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In the matter of an arbitration

Toronto Police Association (TPA)
Toronto Police Services (TPS)
AND IN THE MATTER OF AN ACCOMMODATION GRIEVANCE DATED DECEMBER 4, 2003 OF Tim Hill Kevin Whitaker, Sole Arbitrator Appearances for the TPA Beth Symes, Counsel Tim Hill, grievor Appearances for the TPS Glenn Christie, Counsel and others Hearings were held in Toronto commencing on January 31, 2006 and completed on May 16, 2007 I
What This Case is About
By letter of December 4, 2003, the Toronto Police Association (“TPA”) grieves that the Toronto Police Service (“TPS”), failed to adequately accommodate the grievor’s hearing disability. The grievance expressly describes the remedies sought. These include appropriate accommodation, the restoration of sick bank credits, lost wages, compensation for mental anguish and/or pain and suffering, damages in accordance with the Ontario Human Rights Code, and other relief The TPS claims that the grievor was appropriately accommodated. The TPS asserts that the grievor failed to adequately participate in the efforts made in his accommodation. The TPS seeks the dismissal of this grievance. At the outset of the hearing, the TPA indicated that it was seeking as remedy, only the restoration of sick bank credits and not the longer list of enumerated remedies set out in the letter of grievance. During the course of the hearing, the TPA’s request for the restoration of sick bank hours was further quantified as approximately 700 hours. During final argument, the TPA expanded the scope of the relief sought to include damages for mental distress and suffering, punitive and For reasons which follow, the grievance is allowed in part. The grievor was not adequately accommodated. He is entitled to the restoration II
The Facts
The grievor joined the Toronto Police Service on October 23, 1978 at the age of 18. He remains a police officer. The grievor has performed a wide range of policing duties over the course of his career. He has worked in Traffic Units, Youth Bureau, Criminal Investigations, Courts Services and as a “Scene of the Crime” The grievor’s marriage of eleven years ended in 1993. The family farm was sold. The grievor’s wife and two daughters moved to Vancouver. In 1996 the grievor was diagnosed with a sleep disorder. As he had difficulty with changing shift times, he was accommodated by the TPS with an assignment to Courts Services where he would work straight days. Since then, the grievor has sought medical attention to deal with mood disorders. As part of his therapy in 2002, the grievor was prescribed and took, a common anti-depressant known as “paxil”. The day after starting on paxil, the grievor developed ringing in his ears and an unusual sensitivity to sound. The grievor immediately contacted his family doctor and was taken off the medication. Unfortunately, the ringing in his ears and the sound sensitivity continued. The grievor experienced extreme discomfort and disorientation when hearing what would otherwise be normal sounds. As an example, the grievor described hearing a phone book fall - which caused him to lose As a consequence of his disorder, the grievor changed some of his lifestyle habits. He stopped going to restaurants as they were too noisy. The grievor made changes at home. For example, the grievor got rid of his china Not everyone in the grievor’s family acknowledged his condition. The grievor was posted to Courts duty at 393 University Avenue in Toronto during the onset of his hearing disorder. Even though he found this environment noisy, he remained at work and attempted to deal with his circumstances by trying to avoid loud noises, using conventional ear plugs The grievor used the internet to research his condition. He discovered that his ailment was extremely rare, affecting only one person in At the grievor’s request, the TPS moved him from the Court at 393 University Avenue to the Court at 361 University Avenue where it was In the spring of 2002, the grievor discovered an organization in Whitby Ontario that could assist him with his hearing disorder – the Canadian Tinnitus and Hyperacusis Centre (“CTHC”). In April of 2002, the grievor went to the CTHC to have his hearing tested. The grievor was positively diagnosed by the Centre to be suffering Tinnitus is a ringing sound in the ears. Hyperacusis is a heightened sensitivity and discomfort with normal everyday sounds. In early May of 2002, the grievor along with many other officers, was assigned to parade duty to be performed on Monday May 20 on the occasion of the Queen’s Birthday. The grievor was posted to a location on the street adjacent to the parade at the intersection of Yonge and After receiving this posting, the grievor approached his supervisor “Chubby” Singh. The grievor explained to Mr. Singh that he would not be able to tolerate the parade sounds during the assignment. Mr. Singh suggested that the grievor contact the employer’s Occupational Health Knowing he would be unable to deal with the parade sounds, on May 10, 2002, the grievor sent an email to Nurse Agnes Jenkinson with the OHS. The grievor explained in the email that he was hyperacusic and consequently, would not be able to work the parade duty. He awaited On Wednesday May 15, 2002, the grievor’s supervisor Mr. Singh contacted Mr. Tom Imrie, Manager of Occupational Health and Safety in the OHS. Mr. Singh advised Mr. Imrie that the grievor was claiming noise restrictions to resist the parade duty assignment. Mr. Singh noted in an He is now claiming that he has restrictions about noise. This is
obviously self-serving and intended to relieve him from his
assignment at these special events. I have not received anything
from your unit by way of restrictions but in anticipation of such
restrictions I am proposing that he be given ear plugs and be
required to perform his duties.
On May 16, 2002, the grievor was seen by Dr. Jonathon Davids, Medical Advisor with the OHS. Dr. Davids advised the grievor that unless he produced a letter from a specialist, he would not be excused from the assigned parade duty. In the absence of such a letter, the grievor was told to report for duty and that hearing protection would be provided to him for the The grievor was unable to obtain a specialist’s letter in the short time interval between being seen by Dr. Davids and the parade. The grievor reported for parade duty on May 20, 2002, as assigned. Having been told by Dr. Davids to expect hearing protection, he did not bring any himself. Contrary to what Dr. Davids had said to the grievor, he was not provided with any hearing protection at the parade. The grievor worked the parade duty in uniform with sidearm. During the parade, the grievor experienced disabling physical and mental sensations. He described these sensations as “numbness starting in my shoulders like being tasered, big electric shock going through the system, The next day the grievor remained - in his own words - “dizzy and disoriented”. He remained off of work and sick for the balance of the week. The grievor completed an “Injured on Duty Report”. The grievor filed a claim with the Workplace Safety and Insurance Board (“WSIB”) for lost On May 29, 2002, the grievor reported to OHS with a letter from Enza Ciurla-Gyy, an audiologist with the CTHC. The letter was dated May 17, 2002. The audiologist confirmed that the grievor suffered from tinnitus and hyperacusis. It was recommended that the grievor avoid loud environments and remain in Court Services. The audiologist indicated that a “reduced and controlled noise environment would be best for the grievor and that he did …not need to resort to the use of ear protection…”. During June of 2002, the employer arranged to have the grievor fitted for attenuated hearing protection. The grievor eventually tried the attenuated devices. He found these devices to be of no greater assistance than conventional ear plugs and did not continue to use them. The grievor advised his supervisor Mr. Singh that he was having difficulty in his posting at 361 University Avenue. The grievor was of the view that there was no place in that Court where he could safely work The grievor had over the course of June, 2002, a number of discussions with OHS about his claimed disability. At the same time, a number of discussions about the grievor’s condition took place within the On June 4, 2002, Detective Neil Stokes who was a Safety Officer with the TPS, sent an email to Mr. Imrie, regarding the grievor. After describing the grievor’s claimed disability and the history of reporting the disability to the employer, Detective Stokes indicated that the grievor’s supervisor Mr. Singh had told Det. Stokes that the grievor: …did not want to be a police officer anymore…there was a pattern
of sickness whereby one or two days tagged to the weekends are
taken off due to being sick. I spoke with two court officers about
P.C. Hill and was advised that he is a very lazy individual and try’s
to avoid doing work. I’m reporting this situation so that a proactive
approach can be taken in handling his case.
…that hyperacusis, which is the claimed illness, has not been
shown to be medically associated to any event or occurrence, if in
fact it is a disability at all. I further understand that there is no
medical information to substantiate that time off work is medically
appropriate for persons claiming to have hyperacusis….
In June 2002, the grievor was seen by Dr. John Alexander Rutka. Dr. Rutka is an expert physician with the Toronto General Hospital with a specialty in Otolaryngology. He is an Associate Professor in the School of Medicine at the University of Toronto and a frequent expert witness and advisor to the Workplace Safety and Insurance Appeals Tribunal. Dr. Rutka is the Chief Consultant on hearing loss to the WSIB. At the hearing, the TPS agreed that Dr. Rutka was an expert witness and did not challenge the admissibility of his evidence. On January 13, 2003 Dr. Rutka sent his first letter to the TPS regarding the grievor. Dr. Rutka indicated that the grievor suffered from hyperacusis and as a consequence, could not tolerate loud environments. Further, Dr. Rutka stated that the wearing of hearing protection was not Dr. Rutka testified that hyperacusis is an extremely rare disorder. Out of the three thousand patients that Dr. Rutka might see in a year, only one or two would present with hyperacusis. The causes of hyperaccusis are unknown. It is usually diagnosed after a patient reports subjective discomfort with normal noise levels. It is possible to objectively test for hyperacusis by measuring what is known as Dr. Rutka confirmed that the only known therapy is a form of desensitization. Attenuated hearing devices are used to gradually increase the loudness of sounds which penetrate the device. Paradoxically, the continual use of conventional hearing protection to block out painful noise, may exacerbate the disability. Dr. Rutka testified that the subjective experience of painfully loud noise, otherwise tolerable to healthy individuals, could be debilitating to The grievor remained posted to the Courts at 361 University Avenue for the balance of 2002 and into 2003. During this time, he continued to In February of 2003 following the provision to the TPS of Dr. Rutka’s first letter, the grievor requested that his file be moved from Dr. Davids to Dr. Millman, the Senior Medical Advisor to whom Dr. Davids Dr. Millman assumed responsibility for the grievor’s file in early March of 2003. Dr. Millman commenced a review of the grievor’s case. It is clear that by 2003 the grievor was becoming increasingly frustrated with what he understood to be the lack of effort made by the TPS to accommodate his hyperacusis. At one point the grievor refused to sign a medical release. He advised the TPS to “contact his lawyer”. In July 2003 the grievor indicated that he might be taking legal action against the TPS for what he regarded as inappropriate treatment. It is apparent that the grievor’s request to have his file moved to Dr. Millman reflected his dissatisfaction with Dr. Davids specifically - and the management of his file by the TPS more generally. By July of 2003 Dr. Millman was still in the process of attempting to determine the degree of disability suffered by the grievor. At one point Dr. Millman received information from Mr. Imrie which suggested that the grievor was taking photos of bag pipe bands on his own time. If true, this seemed inconsistent with the grievor’s claims that small sounds such as the It turned out that the grievor had indeed on his own time, attended a police graduation event for a friend where bag pipes were played. The grievor testified that he did wear conventional ear plugs for this event and further, that he did suffer discomfort from the sounds of the bag pipes. Once Dr. Millman received a consent from the grievor, he attempted to contact Dr. Rutka by telephone. Telephone contact between Drs. Rutka and Millman took several months to occur. This conversation eventually occurred on October 16, 2003. Dr. Rutka confirmed for Dr. Millman that the grievor did suffer from hyperacusis and that this condition did render him susceptible to disabling pain in the presence of otherwise “normal” Following his conversation with Dr. Rutka, Dr. Millman decided to direct sound level testing in the Courts at 361 University Avenue where the Following sound testing and a personal site visit to 361 University, Dr. Millman concluded that the work environment was not within the grievor’s restrictions. Dr. Millman decided that the grievor needed to be moved to a quieter work environment to be appropriately accommodated. On November 17, 2003, Dr. Millman raised his concerns with TPS management that the grievor was being inadequately accommodated in his then current posting. Dr. Millman noted what he described as “tremendous resistance” by the TPS to the suggestion that the grievor needed to be moved from 361 University to a quieter environment in order to be appropriately One of the principal objections by the TPS to any further accommodation was that the grievor had been provided with attenuated hearing devices at the expense of the TPS but was not wearing them at work. On December 11, 2003, Dr. Millman went to see and investigate a “station attendant” position as a potentially suitable posting. It turned out to In December, 2003, an “ecops” position was identified as a possibly appropriate assignment for the grievor. The grievor was interviewed for the position on December 19, 2003, and was assigned the posting effective The grievor worked in the ecops position until January 23, 2006, where he acknowledges that he was appropriately accommodated except only for the requirement that he participate in regular side arm training which he maintains was inconsistent with his disability. On January 23, 2006, the grievor was transferred to a position at 43 Division where he remains to this day. Again, other than during side arm training, it is agreed that the grievor remains accommodated in this posting. Between the summer of 2002 and his transfer to the ecops posting in December, 2003, the grievor exhausted his sick bank. He took days off from work due to the disabling consequences of hearing what were for him, painful levels of noise at the Courts in 361 University Avenue. III
Duty to Accommodate
The parties are agreed that the grievor suffers from hyperacusis, that this is a disabling condition, and that the employer is obliged to accommodate the grievor’s disability to the point of undue hardship. It is undisputed that the grievor was not appropriately accommodated in his assignment to the Courts at 361 University Avenue – this was the conclusion drawn by Dr. Millman following his review of the grievor’s file and sound level testing. From the time of the first reporting of disablement, it took the employer close to twenty months to arrive at an appropriate accommodation. In the interim, the grievor continued to work in an environment which as it turned out, was inconsistent with his restrictions. The grievor coped with this in a variety of ways - including the use of his sick leave credits to recover from the periodic disabling consequences of his assignment. Unfortunately this scenario is not unusual for rare forms of disability that are difficult to verify objectively. Through a combination of unfamiliarity with the diagnosis, skepticism about the legitimacy of the disability, and a concern that the grievor might be malingering, there was foot dragging and even resistance on the employer’s part – to moving the grievor’s file forward to find suitable accommodation. Dr. Davids, through his entire involvement with the grievor, seemed to harbour significant concerns about the degree of accommodation sought by the grievor and his lack of interest in using the attenuated devices Dr. Millman brought a fresh look to the grievor’s case but described in his own words “tremendous resistance” from senior management to the suggestion that the grievor was inappropriately posted in the Courts. But for the employer’s unfounded skepticism about the claimed disability, the grievor would in the normal course most likely have been appropriately accommodated in the summer of 2002 and certainly following the report of Dr. Rutka in January 2003 at the latest. While the TPS eventually found an appropriate posting for the grievor in December of 2003, I find that the employer is responsible for the delay in providing an adequate form of accommodation until that point in time. Further, I find that the grievor would most likely not have exhausted his sick bank, if he had been appropriately accommodated at an earlier date. Claim for Damages
As noted earlier, the TPA seeks general, punitive or exemplary and mental distress damages. The TPS resists these claims on the basis that the TPA specified at the beginning of the proceeding that it was only seeking the restoration of the sick bank and further that this was quantified at approximately 700 hours during the course of the hearing. The broader claim for damages over and above the restoration of the sick bank was only made at the point of argument and for the first time. There is no dispute that the grievance claims a broad range of damages beyond the claim for sick bank time. It is equally clear that the TPA at the outset of the hearing stipulated that it was only seeking the restoration of the sick bank time, that this was quantified during the course of the hearing at approximately 700 hours, and that the claim for broader relief was raised for the first time and without any other notice at the point of In my view, it would be unfair and prejudicial to the employer to permit the TPA to advance a claim for these damages having already clarified that they were not being sought at the outset of the hearing and following the close of the employer’s case. There is a reasonable likelihood that the employer’s case – both in terms of witnesses and litigation strategy would have been conducted quite differently had it understood that the broader range of special and punitive I conclude that it is not appropriate to permit the TPA to advance the claim for these types of damages for the first time in argument. In the event that I am wrong and the TPA is entitled to advance a claim for punitive and other special damages, I find that they would not be appropriately awarded on the facts of this case. I do not accept that there is evidence of willful disregard, malice or bad faith before me. Further, I am not persuaded that the grievor suffered unduly as a consequence of the Certainly, the grievor suffered from the consequences of his disability and had to use sick time to recover from his periods of work. The restoration of the grievor’s sick bank makes him whole on that front. IV
The grievance is allowed in part. The TPS is directed forthwith to restore the grievor’s sick bank entitlement as claimed, approximately 700 hours. The TPS is directed to accommodate the grievor’s disability during any necessary side arm training, according to the restrictions determined by I remain seized to deal with any issues arising from the Dated at Toronto this 24th day of April 2008

Source: http://www.policearbitration.on.ca/content/stellent/groups/public/@abcs/@www/@opac/documents/awards/08-002.pdf

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