint to the provincial Human Rights Tribunal. The Union emphasized that this Complaint was not simply about whether Ms. S.B. had exercised her discretion correctly in her handling of the Grievor’s file but also alleged that Ms. S.B.’s conduct constituted harassment.
On July 10, 2019 the Grievor filed a second Complaint naming the Employer as Respondent. This Complaint identified a series of interactions between the Grievor and Employer representatives starting in February 2016 and concluding on April 11, 2019 that the Grievor characterized as harassment and discrimination on the basis of his disability. In the form, the Grievor states that those matters are the subject of a grievance but that the grievance is “in abeyance”.
The Union reviewed the Employer’s policies governing Complaints to its Human Rights Office and submitted that the decision of Ms. V.P. failed to comply with those policies in a number of material respects. Ms. V.P. had completed a preliminary or threshold assessment of the Complaints and determined that they would not proceed to investigation on the basis that, variously, they did not disclose complaints of discrimination or harassment, many of the issues raised in the Complaints were untimely and that the Complaints were the subject of grievances and it was the practice of the Human Rights Office to defer to that process.
In the view of the Union, Ms. V.P.’s threshold assessment failed in a number of ways. First, with respect to the Complaint against Ms. S.B., Ms. V.P. agreed in cross-examination that the matters at issue were raised in a timely manner and, further, that the Grievor had made an allegation that Ms. S.B.’s actions constituted harassment. Accordingly, it was submitted there was no basis on which the Complaint of April 16, 2019 should have not proceeded to the investigation phase and was improperly screened out in Ms. V.P.’s threshold analysis. Second, with respect to the Complaint of July 10, 2019, the Complaint alleges a course of conduct by the Employer’s representatives, the most recent of which was within the one (1) year limitation period identified in the Employer’s own policies. While some of the Grievor’s allegations raised matters that were outside that period, the assessment should have been conducted with regard to the timely nature of the most recent alleged incident. Further, the Grievor had indicated in the July 10, 2019 Complaint that the associated grievance was being held in abeyance and, in accordance with the Employer’s policy, this does not constitute a basis on which the Complaint might be screened out as part of the threshold analysis. Accordingly, in each case, the Employer’s Human Rights Office should have proceeded to investigate the Grievor’s Complaints.
Finally, the Union pointed to the failure of the Human Rights Office to make its determinations in a timely manner in accordance with its own policies. All of these facts lead to the conclusion that the Employer failed to conduct its internal “investigation” in reasonable manner and, that its failure to do so in a timely manner, only exacerbates the resulting problems with that process (see: NN. Canada Post Corp. v CUPW; and OO. Cranbrook Regional Hospital and BCNU, Re). If an employer is going to have a policy then it must meet the obligations in its own policy. Here there were multiple procedural flaws and the threshold assessment was both cursory and careless. On the evidence the Union argued that this Grievance must be allowed.

GRIEVANCE B-2078
This Grievance asserts that the Employer has failed to meet its obligations to return the Grievor to work following February 20, 2020. On that date, Ms. S.A. for the Employer stated that the RTW instituted in accordance with Dr. McDermid’s FAF- Cognitive of November 13, 2019 had not proceeded as scheduled and in her email wrote, in part, as follows:
“Therefore, we will be adjusting the gradual return to work plan so that you continue to work 2 days a week (Tuesdays and Thursdays) until we receive an update on your prognosis and recovery.

Once we receive this additional medical information, we will set up a meeting to discuss next steps in the plan”.
Subsequently, the Employer was provided with Dr. McDermid’s FAF-Cognitive forms dated March 13, 2020 as set out in paragraphs 97 and 98, above. As noted in the Factual Background, Ms. S.A. advised the Union and the Grievor in the meeting of April 16, 2020, that there could be no RTW based on Dr. McDermid’s latest FAF-Cognitive because of his determination that the Grievor’s cognitive abilities would be fluctuating on an ongoing basis. In that meeting the Employer identified that it was requesting that the Grievor participate in an IME
Between the meeting of April 16, 2020 and the final date of the hearing in this matter, the Grievor had not been returned to work for more than two (2) days a week at his assessor position of 5.5. hours per day. The Union raised a variety of arguments respecting the Employer’s actions. First, it disputed the validity of the Employer’s assessment that Dr. McDermid’s determination that the Grievor had fluctuating abilities should properly have prevented his graduated RTW as proposed. It was noted that the Grievor had stated in his cross-examination that these fluctuations were not harmful to him and, while he has “good days” and “bad days”, he is able to complete work on the latter days, albeit not as quickly. It was submitted that it is trite law that a physician’s statement setting out the basis of a RTW plan is sufficient to shift the onus to the employer to make its determination as to why that should not be possible (see: III. Motor Coils Manufacturing Ltd. and Unifor, Local 520 (Steacy), Re; and LLL. Ontario Public School Boards’ Association, The Crown and The Elementary Teachers’ Federation of Ontario).
In the present case, the Grievor was cleared to continue his graduated RTW and the onus is on the Employer to demonstrate clearly while that is not reasonable. And, to the extent that the Employer may argue that it was necessary to determine what accommodations might be required to successfully facilitate the RTW, the Union argued that it was the Employer that had failed in its duty to implement the accommodations previously identified by Dr. McDermid.
Further, the Employer’s action in holding the RTW “hostage” to the Grievor’s participation in an IME was improper. Here, too, it was submitted that the Employer has the onus of demonstrating that the IME was necessary for that purpose. Even if the Employer is able to demonstrate that it was reasonable to request an IME in this case, it does not mean that it was necessary to pause the RTW in the interim.
Finally, the Union submitted that the changes to the workplace regimen resulting from the COVID19 pandemic meant that the Grievor’s graduated RTW schedule should have been implemented as he would have been working from home throughout this period. Even if the Employer were to take the position that a return to the physical workplace was not possible, that was not a consideration for the
duration of the pandemic. As such, the Employer decision not to proceed with the RTW while these changed terms and conditions of work were in effect was simply not reasonable in the circumstances. The Employer made its determination that Dr. McDermid’s assessment of fluctuating abilities meant that the Grievor could not proceed with the proposed RTW and made the IME a condition of moving forward and, thus, were simply unprepared to consider that an alternative might exist as a consequence of the pandemic. For all these reasons, the Union asked that the Grievance be allowed.

THE INDEPENDENT MEDICAL EVALUATION
The parties also referred the question of the propriety of the IME request to me for determination. As noted by the Union, the Grievor agreed to attend the IME under protest but whether the Employer should have made that request in the first place is at issue. In support of its position, the Union referenced the policy of the Ontario Human Rights Commission pertaining to IME’s and asserted that there must be an objective basis to conclude the original medical provided by an employee is properly at issue. The Employer should use the least intrusive means possible to obtain the information it requires, the IME should not be used as a mechanism to “second guess” the Grievor’s physician and should be considered to be a tool of last resort (see: HH. Complex Services Inc. v OPSEU, Local 278; II. Brown & Beatty, Canadian Labour Arbitration, , ch 7:6142 ; JJ . Molson Breweries v Canadian Union of Brewery & General Workers; and KK. Bottiglia v Ottawa Catholic School Board).
In the present case, the Union submitted that the information provided to the Employer by Dr. McDermid is not subject to attack. It was argued that he objectively assessed the Grievor, while being mindful of his input and that he provided complete and detailed responses to each of the Employer’s requests for information. The fact that it may be difficult to accommodate the Grievor’s fluctuating medical condition does not mean that Dr. McDermid’s assessment of that condition was incorrect. Accordingly, his evidence is reliable and there was no reasonable basis on which the Employer’s request for an IME could be made. The Union asks for a finding reflecting that position.

EMPLOYER SUBMISSIONS
The Employer started its submissions by identifying what it said was a consistent theme that impacts any determination of the Grievances. It characterized the Grievor as seeing himself as a victim with various needs but who believes he is surrounded by bullies and harassers. In fact, however, the Employer’s representatives sought only to assist the Grievor and accommodate his needs. It was the position of the Employer that its representatives were doing their jobs properly but their efforts in that regard were only viewed as negative. Benign statements by representatives, the use of colours and different typefaces in emails were all misconstrued by the Grievor and miscoloured his perception of the reality. The Employer further took the position that the Grievor and Dr. McDermid undermined its efforts through the provision of unhelpful, vague and inappropriate information that did not assist. It was submitted that the information that was provided did not allow the Employer to accommodate and,
in this respect, the Grievor failed to meet his obligations to participate in the accommodation process (see: QQQ. Renaud v. Central Okanagan School District No 23).
The Employer noted that Article EE.1 of the Local Collective Agreement respecting accommodation requires an employee to provide “satisfactory medical evidence to the Employer concerning his/her incapability or restrictions” as part of the process. In this case, the Employer asserted that the Grievor provided statements of what he wanted to see in the workplace rather than setting out his restrictions. Accordingly, the medicals provided must be seen as unhelpful and not collaborative. Further, the Employer stated that Grievor continued to make false allegations and accusations against the Employer and its representatives.
The Employer stated all of this unfolded against a backdrop of the Grievor’s significant absenteeism in an environment where continuity is key for the learners supported by the Employer.
The Employer concluded its opening remarks by stating that the onus is on the Union to prove the discrimination and harassment alleged to have taken place. It asked that the Grievances be dismissed and that the propriety of the IME be confirmed.

GRIEVANCE B-1229
This Grievance is the oldest of those before me and alleges that Ms. G.S.’ request for medical notes in the fall of 2013 was improper. The Employer noted that the Collective Agreement in force at that time provided:
The Employer stated that the evidence was that the Grievor’s previous five (5) absences in the prior school year had each been on a Monday and none had exceeded three (3) days’ duration. Accordingly, the Employer submitted that Ms. C.V.’s direction to Ms. G.S. to request the Grievor to provide notes for absences of less than three (3) days’ duration was a reasonable exercise of its discretion pursuant to Article R.1.5.1 in all the circumstances. In the period between October 1, 2013
and March 2014, the Grievor provided eleven (11) notes in respect of a total of 60 days of absence. Three (3) of those notes were for periods of three (3) or fewer days.
The Employer relied on its cross-examination of the Grievor noting he agreed that a pattern of Monday absences “could” be of concern to the Employer. The Employer in reviewing the Grievor’s testimony in this regard asserted that he was loathe to admit the Employer action was logical and, rather, resorted to saying it had to be viewed as a “human issue”.
In its review of the Union’s cross-examination of Ms. C.V., the Employer argued that her agreement that she was not saying the Grievor was “guilty of fraud”, did not mean that her wish to check the bona fides of the Grievor’s absence was improper. Further, the Employer submitted that Ms. C.V. did not suggest that the Grievor’s personal absenteeism represented a threat to the ESU program but, rather, that she was stating that attendance issues generally were problematic. This was a rationale that was set out in an email response to an inquiry by Ms. Preston and was not directed to the Grievor in any event. Nevertheless, the Grievor saw Ms. C.V.’s and took offence at what he considered to be a personal attack.
With respect to the Union’s arguments respecting statutory protections against unreasonable demands for personal health information and reference to the tort of intrusion upon seclusion, the Employer stated, in addition to its primary position that the requests in this case were reasonable, that in any event the information provided by the Grievor was minimal. With respect to the three (3) notes provided pursuant to Article R.1.5.1, the doctor simply stated “personal illness” and, in each case, this was deemed satisfactory by the Employer.
The Employer asserted that this was not a case of an arbitrary blanket requirement for notes but, rather, was limited in scope and based on a factual situation that made the request reasonable (see: UUU. Toronto (City) and TCEU, Local 416 (Balchand), Re; and DDD. Kubota Metal Corp. Fahramet Division (Davies) and USW, Local 9393). In the result, the Employer asks that the Grievance be dismissed.

GRIEVANCE B-1847
This Grievance deals with the Grievor’s assertion that Ms. G.S.’ direction on February 6, 2018 that she would take over the scheduling of his replacements was improper. It was the Employer’s primary position that the Grievor did not have a “right” to select his supply instructors nor did he have a “right” to determine the process by which any selection might be accomplished. The Employer reviewed the evidence of the exchanges between the Grievor and Ms. G.S., asserting that it demonstrated that the Grievor was inconsistent in his selection of supply instructors over the fall of 2017 and, further, failed to understand or utilize the SFE system correctly. It was Ms. G.S.’ evidence that she was required to correct errors created by the Grievor and, on at least one occasion, the Grievor went into the system and reversed a correction that she had made to one of his assignments.
While the Grievor pointed to his job description as stating the arrangement of replacements was one of his duties and responsibilities, it was the Employer’s position that he did not complete this task correctly, necessitating Ms. G.S.’ intervention. Further, the Employer submitted that Ms. G.S’ reasons were three-fold; first to optimize the consistency of supply instructors for the learners in question, second to reduce her own workload that was negatively impacted by the requirement to correct the Grievor’s errors and, finally, to assist the Grievor by removing this task when he was otherwise away from the workplace due for health reasons. In the view of the Employer all of these were rational and reasonable grounds for Ms. G.S.’ actions. Further, it was submitted that there was no evidence that Ms.
G.S. undertook this action for the purpose of demeaning or humiliating the Grievor.
The Employer revisited its theme that the Grievance in this case is the product of the Grievor’s belief that all Employer actions are, in some manner, an attack on him. The Employer submitted that this decision was the product of its right to manage the workplace. Further it was asserted that other employees treated on the same basis appreciate the Employer’s actions in this regard, there was no disadvantage to the Grievor and no evidence that it represented differential or discriminatory treatment of him. Indeed, the Employer submitted that in cross-examination, the Grievor that Ms. G.S.’ decision resulted in less work that he had to perform and, in that respect, was helpful to him. The Employer argued that there was no nexus to a protected ground under the Collective Agreement or the Code in this instance nor any objective evidence of harassment (see: CCC. Kinark Child & Family Services Syl Apps Youth Centre v. Ontario Public Service Employees Union, Local 213; HHH. Moore v. British Columbia (Ministry of Education); TT. Cara Operations Ltd. (c.o.b. Toronto Flight Kitchen) v. Teamsters Chemical, Energy and Allied Workers Union, Local 647 (Palmieri Grievance); FFFF. Alexander Place and Service Employees International Union, Local 1 Canada; and AAAA. Vance v. University of Guelph).

GRIEVANCE B-1910
The Employer addressed this Grievance on the basis of the particulars provided by the Union asserting that it failed to accommodate the Grievor by refusing to arrange or pay for a mental health worker to assist the Grievor as needed in the workplace. It was the position of the Employer that the request for a mental health worker first appeared in Dr. McDermid’s letter dated March 19, 2018 and attached to his FAF-Cognitive of that same date. The Employer emphasized that this letter must be reviewed carefully as it demonstrates that the provision of weekly meetings with a mental health worker is something the Grievor desires but they are never identified as a requirement of his RTW at that time. The Employer focused on Dr. McDermid’s conditional statement prior to the suggestion of access to the mental health worker, in which he states:

Specifically, [the Grievor] would endorse the following, but he notes that if his workplace is not amenable to this recommendation, that he would not want the absence of this support to keep him from returning to work.
As a general proposition, the Employer submitted that it is always concerning when a physician references what his or her patients wants, as denoted by Dr. McDermid’s repeated reference to the Grievor in his letter of March 19, 2018. In notes provided with Dr. McDermid’s Will-say from his appointment on January 18, 2018 with the Grievor, the Employer emphasized the following:

“If we do not hear for Mr. Sinai by Feb, I would like to put together a RTW plan.” What would make this more successful than the last RTW?
“Honestly, I don’t think I’ll ever get a mental health worker there, to meet with me once weekly there for a period of time, but that would ideally be helpful.” In other words, while he’s saying it would be helpful, it’s not a condition.

The Employer submitted that in this original iteration of the mental health worker request, it is clear that is not a requirement of any RTW and is not being advanced as a necessary accommodation.
Similarly, in the letter attached to Dr. McDermid’s FAF-Cognitive, dated November 13, 2019, while under the heading “Required Accommodations”, the reference to meetings with a mental health worker is described as something that “would benefit” the Grievor. In the view of the Employer this reference to such meetings as being of benefit to the Grievor negates any conclusion that this is a required accommodation. The Employer pointed to its cross-examination of the Grievor in which it was said that he agreed the mental health worker was his idea and that it something that fell into the category of “would like” rather than “must have”.
The Employer further noted that the Employer stated that it would allow the Grievor to meet with a mental health worker but that arranging and paying for that would be his responsibility. It pointed to the fact that the Grievor took no steps to make such arrangements using the amount available to him under the extended health benefits plan provided pursuant to the Collective Agreement. For the Employer that was evidence that this was not a requirement of any accommodation or the Grievor would have at least used those admittedly limited resources available for this purpose.
The Employer also used this Grievance to expand on another argument that was present throughout its submissions. That was its concern with Dr. McDermid’s endorsement of his patient’s ideas as “reasonable”. It was the position of the Employer that this is not the correct way of analyzing the information required in an accommodation scenario. The question asked of the physician is not whether he or she considers the patient’s wishes to be reasonable but, rather, they are asked to identify the restrictions and limitations of the patient. It was submitted that the Employer is entitled to know this in order to determine what would be required to accommodate those restrictions. It was emphasized that this information was something that Dr. McDermid never provided to the Employer.
The Employer argued that this request was analogous to a request for devices that are necessary to permit personal adjustments rather than workplace adjustments. There was no evidence that the Grievor was unable to pay for the requested service or that he had made any efforts to make arrangements using the benefits available to him pursuant to the Collective Agreement. In these circumstances, the Employer argued that the analysis in the Supreme Court of Canada’s decision in V . British Columbia (Public Service Employee Relations Commission) v BCGSEU (hereafter “Meiorin”) is not applicable as this was a case involving preferences rather than needs (see: XXX. Toronto District School Board and OSSTF (13-50), Re; and ZZZ. Toronto District School Board v. ETFO).

GRIEVANCES B-1946, B-1947, B-1949 and B-1969
These Grievances allege that the Employer’s requests for medical information were unjustified and invasive. The Employer started by asserting that there is nothing in the chronology of its requests for medical information that constitute a violation of the Collective Agreement on its plain reading. Rather, it was stated that the Union focused on the wording of the Employer requests and the reasonableness of its exercise of discretion in making those requests. With respect to the wording of the Employer requests, it was submitted that while no one likes to see a document that states FINAL REQUEST or FINAL WARNING in capitals, it is necessary to draw the importance of the document to an employee’s attention so that they may focus on the potential consequences of a failure to deal with the issue at hand. If the Employer did not provide fair warning to employees, it might be asserted that the document did not properly draw to their attention its import. Further, this was not a situation in which the Grievor was singled out but, rather, these were standard operating procedures for the Employer.
With respect to the reasonableness of the requests for medical documentation, the Employer reviewed the chronology reflected in the Factual Background above, in extensive detail. In each case, it was submitted that the request was reasonable based on the circumstances at the time. For example, when Ms. S.B. made her request for an FAF-Cognitive on December 31, 2018, it was the Employer’s position that this was prompted by Ms. Smith’s identification that the Grievor was experiencing difficulty with his interactions with the leadership team in both his ESU Assessor and Instructor roles, which Ms.
S.B. identified as new information. With respect to the requests for additional medical documentation in early 2019, the Employer identified that as reasonable given Dr. McDermid’s FAF-Cognitive stating that the Grievor was at work when, in fact, his absences were continuing. Similarly, the Employer took the position that it was reasonable to seek clarification when Dr. McDermid indicated that the Grievor’s mental health disability was “fluctuating” so that they might better understand the specifics of his restrictions and limitations. In short, it was the Employer’s position that its ongoing requests for updated medicals were the product of the manner in which Dr. McDermid provided his information. The Employer pointed to an exchange with Dr. McDermid in cross-examination in which he was asked how his FAF-Cognitive indicating the Grievor’s fluctuating abilities would allow the Employer to understand how this would be manifested in the workplace to which the doctor replied that the Employer had not
asked him the right question and “technically I was correct”. The Employer described that as an example of evasive and unhelpful information that simply prompted further clarifications.
With respect to the Union’s concerns about certain questions asked by Ms. S.B. in her letter to the Grievor’s doctor in February 2019, the Employer submitted that the questions were not, in fact, improper as the Grievor’s diagnosis had already been provided to it by Dr. McDermid. In any event, the Employer removed question 9 requesting updates on the Grievor’s treatment plan (without details) while leaving questions 3 and 4 in the questionnaire that, in due course, was forwarded to Dr. McDermid (see: JJJ. OLG Point Edward Casino v. Teamsters, Local 879).
Generally, the Employer submitted that in cross-examination, the Grievor acknowledged that many of the requests were objectively reasonable and that his responses were subjective and a reflection of how they made him feel.
It was the Employer’s submission the validity of the medicals received from Dr. McDermid was undermined by his communications with the Grievor that suggested that the doctor was concerned that he had followed the Grievor’s lead in stating that he was at work in his FAF- Cognitive of January 31, 2019, thereby leading to confusion. The Employer pointed to the Grievor’s cross-examination in which he acknowledged that he advanced this narrative because he was “pissed off” at Ms. S.B.. In turn, Dr. McDermid had included that narrative in his FAF-Cognitive because he accepted that it “was important to the Grievor”. In the submission of the Employer this undermines the credibility of Dr. McDermid’s medicals and stands in justification of its decision to seek further medicals. Finally, it was stated by the Employer that the Grievor had acknowledged that, absent his emotional response, Ms. S.B.’s request was reasonable.
In this regard, the Employer referenced an email sent by Dr. McDermid to the Grievor dated March 19, 2019 respecting his response to the Board’s questionnaire. In that email, Dr. McDermid expresses concern that a RTW is not appropriate at that time, stating, in part, as follows:

Therefore I have many ongoing concerns and questions and believe that any rapid response is not in your interest and needs also to be thought through. My attempts thus far have been based upon how best to support you given that there is not disability insurance at the workplace for you.

In the result, Dr. McDermid did support the continuation of the Grievor’s RTW plan and, in the submission of the Employer this is another indication that his assessments were not credible.
With respect to Dr. McDermid’s FAF- Cognitive in which he describes the Grievor’s cognitive abilities as “fluctuating”, the Employer argued that there was no information that would assist the Employer in its analysis such as statements respecting the frequency, extent and duration of these
fluctuations. Accordingly, the doctor has not addressed the question of the Grievor’s limitations and the Employer characterizes this as an end-run around its questions.
The Employer next addressed the request made on behalf of the Grievor by Ms. May that he be allowed to accumulate lieu time on “good days” that could be applied on “bad days”. The failure of the Employer to permit this is then characterized by the Union as harassment and retaliation. In the view of the Employer that could not be so as the parties have specifically agreed in the Collective Agreement that lieu time cannot be used in place of, or in conjunction with, sick leave. In other words, lieu time is like a pay deferral program where an employee must be compensated for the extra work performed. The Employer submitted that, again, there was not differential treatment of the Grievor nor any evidence of discriminatory conduct.
In conclusion, the Employer submitted that there is no evidence that the Employer was simply requesting the same information multiple times without reason. Rather, in each case medical documentation was sought, the Employer had rationale based on the changing fact situation or because of deficiencies or concerns legitimately arising from Dr. McDermid’s medicals (see: VV. Central Care Corp. v. C.L.A.C.). In the result, the Employer asks that the Grievances be dismissed.

GRIEVANCE B-2054
In the particulars provided by the Union, the Employer states that this Grievance asserts that the Board improperly failed to implement modifications of the workspace made by Dr. McDermid. In response, it is the Employer’s position that its representatives were patient and accommodating in trying to meet the Grievor’s needs. The Employer took offence that individuals such as Mr. S.S. who were simply trying their best were disparaged and criticized for those efforts. The Employer asserted that there was little or no medical support for the requests made by the Grievor.
Notwithstanding the scarcity of medical evidence, it was submitted that Ms. C.V. and Mr. S.S. were attempting to address the Grievor’s wishes. The Employer was appropriate in its attempt to balance the competing interests of the Grievor and Ms. H. While the Grievor has asserted that his concerns are rooted in his interactions with SWAT teams in two incidents, the Employer suggested that there was no evidence that SWAT teams will go room to room in a subsequent lock-down. It was argued that further, clearer information is required to substantiate the Grievor’s requests respecting his workspace (see: KKK. Ontario Energy Board v. Society of United Professionals). Further, it was submitted that Dr. McDermid’s medicals are inadequate in this regard as they do not set out the restrictions that would merit the accommodation sought by the Grievor respecting his workspace. Notwithstanding that position, the Employer argued that it had, in fact, provided reasonable accommodation consistent with the medical provided. In particular it submitted that there was no evidence that the photocopy room retrofitted for the Grievor was insufficient to meet his needs. It was further argued that this is another
instance of the Grievor seeking preferred accommodation rather than reasonable accommodation (see:
WW. Complex Services Inc v. OPSEU, Local 278; GGG. McMaster University (Coscarella Grievance) v. Service Employees International Union Local 2, Brewery, General and Professional Workers' Union; QQQ. Renaud v. Central Okanagan School District No 23; and FFF. McAran v. Teranet Inc.).
With respect to the accommodation of the Grievor generally, it was submitted by the Employer that it took reasonable steps in this regard. The Employer was going to bring over a divider to separate the Grievor and Ms. H. but before that implemented the Grievor was moved to the former photocopy room. The Employer installed a window in the photocopy office only because of its conversion for the Grievor. There was criticism that the safety plan was never implemented but the pandemic intervened prior to that step being taken. The Employer arranged for mental health courses for staff and management, however, the sufficiency of those courses was attacked by the Grievor. The Employer viewed this as another example of the Grievor’s inability to be satisfied by its efforts made in good faith. It was never suggested by the Grievor, the Union or his doctor that the Employer should explore other positions. In consideration of the foregoing, the Employer asks that this Grievance be dismissed.

GRIEVANCE B-2056
The Employer characterized this Grievance, filed in February 2020, as being related to the provision of noise-cancelling headphones to the Grievor based on the particulars provided by the Union. It submitted that this Grievance is an illustration of the saying, “No good deed goes unpunished”. The Employer argued that efforts were made to find headphones for the Grievor that would allow the wearer to hear announcements (such as those occurring on an airplane) but which reduced background noise. That was the evidence of Mr. S.S.. Notwithstanding that goal, the Grievor stated that he could still hear Mr. S.S. through the shared wall between their offices but did not hear a fire alarm on one occasion. The Employer questioned the credibility of the Grievor’s evidence but noted that, in any event, use of the headphones was discontinued. In the view of the Employer it has no liability in this case and, further, that there is no remedy available in any event.

GRIEVANCE B-2078
The Employer identified this Grievance as that alleging a failure by the Employer to properly return him to work in the spring of 2020. It was the Employer’s submission that its determination that the RTW plan proposed by Dr. McDermid in November 2019 was not sustainable is logical given the failure of the Grievor to maintain the level of attendance contemplated in the early stages of the plan. In the view of the Employer, the FAF- Cognitive from Dr. McDermid dated March 13, 2020 simply proposed reinstating a RTW plan that had already failed. It was submitted that the Employer was entitled to know what to expect in terms of the Grievor’s ability to attend work on a sustainable basis as proposed by his physician’s proposed RTW plan. Further, the Employer argued that it did not wish to exacerbate the
Grievor’s mental health issues by implementing a plan that was deficient. Finally, the Employer submitted that the Grievor did appear to be able to function at two (2) days per week demonstrating that this level of attendance was sustainable. Until there was acceptable medical information supporting more than that, it was the Employer’s position that they did not have a legal obligation to expand the RTW plan.
In these circumstances, the Employer argued that it was reasonable to require the IME as a condition of expanding the RTW. The Employer reviewed the details of the meeting between the parties and the Grievor on April 16, 2020. It was the submission of the Employer that throughout this process, the Grievor never satisfied the onus on him to demonstrate that he was fit to RTW on the basis proposed by Dr. McDermid (see: PPP. Proboard Ltd v. CEP, Local 49-0).

GRIEVANCE B-2055
The Employer characterized this Grievance as one of harassment in connection with its request that the Grievor participate in an IME. In the submission of the Employer, the Grievor’s absence for shifts beyond the two (2) 5.5 hour shifts each week is prompted by an inaccurate and overly-optimistic prognosis by Dr. McDermid that the Grievor can return to work more extensively. The record belies that this prognosis can be trusted and there is ample evidence that the RTW plan failed with its proposal that the Grievor’s hours be increased beyond those in place of the date of the hearing. And, of course, a number of the Grievances in this case allege that the Employer has been seeking too much medical information. In such circumstances, the Employer argued that it was left with no alternative other than to seek an IME as it was clear that working to obtain further medicals from the Grievor’s physician was impractical (see: KKK. Ontario Energy Board v. Society of United Professionals; OOO. Peel Regional Police Services Board v. Peel Regional Police Assn.; RR. Board of Governors of Laurentian University and Laurentian University Faculty Association (Bougrine); SS. Buttar v. Halton Regional Police Services Board; and VVV. Toronto (City) v. CUPE, Local 79 (Wilson), Re).

GRIEVANCE B-1948
The Employer submitted that a review of the Grievance and the Complaints to the Human Rights Office discloses that they are alleging harassment by the Employer and its representatives. It is submitted that pursuant to both the Employer’s policies and the Human Rights Code, harassment is defined as a course of vexatious conduct. Further, it submitted that the Union position was that the Employer’s demands for medicals constituted harassment and was demeaning of the Grievor. With that as context, the Employer argued that the evidence does not support a finding that it made improper requests for medicals nor that it demeaned or harassed the Grievor. Again, it stated that such requests were reasonable and appropriate and were only made when circumstances changed or the medicals provided were lacking.
In any event, even if it were to be found that the Employer made too many requests for medicals, it was the Employer’s position that these did not constitute a course of vexatious conduct and were not intended to disadvantage the Grievor on the basis of his disability. During his interactions with representatives of the Employer, the Grievor took offence to comments that were either neutral or intended to be helpful. None of the Employer’s communications were objectively harassing and all were provided in a professional manner. While it was the Grievor’s position that such communications have to be read and understood in the context of the parties’ relationship, the Employer submitted that its emails have to be taken at face value and on an objective reading that do not constitute the proof necessary to found findings of harassment. Further, it was argued that in cross-examination the Grievor acknowledged that many of his allegations of harassment arose out of his feelings at the time and that he could understand why those communications may have taken place as they did. In this regard, the Employer submitted that Dr. McDermid had identified the Grievor as hyper-sensitive and described him as “a stickler”.
With respect to allegations that the Employer’s requests for medical information were “over-reaching”, it was submitted that they arose in the context of Dr. McDermid’s notes that were deficient in material respects.
Turning to the Complaints to the Human Rights Office, it was the Employer’s position that each of the incidents identified by the Grievor in both Complaints can only be characterized as allegations of harassment and not discrimination. Further, it was the Employer’s submission that the Human Right Office’s handling of the Complaints cannot be said to constitute harassment of, or discrimination against, the Grievor. To the extent that the Union or the Grievor may consider the Human Rights Office handling of the Complaints to be insufficient or deficient, that is not the same as alleging harassment or discrimination by that body. The Employer argued that it is important to remember that we are not litigating the allegations set out in the Complaints but, rather, the Employer’s handling of those Complaints through its Human Rights Office. On the face of the materials filed by the Grievor in his Complaints, it was asserted that Ms. V.P. was correct in finding that they did not disclose harassment of, or discrimination against, the Grievor. Further, to the extent that there was any delay in dealing with the Complaints, the Employer notes the extent of the materials filed by the Grievor as well as Ms. V.P.’s evidence that her Office was dealing with an extensive backlog.
While it was submitted that the Union did not grieve the process of the Human Rights Office itself (see: XX. Fanshawe College v. O.P.S.E.U.), in the alternative the Employer took the position that Ms. V.P.’s determination was correct. With respect to the position that the July Complaint was untimely, the Employer argued that it was comprised of a long series of disparate incidents that, taken together, did not constitute a course of vexatious conduct. They were, in fact, a series of separate events with no nexus. When the Union then sought to link those events that were more than a year old to an event that was timely it was reasonable for the Human Rights Office to treat the older events as untimely. And,
with respect to the timely events, it was the Employer’s position that these were not improper on their face.
Further, the Employer argued that there was no evidence that many of his Grievances filed as of the date of the July Complaint were, in fact, in abeyance. The Employer noted that the Grievor had multiple Grievances, many of which overlapped with the matters raised in that Complaint and yet in the form filed with the Human Rights Office he referred to a Grievance in the singular as being in abeyance. The Employer noted that there is an email dated December 31, 2018 in which the Grievor asks Ms. Smith to file a Grievance to be held in abeyance, however, it asserts that there is no evidence that the other nine (9) grievances filed prior to the July Complaint were similarly held in abeyance. Accordingly, Ms. V.P.’s understanding that there were overlapping Grievances that were not being held in abeyance is likely correct.
In summary, the Employer submitted that there was no evidence of harassment in the workplace and, therefore, the failure to investigate cannot constitute harassment of, or discrimination against, the Grievor (see: RRR. Scaduto v. Insurance Search Bureau). The exception to that might be if it were proven that Ms. V.P.’s decision was discriminatory but the Employer argued strongly that there was no evidence to support such a conclusion. In the result, the Employer asked that this Grievance be dismissed (see: FFF. McAran v. Teranet Inc.,; SSS. Sheikh v. Nigam; AAAA. Vance v. University of Guelph; YY. Ferenczy
v. Conseil des ecoles publiques de l’Est de l’Ontario, ZZ. Garrie v. Janus Joan Inc. ; III. Motor Coils Manufacturing Ltd. and Unifor, Local 520 (Steacy); and MMM. Ontario (Community Safety and Correctional Services) v. Ontario Public Service Employees Union (Cross et al)).

GRIEVANCE B-1914
This Grievance alleges that the Employer failed to refresh the Grievor’s sick leave credits at the start of the 2018/19 school year. The Employer reviewed the provisions of Article C.6.1 of the Central Collective Agreement in some detail and argued that the Grievor fell within the exceptions set out therein such that he was not entitled to a refresh of his sick leave credits as alleged by the Union. While the Grievor is a Permanent Employee as defined by the Article, the Employer commenced by referring to the provisions governing employees on long-term assignments. Here the Employer noted that such individuals receive pro-rated entitlements and it was argued that this reflects the scheme of the provision to treat sick leave as an earned benefit and not an automatic entitlement. Further, as referenced by the Union in its argument, the provision of the manner in which those provisions pertaining to the refresh of sick leave credits was dealt with in detail by Arbitrator Davie in YYY. Toronto District School Board v. CUPE, Local 4400, re Sick Leave Refresh (Award).
It was submitted by the Employer that the language of the Collective Agreement, as interpreted by Arbitrator Davie, makes clear that where an employee’s absence continues from one fiscal year into the following, for the same medical condition, the employee continues to access his or her allocation of
sick leave credits from the prior year until the employee has completed eleven (11) consecutive working days at his or her regular hours of work.
In this case, the Grievor was absent on June 22, 2018 which was his last scheduled day of work in that fiscal year. It is not disputed that his absence was in connection with his mental health issues. The Grievor was then absent on September 10, 2018 which was the first day of the following fiscal year. The Employer submitted that this increases the standard of proof for the Union to demonstrate that the Grievor’s absence on September 10 was for reasons not related to his absence on June 22. In that regard, the Employer emphasized Arbitrator Davie’s statement at page 25 of her award as follows:

In my view, where an employee advances a claim that the absences were not for the same medical condition the onus is on the employee to establish that fact. In the absence of such an assertion or claim the Employer is entitled to presume that the continued absence in the following year is for the same medical condition which caused the employee’s absence on the last day of the prior fiscal year and for which the employee accessed sick leave.
In the Employer’s submission, the Grievor failed to provide proof that his absence on September 10, 2018 was for a different medical condition in accordance with Article C.6.1(h) that provided:

h) Proof of Illness

A Board may request medical confirmation of illness or injury and any restrictions or limitations any Employee may have, confirming the dates of absence and the reason thereof (omitting a diagnosis). Medical confirmation is required to be provided by the Employee for absences of five (5) consecutive working days or longer. The medical confirmation may be required to be provided on a form prescribed by the Board.

Further, the Employer asserts that in the absence of medical confirmation that satisfied the Union’s onus to demonstrate the Grievor’s absence on September 10 was for a different medical condition, then he similarly did not meet the other test of working for eleven (11) continuous days until January 2019 when his refresh was finally achieved.
For clarification the Employer noted that days worked by the Grievor between June 22 and September 10 of 2018 were days on which he acted as a supply and, therefore, do not qualify as scheduled work days for the purpose of Article C.6.1. To the extent that the Union advanced an argument that these days should have been treated as regular work days, pointing to the agreement of the parties to extend the work year by two (2) weeks prior to the 2019/2020 school year, the Employer disagreed. All the evidence from both the Employer and the Grievor in his cross-examination confirmed that he was not required to work until September 10, 2018 and could have elected not to do so without
explanation to the Employer. Accordingly, the dates worked by the Grievor in the interim, including September 4, 2018 were at his election.
The Employer reviewed the medical notes provided by the Grievor in the fall of 2018 and noted that none pertained to the period prior to September 28, 2018. In response to the Union’s argument respecting the Grievor’s prescriptions, it noted that only one in this period, Amoxicillin, might be consistent with his claim of bronchitis but that it is equally consistent with other conditions. The Employer also noted a prescription for another medication, Dexlansoprazole, dispensed on the same date, which is used to treat acid reflux, a condition consistent with stress and, therefore, supportive of a conclusion that the Grievor was dealing with his mental health issues at this time. In any event, the Employer argued that the Grievor’s evidence that he was suffering from bronchitis at the time of his absence on September 10, 2018 is not supported by the independent evidence and certainly does not meet the test of Article C.6.1 as articulated by Arbitrator Davie and the cases referred to by her (see: CCCC. Toronto District School Board and Elementary Teachers’ Federation of Ontario (Elementary Teachers of Toronto); and LLL. Ontario Public School Boards’ Association, The Crown and The Elementary Teachers’ Federation of Ontario).
Finally, the Employer replied to the Union suggestion that the Employer must prove that the absences on June 22 and September 10, 2018 were related was neither practical, reasonable nor consistent with the burden of proof applicable on this issue. With respect to the Union assertion that it was incumbent on the Employer to advise the Grievor that the refresh was not available with medical documentation, the Employer responded that no such obligation exists in the Collective Agreement. Further, the Employer pointed to an exchange of emails between Ms. Smith and Ms. S.B. starting on October 31, 2018 that clearly demonstrate that the Union was aware of the issue on that date at the latest. There was no impediment to the Grievor having obtained the documentation necessary to substantiate his claim at that time. Accordingly, the Employer asked that this Grievance be dismissed.

THE INDEPENDENT MEDICAL EVALUATION
The Employer dealt with the propriety of its IME request in the context of the foregoing Grievances but it is appropriate to set out there position in some detail. First and foremost, the Employer submitted that it was reasonable to request the IME having regard to Dr. McDermid’s FAF –Cognitive dated March 13, 2019. In that document, the doctor stroked out the word “Limitations” and replaced it with “Accommodations”. That failure to provide the Employer with the Grievor’s limitations and restrictions was cited as the primary reason for it request for an IME. Further, Dr. McDermid indicated that these accommodations were to be reviewed in a year’s time.
It was submitted that, in the circumstances, an IME was the only reasonable course for the Employer to take. It took the position that Dr. McDermid’s medicals were demonstrably not objective nor credible and that an IME was necessary to provide clear and actionable evidence on which the
parties might proceed in implementing any further steps in the RTW plan. In the result, the Employer asks that I declare the IME to have been properly requested in this case.

UNION REPY SUBMISSIONS
The Union had five points that it raised in reply. First, with respect to Grievance B-1914 respecting the allegation that the Employer had failed to properly refresh the Grievor’s sick leave credits in the fall of 2018, the Union noted that the matter heard by Arbitrator Davie was heard on an expedited basis (as opposed to the full arbitration process utilized in this case). Accordingly, that award was focused on interpretation issues, primarily those respecting the definition of a “continuing absence”. What is clear is that Arbitrator Davie’s decision was to have no precedential effect on other grievances in which the parties had disputes as to how the contract language should be applied to a particular set of facts.
Further, it was asserted that the Employer either misunderstood or misstated the Union argument about the relevance of the Grievor’s work on supply days in August 2018. The significance of that fact is that is that it is relevant to the determination as to whether the Grievor’s mental health issues were preventing him from working at or around the beginning of the 2018/19 school year. The fact that he was able to work at this time is advanced in support of the proposition that his absence on September 10, 2018 was, in fact, for bronchitis as he testified.
With respect to the Employer’s argument that the reference in Article C.6.1(d) to sub-article (h) somehow creates a higher burden of proof for the Grievor to demonstrate that his first absence in the 2018/19 school year is for reasons unrelated to his June 22 absence, the Union argued that this is simply not the case. A review of sub-article (h) makes it clear that only its first paragraph is relevant to interpretation and application of sub-article (d). The Grievor did provide a medical for his absence at the beginning of the 2018/19 school year and while the physician did not state the nature of the illness, that is simply not something required by sub-article (h). Further, the Employer never stated that it required a medical note to that effect. If sub-article (h) were literally applied, then no discussion took place as contemplated. All of that simply demonstrates that, properly understood, only the first paragraph of sub-article (h) is applicable in any application of sub-article (d).
In the view of the Union, all of this simply takes us back to the Union argument that the Employer, having not made a decision to seek further information at the time, cannot now assert that the evidence provided by the Grievor is insufficient to support his claim for refreshed sick leave credits.
The second point addressed by the Union relates the Grievances alleging that the Employer acted improperly in not facilitating and implementing the request for a mental health worker. It was submitted that the Employer’s statements that the Grievor did not make efforts to secure a mental health worker on his own or that he could not afford to pay for these services over and above any payment available
through his benefit plan, is simply not supported by the evidence. The Union reviewed the Grievor’s evidence that the amounts available through the benefit plan were insufficient to develop a therapeutic relationship and the Union urged me to find that this was a reasonable position for the Grievor to take. To the extent the Employer argued that some sessions would be better than none, the Union submitted that this was unacceptable in circumstances where provision of this service was a reasonable accommodation. Here, the Grievor was seeking an accommodation that would only be applicable to the workplace. Outside the workplace, he had support through Dr. McDermid and it is not analogous to those cases where a proposed accommodation such as hearing aids was refused on the basis that they would be utilized in the non-workplace context as well. That is not this case.
Third, with respect to the Grievor’s request to be allowed to accrue lieu time on “good days” to be used on “bad days”, the Union responded to the Employer position that this proposal was not permissible due to the agreement between the parties by submitting that the parties cannot agree to a policy that offends the Human Rights Code. Further, the Union took the position that it would waived any prohibition in the contractual language in accordance with Ms. Smith’s email(s) to the Employer at the end of 2018. With respect to the Employer’s argument that it would not be lawful for it to allow the Grievor to work without pay, the Union responded that this was not the suggestion put forward by Ms. Smith. Rather, the proposal was for a form of flexible hours and would allow the Grievor the ability to reorganized his schedule to better utilize days when he was feeling well. If were found that the Union had established discrimination on a prima facie basis, then it was submitted the Employer had failed to demonstrate that it would suffer undue hardship through the implementation of this proposal.
The Union’s fourth point in reply focused on its Grievance pertaining to the handling of the Grievor’s Complaints to the Human Rights Office. To the extent that the Employer argued that various of the Grievances were not being held in abeyance and, therefore, it was permissible to consider them as active in the application of the Employer’s policy, the Union responded that there was no evidence that Ms. V.P. had considered this a factor in her decision not to forward the Complaints to the investigation stage. Rather, the Union asserted that in cross-examination, Ms. V.P. did not dispute that the Grievance(s) were in abeyance at the time she made her determination and, further, that she pointed to other factors as the basis on which she chose to make her ruling. The Union further submitted that the Grievor was not cross-examined on the statement in his Will-say that the Grievance(s) dealing with the subject-matter of his Complaints were in abeyance at the material time and, as such, the Employer’s argument on this point can be rejected pursuant to the rule in Browne v. Dunn (see: DDDD. Delta Catalytic Industrial Services v. I.B.E.W., Local 105).
With respect to the Employer position that the focus should be on whether the Complaints disclose breaches of Article L – Protection Against Harassment and Discrimination in the Collective Agreement, the Human Rights Code or the Employer’s policies respecting human rights, the Union submitted that, without prejudice to its position that substantive breaches had been proven, in the
alternative there had been a procedural breach by the Employer of its duty to investigate (see: EEEE.
Nelson v. Lakehead University).
Lastly, in connection with Grievance B-2078 respecting the claim that the Employer should have continued with the implementation of the RTW plan in the spring of 2020, the Union replied to the Employer argument that there was a health and safety issue created by increasing the Grievor’s work beyond two (2) shifts of 5.5 hours per week. It was the position of the Union that the Grievor commenced working from home at that time as required by the Employer’s COVID19 protocols and had continued to do so until the date of the hearing. Given the nature of the Grievor’s issues there was no impediment to his working from home and, indeed, he had a 92% attendance rate between March 2020 and December 31, 2020 (albeit while working his two (2) day per week schedule). It was argued that there was no “safety issue” that might have prevented the continued implementation of his RTW plan and, accordingly, that should have occurred.

DECISION
I would start by stating that I found each of the witnesses in this case to be forthright and credible in setting out their honest perception of the events and interactions in which they may have been involved. The Grievor was open and straightforward in expressing his perception of the manner in which Employer representatives dealt with him in the course of employment. Dr. McDermid set out his assessment of the Grievor and was clearly motivated by the desire to assist his patient in dealing with his mental health issues. The Employer representatives each impressed me as individuals who were trying to carry out their duties and responsibilities respecting the Grievor in a manner consistent with their legal obligations. The difficulty, of course, was that the parties had differing views as to what those legal obligations might be and this, in turn, led to serious challenges for the trust that is often required in achieving a viable workplace relationship when issues of disability and accommodation are involved.
A couple of general observations are necessary at the outset. First, it is important to recognize that two individuals can be involved in an exchange of information and come away with diametrically opposed interpretations of exactly what has transpired. One person’s subjective assessment of a communication will not necessarily line up with that of a third party considering that communication from a neutral perspective. In this case, the Grievor often considered communications and actions as personal attacks on him as and this exacerbated an already-existing distrust of the Employer. As an example, a number of the Grievances related to Employer requests for medical information. In cross-examination the Grievor acknowledged that those requests might be logical upon consideration of the circumstances as they then existed. The Grievor focused on how the requests made him feel at the time they were made – attacked, harassed, demeaned and not valued. The question for the arbitrator, however, is whether the requests were objectively reasonable. That is not to suggest that the Grievor’s feeling were not valid, only that this is not the basis upon which they will be assessed.
Next, I turn to the difficulty inherent in accommodating a mental disability such as that with which the Grievor is dealing. And, to be clear, I heard no suggestion from the Employer nor saw any evidence that the Grievor’s condition does not constitute a disability as defined by the Human Rights Code. In the case of a physical disability, there are often objective measures that can be applied to determine a given employee’s limitations or restrictions. How much weight an employee can lift, what range of motion is possible, how long is the employee able to stand etc. are all matters that can be measured to some degree. Even an employee’s level of pain, which may be subjective, is something that physicians attempt to express as a number on a scale. However, in the case of a mental disability, such as that presented in this case, expressing the extent and impact of the disability in concrete terms represents a significant challenge.
That this is so is manifest in the frustration of the Grievor, Dr. McDermid and the Employer representatives in their communications. The Employer provided FAF-Cognitive forms to the Grievor’s doctor seeking information on his cognitive abilities and impairments and received back information that it considered non-responsive. Subsequently, asking the doctor to identify the Grievor’s cognitive abilities and impairments, the Employer received back information that stated that they are “fluctuating”. Each side became frustrated – the Employer because it considered that it could not then properly assess the Grievor’s accommodation requirements and the physician because the information he provided to the Employer was in a format that it deemed unacceptable.
Turning to the Grievances, while a number raise discrete issues and may dealt with separately, others may be bundled together as the parties did in their Will-says and their submissions (although it may be noted, that did not always use the same “bundles”). I will attempt to follow the same format in dealing with the Grievances.

GRIEVANCE B-1229 (October 3, 2013)
This Grievance alleges that the Employer “unjustly require[ed] the grievor to provide a doctor’s note for every absence”. In this case, the Grievor was absent on September 30, 2013 and was asked for a medical note by Ms. G.S. on October 1. After the Grievor questioned the efficiency of doing so, Ms. G.S. waived the requirement of a note for September 30 but advised the Grievor that he would be expected to bring in a medical note for future absences. While Ms. G.S. stated in her Will-say that this requirement was to be in place for a “brief period”, there was no evidence to suggest that the Employer had determined what might constitute a “brief period” or that any period of time was communicated to the Grievor. In any event, Ms. G.S. stated that the requirement was removed in March of the following year.
The Employer’s rationale for the requirement was provided by Ms. C.V. who confirmed that it was related to the Grievor’s pattern of absence on Mondays. I take judicial notice that September 30, 2013 was a Monday and that four (4) of the Grievor’s seven (7) days of absence for sick leave at the end of the prior school year were on Mondays. While Ms. C.V. stated in cross-examination that she was not
asserting the Grievor was committing fraud on the sick leave program, she thought it prudent to check the bona fides of such absences.
The Employer had a discretionary right to request for medical notes pursuant to Article R.1.5 as follows:
The only question in this case is whether the Employer’s request on October 2, 2013 that he provide certification on an ongoing basis for all absences of three (3) or fewer days was a reasonable exercise of that discretion. I have no doubt that the Employer had a right to require certification for the Grievor’s absence on September 30, 2013. It was a Monday and the Employer had identified a pattern of Monday absences that made its decision both reasonable and rationale in that regard. That said, the requirement for certification for all short-term absences for an unspecified period in the future is more problematic.
In this case, there are no limits set out in the Article that granted the Employer its discretionary right. But that right cannot be exercised in a manner is that arbitrary, discriminatory or unlawful. Here the only question is whether the requirement of the Grievor was arbitrary, in the sense that the Employer was not turning its mind to whether it should exercise its right in respect of each absence. I accept that there may be cases in which the Employer has reason to question the absences of a given employee no matter when they may occur and, in such cases, it may be reasonable to require medical certification for all absences on an ongoing basis (I do not address the question as to whether such a “blanket requirement” should be open-ended as each case will be determined on its unique facts). In this case, however, the rationale for requesting certification was the Employer’s concern about the pattern of Monday absences that it had noted. Again, in these circumstances, I consider the requirement of certification for September 30 was reasonable.
I find that the “blanket requirement” for certification of all short-term absences thereafter was not reasonable. If the Employer had limited its requirement for certification to absences on Mondays for some specified period of time, I would not be troubled on these facts. Or, if the Employer had identified some other basis for its concern about the Grievor’s absences that was not limited to the pattern identified by Ms. C.V. as the basis for her direction to Ms. G.S. that would have to be evaluated. But that was not the case.
Accordingly, I am allowing the Grievance and a Declaration will issue in this case.
GRIEVANCE B-1847 (February 14, 2018)
This Grievance alleged that the Employer “…imped[ed] the member in selecting a supply instructor for his class when absent”. It is undisputed that the Grievor was absent for significant periods of time in the fall and early winter of 2018. Ms. G.S.’ evidence was that she experienced difficulty with the Grievor’s management of his supply instructors through the SFE system. Ultimately, she advised the Grievor that she would be assuming responsibility for that function and, in her email to him, she stated:

During your extended absence, it is best for the program if I look after entering your absences into SFE [i.e. SmartFindExpress] and ensuring a regular supply instructor is arranged for your class.

When you specify a supply in SFE, there is no guarantee this individual will actually pick up the assignment. If s/he doesn’t, then SFE calls other available instructors and this results in inconsistency with the class. The students get very upset when they end up with a different supply instructor each night, and they have called to tell me so.

Should you need to extend your absence past Feb 22, I would like to advise you that I will look after arranging the supply instructor for your Bathurst Heights evening class and ask that you do not enter your absence for this class into SFE, but simply advise me that you will be absent.
While the parties made arguments focused on whether the Grievor was, in fact, causing operational issues through his management of the SFE system and whose “right” it was to schedule supply instructors, I find that the real genesis of this Grievance was the Grievor’s perception that he was being “blamed” for students being upset as described by Ms. G.S. While the Grievance was framed as one rooted in the Grievor’s alleged legal rights (“impeding” the member), the real issue was the impact of Ms. G.S.’ email on his sense of self-worth and dignity. As stated by the Grievor, Ms. G.S.’ email “…made me feel guilty and ashamed of the fact that I had disabilities. It made me feel hurt and disrespected. The tone of her email was, to me, insensitive and demeaning”.
The fact remains that this Grievance has been framed as one involving the Grievor’s “right” to schedule replacement instructors. The Union argued that this duty could not be taken away for reasons that were not “objectively rational” and that to do so in this case was “arbitrary’ and “discriminatory”. Further, it argued that Ms. G.S’ email was ‘demeaning” of the Grievor.
In finding that this Grievance must be dismissed, I accept the evidence of Ms. G.S. that she was experiencing operational difficulty as a result of the Grievor’s management of his supply instructors through the SFE system. While arranging for supply instructors may have been one of the Grievor’s duties and responsibilities, the Employer has a right to manage its workplace and I find that taking over this function for the Grievor was both prudent and reasonable. Doing so created no disadvantage for the Grievor and, indeed, he agreed that it removed a task at a time when he was absent on sick leave. I
further find that Ms. G.S.’ email to the Grievor was appropriate and represented an attempt to provide him with the rationale for her decision. It was neither discriminatory nor harassing. While the Grievor may have been hurt by the suggestion that his students were upset by problems with the consistency of instructors, Ms. G.S.’ email, on its face, is both reasonable and rational.
In the result, this Grievance is hereby dismissed.

GRIEVANCE B-1910 (May 29, 2018)
GRIEVANCE B-2054 (February 11, 2020)
GRIEVANCE B-2056 (February 11, 2020)
Grievances B-1910 and B-2054 each assert a failure by the Employer to accommodate the Grievor while Grievance B-2056 alleges a failure to provide a safe work environment. The particulars provided by the Union dated August 28, 2020 states that Grievance B-1910 was filed following the Employer’s failure to arrange or pay for a mental health worker. The particulars provided for Grievance B-2054 alleges a failure by the Employer to accommodate the Grievor in accordance with Dr. McDermid’s “…[recommendation] that the School Board modify the grievor’s workspace so as to minimize distractions and increase the grievor’s ability to concentrate”. The particulars for Grievance B-2056 allege the Employer’s failure to take every precaution to ensure the safety of the Grievor in connection with the Grievor’s failure to hear a fire alarm while wearing headphones provided to him in lieu of modifying his workspace as recommended by Dr. McDermid. The Union further alleged that the Grievor suffered reprisal for having raised this concern.
Each of these Grievances is rooted in the recommendations provided to the Employer by Dr. McDermid. In effect, there are two initial questions to be answered. First, did Dr. McDermid propose “accommodations” for the Grievor’s disability as asserted by the Union and, second, if such accommodations were proposed ought they to have been implemented as not causing the Employer undue hardship?
With respect to the recommendation respecting a mental health worker, I have carefully considered Dr. McDermid’s communications with the Board through the FAF-Cognitive forms and concluded that they did not constitute the recommendation of a required accommodation for the Grievor. In his letter dated March 19, 2018, attached to a FAF-Cognitive of that same date, Dr. McDermid first proposes the possibility of a mental health worker. The language of Dr. McDermid’s respecting this proposal is particularly important and I set it out here again for ease of reference:

Specifically,[the Grievor] would endorse the following, but he notes that if his workplace is not amenable to this recommendation, that he would not want the absence of this support, to keep him from returning to work.

1) Weekly meetings with a mental health worker
In the foregoing statement, it is noteworthy that Dr. McDermid frames the recommendation as that of the Grievor rather than his own and, further, states that the Grievor “…does not want the absence of this support, to keep him from returning to work”. On its face, this is simply not an accommodation recommended by Dr. McDermid but, rather, the expression of a desire of the Grievor that is being related to the Employer by him. This is not a case in which the physician has said to the Employer, “Here are my patient’s restrictions and limitations and here are some measures that I consider necessary to permit my patient to perform the duties and responsibilities of his position”.
Of course, the Employer’s obligation to accommodate the Grievor’s disability is an ongoing one and it cannot be presumed that the Grievor’s situation is static. Accordingly, it is appropriate to consider other medical documents referencing a mental health worker. In the FAF-Cognitive prepared on January 31, 2019, Dr. McDermid attached a letter in which he wrote, in part, as follows:

He would also benefit from a job coach (some with occupational therapy/mental health experience). He has requested something similar in the past.
In a letter dated April 19, 2019, Dr. McDermid wrote, in part, as follows:

To clarify, it is likely there is further need for the creation of humane and supportive structures and opportunities within the workplace, to support this worker upon his return. This should also diminish any likelihood that the employee would find himself in the position of the “victim blamed”. [The Grievor] has already recommended how specific additional supports could go a long way in helping him to achieve this goal.

While this letter does not specifically mention the services of a mental health worker, it appears a clear on a review of all of the documents that this is one of the “additional supports” being referenced.
In a letter dated November 13, 2019, attached to the FAF-Cognitive dated November 6, 2019, Dr. McDermid writes under the heading “Required Accommodations” as follows:
1. He would benefit from having the opportunity to meet with a mental health professional (psychologist/social worker) who could provide timely coaching to deal with on-the-job issues which come up in the workplace…AT THE TIMES WHEN/IF THEY DO COME UP. It is important the employer appreciate how this emphasis in addressing and RE mediating (sic) psychological/emotional pain is equivalent in importance to a person suffering from physical pain needing also to be recognized and appropriately dealt with through accommodation.
In the cross-examinations of the Grievor, the Employer attempted to elicit the origins of the proposal that the Grievor be given access to a mental health worker. From that evidence and a review of Dr. McDermid’s clinical notes it appears clear that the Grievor was the originator of the proposal and that Dr. McDermid was prepared to include it as a recommendation in his reports as he considered it to be
a reasonable (or, at least, not unreasonable) and he viewed the development of such proposals as part of a collaborative effort between himself and his patient.
While Dr. McDermid’s goals in this regard may be laudable, it is also the case that his communications with the Employer simply do not constitute a recommendation by him of an accommodation necessary to facilitate the Grievor’s performance or attendance in the workplace. At their highest, it is characterized as something that would be of “benefit” to the Grievor and not as a necessity. As such, the recommendation that the Employer facilitate the provision of a mental health worker falls into the classification of a resource that would be ideal but is not, in the words of the Employer “a must-have”. I do recognize that Dr. McDermid has included the proposal of a mental health worker under the heading “Required Accommodations” in his letter dated November 13, 2019, but I consider the content of his statement itself, that provision of a mental health worker would be a benefit, to be determinative as to how this proposal should be characterized. Further, the letter of November 13, 2019 must be read in the context of his prior communications. A review of the documentation discloses no significant change that would somehow explain how something that was originally a non-essential proposal of the Grievor has evolved into the requirement of an accommodation deemed to be essential by his physician.
As noted above, Grievance B-2054 dated February 11, 2020 was particularized as dealing with the Union’s allegation that the Grievor’s workspace had not been “…modified so as to minimize distractions and increase the grievor’s ability to concentrate”. The particulars go on to state:

At the return to work meeting [of December 4, 2019], the union and the School Board canvassed various accommodation options, including setting up partitions to divide the office space, moving the grievor to another part of the building, or switching the grievor’s office with one of his colleagues’ offices.

The School Board did not implement any of these options. It took the position that there is no room for the grievor to move elsewhere in the building. While a partition was considered, it would only have been set up on one side of the grievor’s workspace. The grievor’s colleague could not be moved because, according to the School Board, she had been in her office for several years.
Ultimately, the School Board provided the grievor with noise-cancelling headphones.
A careful review of the evidence is again necessary. It appears that issues related to the Grievor’s physical workspace first arose in the spring of 2016. At that time the Grievor requested that he have an office with a door that could lock. This was apparently related to the Grievor’s growing stress and anxiety rooted in his first interaction with a SWAT team in May 2009. In response the Employer advised that it needed an FAF -Cognitive to support the request. Dr. McDermid did supply an FAF-Cognitive but it was judged to be insufficient at the time by a Disability Case Administrator in the Employer’s DCA on the basis that “…the doctor did not indicate any physical or cognitive restrictions to support this request”. Of course, this was to become a refrain that has been heard in the course of the hearing respecting the Grievances under consideration here. Further, the employee with whom the Grievor shared his
workspace was Ms. H. who did not wish to be in a locked office with a male colleague. While the DCA did not support the Grievor’s request, in the meantime, the Grievor’s supervisors had identified an acceptable solution that was implemented.
Turning to the FAF-Cognitive dated March 19, 2018, Dr. McDermid supported a RTW plan for the Grievor made no mention of any changes to his workspace being required. Of course, on September 12, 2018 the Grievor experienced his second interaction with members of a SWAT team as described in his Will-say statement that may be found at paragraph 17, above. Similarly, the letter attached to the FAF –Cognitive dated January 31, 2019 did not reference the need for any changes to the Grievor’s workspace nor did Dr. McDermid’s letter dated April 16, 2019. It was not until Dr. McDermid’s letter of November 13, 2019, attached to the FAF – Cognitive form dated November 6, 2019 that the Grievor’s office environment was addressed. In that letter, again for ease of reference, Dr. McDermid wrote as follows:

[The Grievor] is working on developing a sustainable RTW in conjunction with my assistance.

Upon examining [the Grievor’s] history and the current problems he has experienced in the work place, we have collaboratively developed several specific accommodations, which when incorporated into his RTW, are likely to provide for a more robust and effective RTW plan. These accommodations are based on their likelihood of overcoming possible function and or psychological limitations or risks of decompensation in these areas in future.

Required Accommodations:

1. [The Grievor] will likely function best on a day to day basis upon when there is recognition of physical and psychological safety in relation to the location of his office. Currently his office is in close proximity to an area within the school chosen as “Command Central” when there is an official school lockdown. As you may recall from his file the geographic location of his office had become an extreme trigger for him, related to his past experiences and involvement when swat teams had entered the school, rifles drawn. We would strongly recommend the actual location of his office be away from this area so that he will be less prone to memories of these earlier traumatic experiences.

Second to this, the current office location provides only minimal sound proofing, thereby lowering his ability to focus and concentrate. His office should be located in a quieter part of the building. He can function autonomously. With an emphasis on providing a safe and quiet office he can focus/concentrate without undue interruption. This will assist him to maintain maximum productivity in his work. Directives for work priorities and new assignments can be emailed to him, clarified via voice mail if need be. This will better allow him to plan his priorities, pace his energy level, and monitor his psychological/emotional state, while incentivizing the overall completion of his work in a timely fashion. The accommodation of a locked office remains in effect.
The Employer’s argued first and foremost, that Dr. McDermid had not identified the Grievor’s restrictions or limitations that might support these requests. It further took the position that the
Union suggestion that the Grievor be relocated back to share office space with Ms. H. would be problematic both because dividing the room would leave the Grievor with only one exit and because the Grievor required a locked door while Ms. H. was not prepared to share a locked office space with a male colleague. Finally, the Employer took the position that moving to Ms. H.’s office would not address the underlying issue in a meaningful way as that office was just around the corner from the Grievor’s current office in the repurposed photocopy room. While the latter point is correct, I do note that I was provided with a map of the school and, while Ms. H.’s office is close in proximity, the Grievor’s office was directly across the hall from the area that would serve as the Command Centre in the event of a school lockdown. Finally, the Employer noted that the Grievor had been in his current location since 2016 and that the most recent SWAT team incident had taken place in September 2018.
With respect to the question of environmental noise, the Employer pointed to its various actions taken to ameliorate the Grievor’s concerns, including some soundproofing of Mr. S.S.’ office next door, providing the headphones and white noise generator as well as Mr. S.S.’ evidence that he made efforts to avoid making telephone calls at times when the Grievor was at work. All of these were characterized as steps taken in good faith to address the Grievor’s concerns while, at the same time, not acknowledging that they were required as part of an accommodation.
Finally, it is worth noting that I was advised that upon Ms. H.’s retirement, the Grievor was assigned her office and I received no evidence to suggest that this has not addressed his concerns respecting location, noise or the need to have a locked door.
The question, however, remains as to whether the Employer had knowledge of the Grievor’s restrictions and limitations such that it should have provided accommodation as recommended by Dr. McDermid in his letter dated November 13, 2019. One of the problems in this case is that Dr. McDermid was unable or unwilling to set out clear, concise statements respecting the Grievor’s limitations and restrictions. Reasons for that failure may be that the nature of the Grievor’s disability does not lend itself to such statements or that Dr. McDermid is unable to express himself in that fashion or both. But in any event, some interpretation of Dr. McDermid’s documentation is always required in order to give it meaning in the context of a legal analysis of the participants’ respective rights, duties and obligations.
In the case of the recommendation respecting the location of the Grievor’s office space, I think that Dr. McDermid’s comments do provide the necessary information to the Employer to support an accommodation as proposed. Dr. McDermid provides a rationale for his recommendation stating that a location near “Command Central” acts as an “extreme trigger” for the Grievor. While it must be acknowledged that the Grievor had been in his present location for some time, including following the September 2018 lockdown incident, he was dealing with a patient with a mental disability and it is possible that there was an evolution of the Grievor’s issues
respecting his location or it may have been the product of additional analysis about issues that were impacting the Grievor’s ability to function effectively in the workplace. Accordingly, I accept that this proposed accommodation was reasonable in all the circumstances.
The next question is whether the Employer failed in its duty to accommodate the Grievor in this regard. The Employer took the position that there were no other locations within Burmanthorpe Collegiate that were available other than Ms. H.’s office. The Employer was not prepared to switch Ms. H. from her office on the basis that she had been there for many years and was, herself, dealing with extreme stresses in her life. There was no evidence respecting other possible office spaces within the building and I feel certain that had there been these would have been raised at the RTW meeting of December 4, 2019 and/or that I would have been advised of them in the hearing. Given the limited options available, did the Employer meet its obligation to fully explore possible accommodations. I must find that they did not.
For example, the Employer could have asked if Ms. H. was prepared to switch offices. While they might have correctly anticipated a negative response, it was necessary to take that step as part of the accommodation process. Similarly, when the Union raised the possibility of physically splitting Ms. H.’s office, the Employer response was that this would leave the Grievor with only one exit which, it understood, would be problematic. It was the Grievor’s uncontradicted evidence that he replied that he had been working in an office with one exit for a number of years. Nevertheless, the possibility of physically splitting Ms. H.’s office does not appear to have been seriously considered. Finally, there was the possibility of simply directing the two employees to switch offices. There was evidence to suggest that such a direction might have created further issues as Ms. H. might have asserted that her rights would be infringed by such an action but, for the purposes of this case, the issue is that this possibility was never considered, analyzed or explored.
Further, I note that the Employer did attempt to address the noise issue identified by Dr. McDermid. While at the hearing the Employer took the position that it was not required to implement Dr. McDermid’s proposal that the Grievor’s office be relocated in the absence of sufficient information respecting his restrictions and limitations, at the same time it was taking steps to address the Grievor’s noise concerns about his present work location. The information in the hands of the Grievor in respect of both these “location” issues was the same.

Of course, the reality is that the Grievor did return to work following the December 4, 2019 RTW meeting and while problems ultimately derailed that process early the following year, there has been no suggestion that the problems with the RTW were specifically a function of the Grievor’s office location. More important, the Grievor was subsequently reassigned to Ms. H.’s office. In all the circumstances, it is appropriate to award declaratory relief in respect of this aspect of the Grievance.
Turning to the issues respecting the noise problems with the Grievor’s office, the Employer again submitted that there are no restrictions and limitations provided by Dr. McDermid that would support the implementation of the accommodation proposed. Of course, Dr. McDermid was not suggesting that the Grievor’s present location be soundproofed but, rather, that the Grievor be situated in a different location that was quiet. In that respect, I read Dr. McDermid’s recommendation respecting a quiet location as secondary to his primary recommendation that the Grievor’s office be located away from Command Central.
In reading the FAF – Cognitive associated with the letter of November 13, 2019, the doctor has not ticked any of the boxes respecting the Grievor’s cognitive abilities to indicate whether they are “full” or “limited”. Rather, he has added a note stating:

Due to the nature of his illness it is reasonable to expect a fluctuation of abilities in all of the above-mentions categories. Once the accommodations are implemented, I suspect there will be a decline in frequency of fluctuations. It would be therapeutic to allow [the Grievor] to “self-direct” & ask his supervisor for assistance.

It should be noted that the cognitive abilities listed in the Employer’s FAF-Cognitive form include “attention and concentration”, “multi-tasking” and “abilities to organize”.
As noted above, the Employer did not move the Grievor’s office location and I have found that they failed in their obligation to make appropriate steps to explore all options in that regard. Nevertheless, the Employer did take steps to address the noise concerns raised by Dr. McDermid. Those steps are noted in paragraph 250, above. I think it is appropriate to address the Employer’s actions as if relocation of the office had not been requested. In other words, was the recommendation of a “quiet” office supported by the Grievor’s limitations and restrictions and, if so, was the accommodation provided by the Employer sufficient.
In his FAF-Cognitive of November 2019 and its attached letter, Dr. McDermid is, for the first time, identifying a quiet workplace as a “required accommodation”. This is identified as a secondary concern to that of being located away from Command Central. Again, however, I consider the accommodation request to be supported by the restrictions and limitations provided by the Grievor’s physician. Those restrictions include fluctuating abilities to concentrate, multi-task and organize, all of which may be impacted by the environment in which the Grievor works.
While the Employer never specifically stated that they considered a quiet workspace an accommodation required by the Grievor, as a practical matter they conducted themselves as if it were. Those efforts included some changes to the physical workplace through limited soundproofing, introduction of devices intended to address the problem (the headphones and white noise machine) and some efforts by the Grievor’s supervisor, Mr. S.S., to adjust his work practices while the Grievor was
present. All of these steps were taken in good faith and I heard no suggestions from the Grievor or the Union as to other steps that might have been taken in the alternative (short of moving the Grievor’s office which has been addressed above). While this is a somewhat hypothetical exercise, I think it is important to state that if the issue was whether the Employer had taken sufficient and reasonable steps to accommodate the Grievor’s need for a quiet workspace in his present location, that Employer satisfied its obligations in that regard. In particular, I note the willingness of Mr. S.S. to be sensitive to the Grievor’s concerns and attempt to change his own style of communication in order to help meet the Grievor’s needs in this regard. While that is an attitude and approach always to be desired, it is certainly not always found.
Finally, I turn to the Grievance related to the Grievor’s health and safety issue associated with the use of his headphones. On January 20, 2020 the Grievor was wearing the noise-cancelling headphones provided by the Employer and did not hear a fire alarm. As a result, he remained in the building. The Grievor filed a Health and Safety Concern/Near Miss Incident Form. Mr. S.S. provided a reply stating that the headphones were designed to allow announcements to be heard, that the Grievor had not used the white noise generator and, finally, its use together with the “imminent installation of acoustic tiles” in Mr. S.S.’ office the problem should be resolved. The Grievor responded that he had used the white noise generator and it did not work.
The Union’s particulars also stated that the Grievor suffered reprisal as he was sent a request for a medical update on the same date that he filed the Incident Form above. The Union appeared not to pursue this allegation either in evidence or argument and I note, in any event, that requests for medical updates were sent by the DCA that would be unlikely to be aware of the Grievor’s Incident Form on the same day as it was filed.
I cannot find that the Employer was in breach of any of its contractual or statutory duties in its actions associated with the use of the noise-cancelling headphones. Pursuant to section 25(2) (h), of the Occupational Health and Safety Act, the Employer is obligated to “… take every precaution reasonable in the circumstances for the protection of a worker”. In this case, the Employer’s uncontradicted evidence was that they purchased noise-cancelling headphones that were designed to allow the wearer to hear announcements, such as those that may be broadcast on an airplane, while reducing noise from nearby conversations. The Grievor’s evidence in this case was that he did not hear the fire alarm but there was no evidence that this was because the headphones provided by the employer were not fit for the purpose as described. The Union has not satisfied its onus of proving on a balance of probabilities that the Employer did not meet its legal obligation and the Grievance is dismissed.

GRIEVANCE B-1914 (November 12, 2018)
This Grievance relates to the alleged failure of the Employer to provide the Grievor with a “refresh” of sick leave credits at the commencement of the fiscal year on September 1, 2018. In this case
It is undisputed that the Grievor was absent on his last scheduled day of the previous fiscal year for reasons related to his mental health disability. He was also absent on his first scheduled day of the fiscal year that commenced on September 1, 2018. Article C.6.1(d) provides that permanent employees, such as the Grievor, will be provided with a new allocation of sick leave days on September 1 of each year subject to the following exception:

Where a permanent Employee is accessing sick leave and/or the short-term disability plan in a fiscal year and the absence continues into the following fiscal year for the same medical condition, the permanent Employee will continue to access any unused sick leave days or short-term disability days from the previous fiscal year’s allocation.

An employee captured by the exception above must then return to work and “…complete eleven (11) consecutive working days at their regular hours…” in order to receive the new allocation or “refresh”.
But there is also an exception to the exception set out above. The final paragraph of C.6.1(d), above provides:

If a permanent Employee is absent on his/her last regularly scheduled work day and the first regularly scheduled work day of the following year for unrelated reasons, the allocation outlined above will be provided on the first day of the fiscal year, provided the employee submits medical documentation to support the absence, in accordance with paragraph (h).
In this case, the Grievor asserts that he falls into the exception set out above as he was absent on his first scheduled day following September 1, 2018 for a reason “unrelated” to his absence on the last scheduled day of the prior year. As noted above, his absence in June 2018 was due to his mental health issues while he states that his absence on his first scheduled day in September 2018 was due to bronchitis.
Of course, the exception set out in paragraph C.6.1(d) at paragraph 266, above, states as a condition that the employee must “submit medical documentation to support the absence, in accordance with paragraph (h). That sub-article states:

h) Proof of Illness

A Board may request medical confirmation of illness or injury and any restrictions or limitations any Employee may have, confirming the dates of absence and the reason thereof (omitting a diagnosis). Medical confirmation is required to be provided by the Employee for absences of five (5) consecutive working days or longer. The medical confirmation may be required to be provided on a form prescribed by the Board.

Where an Employee does not provide medical confirmation as requested, or otherwise declines to participate and/or cooperate in the administration of the Sick Leave Benefit Plan, access to compensation may be suspended or denied. Before access to compensation is denied,
discussion will occur between the Union and the school board. Compensation will not be denied for the sole reason that the medical practitioner refuses to provide the required medical information. A school Board may require an independent medical examination to be completed by a medical practitioner qualified in respect of the illness or injury of the Board’s choice at the Board’s expense.

In cases where the Employee’s failure to cooperate is the result of a medical condition, the Board shall consider those extenuating circumstances in arriving at a decision.
In our case, the Grievor did not provide medical documentation or proof of illness at the time of his absence on September 10, 2018. It was his evidence that he has recurring issues with bronchitis and does not immediately seek medical attention unless it persists. In this case, the Grievor stated that he eventually went to a walk-in clinic on each of October 2 and 9, 2018. He also provided a pharmacy record showing that he filled a prescription for Amoxicillin on September 23, 2018. There was no evidence how the Grievor obtained a prescription for this prescription that predated his clinic visits but it is possible that he had a prior prescription with “refills” as his bronchitis was a chronic condition or he may have obtained a telephone prescription.
The Grievor also provided copies of emails he sent to his supervisors and a representative of the DCA, Ms. S.R.. In particular the email to Ms. S.R. on September 16, 2018 stated that he was “physically unwell”. His email of September 23, 2018 to his supervisor, Mr. S.S., stated that he went to a walk-in clinic and “…what I thought I was dealing with was confirmed”. The Grievor further stated in that email that he had been prescribed medication that he hoped would “kick in” so at to allow him to return later that week.
Subsequently, the Grievor was advised that he was advised by Ms. C.S. on December 18, 2018 (subsequent to the filing of the Grievance) that:

As you were absent on your last regularly scheduled work day last work year and again on the first work day this year for an assignment, you are required to complete an 11 day refresh period. I understand that you’ve indicated that there is a different reason for being absent, however, the original medical condition that had you absent last year is still continuing in addition to a new medical condition this year.
The Grievor’s evidence was that his mental health issues were not a factor in his absence on September 10, 2018 and he was not at work solely as a result of his bronchitis which was similarly not a factor in his absence in June 2018. Accordingly, it was submitted that he entitled to a refresh of his sick leave credits as of September 1, 2018.
Much of the argument hinged on the decision of Arbitrator Davie (see: YYY. Toronto District School Board v. CUPE, Local 4400, re Sick Leave Refresh (Award). I have reviewed the decision carefully.
Arbitrator Davie sets out the issue before her and it is somewhat different than that arising in this case. Arbitrator Davie writes:

The issue is … whether permanent employees are entitled to a sick leave allocation each year on the first day of the fiscal year or whether employees accessing sick leave on the last regularly scheduled day of the previous fiscal year, who attend on the first regularly scheduled day of the following fiscal year, must work eleven (11) consecutive days before their sick leave is “refreshed”.

As will be noted, the learned arbitrator is considering the situation of employees who do attend work on their first scheduled day in the following fiscal year. While Arbitrator Davie certainly deals with issues related to the same articles that are under consideration here, her starting is different.
Arbitrator Davie finds that when an employee who attends work on the first day of the new fiscal year is subsequently absent prior to the completion of eleven (11) consecutive days for the same medical reason that caused their absence on the last day of the prior fiscal year, they are not entitled to a “refresh” of credits but may only access credits from the prior year. In this regard, she states as follows:

I find that when it comes to the “same medical condition”, the direction and exception in article
6.01 (d) is that the employee who has been accessing sick leave must continue to use the same sick leave allocation they were accessing the previous fiscal year. The employee is not permitted to access a new allocation of sick leave to which they are or may become entitled in the current fiscal year. They must continue to access the previous year’s allocation.
Arbitrator Davie also notes the exception under consideration in this case, writing:

That the focus of the first paragraph of article 6.0 1(d) is on whether employees are accessing sick leave, and not on whether employees are present or absent on particular days, is emphasized by the very distinct and different language used in the final paragraph of article 6.01 (d) pertaining to permanent employees. In the last paragraph, in very narrow circumstances which focus on the absence of the employee on the first and last day, if the employee’s absence is for “unrelated reasons”, the employee may receive their sick leave allocation on the first day of the fiscal year.
They will then be able to use that sick leave to cover their absence on the first regularly scheduled day. In other words, such employee need not continue to access unused sick leave from the
prior year because their absence is not for the “same medical condition” and is not a reoccurrence of the medical condition for which they had accessed sick leave in the prior year..

The language of this last paragraph stands in sharp contrast to the language used in the first paragraph. If the parties intended the exception in first paragraph of article 6.01 (d) to depend on an employee’s attendance or absence on a particular day rather than on an employee’s access to sick leave they would have used language similar to that used in the last paragraph.
The Employer points to Arbitrator Davie’s statements respecting the obligation on employees to provide certification or proof of illness to the employer pursuant to this Article. In dealing with an employee who may be eligible for the exception under the first paragraph of Article C.6.1(d), the learned arbitrator writes:

In my view, where an employee advances a claim that the absences were not for the same medical condition the onus is on the employee to establish that fact. In the absence of such an assertion or claim the Employer is entitled to presume that the continued absence in the following year is for the same medical condition which caused the employee’s absence on the last day of the prior fiscal year and for which the employee accessed sick leave.

In the result, the employee who was determined to potentially eligible to claim the benefit of the exception in first paragraph of Article C.6.1(d) was given thirty (30) days to provide certification to the Employer to prove that her absences in the new fiscal year were for different reasons than those in the prior year.
In this case, the Union argues that the Grievor falls into the exception set out in the final paragraph of Article C.6.1(d). The question to be determined is whether he has satisfied the condition requiring that he “submit… medical documentation to support the absence, in accordance with paragraph (h)”. There are a number of issues raised by this language. First, the condition states that the Grievor must submit the documentation to “support the absence” but it makes no reference to that documentation supporting that the absence is for a particular medical reason. Indeed, a review of Article C.6.1(h) discloses that such documentation should omit any diagnosis. If sub-article (h) is followed, the Employer will not, in fact, receive the very information that it requires to determine if the employee is entitled to a refresh.
Next, the evidence disclosed that, while the Grievor was absent on September 10, 2018, the first scheduled day in the new fiscal year, he was at work on his next two regularly scheduled days. Accordingly, pursuant to Article C.6.1(h) the Employer’s entitlement to proof of illness was a matter of discretion (only absences of five (5) or more days result in a mandatory requirement for proof of illness). In this case, there is no suggestion that the Employer sought certification from the Grievor in connection with his absence on September 10, 2018.
In this case, the Grievor has testified that his absence on September 10, 2018 was due to bronchitis. In support of that direct evidence there is corroborating evidence of his emails to Ms. S.R. and Mr. S.S., both of which make statements consistent with his suffering from a physical ailment. The Grievor had a prescription filled on September 23, 2018 for a medication used in the treatment of bronchitis. Further, the record is clear that the Grievor does have bronchitis on a recurring intermittent basis. The Grievor was at work both before his absence as a supply and following that absence for two
(2) days. In the absence of any evidence that his illness on September 10, 2018 was related to his
mental health issues, I am satisfied that he has met the test for a refresh of sick leave entitlement pursuant to the final paragraph C.6.1(d). The Employer did not seek the proof of illness to which it was entitled at the time (and which, in any event, would have omitted a diagnosis). Accordingly, this is not a case in which the Grievor is required to provide additional medical documentation to the Employer and his sick leave refresh for the 2018/19 fiscal year should be made effective September 1, 2018.
I wish to note that an evidentiary issue arose at the end of the parties oral argument on this Grievance. Notes from the Grievor’s attendance at the walk-in clinic on October 2 and 9 , 2018 were omitted in error from the documents tabled by the Union and a motion was made to have them admitted. While the notes were said to be of limited probative value, the Union wished to ensure that a complete record was before me. I received written arguments from the parties on my jurisdiction and discretion to admit evidence in these circumstances. Given my determination of this Grievance it is unnecessary to consider the evidence or rule on the motion.

GRIEVANCE B-1965 (April 18, 2019)
GRIEVANCE B-1946 (February 9, 2019)
GRIEVANCE B-1947 (February 19, 2019)
GRIEVANCE B-1949 (February 25, 2019)
GRIEVANCE B-2055 (February 11, 2020)
Each of these Grievances arises from the Employer’s requests for medical information. The Union asserts that the Employer’s requests for FAF -Cognitive forms in the period between April 2019 and November 2019 were improper as the Grievor was effectively absent from work and the only purpose for documentation would be to verify his illness. For periods when the Grievor was seeking to return to work, it was submitted that the Employer requests for information were “excessive” and “unnecessarily intrusive”. It was argued that the Employer was not entitled to information respecting the Grievor’s treatment as required by the Employer in its questionnaire to Dr. McDermid in February 2019. The Union also took the position that the Employer improperly sought medical information in its request of January 21, 2020 and, while that Grievance alleges that this constituted harassment of the Grievor, I have elected to deal with it at this juncture as the allegation flows from a request for medical information. And, finally, it was submitted broadly that the Employer had no reasonable or bona fide reason to question the information provided by Dr. McDermid.
In dismissing each of these Grievances I have carefully reviewed and considered the extensive record of dealings between the Grievor, his physician and the Employer. With respect to the requests for information between April 2019 and November 2019, it will be recalled that Dr. McDermid had provided an FAF-Cognitive on January 31, 2019 stating that the Grievor did not have any medical impairments and was currently not on a medical leave. The Grievor, of course, was not at work at this time and the FAF-Cognitive from Dr. McDermid started a cascade of communications that is completely understandable. Indeed, in his cross-examination the Grievor acknowledged that many, if not all, of the Employer’s
requests were understandable or logical from their perspective. Following the eventual conclusion of the events started by Dr. McDermid’s FAF-Cognitive of January 31, 2019, the Employer accepted that the Grievor’s continuing absence for medical reasons.
There was a form letter sent by the Employer in July 2019 seeking information as to whether the Grievor would be attending work for the 2019/20 school year. That letter is not personalized to the Grievor and is intended to gather information as part of the Employer’s operational planning for the next school year. Finally, there was a request for a further FAF-Cognitive that resulted in the medical documentation from Dr. McDermid leading to the RTW meeting of December 4, 2019. That the request was reasonable is demonstrated by the very fact that it appears to prompted Dr. McDermid and the Grievor to have reviewed the feasibility of a RTW.
To the assertion that the Employer’s requests were excessive and intrusive, I can only say that each of the requests for additional documentation from Dr. McDermid flowed naturally from issues or questions created by his documentation that preceded it. Dr. McDermid’s style of writing in which he phrased many of his comments as originating with Grievor, his unwillingness to use the formats provided by the Employer and is somewhat dense writing style (although I am no position to criticize in that regard!) all lent themselves to reasonable concerns and questions on the part of the Employer. The Employer perceived that Dr. McDermid was walking a tightrope between his duty to his patient and his obligation to provide meaningful and honest information to the Employer. An example illustrating that dilemma may be seen in an email written by Dr. McDermid to the Grievor dated March 19, 2019 in which he addresses concerns about his replies to the Employer’s questionnaire (sent in the wake of his FAF-Cognitive of January 31, 2019 asserting the Grievor was “at work”):

They are not in receipt of the letter because it has not yet been sent out. The more I reflected on the queries that the writer had requested answers for, the more I felt I would need time to consider appropriate responses.

I am aware that I had begun to work on a response to question number eight while you were in my office during our appointment last week. On the basis of formulating a reasonable response to that question I thought that I would be able to provide this letter to them forthwith. However as I read the other questions, I believe that your school board deserves appropriate answers and I do appreciate the nature of their concerns. but it strikes me that some answers could put you or leave you in jeopardy given that you do not have any active disability insurance at your place of work. Of course I am aware that you have let me know that you do not in the end really care if your place of work is going to make it so difficult that you will not be able to find a way in which to manage your job but also take care of your own mental emotional and health needs generally. I think it is important that you and I consider the services which are available that could realistically be helpful to you. It is obvious that you can only usefully apply so much from your own self care and what you are able to manage from me when we are not dealing with a sea of forms.
Of course, one of the major considerations has been finding an acceptable service provider in a residential day program. I recall that some time ago Mt. Sinai Hospital’s Day Program was considered a possibility. Perhaps they had a waitlist problem. You may already have a list of providers within your region and closer to home which is what you understandably wanted [who may be able to provide useful support].

Although I am very sympathetic with your concerns over needing additional supports at the workplace, it does not appear that the workplace has been able or is willing to provide anything what you were hoping for. This has made it more difficult for you at your place of work. I thought it was not unreasonable to support the kinds of requests that you had put forward and I had essentially copied all of your recommendations into my response letter to the school board individual at the time.

Now I am more of a quandary myself as to how best to continue to support you given that it would appear the school board is saying they would rather have you there only if you are capable of sustained work.

Given that history is the best predictor of future I am not able to give them that reassurance. I think the letter writer’s summary of absences suggested about 50% of the time you were not able to be at your place of work.

I am not certain that your recommendation to build up block amounts of time —based upon your presence at the workplace — which would then be able to be used on those days when you were not feeling or being as functional, was acceptable to your employer.

Therefore I have many ongoing concerns and questions and believe that any rapid response is not in your interest and needs also to be thought through. My attempts thus far have been based upon how best to support you given that there is no disability insurance at the workplace for you.

You have always impressed me as being so very intelligent and I believe also extremely competent as an administrator and supporter of students, and I have no doubt that this is indeed the case.
The real issue here is how best to assist you to be able to be at your work in a consistent way. I am concerned that providing medical notes is no longer likely to be appropriate or affective. The only next likely move on the part of the school board would be to request an independent medical examination. I think that your absences alone would suggest that you are not effectively capable of sustained work at this workplace given the various stressors and tensions in your working environment. It is possible that your own responses to these stressors are amplified because of the instances where you have felt either misunderstood or simply disrespected and disregarded. There were several instances when you felt you were not provided any adequate supportive response on the part of your employer to difficulties that were beyond your own capacity to control. I get this, however the questions that I am now charged with answering do put me in a bind in terms of deciding on the best responses which are necessarily honest but will not put your job into further jeopardy.
Of course, the Employer did not have this email before them at the times they were making their requests for medical documentation or assessing accommodation requests but it does demonstrate that a number of their concerns were not unfounded.
The Union argued that the Employer was not entitled to the information sought in three of the questions in its letter dated February 21, 2019 to be provided by the Grievor to his physician. Each of those questions were related to the Grievor’s treatment plan, stating:
1. Please confirm if [the Grievor] is actively participating in ongoing treatment plan? If not please explain.
2. If so, and no improvement noted, given the length of his ongoing concerning absences, has augmentation of treatment been considered? If not, please explain.
9. The medical documents indicate “anxiety disorder”. Has [the Grievor] been provided with tools and resources to tap into to identify triggers and/or attend to symptoms when symptoms exacerbates? (sic)

Following the Union’s intercession, Question 9 was removed from the list of questions but Questions 3 and 4 remained and were eventually forwarded to Dr. McDermid for reply.
It was the position of the Union that the Employer was not entitled to information about the Grievor’s when that treatment would not directly impact his ability to do his job. In this case, I do not consider Questions 3 and 4 to be improper. They are not seeking information about the nature of any treatment that the Grievor may be receiving but, rather, are seeking confirmation that the physician and Grievor are actively engaged in a treatment process. That information is relevant to the Employer’s assessment of the Grievor’s ability to sustain attendance in the particular circumstances of this case.
With respect to Grievance B-2055, the Union’s particulars state that following the RTW meeting on December 4, 2019,

…the Employer asked for an updated FAF on January 21, 2020.

The grievor asked for clarificatioin as to why more information was required. The School Board responded that it needed to monitor the grievor’s progression with regard to restrictions/limitations.

The union’s position is that the School Board has engaged in a patern of harassing behaviour toward the grievor with its continuing medical requests and has further failed to address the grievor’s harassment complaints.
In this case it will be recalled that the Grievor returned to work following the December 4, 2019 meeting and commenced working two (2) days per week at 5.5 hours per day further to Dr. McDermid’s RTW plan. The Grievor was scheduled to move to three (3) days per week in January 2020. Unfortunately, in the first two (2) work weeks of that month he attended work for only two (2) days per week. Ms. S.A. accordingly requested that an updated FAF – Cognitive be provided by the Grievor’s position as he had been unable to maintain the schedule RTW plan. I note that this was the second time that the Grievor was unable to maintain a RTW plan as proposed by Dr. McDermid. In all the circumstances, I consider the Employer’s request for an updated FAF-Cognitive to have been reasonable and rational.
Finally the Union asserted that the Employer had no reasonable or bona fide reason to question the information provided by Dr. McDermid. I must respectfully disagree. There were instances where Dr. McDermid provided information that was fundamentally incorrect such as his FAF-Cognitive of January 31, 2019. There were many instances of the doctor expressing proposed courses of action as the wishes of his patient. There were instances of Dr. McDermid providing information that was non-responsive to the questions posed or formatted in an overly complex and confusing manner such that clarification was necessary. In sum, I find that the Employer’s requests for information were appropriate and reasonable in every regard. These Grievances are dismissed.

GRIEVANCE B-1948 (February 19, 2019)

This Grievance relates to the Employer’s handling of the Complaints filed by the Grievor with the Human Rights Office in February 2019 (updated on April 16, 2019) and on July 10, 2019. While I was provided with copies of the Complaints and the parties provided some evidence with respect to the Grievor’s allegations, the submissions of the parties were focussed on the manner in which the Human Rights Office handled the investigation and there was no suggestion that I was being asked to make determinations on the merits of those Complaints. At the same time, the parties will appreciate that a number of the Grievances deal with matters that overlap the matters raised in the Complaints.
The following facts are central to my determination of this Grievance. First, Ms. V.P. of the Human Rights Office confirmed that the April 16 Complaint naming Ms. S.B. as a respondent included allegations that Ms. S.B. had harassed the Grievor in the manner in which she carried out her functions. Second, Ms. V.P. confirmed that at the time she was performing an assessment of the Complaints, the Grievor did not indicate that they were the subject of a grievance or, if there was a grievance, it was being held in abeyance. Third, the Grievor was provided with an email produced by Ms. V.P. dated August 26, 2019 with a reference line indicating it was in respect of his April 16 Complaint stating that his Complaint “…did not meet the threshold of workplace harassment or discrimination”.
As set out in the Factual Background, on September 10, 2019, Ms. Preston requested the Human Rights Office to advise what criteria were used to determine whether a particular complaint met the “threshold” referenced in the August 26 email to the Grievor. Ms. Preston also noted that the Ms. V.P.’s email to the Grievor had been in respect of the first Complaint but that he had not received confirmation that his second Complaint had been received. Ms. V.P. replied to Ms. Preston on November 5, 2019, stating that the contents of his complaints, plural, had been reviewed in detail and were determined not to meet the threshold of workplace harassment or discrimination. Further, the email appeared to indicate that the second Complaint from July 10 were “…reviewed as part of his complaint for which an assessment was made”. It is fair to say that Ms. Preston’s question respecting the criteria used to determine if a complaint met the threshold was not answered.
An undated document titled Threshold Assessment was produced with Ms. V.P.’s Will-say. In the section titled “Analysis”, Ms. V.P. wrote, in part, as follows:

It is not the function of the HRO to investigate whether the Disability Claims Office has properly exercised their discretion, as part of their role and responsibility, to ask for more information in a workplace accommodation process. It is not unusual and may even be reasonable for the respondent [Ms. S.B.] and her Office to seek more information as part of this process.

In addition, the complainant raised incidents that occurred in 2016 and 2017, which extend beyond the timeline requirement, as indicated in PR515. Some of these incidents also appear to be the subject of a grievance. However, the status or outcome of this action is unknown.

Assessment/Recommendation

Based on the above, the HRO determines that the above allegations do not meet the definition of harassment, are untimely; and have been subjected to grievance action. Therefore, the HRO recommends that this matter should not be investigated.
The Employer’s policy governing investigations provides timelines for the handling of Complaints. Acknowledgement that a complaint has been received takes place with seven (7) business days. Following acknowledgment and employee’s supervisor or the Human Rights Office is to advise the complainant of “next steps” within ten (10) business days. If a matter is assigned for investigation that process takes place within 90 to 150 days. Finally, recognizing there may be delays, parties are to be advised of the delay and provided within a reason why.
There were multiple issues with the handling of the Grievor’s Complaints based on the Employer’s own policies and evidence. Ms. V.P. considered that the matters were the subject of grievances despite the Grievor having indicated that any grievances were in abeyance. There was no evidence to suggest that Ms. V.P. had any information that the Grievor’s statement was not, in fact, the case and there was no evidence before me respecting the status of any grievances he may have filed as of the date of the
Complaints. In her assessment of the Complaint to which Ms. S.B. was the respondent, Ms. V.P. focused on the role of the DCA and the necessity it may have to seek more information in dealing with employees and did not address the Grievor’s allegations of harassment. In cross-examination, Ms. V.P. acknowledged that events that were otherwise untimely might be considered in a complaint where the most recent events in a course of conduct were timely. Lastly, the Human Rights Office handling of the Grievor’s Complaints was manifestly untimely under its own policies. Further, the policy provides the Office some leeway but requires communication respecting delay and this was not provided to the Grievor.
None of this is to suggest that the allegations of the Grievor in his Complaints should be taken as proven. Nor is to say that a proper threshold assessment would or would not have come to the same conclusion. But it seems clear that that the threshold assessment that was performed was both untimely cursory and failed to apply proper criteria. Ms. V.P. stated in her evidence that there was a significant backlog at the Human Rights Office and I have no doubt that may be true. But the Employer has an obligation to ensure that its own policies are followed by those with responsibility for their application and a shortage of resources does not constitute an acceptable excuse for the failures in this case.
Again, this is not a finding on the substantive elements of the Complaints (except to the extent that allegations may also have been raised in the Grievances before me). But the handling of the Grievor’s Complaints constitute procedural flaws. To the extent that is so, the Grievance must succeed.

GRIEVANCE B-2078 (April 14, 2020)
This Grievance deals with the Grievor’s claim that his RTW plan should have been continued following the Union’s request in late March 2020. I must acknowledge that I consider this the most difficult of the Grievances before me. On the one hand, the Employer was dealing with a RTW plan that had failed in its earliest stages. The Grievor was to return to work for three (3) days per week and was only able to attend for two (2) days per week in the first two (2) weeks of that schedule. He had not been able to sustain attendance for many years and a previous RTW had failed in a similar fashion. Further, the Employer was in receipt of an FAF- Cognitive from Dr. McDermid dated March 13, 2020 that continued to identify his cognitive abilities as “fluctuating”. In the view of the Employer there was no new medical information that would support the reinstitution of a plan that had already failed and that provided no certainty of future sustainable attendance. The Employer was prepared to continue the two
(2) days per week schedule as it appeared to be working.
On the other hand, the Union submitted both that there was reasonable medical support from Dr. McDermid for the reinstitution of the RTW plan and there was a material change in circumstances with the advent of remote work during the COVID19 pandemic that should be factored into the Employer’s consideration. It was clear that some of the Grievor’s issues arose in the course of his physical presence
in the workplace, whether those were environmental issues (e.g. office location, noise) or his interactions with certain individuals.
I must also take into consideration the information available to the parties at the time. It is easy to look back and recognize how fundamentally workplaces were changed for many, many months especially in the education sector. In March 2020 or on April 16, 2020 when the parties had a lengthy conference call, it was not then foreseeable that remote work would be with us for as long as was the case.
There are rational and valid arguments that have been raised by both parties, but I consider that this is a case where a reasonable accommodation would have seen the Grievor’s RTW plan reinstituted during the course of the pandemic. While Dr. McDermid’s FAF – Cognitive medicals did not provide the Employer with specific statements about the Grievor’s restrictions and limitations nor any certainty about how, when and to what extent his fluctuating cognitive impairments might impact his ability to sustain attendance, it is also clear that the introduction of remote work - the product of an unforeseen pandemic - changed the landscape such that continuing the RTW plan became a realistic option. In this regard, Dr. McDermid’s documentation identifying the workplace stressors that contributed to the Grievor’s mental health challenges and, therefore, his attendance had relevance. At this point it was incumbent on the Employer to look beyond which boxes Dr. McDermid had ticked off and to assess the RTW plan on the totality of the information he provided. Had the requirement for remote working come to an end, it would have been open to the Employer to reassess its accommodation based on the circumstances then in effect. Further, if the Grievor proved unable to maintain attendance in accordance with reinstituted RTW plan it could, again, be terminated.
In the result, the Grievance is allowed and the Grievor shall be deemed to have been fit to recommence his RTW plan following the meeting between the parties of April 16, 2020.

THE INDEPNDENT MEDICAL EVALUATION
The parties have remitted to me the question of the propriety of the Employer’s requirement that the Grievor participate in an IME. Article C.6.1(h) provides, in part, as follows:

Where an Employee does not provide medical confirmation as requested, or otherwise declines to participate and/or cooperate in the administration of the Sick Leave Benefit Plan, access to compensation may be
suspended or denied. Before access to compensation is denied, discussion will occur between the Union and the school board. Compensation will not be denied for the sole reason that the medical practitioner refuses to provide the required medical information. A school Board may require an independent medical examination to be completed by a medical practitioner qualified in respect of the illness or injury of the Board’s choice at the Board’s expense.
In this case the Union has submitted that the Employer must have an objective basis on which to conclude that Dr. McDermid’s medical(s) are properly at issue. An IME should not be used to “second guess” the Grievor’s physician and the caselaw supports that an IME is a resource of last resort. In the Union’s view Dr. McDermid’s medical documentation was reliable and represented an objective assessment of his patient while being mindful of his input. The Employer, unsurprisingly, has a polar opposite view. They consider Dr. McDermid’s medicals to be unhelpful at best and misleading at worst. The Employer points to the most recent FAF-Cognitive forms in which Dr. McDermid strokes out the word “Limitations” and substitutes the word “Accommodations” and, of course, Dr. McDermid’s description of the Grievor’s cognitive abilities as “fluctuating” while providing no guidance respecting the extent, frequency or impact of those fluctuations.
In this case, I consider the Employer request that the Grievor participate to be eminently practical and reasonable. First, I do consider Dr. McDermid’s medical documentation problematic in its failure to give the Employer information in a clear, concise and practical format that would allow them to better carry out their obligation of determining what accommodations might reasonably permit the Grievor to carry out the essential duties and requirements of his position. Second, as a purely practical matter, I observe that these parties and the Grievor have been dealing with this stalemate for all too long and it is sometimes necessary to introduce a new viewpoint in order to get the process moving in the right direction. In this regard, I note Dr. McDermid’s statement to the Grievor of March 19, 2019 in which he seems to be preparing his patient for the prospect that the Employer may be requesting an IME. While Dr. McDermid does specifically express support for this step, it appears, in the context of the entire note, that he views it as one way to get the process and the relationship between the parties back on track.
Finally, there is of course the Collective Agreement language noted in paragraph 302, above. In Accordingly, in accordance with all the foregoing, I must advise the parties that I consider the IME request to have been proper at the time it was made.

REMEDY
The parties agreed to bifurcate issues on remedy pending the issuance of this Award. Based on my rulings above, some remedial issues are properly remitted back to the parties. I would summarize the disposition of the Grievances as follows:

GRIEVANCE B-1229

This Grievance is allowed and a Declaration is issued respecting the Employer’s imposition of a requirement that the Grievor supply medical notes for all absences of three (3) days or fewer between

October 2, 2013 and March 2014. For clarity, it was not found that the Employer breached its obligation when it required a medical note for the absence on September 30, 2013.

GRIEVANCE B-1847

The Grievance is dismissed.

GRIEVANCE B-1910

The Grievance is dismissed.

GRIEVANCE B-2054

The Grievance is allowed and a Declaration is issued respecting the Employer’s failure to canvass all potential accommodations respecting the Grievor’s office location.

GRIEVANCE B-2856

The Grievance is dismissed.

GRIEVANCE B-1914

The Grievance is allowed and the issue of remedy is remitted to the parties.

GRIEVANCES B-1965, B-1946, B-1947, B-1949 and B-2055

The Grievances are dismissed.

GRIEVANCE B-1948

The Grievance is allowed and a Declaration is issued respecting the Employer’s failure to meet its procedural obligation to properly assess and consider the Grievor’s Complaints to the Human Rights Office. I remit to the parties the question of damages and remain seized.

GRIEVANCE B-2078

The Grievance is allowed and a Declaration issued respecting the Employer’s failure to reinstate the Grievor’s return to work plan following April 16, 2020. I remit to the parties the question of compensation and, without limiting the generality of the foregoing, note that any calculation of damages should consider the duration of any remote work requirement, the Grievor’s entitlement to such work in accordance with the Collective Agreement, his mitigation as well as the contingency respecting the Grievor’s ability to have maintained attendance throughout that period.. I remain seized.

Finally, I wish to thank the parties and counsel for their courtesy and professionalism throughout.

DATED this 8th day of June, 2022.

Christopher White

RE: request for production

grievance nos. B-1229 (medical monitoring) B-1847 (supply list)

B-1910 (fail to acommodate) B-1914 (sick leave)

B-1946, B-1949 (medical monitoring, medical information) B-1947 (medical monitoring)

B-1965 (medical information) B-1948 (harassment)

B-2054 (fail to accommodate) B-2055 (harassment)

B-2056 (health and safety) B-2078 (return to work)

Personal Harassment

Violations

Personal Safety and Security

Supply Staff

(For Sick Leave Provisions see Part A - Central Terms - Article C6.00)

SHORT TERM PAID LEAVES

Deductions from Pay

C6.1 Sick Leave/Short Term Leave and Disability Plan Definitions:

“Full year” refers to the ordinary period of employment for the position.

“Permanent Employees” – means all employees who are not casual employees, or employees working in a long-term supply assignment, as defined below.

“Long Term Supply Assignment” means, in relation to an employee,

“Casual Employees” means,

“Fiscal Year” means September 1 to August 31.

“Wages” is defined as the amount of money the employee would have otherwise received over a period of absence.

Sick Leave Benefit Plan

Permanent Employees

Employees on Long Term Supply Assignments

Short-Term Disability Coverage – Days Payable at 90% Wages Permanent Employees

Employees on Long Term Supply Assignments

Eligibility and Allocation

Permanent Employees

Employees on Long Term Supply Assignments

Refresh Provision for Permanent Employees

WSIB & LTD

Graduated Return to Work

Proof of Illness

Notification of Sick Leave Days

Pension Contributions While on Short Term Disability Contributions for OMERS Plan Members:

Contributions for OTPP Plan Members:

Top-up Provisions

Employment

Harassment in employment

Reprisals

8 Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

Definitions re: Parts I and II 10 (1) In Part I and in this Part, “disability” means,

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome; (“harcèlement”)

Disability

17 (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

Accommodation

Determining if undue hardship

Duties of employers

25 (1) An employer shall ensure that,

Idem

Program, harassment

Contents

Duties re harassment

Results of investigation not a report

Information and instruction, harassment

91 – 100 No symptoms. Superior functioning in a wide range of activities, life's problems never seem to get out of hand, is sought out by others because of his or her many positive qualities. [Note that this range is not included in some versions of the GAF]

81 – 90 Absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns.

71 – 80 If symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).

61 – 70 Some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.

51 – 60 Moderate symptoms (e.g., flat affect and circumlocutory speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).

41 – 50 Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job, cannot work).

11 – 20 Some danger of hurting self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute).

1 – 10 Persistent danger of severely hurting self or others (e.g., recurrent violence) or persistent inability to maintain minimal personal hygiene or serious suicidal act with clear expectation of death.

Within the scope of your medical discipline, what is the general nature of the illness/injury? Please identify if the condition(s) is/are acute or chronic in nature?

Within the scope of your medical discipline, do you concur with the medical diagnosis/impairment descriptions that have been provided to date?

Within the scope of your medical discipline, can the examinee reported symptoms be supported by the existence of objective clinical pathology?

Within the scope of your medical discipline, do you suspect functional overlay requiring psychological attention or assessment? If yes, please explain and provide recommendations.

No current limitations, however cognitive abilities may fluctuate, which is to expected with his medical condition.

My patient does not currently have any impairments. He has been diagnosed with a mood & anxiety disorder. I will add some comments at the end of this report to consider as accommodations, recommendations, best practices etc.

My patient is at work @ this time.

Summary of Allegations Disclosed in Complaint

Analysis

Assessment/Recommendation

To Whom It May Concern:

Required Accommodations:

His current accommodations include:

Weeks 1 to 3 – Tuesdays and Thursdays (5.5. hours)

Weeks 4 – 6 – Tuesdays, Thursdays and Fridays (5.5. hours)

Weeks 7 – 9 – Tuesday to Friday (5.5. hours) Weeks 10 – 12 – Monday to Friday (5.5 hours) RTW – Instructor Assignment

Week 13 – Mondays and Wednesdays (2.5 hours)