Emond v. Treasury Board (Parole Board of Canada)
Public Service Labour Relations Act
- Date: 2016-01-25
- File: 566-02-7700
- Citation: 2016 PSLREB 04
Before an adjudicator
(Parole Board of Canada)
Emond v. Treasury Board (Parole Board of Canada)
In the matter of an individual grievance referred to adjudication
REASONS FOR DECISION
- Linda Gobeil, adjudicator
- For the Grievor:
- Chantal Homier-Nehmé and Kim Patenaude, counsel
- For the Employer:
- Michel Girard, counsel
September 26 and December 10 to 13, 2013, and July 28 and 29, 2014.
I. Individual grievance referred to adjudication
1 On April 26, 2012, Line Emond (“the grievor”) filed a grievance against her employer, the Parole Board of Canada (“the employer”). In her grievance, she alleged the following:
… the employer has not complied with the Treasury Board’s Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service with respect to my medical certificates.
The medical notes clearly demonstrated that I was fit for work as of November 29, 2011, but not at 410 Laurier Avenue.
I did not receive any offer that met my medical requirements.
Corrective measures sought
I would like all administrative decisions related to my medical certificates read and interpreted by an employer representative with medical qualifications.
That I be permitted to telework or to find a location other than 410 Laurier Ave., according to the medical certificates that PBC management has already received.
Reimbursement for the sick leave hours used during the process in addition to those that I have been unable to accumulate since I have been under long-term care after exhausting my sick leave, i.e., from December 29, 2011, to today.
Reimbursement for vacation hours lost since I have been under long-term care (December 29, 2011) in addition to those that I have been unable to accumulate to date.
Reimbursement of the “shortfall” since December 29, 2011, considering that I am currently under long-term care because the employer did not comply with the Treasury Board’s regulations and because I am currently receiving only 70% of my base salary, as well as all other losses relating to my pension years.
2 On October 11, 2012, the grievor referred her grievance to adjudication at the Public Service Labour Relations Board under s. 209(1)(c)(i) of the Public Service Labour Relations Act (“the Act”). As required, on October 11, 2012, she also sent a notice to the Canadian Human Rights Commission, under section 210 of the Act.
3 On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the new Board”) to replace the former Public Service Labour Relations Board (“the former Board”) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Act as that Act read immediately before that day.
II. Summary of the evidence
4 The parties recognized that the Parole Board of Canada has employed the grievor since 1975 and that at the time of the grievance, she held a position as a quality and service manager, classified at the AS-06 group and level. In August 2011, she took sick leave until March 2013. Then she was assigned to the Correctional Service of Canada (CSC) for a year, i.e., until March 2014. On that date, she was supposed to return to her substantive position with her employer. As of the last hearing day, i.e., July 29, 2014, the grievor had not yet returned to her substantive position with her employer because, according to her, the corrective measures sought in her grievance, particularly her request to telework or to work at a location other than 410 Laurier Avenue, had not been granted.
5 Throughout the hearing, the grievor essentially tried to demonstrate that her health problems and her refusal to work in the building located at 410 Laurier Avenue, in Ottawa, resulted from a colleague’s abusive and intimidating behaviour and from management’s lack of support with respect to taking steps to remedy the situation satisfactorily.
6 From the start, the parties’ counsel asked me not to name the colleague displaying the allegedly abusive behaviour. I agreed to their request, particularly because they did not summon him to testify. Thus, in this decision, I will refer to the colleague as “Mr. X.” He and the grievor are both members of the Public Service Alliance of Canada (“the union”).
7 In her introductory remarks, the grievor’s counsel maintained that throughout all her years of service for the employer, the grievor’s behaviour has always been irreproachable. Her work has been exemplary, and she has often exceeded expectations. According to her counsel, things took a turn for the worse in fall 2009 when she had to put up with Mr. X’s extreme and intimidating behaviour and when management did not intervene to resolve the problem. Mr. X’s behaviour made the grievor ill; she took sick leave in August 2011 and was on disability leave until March 2013, when she was assigned to the CSC for one year and not at 410 Laurier Avenue, where Mr. X still works.
8 On the last hearing day, i.e., July 29, 2014, the grievor had not yet returned to her substantive position, located at 410 Laurier Avenue, because Mr. X was still working in that building, and she continued to fear encountering him. Her CSC assignment was not extended beyond March 2014.
9 According to the grievor’s counsel, the grievor continued to achieve positive results in her CSC assignment. Consequently, Mr. X was the problem, and unfortunately, the employer failed to discharge its duty to accommodate the grievor. It had the onus to accommodate her by allowing her to telework or by finding her a satisfactory and permanent workplace in a building other than the one in which Mr. X works.
10 For his part, the employer’s counsel submitted that the issue was a conflict between two employees, i.e., the grievor and Mr. X, and not an accommodation issue. However, their situation really soured when Mr. X filed a harassment complaint against the grievor, which was deemed founded in part, and she was subject to discipline. Although the grievor and Mr. X had never gotten along before then, she never filed a complaint against him. Only after his harassment complaint did she file one and take sick leave.
11 The employer’s counsel insisted on the fact that the employer did not discriminate against the grievor in any way. He added that even were I to find that the employer had discriminated against her, I should conclude that she was reasonably accommodated. Counsel explained that to resolve the situation, the employer offered her a desk located close to that of the chairperson, on the 7th floor of 410 Laurier Avenue. Counsel specified that that floor is accessible only to certain people with special authorization and that Mr. X did not have access to it. The grievor refused that proposal before even trying it. As for her telework suggestion, counsel argued that her duties were specialized and that they had to be performed at 410 Laurier Avenue.
A. For the grievor
12 Kellie Leclerc testified for the grievor. As of the hearing, Ms. Leclerc had been on assignment since 2013 with the Human Rights Commission. She essentially stated that the grievor was a colleague since 2008 with whom she has maintained a good relationship. She said that she was uncomfortable testifying in this case because she did not want to be on Mr. X’s “radar”. She too had experienced difficulties with him.
13 Ms. Leclerc described Mr. X as approximately six feet tall and weighing 180 pounds. Initially, her relationship with him was positive even though he was noisy, told jokes loudly, and allowed himself to be flatulent, which made another female colleague laugh. When that colleague left, Ms. Leclerc occupied the office next to Mr. X’s. She specified that she and he were in cubicles, not closed offices.
14 Ms. Leclerc testified that over time, she increasingly had less tolerance for Mr. X’s attitude. Among other things, she recounted that Mr. X entered her cubicle and used her computer without her permission. On another occasion, he interrupted her while she was speaking with her supervisor, to ask for her opinion about a woman whom he had just met. Ms. Leclerc indicated that she had informed Mr. X that that behaviour was unacceptable, which displeased him. She also related another incident in which he yelled at a colleague who had not reconnected the fan that he had lent him. Ms. Leclerc explained that she had confronted Mr. X after that incident to tell him not to yell, to which he apparently replied that “[translation] in any case, everyone yells in the office.”
15 According to Ms. Leclerc, Mr. X bothered other people. In particular, he ran a white noise machine in his office, which affected their concentration. He also had the habit of making bizarre noises, such as strange yawns, which also bothered those who were trying to work. Ms. Leclerc also told of how Mr. X had the strange habit of walking barefoot in the office and then washing his feet with vinegar in front of the others, who found it disgusting. Ms. Leclerc testified that she had shared information about Mr. X’s habits with a colleague, Ms. Ward, as it appeared in the emails in Exhibit G-2.
16 Ms. Leclerc indicated that it was difficult to predict Mr. X’s reactions. If one had good standing with him, there was nothing to fear. However, she wondered about her safety when Mr. X was upset. She testified that she raised the issue of Mr. X’s behaviour, particularly about the white noise machine, with Susanne Brisebois on June 12, 2009. At that time, Ms. Brisebois was Mr. X’s superior (Exhibit G-2). Ms. Leclerc indicated that following management’s intervention, Mr. X turned off his white noise machine. Eventually, he also changed cubicles and was located at the end of the corridor, right by the office then occupied by the grievor.
17 Ms. Leclerc testified that she approached the grievor to see how she was getting along with Mr. X. According to Ms. Leclerc, the grievor seemed relieved that other employees were encountering difficulties with him.
18 Ms. Leclerc went on maternity leave in December 2010. At that time, the grievor asked her whether she could move into her cubicle to be further away from Mr. X. According to Ms. Leclerc, the grievor was agitated and stressed and was trembling. Ms. Leclerc indicated that the employer also had an office at 222 Queen Street in Ottawa and that at that time, videoconference meetings were being held in Ms. Brisebois’ office.
19 When cross-examined, Ms. Leclerc admitted that although she referred to a “kill list” in an email dated May 12, 2009 (Exhibit G-2), she never contacted the police. As for why she had included a “happy face” at the end of that email, she replied that it was her way of making a situation that made her uncomfortable into something more tolerable. She admitted to never filing a complaint or grievance against Mr. X.
20 Marsha Willard also testified for the grievor. Ms. Willard is a project support officer classified at the AS-02 group and level. Before the hearing, she had also been chairperson of the union local since 2009. She worked directly with the grievor when the grievor was the union local treasurer.
21 Ms. Willard indicated being ill at ease with coming to testify, since although she did not fear for her life, she remained worried about the consequences of her testimony. She indicated that in 2010, she occupied a cubicle close to the kitchen and not far from Mr. X’s cubicle. He would often stop at her office to talk about union business on his way to the kitchen. Ms. Willard described Mr. X as noisy. She said that he talked loudly, put his feet up on the desk, and swore, often using the “f-word”.
22 Ms. Willard related an incident that took place in 2011 in which Mr. X came to her office to discuss filing a complaint against the grievor. Ms. Willard then told him that his behaviour might be part of the problem with the grievor, after which he “exploded” and accused her of being partial to the grievor. He also told her that she was a poor union representative. Ms. Ward affirmed that Mr. X’s supervisor, Terry Ryan, as well as David Gorman, came to see what was happening and that Mr. Ryan ordered Mr. X to stop making such a commotion. Two weeks later, Ms. Willard went to see Mr. Ryan to talk to him about that incident; he then minimized it and advised her not to do anything. Ms. Willard also testified about Mr. X’s telephone, which rang very loudly every 10 minutes after he had left for the day; she was one of the rare people still at the office after 4:00 p.m. According to her, Mr. X would have orchestrated it from his house to bother her. She informed Mr. Ryan about it, and the calls eventually stopped.
23 Ms. Willard affirmed that she had been aware of problems between the grievor and Mr. X right after he was assigned the cubicle next to her. He was in cubicle 641, while the grievor was in 642 (Exhibit G-1). The grievor apparently then revealed to Ms. Willard that she had difficulty with Mr. X being so close to her because he made strange noises that bothered her and made her nervous. Ms. Willard then suggested that the grievor file a harassment complaint against him, which she did not do.
24 Ms. Willard indicated that she never witnessed any incidents between those two. However, she related that one day, the grievor left the photocopying room trembling and could not speak. Following that, she became withdrawn, remained in her office, and was afraid to answer the telephone.
25 Ms. Willard testified that she spoke with the acting director at that time, Sheila Ouellette, about the grievor’s problems due to Mr. X’s behaviour. However, just like Mr. Ryan, Ms. Ouellette seemed to believe that it was all in the grievor’s head and that Mr. X talked loudly and nothing more.
26 Ms. Willard indicated that her employer worked closely with the CSC, which had around six other offices in Ottawa. She also affirmed that two of the employer’s officers had worked at the CSC until November 2014 and that to her knowledge, an employee had teleworked in the past.
27 When cross-examined, Ms. Willard admitted that even as chairperson of the local, she had never filed a harassment complaint against Mr. X because she had already alerted management. She affirmed that after Mr. X’s temporary assignment to the 5th floor (he returned in July 2013), two employees told her that they no longer wanted to work as mentors for Mr. X because he used inappropriate vocabulary. Ms. Willard would have recommended that they complain to management. She also admitted being friends with the grievor and that they carpooled and had coffee at Tim Hortons to discuss union business, among other things.
28 Susanne Joly also testified for the grievor. Ms. Joly has held an analyst position with the employer since 1998. She has known the grievor since 2009 and has worked with her in the past. Ms. Joly’s office is on the 6th floor of 410 Laurier Avenue. She testified that one morning, when the grievor was in her office, Mr. X passed by. According to Ms. Joly, he had no reason to pass by her office, and according to her, it was obvious that he did it deliberately, knowing that the grievor was there. According to Ms. Joly, when the grievor saw Mr. X, she began hitting herself on the head with her fists. Ms. Joly then would have advised her not to let him affect her like that. Shortly after that, the grievor left on sick leave. Ms. Joly testified that she never spoke of the incident because she did not want to interfere in the lives of others. She indicated that she regretted not speaking about it. She admitted that during the incident, Mr. X only passed by; he neither said anything nor made any noise.
29 Ms. Joly indicated that she observed a change in the grievor’s mood. She said that she seemed less interested and that she withdrew more and more.
30 Dr. Georges Ramsay, a psychologist, also testified for the grievor (Exhibit G-3). He met her for the first time on September 14, 2011. She told him that Dr. Luc Duchesne, her family doctor, had referred her.
31 Dr. Ramsay testified that during the first meeting with the grievor, she showed symptoms of severe depression. She was sad and exhausted and had some possibly suicidal ideas. According to him, her explanation of her condition was that one month before their meeting, in August 2011, when she was on the verge of leaving on vacation, she received a letter accusing her of having harassed a colleague. Dr. Ramsay testified that she had reacted very poorly to the harassment accusation; she saw it as an attack on her integrity. She said that for two years, she endured the difficult behaviour of a colleague and that although her office was no longer located next to Mr. X’s and that he was the source of her problems, she was accused of harassment. She then told him that Mr. X made strange noises, that he startled her, that he was rather stout, and that he became aggressive (Exhibit G-5, pages 6 and 7). She was also fed up by the cavalier manner in which she was informed of the harassment complaint, which was in the corridor just before she left on vacation.
32 According to Dr. Ramsay, the grievor’s fear was not specific; nevertheless, her anxiety level was very high. He also affirmed that according to him, the trigger element for her condition was receiving the harassment complaint just before leaving on vacation. He saw her several times after that. The highlights of those sessions are found in a “synthesis report” he prepared for this hearing (Exhibit G-4). The employer’s counsel mentioned the fact that that report was brought to his attention only a few days before the hearing.
33 According to Dr. Ramsay, the grievor felt threatened by Mr. X and was afraid that he would be violent with her. According to Dr. Ramsay, that fear was very real in the grievor’s mind — she did not make it up. As a result, management’s proposal to accommodate her by moving her to the 7th floor and prohibiting Mr. X from reaching that floor was insufficient to calm her real fear of encountering Mr. X in the building. According to Dr. Ramsay, the grievor, who feared for her safety, was not reassured by being separated from Mr. X by a few floors. Dr. Ramsay also testified that she wanted to and was in a condition to return to work at the end of 2011 or at the beginning of 2012 on condition that she work somewhere other than at 410 Laurier Avenue, where Mr. X was still located. Dr. Ramsay shared his conclusions with Dr. Duchesne, the grievor’s family doctor, in February 2012 (Exhibit G-4, page 6, and Exhibit G-5, page 28). For Dr. Ramsay, the fact that the grievor was sent back to 410 Laurier Avenue while Mr. X was still working there risked reviving her stress, which made her ill and as a result affected her ability to function. She remained vulnerable; the stress that she experienced while working near Mr. X was not made up. The prognosis for her return to work was good as long as she did not return to a toxic environment.
34 When cross-examined, Dr. Ramsay admitted that he was not aware that his conclusions and diagnosis were sent to the employer only in September 2013, just before the hearing. He also confirmed that the grievor provided the information he used and that he never verified her statements with the employer. However, he maintained that although he received information about Mr. X’s behaviour only from the grievor, the fact of the matter is that when a client, in this case the grievor, is credible, his or her perception becomes the reality on which he must base his diagnosis.
35 In his testimony, Dr. Ramsay also admitted that he had neither spoken to the employer’s representatives nor consulted the description of the grievor’s tasks. As for the accommodation that he mentioned at page 4 of his synthesis report, he agreed that he was not aware that the employer had offered a new accommodation to the grievor, moving her to the 7th floor of 410 Laurier Avenue, right next to the chairperson’s office. Similarly, he did not know that that floor was accessible only to certain people and that a pass is needed to access the elevator or staircases that reach that floor. Finally, he did not know that the grievor and Mr. X had been notified to warn management if they encountered one another. However, Dr. Ramsay maintained that that new accommodation did not change his opinion on the issue, since both parties were still working in proximity to one another. According to him, if the grievor had to return to work at 410 Laurier Avenue even though Mr. X was still there, she would return to being so stressed that it would affect her ability to function and could even lead to suicidal reactions. Dr. Ramsay also agreed that according to him, although violence could potentially stem from a confrontation between the grievor and Mr. X, he could not conclude that violence would occur.
36 Dr. Duchesne also testified. He has been the grievor’s family doctor for at least 20 years (Exhibit G-7). He testified that on June 8, 2010, she saw him and complained about Mr. X’s actions and the fact that Mr. X was making her life miserable (Exhibit G-8, page 3). In February 2010, she showed signs of “burnout”, so Dr. Duchesne placed her on sick leave from February 28, 2011, to March 4, 2011. On September 6, 2011, she saw him again and told him that Mr. X had filed a harassment complaint against her and that management was not supporting her. Dr. Duchesne then recommended that she go on sick leave for another period, for six weeks (Exhibit G-8, page 6). He also referred her to a psychologist, Dr. Ramsay. During the consultation that took place on September 6, 2011, Dr. Duchesne, unlike Dr. Ramsay, did not judge that the grievor had suicidal or homicidal tendencies at that time (Exhibit G-8, page 6). On September 27, 2011, after seeing Dr. Ramsay, she returned to see Dr. Duchesne for a follow-up. He found that she was anxious and prescribed her an antidepressant. After reading Dr. Ramsay’s September 23, 2011, letter (Exhibit G-5, page 13), he decided to place the grievor on sick leave from September 27, 2011, to October 31, 2011. On her next visit on October 25, 2011, she affirmed that her health condition had not changed, and Dr. Duchesne extended the sick leave until November 30, 2011.
37 On November 29, 2011, Dr. Duchesne judged that the grievor was fit to return to work full-time, on condition that it be somewhere other than at 410 Laurier Avenue, in an environment in which she would not encounter Mr. X by chance (Exhibit G-8, page 7). On December 8, 2011, she told Dr. Duchesne that she received a call from the office asking her if she was ready to return to work. She told him that she was not able to return to work, and so Dr. Duchesne extended her sick leave until the end of December 2011.
38 Dr. Duchesne testified that he did not know whether the grievor worked from the end of December 2011 to February 2012. On February 7, 2012, he saw her again and judged that she was fit to return to work but still on condition that she change her work environment. Dr. Duchesne indicated that he received a letter from Dr. Ramsay on the same day. Dr. Ramsay shared his opinion, namely, that the grievor’s return to work had to occur somewhere other than at 410 Laurier Avenue (Exhibit G-5, page 28).
39 Dr. Duchesne testified that he had received a letter from Sheila Ouellette, the employer’s performance director. In it, she asked him to specify what restrictions would be imposed on the grievor, given her condition (Exhibit G-8, page 24). Dr. Duchesne replied to Ms. Ouellette on February 29, 2012. On March 23, 2012, in another letter to Ms. Ouellette, Dr. Duchesne specified the accommodation that he wished to see implemented for the grievor. In particular, he reiterated that she could not work in the same building as Mr. X. According to Dr. Duchesne, she was able to progressively return to work starting on November 29, 2011, on the sole condition that it be somewhere other than at 410 Laurier Avenue (Exhibit G-8, pages 25 to 28). According to Dr. Duchesne, the grievor was credible, and he saw her one last time before the hearing, on November 28, 2013.
40 In cross-examination, Dr. Duchesne admitted that the grievor never told him that she feared that Mr. X would be violent. Nevertheless, he was convinced that she was genuinely afraid of Mr. X. Dr. Duchesne also admitted that had the grievor spoken of Mr. X or mentioned a risk of violence against her from Mr. X during visits on November 2, 2010, February 22, 2011, September 6, 2011, September 27, 2011, and October 25, 2011, he would have mentioned it in his notes (Exhibit G-8, pages 3, 4, 6, and 7).
41 In his testimony, Dr. Duchesne admitted that he had never spoken to either Mr. X or the employer’s representatives. He added that he was unaware that Mr. X’s complaint against the grievor was determined founded and that she had been subject to discipline.
42 As for the employer’s proposed accommodation of moving the grievor to the 7th floor with access prohibited to Mr. X, Dr. Duchesne was categorical in his testimony and maintained that it would be insufficient since the grievor would continue to feel unsafe, and as a result, she would experience real emotional stress. Dr. Duchesne specified that he and Dr. Ramsay shared the opinion that no matter what accommodation was suggested, it would be insufficient if the grievor had to return to 410 Laurier Avenue. According to him, she could return to work as long as it was somewhere other than at 410 Laurier Avenue.
43 The grievor testified that she has been a public service employee since 1996 (Exhibit G-9). After completing several temporary assignments, she obtained a permanent position as a statistics and data quality manager with the employer in 2003, classified at the AS-06 group and level. Her performance has always been satisfactory (Exhibits G-10 and G-14).
44 During her testimony on December 12, 2013, the grievor was on secondment for one year with the CSC, which was to end in March 2014, at which time, in the absence of an extension to the assignment agreement, she was to return to her AS-06-classified position with the employer. She indicated that her CSC tasks consisted of redoing a database.
45 The grievor testified as to the nature of her tasks for the employer, which consisted in particular of searching for information in the offender management system database. She also had to provide the data necessary for drafting the employer’s annual report (Exhibits G-11, 12, and 13).
46 The grievor testified that starting in autumn 2009, her manager was Ms. Ouellette. The grievor was the only one carrying out statistics and data quality management tasks for the employer; however, she could delegate certain aspects of her work to Mathieu Hallé without being his supervisor. The grievor affirmed that she had worked on several projects for the employer and for the CSC, particularly in 2008 and 2011. Often, the work was done either by email or telephone, and monthly meetings were held. She affirmed that she had received the necessary training and equipment required to allow her to telework outside the office.
47 The grievor stated that her first encounter with Mr. X took place in November 2009 when she occupied a closed office, office 642, and he occupied a cubicle next to her, office 641 (Exhibit G-1). She described him as being around six feet tall and being “[transltion] rather broad”. She said that the first time she spoke to him was to tell him that washing his feet with vinegar in his cubicle was inappropriate. He told her that it was his way of cleaning his feet. She explained that he wore sandals in both winter and summer. She did not recall his reaction. She indicated that she reported to Ms. Ouellette that Mr. X’s actions bothered her. Ms. Ouellette then told her that she would look into it.
48 The grievor testified that in the morning, Mr. X arrived at the office around 7:15 a.m., opened his bags, and then went to the kitchen, making a lot of noise. He reheated his meal, which had a strong smell, and then ate it, again making a lot of noise. She mentioned that if someone passed in front of Mr. X’s office, he called at them, yelling things very loudly, like: “Hey buddy…What is going on?” while always using the “f-word”. For the grievor, such discussions were inappropriate and were not related to work. She affirmed that she spoke with Ms. Ouellette, who would have replied that Mr. X had the right, as does everyone, to come to work. Nevertheless, the grievor believed that Ms. Ouellette would have raised the issue with Mr. Ryan, Mr. X’s manager.
49 The grievor also related another incident in which Mr. X came to see her to talk about union business. He seemed offended because she told him that the only time she could speak to him about it was during the noon hour or at 3:00 p.m. After that, according to the grievor, Mr. X returned to his cubicle and “rummaged” through his things. She added that he made such a noise very often, for example in the morning and later in the afternoon when he left. She said that he “[translation] rummaged through his file cabinet”, which caused her to lose concentration while trying to work. She testified that to avoid that noise, she took her break at around 2:30 p.m. so as to not be there when Mr. X prepared to leave. Her work hours were from 7:00 a.m. to 5:00 p.m., except for Mondays, when she did not work. Mr. X worked from 7:00 a.m. to 3:00 p.m. The grievor affirmed that she asked Ms. Ouellette to move either her or Mr. X, since his actions affected her concentration.
50 The grievor testified that on May 4, 2010, when she was on the telephone with a colleague, Mr. X was making so much noise that she stood up to hit their common wall to get him to stop. Once she hung up, Mr. X entered her office, with his fists on his hips, and told her: “What is your problem?… there is a line on the floor and do not cross that line because I do not know what will happen…”. The grievor affirmed that she was very afraid and that she left, to see Ms. Ouellette. She then told Ms. Ouellette that she could no longer handle it and that she wanted to move. She returned to her office 30 minutes later and contacted the employee assistance program.
51 The grievor testified that she did not file a complaint against Mr. X because he went to management to resolve the situation, and Ms. Ouellette told her that if she filed a complaint, he would too. For the grievor, Ms. Ouellette’s suggestion to attempt mediation with Mr. X was unacceptable because she did not see how she could attempt mediation in that current context.
52 The grievor testified that she experienced enormous stress after the May 4, 2010, incident. She arrived at work at 6:30 a.m. to not cross paths with Mr. X and was not productive at work until after 3:00 p.m., when he left. At the end of summer 2010, she relocated to another closed office, office 644 (Exhibit G-1). However, since that office faced the kitchen, Mr. X often passed by, making making bizarre noises with his mouth, like taunting or singing. The grievor then moved to office 661 in December 2010, where she stayed until she left on sick leave in September 2011.
53 The grievor testified that on the morning of August 19, 2011, just before leaving for three weeks of vacation, she was notified that Mr. X had filed a harassment complaint against her. On that day, a Human Resources employee gave her a related letter from Shelley Trevethan, at which time she was in Mr. Hallé’s office (Exhibit G-15, tab “A”). The grievor indicated that she thought, “[translation] he is going to finish me; I am finished.” She then looked out the window and told Mr. Hallé: “[translation] You understand me … if something happens to me, I want you to call my daughter.” The grievor then left, accompanied by Mr. Hallé. When she returned, she requested sick leave from Julie McKenzie, who had replaced Ms. Ouellette (Exhibit G-15, tabs 1 and 2).
54 On August 19, 2011, the grievor left on her vacation, which proved not to be one, given the situation. She went to see Dr. Duchesne, since she no longer slept at night; her three weeks of annual leave were changed into sick leave (Exhibit G-15, tab 3). She indicated that on November 16, 2011, she still did not have any news from management about the complaint’s details, although Ms. Trevethan’s original letter indicated that she would contact the grievor after September 6, 2011, to set a meeting date (Exhibit G-15, tab 8). In November 2011, the grievor was ready to return to work on the condition that it be telework or at a location other than 410 Laurier Avenue. She was still waiting for news from her union representative, Danielle Belleau, who in turn was waiting for a reply from Eric McMullen and Human Resources (Exhibit G-15, tabs 8 and 9).
55 On November 22, 2011, the grievor received a letter from Caroline Douglas, Ms. Trevethan’s replacement, containing the complaint’s details (Exhibit G-15, tab 11). A meeting was planned between the grievor and, in particular, Ms. Douglas; its goal was to allow the grievor to respond to the allegations in Mr. X’s complaint and then return to the office (Exhibit G-15, tab 13). On December 2, 2011, the grievor responded to the allegations and submited written notes (Exhibit G-15, tab 16). The same day, she sent Ms. Ouellette a medical certificate from Dr. Duchesne in which he stated that she would be able to return to work on December 2, as long as it was progressive and at somewhere other than 410 Laurier Avenue. On January 2, 2012, with things still unresolved, the grievor presented Ms. Ouellette with another note from Dr. Duchesne, confirming that she would remain on sick leave from December 5 to 28, 2011, and that she would need reassessment before returning to work (Exhibit G-15, tab 22). On December 14, 2011, the grievor was notified that from then on, she was on long-term disability leave, starting on December 28, 2011 (Exhibit G-15, tab 23).
56 The grievor testified that on January 9, 2012, she received a letter from Ms. Douglas notifying her that a formal investigation into Mr. X’s harassment complaint would be launched and that in the meantime, the grievor would be separated from the complainant by being relocated to a cubicle on the 7th floor of 410 Laurier Avenue. It stated that Mr. X could not access that floor. The grievor was also informed that she had to notify Ms. Douglas as soon as possible if she encountered Mr. X (Exhibit G-15, tab 26). According to the grievor, she still did not feel safe, despite the fact that she would be relocated to the 7th floor. According to her, there was still a risk that Mr. X would go to the 7th floor by taking the elevator with someone else who had access to the floor. She saw Ms. Douglas’s proposal as a way of saying, “[translation] go hide yourself, far away.”
57 On January 19, 2012, Danielle Dumas, who was in charge of the investigation into Mr. X’s harassment complaint, called the grievor to a meeting. The grievor notified her that she refused to go to 410 Laurier Avenue for the meeting. It finally took place in Orleans, an Ottawa suburb. Following a preliminary report dated April 5, 2012, to which the grievor replied, the final investigation report into the complaint was sent to her in the beginning of May 2012 (Exhibit G-16).
58 In her report, Ms. Douglas concluded that of the three allegations in Mr. X’s complaint against the grievor, one was founded and constituted harassment against him. Following the report, the grievor was called to a disciplinary interview and received an oral reprimand as a sanction. She said that it humiliated her. On April 26, 2012, she made her harassment complaint against Mr. X. However, it was dismissed because she had filed it too late.
59 As for her accommodation requests, the grievor submitted that she could no longer work at 410 Laurier Avenue due to Mr. X’s presence. On January 17, 2012, she asked Ms. Ouellette to work from Montreal, where her spouse had obtained a year-and-a-half-long contract. The grievor indicated that the employer has an office there on Sherbrooke Street and that she would be able to work there (Exhibit G-15, tab 28). That did not work. On January 27, 2012, the grievor called Ms. Ouellette to tell her that she wanted to request a permanent relocation to Montreal (Exhibit G-15, tab 32). On February 3, 2012, Ms. Ouellette informed the grievor that it was not possible to telework and that if the grievor wanted to be relocated to Montreal, she would have to follow the prescribed procedure set out in the collective agreement (Exhibit G-15, tab 33). The grievor replied that she would not complete a relocation request for the moment (Exhibit G-15, tab 33). However, she requested several times that she be relocated to a building other than 410 Laurier Avenue. In particular, she made that request on February 8 and 24, 2012, and on March 15 and 25, 2012, following medical certificates from Dr. Duchesne dated February 7, 2012, February 29, 2012, and March 23, 2012, which stipulated that she should not return to work at 410 Laurier Avenue (Exhibit G-15, tabs 34-36-38). The grievor mentioned that on July 31, 2012, she discussed accommodation one last time with the chairperson, Harvey Cenaiko, Jean Yves Lebel from the union, and Mr. McMullen. She affirmed that she had explained her fears to the employer’s chairperson and was told that she should not be afraid. She said that she did not appreciate three men telling her that.
60 The grievor testified that she began looking for work at locations other than with the employer. In particular, she called approximately six or seven CSC employees and sent her resume to Phil Chitty of the CSC (Exhibit G-15, tab 52). In December 2012, she met with Ms. Ouellette and Mr. McMullen, who suggested that she look into assignment possibilities with another department. On February 18, 2013, she finally signed a one-year assignment agreement with the CSC, starting on March 4, 2013 (Exhibit G-58). She started to work full-time at the CSC, contradicting Dr. Duchesne’s suggestion, who recommended a gradual return to work.
61 During his testimony on December 12, 2013, the grievor was still on assignment with the CSC. She affirmed that everything was going well and that Lyne Garrow, initially her supervisor, was very satisfied with her services and that she even provided her with a letter of reference (Exhibit G-18). Ms. Garrow was replaced by Pierre Bernier. The grievor testified that she liked her work at the CSC and that she felt free.
62 When cross-examined, the grievor denied that she told Ms. Ouellette that a person like Mr. X should not be on this Earth.
B. For the employer
63 Ms. Douglas testified for the employer. At the relevant time, she was director of the access to information section. In 2011, she also became the designated person responsible for the process for handling complaints filed with the employer. Ms. Douglas testified that when Mr. X filed a harassment complaint against the grievor, in April 2011, she hired an external firm to conduct the investigation, as she lacked resources and wanted to ensure that the matter was dealt with professionally.
64 On November 30, 2011, at a meeting to hear the grievor’s version following Mr. X’s complaint, the grievor asked to telework during the investigation. Ms. Douglas replied that she needed more information about her medical situation before determining if the grievor and Mr. X needed to be separated during the investigation and what accommodation, if any, should be made (Exhibit E-1, tabs 1, 3, and 4). Ms. Douglas testified that she still had not received the required information as of December 2, 2011 (Exhibit E-1, tab 5).
65 On January 9, 2012, Ms. Douglas advised the grievor and Mr. X that she would conduct a formal investigation into his harassment complaint. In the meantime, she decided to separate them. So, the grievor was assigned to cubicle 703 on the 7th floor of 410 Laurier Avenue. Mr. X did not have access to that floor. Ms. Douglas also informed them that she was to be advised as soon as possible were they to encounter each other (Exhibit E-1, tabs 5 and 6). According to Ms. Douglas, although she had not received all the medical information on January 9, 2012, about the accommodation in the grievor’s case, following a consultation with Human Resources, nonetheless, it seemed to her that the grievor was in distress and that something needed to be done to allow her to return to work.
66 Ms. Douglas explained that given the circumstances, it was appropriate to relocate the grievor to the 7th floor at 410 Laurier Avenue. Ms. Douglas explained that the 7th was a special floor that included the chairperson’s office, Human Resources, and Legal Services. Only employees with business on that floor can access it. Thus, Ms. Douglas explained, employees who had access to the 7th floor, like all other employees entering the building, had to pass in front of an office with a security guard. However, employees authorized to access the 7th floor had a special access card that they used once they were in the elevator and that gave them access to that floor. Employees who did not have that special access card could not access that floor. The same special access card was needed to access the 7th floor by the stairs. Ms. Douglas testified that Mr. X did not have that access card and therefore could not access that floor. Ms. Douglas also explained that cubicle 703, assigned to the grievor, was next to the chairperson’s office and that an additional access card was needed to access the chairperson’s suite once on the 7th floor. Mr. X did not have that other access card either. Ms. Douglas testified that the grievor never agreed to work from cubicle 703. She never went there.
67 Ms. Douglas testified that on June 6, 2012, she wrote to the grievor to inform her that she agreed with the findings of the investigation into Mr. X’s harassment complaint and that the grievor had once harassed him (Exhibit E-1, tab 7). According to Ms. Douglas, the grievor did not contact her to discuss the discipline. Only in March 2013 during a meeting with the grievor did Ms. Douglas give her a verbal reprimand as discipline. Ms. Douglas concluded by stating that the grievor also filed a harassment complaint against Mr. X but that it was filed after his and was judged untimely.
68 In cross-examination, Ms. Douglas explained that because there was a lot to do, four months passed before the grievor was advised, on August 19, 2011, of Mr. X’s complaint. Ms. Douglas also acknowledged that the grievor stated that she feared Mr. X because he was big, spoke loudly, and used vulgar language. Ms. Douglas explained that although someone might try to sneak onto the 7th floor without an access card, the Commissionaire was aware that only employees with an access card could access that floor and that all others must be refused. Ms. Douglas testified that to her knowledge that had never occurred. As for the grievor’s complaint against Mr. X, according to Ms. Douglas, not only was it untimely, but also, it did not seem to have any merit.
69 Ms. Ouellette also testified in this case. She is currently the acting director, performance measurement, with the employer. She has about 30 years of experience with the employer. She has known the grievor since 2008, when they were colleagues. In 2010, she became the grievor’s supervisor. Ms. Ouellette described the grievor as a person with a strong personality who works very hard, who likes things to be done her way, and who is easily alarmed. Ms. Ouellette indicated that the grievor had told her once that she had left a position at the CSC following a misunderstanding with her supervisor. As for Mr. X, Ms. Ouellette testified that she became his supervisor in July 2013. She described him as a friendly employee who wanted everyone to like him but who could occasionally act awkwardly. For example, Ms. Ouellette stated that Mr. X could eat Chinese cuisine for breakfast, etc. She stated that in the past, Mr. X had worked as a correctional officer and that he might have found adjusting to an office environment difficult.
70 Ms. Ouellette testified that the grievor complained about Mr. X before he filed his harassment complaint. The grievor thought that he was violent. Ms. Ouellette saw more of a personality conflict between them. According to her, the grievor accused Mr. X of making noise while eating and of making guttural noises. Ms. Ouellette stated that she then suggested three times to the grievor that she move, before she agreed. Ms. Ouellette also suggested that the two parties take part in an informal conflict resolution session, to which the grievor objected. According to Ms. Ouellette, the grievor had told her that a person like Mr. X “[translation] should not be on Earth”. Ms. Ouellette did not do anything about that statement, feeling that the grievor just wanted to vent.
71 Ms. Ouellette testified that she spoke to Mr. X about his behaviour and that in particular she asked him to lower his voice and to stop washing his feet with vinegar in his office. According to her, he then stopped that practice.
72 Ms. Ouellette stated that she saw the grievor avoiding Mr. X. On one occasion, Ms. Ouellette saw Mr. X walking behind the grievor and saw that the grievor made a guttural sound. Ms. Ouellette affirmed that she told the grievor to stop it.
73 Ms. Ouellette testified that the grievor moved from office 642 to office 645 to be further from Mr. X, who made strange guttural noises (Exhibit G-1). Then, in December 2010, the grievor moved to office 661. That was the office she occupied when she received Mr. X’s complaint in August 2011. At that time, Mr. X was in office 641. The grievor was in office 661 for eight months, until she left on sick leave. According to Ms. Ouellette, during the eight-month period, the grievor did not complain about Mr. X.
74 Ms. Ouellette testified that she did not think Mr. X was violent; he was never violent toward her, and no one had complained that he was violent. She stated that only the grievor complained of his behaviour and that no one else had filed a complaint against him. Similarly, the union never contacted her to report his behaviour. According to Ms. Ouellette, Mr. X was subject to intimidation, and his colleagues ridiculed him, mocked him, and ganged up on him. For instance, some would turn off his telephone’s ringer.
75 Ms. Ouellette affirmed that she tried to convince the grievor to go to mediation with Mr. X in about May 2010 but that the grievor immediately refused.
76 Ms. Ouellette indicated that while the grievor was on sick leave, Ms. Ouellette received two medical certificates from Dr. Duchesne, on September 6, 2011, and on October 25, 2011. They did not mention the stress the grievor experienced or the fact that she could not work at 410 Laurier Avenue (Exhibits E-1, tabs 9 and 10, and G-15, tabs 17 to 19).
77 Given the length of the grievor’s sick leave, on November 29, 2011, Ms. Ouellette decided to ask her to confirm the date on which she would return to the office and to give her a return-to-work plan (Exhibit E-1, tab 11). According to Ms. Ouellette’s understanding of the grievor’s December 2, 2011, email, she could not return to 410 Laurier Avenue as long as the harassment complaint was unresolved.
78 Since the grievor’s sick leave was extended (Exhibit E-1, tabs 15 and 16), again, on December 13, 2011, Ms. Ouellette asked her to submit a plan for her eventual return to work (Exhibit E-1, tab 17). In late December 2011, although the grievor had advised her that the sick leave would be extended to late January 2012, she had not yet submitted the return-to-work plan or information about a return other than to 410 Laurier Avenue (Exhibit E-1, tabs 18 and 19).
79 On January 9, 2012, Ms. Douglas informed the grievor that Mr. X’s complaint would be investigated and that in the meantime she would be relocated to the 7th floor of 410 Laurier Avenue (Exhibit E-21). Ms. Ouellette indicated that she received a call from the grievor on January 27, 2012, asking if she could work from Montreal, as her husband had found a job there. Ms. Ouellette affirmed that that was not possible and that if the grievor wanted to work in Montreal, she would have to submit a duly completed relocation request, in accordance with the collective agreement. According to Ms. Ouellette, the grievor then mentioned that she had been ready to return to work since early December 2011 as long as it was not at 410 Laurier Avenue. Ms. Ouellette then asked her to again submit a medical certificate indicating the required restrictions and to include a return-to-work plan. In the meantime, the grievor was on disability leave (Exhibit E-1, tabs 23 and 24).
80 According to Ms. Ouellette, the grievor could not telework due to the nature of her duties. Ms. Ouellette explained that the grievor was the only one who was able to retrieve the necessary information from the employer’s data system. In addition, according to Ms. Ouellette, the grievor had to work closely with others, which would have been difficult had she not physically been present at the office. And, as part of her duties, she had to provide an information service to clients, whether in response to requests from the employer’s managers or from the CSC. According to Ms. Ouellette, those requests are sometimes urgent, and thus, the person responding to them must be on-site to respond quickly. Ms. Ouellette added that the grievor’s duties also included the component of assuming a mentor role for a junior employee. Therefore, that duty required her presence so she could guide and advise the junior employee when needed. According to Ms. Ouellette, cost was also a factor as it would have required, among other things, equipping the grievor with a secure line. Ms. Ouellette testified that with the grievor’s absence over the last three years, the employer had to hire someone who was retired to do her work and that Ms. Ouellette had to assume some of the grievor’s responsibilities.
81 Therefore, Ms. Ouellette informed the grievor that her presence was required at 410 Laurier Avenue. On February 3, 2012, she again instructed her to submit a return-to-work plan (Exhibit E-1, tab 25). On February 21, Ms. Ouellette sent the grievor a letter and a copy of her job description so she could provide it to Dr. Duchesne to clarify the grievor’s return to work and the required accommodation (Exhibit E-1, tab 28).
82 On March 1, 2012, the grievor sent Ms. Ouellette Dr. Duchesne’s February 29, 2012, response. He clarified in it that the grievor was still experiencing difficulties due to stress, that she had memory and concentration problems, and that she could not return to 410 Laurier Avenue (Exhibit E-1, tab 29). Given that new medical certificate, Ms. Ouellette testified that on March 15, 2012, she questioned the grievor’s ability to return to work, even to somewhere other than 410 Laurier Avenue (Exhibit E-1, tab 30). Ms. Ouellette affirmed that the grievor never mentioned any medical condition other than those indicated in the medical certificate dated February 29, 2012.
83 In cross-examination, Ms. Ouellette stated that in November 2011, she considered letting the grievor telework because she thought she had no choice. However, after Human Resources informed her that it was all subject to service requirements, she reconsidered (Exhibit G-20). Although Ms. Ouellette testified that her opinion was that telecommuting permanently was not possible in the grievor’s case, nevertheless, she admitted that it could be possible temporarily, such as for a week or two. In her testimony, Ms. Ouellette indicated that she never checked whether the grievor could have worked at 340 Laurier Avenue, where the employer had an office. Ms. Ouellette also affirmed that she took it for granted that the grievor had medical problems because her request for extended disability leave was approved.
84 Ms. Ouellette testified that in December 2012, the grievor indicated that she wanted to work in another department and that to that end, the employer’s representatives distributed her resume within the organization. From March 2013 to April 2014, the grievor was on secondment at the CSC. Notably, she went on sick leave beginning in April 2014.
III. Summary of the arguments
A. For the grievor
85 Counsel stated that in this case the grievor demonstrated that she suffered from a disability, which is a prohibited ground of discrimination, and that as a result she was adversely differentiated in her workplace. According to counsel, the employer had a duty to make the necessary accommodation to allow her to work despite that disability. However, the employer did not fulfill its obligation. According to the jurisprudence, it had to demonstrate that accommodating her in that context would have caused it undue hardship. It did not discharge that burden of proof. See Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8 at paras. 139 to 141; and Lafrance v. Treasury Board (Statistics Canada), 2007 PSLRB 31 at paras. 127 to 129.
86 According to counsel, the employer tried to minimize the significance of the problem by considering the situation simply as two employees’ personality conflict. According to her, instead, it was a poorly managed situation that degenerated and that made the grievor sick.
87 Counsel maintained that the evidence is abundantly clear about Mr. X’s abusive behaviour and his negative and harmful effect on the grievor. For example, all the witnesses described him as being physically imposing and behaving strangely, inappropriately, and abusively in the workplace. Mses. Willard and Leclerc emphasized that they advised management of the grievor’s problems with Mr. X and that management did not intervene. They stated that they noted changes in the grievor’s behaviour and that she seemed disturbed, stressed, and agitated. For her part, Ms. Joly even testified about an incident in which she apparently saw the grievor hit her head with her fists.
88 Counsel argued that the grievor informed management of her difficult situation and of her belief that Mr. X was a threat to her safety, but management saw no need to act and solve the problem. Counsel returned to the May 4, 2010, incident in which Mr. X entered the grievor’s office in a threatening manner and stated: “What is your problem …”. The grievor went outside; Ms. Ouellette joined her and clearly saw that the grievor was frightened and in shock.
89 As for Ms. Ouellette’s testimony, counsel indicated that the grievor lost confidence in her supervisor because of her inaction. She added that in light of the evidence, in this case, the grievor’s version must be preferred.
90 Counsel noted that although the employer insisted on the quality of the medical information provided by the grievor, it never doubted that she suffered from a disability or that she needed accommodation. In that sense, the employer always accepted her requests for sick leave, and Ms. Ouellette spoke of the accommodation offered to the grievor.
91 Returning to Dr. Ramsay’s testimony, counsel insisted on the fact that Dr. Ramsay saw the grievor in September 2011 and that at that time, he identified the symptoms of her illness. Counsel argued that Dr. Ramsay found that she had reacted poorly in August 2011 to the complaint Mr. X filed and that her fear for her safety was very real. According to him, she will continue to remain anxious as long as the situation with Mr. X stays unresolved.
92 Counsel submitted that Dr. Duchesne also concluded that the grievor was in a state of stress due to the difficult situation with Mr. X. According to her, Dr. Duchesne agreed to her returning to work in November 2011 as long as it was somewhere other than at 410 Laurier Avenue (Exhibit G-8, page 20). That diagnosis was then reiterated up to March 2012 (Exhibit G-8, page 26).
93 For counsel, the question was knowing whether the grievor’s sense of fear is real, not whether she had reason to be afraid. Dr. Ramsay and Dr. Duchesne concluded that she had a disability and that she truly feared psychological distress were she to return to the same building as Mr. X.
94 For counsel, not only was it demonstrated that the grievor had a disability over which she had no control, but also, it was demonstrated that despite her wishes and the doctors’ diagnosis, her employer’s failure to accommodate her meant that she was unable to return to work in November 2011. The accommodation offered later, moving to an office on the 7th floor at 410 Laurier Avenue, was unreasonable in the circumstances. As a result, the employer did not meet its duty to accommodate the grievor. It could have allowed her to telework or to work somewhere other than at 410 Laurier Avenue, but it did not.
95 In doing so, the employer ignored the recommendations of the grievor’s doctors. Counsel argued that although the employer was not obliged to offer the ideal accommodation, nevertheless, it had to meet the grievor’s medical needs. According to her, it is first up to the employer to provide the required accommodation. See Kelly v. Treasury Board (Department of Transportation), 2010 PSLRB 80 at para. 105. In that respect, counsel pointed out that both doctors affirmed that the employer’s proposed accommodation was inadequate. It is also important to note that the employer did not provide a medical second opinion or request independent medical evidence.
96 Counsel maintained that the employer had enough information to make an adequate accommodation as of November 29, 2011. However, if I rule that the medical information at that time was insufficient, counsel argued that at the very least, on March 23, 2012, it was perfectly clear that the employer’s proposed measures were inadequate in the circumstances.
97 Counsel also argued that the employer did not demonstrate that finding a workplace for the grievor other than 410 Laurier Avenue would have constituted undue hardship. Counsel referred me to the factors to consider as set out in British Columbia (Public Service Employee Relations Commission) v. BCGSEU,  3 S.C.R. 3 (Meiorin) at para. 54, and concluded that the employer did not demonstrate that undue hardship would arise were the grievor to work somewhere other than at 410 Laurier Avenue. According to counsel, the employer did not demonstrate that she could not prepare statistics from her computer from somewhere other than 410 Laurier Avenue. And contrary to Lafrance v. Treasury Board (Statistics Canada), 2007 PSLRB 31, the employer did not provide concrete proof of the factors that make it impossible for the grievor to work at someplace other than 410 Laurier Avenue.
B. For the employer
98 From the start, counsel for the employer asked me to put the testimonies of Mses. Leclerc, Willard, and Joly in perspective. According to him, none of them witnessed Mr. X commit any act of violence or intimidation against the grievor. The three witnesses conspired against him and were simply trying to make him look bad. The fact that none of those witnesses filed any complaints with the employer or the union against Mr. X is significant. According to him, Mr. X became a target for the grievor and her three witnesses. In that respect, Ms. Ouellette’s testimony must be kept in mind, which was that Mr. X was not violent, that instead he was strange, and that other employees ridiculed and intimidated him.
99 According to counsel, the conflict between the grievor and Mr. X took a very different turn when he filed a harassment complaint against her. After that, she began to state that she no longer wanted to work in the same building as him. According to counsel, management did not have the choice but to investigate Mr. X’s complaint, particularly since, according to Ms. Ouellette, the grievor made guttural sounds too, when she was near Mr. X. The grievor also allegedly said that someone like him should not be on Earth.
100 Counsel argued that management made decisions about Mr. X’s strange behaviour. Ms. Ouellette told him to stop washing with vinegar, offered to move the grievor, and suggested to the grievor that she take part in mediation sessions with Mr. X, which the grievor refused.
101 For counsel, in this case, it was up to the grievor first to demonstrate that she suffered from a disability or an incapacity and then to demonstrate that the employer prejudiced her. However, she did not. This is a work conflict between two employees, not a disability or an incapacity.
102 Counsel maintained that only after Mr. X filed his complaint did the grievor refuse to return to work at 410 Laurier Avenue. Furthermore, only after she filed her grievance, and a few days before the hearing in September 2013, was Dr. Ramsay’s diagnosis submitted to the employer. As for Dr. Duchesne’s conclusions, although he treated the grievor before her grievance was filed, only on December 2, 2011, after Mr. X’s complaint was filed, did he indicate that the grievor could not work at 410 Laurier Avenue. According to counsel, all those factors show that Mr. X’s complaint being filed, which the grievor received a copy of in August 2011, was the trigger for her decision to not return to 410 Laurier Avenue. Counsel emphasized the fact that during the eight months that passed before Mr. X filed his complaint, from December 2010 to August 2011, the grievor did not complain about him, even though she was in an office at the other end his corridor. Consequently, the grievor did not want to return to 410 Laurier Avenue not because of the Mr. X situation but because he filed his complaint, which was partially allowed and for which she was disciplined.
103 Counsel for the employer argued that despite Ms. Ouellette’s repeated requests for more details about the grievor’s condition, only on February 29, 2012, did Dr. Duchesne provide them to her. He then had to clarify in a March 23, 2012, letter what he considered were the grievor’s functional limitations.
104 Counsel for the employer pointed out that before March 2012, the only medical information the employer had was that the grievor was stressed and that she had a conflict with a colleague. Stress is not a disability or an incapacity. In support of his claims, counsel referred me to Riche v. Treasury Board (Department of National Defence), 2013 PSLRB 35 at para. 131, and Crowley v. Liquor Control Board of Ontario, 2011 HRTO 1429 at paras. 57 to 61. He also argued that I had to be careful with the doctors’ testimonies. Both were not aware of the employer’s proposal to accommodate the grievor by having her work on the 7th floor, which was controlled and accessible only to holders of special access cards. Furthermore, Dr. Ramsay’s report was submitted to the employer only a few days before the hearing. Counsel argued that I had to decide based on what the employer knew before the grievance. That said, the employer was informed of Dr. Ramsay’s opinion only a few days before the hearing. See Lowe v. Landmark Transport Inc., 2007 FC 217 at para. 28. Counsel also pointed out that the doctors relied solely on what the grievor told them. For example, Dr. Ramsay indicated in his report that she stated that Mr. X was often aggressive. However, in her testimony, she recounted only one incident, the one on May 4, 2010, in which Mr. X was allegedly abusive toward her. According to counsel, she exaggerated the situation.
105 Although counsel for the employer argued that the grievor did not provide proof of a disability or an incapacity, nevertheless, the fact remains that despite everything, the employer tried to accommodate her by suggesting to her an office on the 7th floor at 410 Laurier Avenue, to which Mr. X did not have access, as that floor is reserved for holders of special access cards. As for telecommuting, counsel insisted on the fact that Ms. Ouellette clearly indicated in her testimony that due to the grievor’s duties, it was not a viable option because the grievor worked closely with clients, the information was confidential, and in emergencies, the intervenors, including the grievor, had to be able to meet quickly. And her position includes a mentoring facet, which is difficult to do from home. Finally, counsel reiterated that despite everything, the employer tried to help her by circulating her resume to potential employers.
106 According to counsel for the employer, although the employer tried to accommodate a medical situation, it does not mean that it recognized that the grievor was suffering from a disability or an incapacity in the sense that it had to accommodate her. If despite everything I find that the grievor actually suffered from a disability or an incapacity, counsel for the employer pointed out that the employer then fulfilled its duty to accommodate by offering to move her to the 7th floor. See Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section local 2000 (SCFP-FTQ), 2008 SCC 43 at paras. 14 to 16.
107 In that sense, counsel for the employer also maintained that the entire accommodation issue was not just the employer’s strict obligation. In effect, the grievor also had to cooperate, which she did not do because she never even visited the 7th floor of 410 Laurier Avenue. And she refused the mediation offer with Mr. X. Consequently, according to counsel for the employer, she was rather selective about accommodation. Counsel emphasized the fact that an accommodation need not be perfect. It must be reasonable. In this case, given the medical evidence it had, the employer was reasonable in its approach. It proposed that the grievor be placed on a floor right next to the chairperson’s office, where Mr. X did not have access. And both the grievor and Mr. X had to advise Ms. Douglas as soon as possible if they encountered each other. See Gibson v. Treasury Board (Department of Health), 2008 PSLRB 68 at paras. 35 to 37, and Callan v. Suncor Inc., 2006 ABCA 15 at para. 21.
108 As indicated earlier, as of the last hearing day, July 29, 2014, the grievor had still not returned to 410 Laurier Avenue following her CSC secondment, which ended in March 2014.
109 I must also point out that the purpose of this decision is not to rule on the allegations against Mr. X. On one hand, they are not the subject of the grievance; on the other hand, I am not in fact in a position to rule on the merits of the allegations against him. He was not called to testify. Thus, I must consider that he did not have the opportunity to give his version of the facts with respect to the alleged incidents and behaviour. I must also note that in this case, the parties submitted about 31 decisions to me in support of their arguments. I consulted them, but I will refer to them only occasionally.
110 However, although I do not intend to rule on the merits of the allegations against Mr. X, it seems clear to me that in light of the testimonies of both the grievor and the employer, the grievor and Mr. X have a conflict. According to the grievor’s counsel, it made the grievor ill, and she is disabled and suffers from an incapacity. On his part, counsel for the employer pointed out that it is instead a work conflict, to which the employer offered a reasonable solution.
111 In her grievance and in her evidence supported by the testimonies of Dr. Ramsay and Dr. Duchesne, the grievor essentially tried to show that Mr. X’s abusive behaviour caused her emotional stress that affected her memory and her capacity to concentrate. Consequently, she does not feel safe working in the same building as him (Exhibit G-15, tab 36). She maintained that she suffers from a disability due to Mr. X’S behaviour and argued that the employer had a duty to accommodate her. For her, the employer’s proposal to move her to the 7th floor was unsatisfactory because the risk remained that she would encounter Mr. X. Consequently, the employer did not meet its duty of accommodation. Among other things, the grievor asked to telework or to be moved to a building other than 410 Laurier Avenue.
112 Essentially, the employer’s arguments are that the grievor did not discharge her burden of proof because she did not demonstrate that she suffered from a protected disability or incapacity. The fact that she was stressed did not constitute a disability or an incapacity. As for the doctors’ diagnoses, counsel for the employer reiterated his objection to them and to Dr. Ramsay’s report on the grounds that Dr. Ramsay was involved in this affair only after the grievor filed her grievance. Furthermore, his information was submitted to the employer just a few days before the hearing. It could not act based on information it did not have. As for Dr. Duchesne’s testimony, he indicated that the grievor suffered from stress, which does not constitute a disability or an incapacity. Furthermore, when the medical certificates were drafted, Dr. Duchesne and Dr. Ramsay did not have all the information about the context in which the grievor worked or the details of the employer’s offer to move her to the 7th floor of the building. Counsel maintained that were I to find that the grievor actually suffered from a disability or an incapacity at the time of the grievance, I should nevertheless find that the employer accommodated her by moving her to the 7th floor, a floor to which Mr. X did not have access, and that both the grievor and Mr. X were told to inform the employer if they encountered each other. According to counsel for the employer, that arrangement is very reasonable also given the fact that the grievor systematically refused to even try it.
113 In my opinion, the questions that must be asked are as follows:
- Did the grievor demonstrate that she suffered from a disability or an incapacity?
- If so, did the employer’s proposal to move her to the 7th floor constitute a reasonable accommodation?
A. Did the grievor demonstrate that she suffered from a disability or an incapacity?
114 According to Pepper v. Treasury Board (Department of National Defence, 2008 PSLRB 8, which refers to, among others, Andrews v. Law Society of British Columbia,  1 S.C.R. 143 at 174, a grievor who alleges discrimination on the grounds of a disability or an incapacity must present prima facie evidence of discrimination.
115 In my opinion, the evidence showed that the grievor suffered from a disability or an incapacity. Her evidence in support of that issue is largely based on reports and testimonies from Dr. Ramsay and Dr. Duchesne. They essentially concluded that she was suffering from emotional stress caused by Mr. X and that his presence at 410 Laurier Avenue made her fear for her safety. They both testified that she actually felt her fear, although it was subjective. They both stated without reservations that she could not work at 410 Laurier Avenue, despite the employer’s proposed accommodation, as long as the situation with Mr. X remained unresolved. They both affirmed that the grievor was credible and that her fear of Mr. X was real.
116 The employer’s counsel insisted on the fact that Dr. Ramsay was consulted only after Mr. X filed his complaint. Consequently, in his opinion, the true trigger behind the fact that the grievor cannot work in the same building as Mr. X is the harassment complaint he filed against her. Counsel also argued that Dr. Ramsay’s report was submitted to the employer only a few days before the hearing and that as a result, the employer obviously could not consider it when it suggested its accommodations.
117 Although it is true that the events in this case seem to have begun in August 2011 when the grievor received Mr. X’s complaint, nevertheless, it appears that Dr. Duchesne was consulted before August 2011 about the grievor’s health issues arising from her difficult relationship with Mr. X. She had already consulted Dr. Duchesne on June 8, 2010, about her health problems and shared her fear of Mr. X. She also indicated that she did not see returning to 410 Laurier Avenue (Exhibit G-8).
118 I agree with counsel for the employer about the fact that Dr. Ramsay’s testimony and report raise questions about their relevance. In effect, at decision time, the employer obviously cannot address situations and medical conditions that have not been brought to its attention. However, I must conclude that essentially, Dr. Ramsay’s testimony and report (Exhibit G-4) are entirely consistent with Dr. Duchesne’s testimony and medical notes that the grievor was suffering from stress caused by the situation with Mr. X and that she feared for her safety.
119 Counsel for the employer submitted that in their evaluations and diagnoses, Dr. Ramsay and Dr. Duchesne did not consider certain other factors, such as the fact that the grievor asked to be relocated to somewhere other than 410 Laurier Avenue after Mr. X filed his harassment complaint in August 2011. Consequently, her request to be moved was motivated more by Mr. X’s complaint than by the risk to her safety. Although counsel’s argument might seem convincing, particularly concerning Dr. Ramsay, who was involved only after Mr. X filed his complaint, nevertheless, it must be remembered that on June 8, 2010, or a year before Mr. X’s complaint, Dr. Duchesne’s notes show that the grievor expressed fear of Mr. X and that she did not know if she could return to 410 Laurier Avenue in his presence (Exhibit G-8, page 2). Thus, in my opinion, in June 2010 and before receiving Mr. X’s harassment complaint, the grievor expressed to Dr. Duchesne that she feared Mr. X and that she did not want to return to 410 Laurier Avenue.
120 Counsel for the employer also submitted that both Dr. Ramsay and Dr. Duchesne relied solely on what the grievor had told them, without verifying or consulting with a management representative to better understand her work context, her duties, and in particular the employer’s proposal to move her to the 7th floor, which had special security measures. It is true that Dr. Ramsay and Dr. Duchesne had only the grievor’s version when rendering their diagnoses. However, both affirmed at the hearing that the additional information, about the nature of her duties and specific measures aimed at separating her and Mr. X, did not change their opinions that she felt a real fear that would cause her emotional stress were she to return to work at 410 Laurier Avenue.
121 Counsel emphasized the fact that the grievor suffered from stress, which is not a disability or an incapacity according to Riche and that the real problem was the work conflict between two people rather than a case of disability or incapacity. I agree with him that stress cannot automatically be associated with a disability or an incapacity. However, the medical evidence in this case is conclusive, unlike in Riche, in which the issue was problems with alcohol and sleep apnea, which led to stress and depression. The medical evidence was limited to medical certificates. In this case, even if Dr. Ramsay’s testimony is set aside, I must consider that Dr. Duchesne affirmed that without reservation he maintained the diagnosis in his March 23, 2012, letter, and that for him, the only way for the grievor to return to work was at somewhere other than 410 Laurier Avenue due to the risk that was still present of encountering Mr. X. In the March 23, 2012, letter, Dr. Duchesne concluded that the grievor was suffering from the following:
… emotional stress as a result of the investigation, which is not resolved at this time. It causes her memory impairment and concentration problems and will affect her dealing with complex statistical questions. It will certainly affect her ability to function normally, i.e., for problem solving and decision making. This would not be a concern were she relocated to other than 410 Laurier Ave. or when the investigation is resolved. Therefore, the patient would not have difficulties were she accommodated and removed from the subject of the complaint.
[Exhibit G-8: medical certificate dated March 23, 2012]
122 For its part, the employer did not refer the grievor to another doctor of its choice or offer a second opinion on her medical evidence.
B. Did the employer fulfill its duty to provide reasonable accommodation?
123 Since the grievor provided prima facie evidence that she suffered from a disability or an incapacity, I must determine whether the employer’s proposed accommodation, in this case moving her to the 7th floor with all the related supervision, was reasonable.
124 In his arguments, counsel for the employer argued that the grievor was not the subject of discrimination and that were I to find otherwise, I would have to agree that the proposed accommodation was reasonable, in this case a move to the 7th floor at 410 Laurier Avenue, including the related security measures barring Mr. X from accessing that floor.
125 In this case, it is difficult to find that the employer’s proposed accommodation was reasonable, primarily because of Dr. Duchesne’s testimony. As indicated, the employer did not disprove his testimony. Although I question the grievor’s reasons and actions and note that she refused mediation and never even tried to go to the 7th floor, nevertheless, the fact remains that Dr. Duchesne was categorical in his testimony that she had a real and genuine fear and that her medical condition would not improve were she to return to 410 Laurier Avenue, regardless of the precautions the employer would put in place.
126 Under the circumstances, I must rely on Dr. Duchesne’s expertise, whom I found credible, disinterested, and convinced about his diagnosis. As indicated earlier, his diagnosis was not contradicted or nuanced by a second opinion from the employer.
127 Although I agree with counsel for the employer that the employer’s proposed accommodation did not have to be perfect, nevertheless, the fact remains that the proposal to move the grievor to the 7th floor, even with precautions, was not enough, in Dr. Duchesne’s opinion.
128 I would also add that the employer did not satisfy me that the grievor absolutely needed to work at 410 Laurier Avenue. I still do not know what elements of the duties she carried out absolutely had to be done at 410 Laurier Avenue. I understood from Ms. Ouellette’s testimony that the employer also had an office at 340 Laurier Avenue, but I was given no explanation as to why the grievor could not work there. And in her testimony, Ms. Willard stated that the CSC, with which the employer has a business relationship, has offices in six other buildings in Ottawa. Once again, I was given no explanation as to why an agreement with the CSC would not have been possible. In the circumstances, I find it hard to believe that a cubicle could not be found in Ottawa in which the grievor could work. The employer’s evidence was limited to affirming that in general her duties could not be carried out anywhere other than at 410 Laurier Avenue.
129 However, I would like to specify that my decision cannot be interpreted as carte blanche in favour of the grievor and does not aim to allow her to impose where and how she works in the future. In effect, finding accommodation does not mean accepting what the grievor feels is best for her under the circumstances. She must also cooperate and show good faith. In Gibson, the adjudicator concluded the following at paragraph 35:
The Supreme Court of Canada indicated that the “… search for accommodation is a multi-party inquiry…” In writing that, the Court concluded that there is a duty on the “… complainant to assist in securing an appropriate accommodation…”: Central Okanagan School District No. 23 v. Renaud,  2 S.C.R. 970, para 43 and 44. Although the Court is quick to point out that the employer is in the best position “… to determine how the complainant can be accommodated without undue interference in the operation of the employer’s business…” it is clear from that case that the complainant must do his or her part.
130 I agree with that adjudicator and would add that following the testimonies of the grievor and Dr. Duchesne, I conclude that her health problems are related to the fact that she is in the same building as Mr. X. Both Dr. Duchesne and Dr. Ramsay emphasized the fact that the desired accommodation was to move the grievor to somewhere other than 410 Laurier Avenue.
131 Thus, no other measure was recommended, such as telecommuting, which is left to the employer’s discretion. Under the circumstances, I will proceed with Dr. Duchesne’s specific recommendation and conclude that the employer’s duty in this case is limited to moving the grievor elsewhere in Ottawa to a cubicle in a building of its choice other than 410 Laurier Avenue.
132 Although I believe that it would certainly have been in everyone’s interests to find a solution to this grievance well before the hearing took place, nevertheless, I must find that the employer was entitled to know as precisely as possible what restrictions were imposed on the grievor and to receive a response to its accommodation proposal of the 7th floor at 410 Laurier Avenue. In my opinion, and despite Ms. Ouellette’s repeated requests for one, only on March 25, 2012, did she receive sufficient information from Dr. Duchesne.
133 For all of the above reasons, I make the following order:
134 The employer, at its discretion, shall move the grievor in Ottawa to a building other than 410 Laurier Avenue.
135 As of March 25, 2012, and excluding the period from March 1, 2013, to March 31, 2014 and the period from April 22, 2014 to September 30, 2014, the employer shall compensate the grievor the difference between the amount she received while on long-term disability and her salary.
136 The employer shall return to the grievor the sick leave and annual leave for the period indicated in the last paragraph.
137 I will remain seized of this case for a period of 90 days if the parties have any difficulty implementing this decision.
January 25, 2016.
- Date modified: