Date: 20060713
Docket: T-1050-05
Citation: 2006 FC 877
BETWEEN:
SIMONE SHERMAN
Applicant
and
CANADACUSTOMS AND REVENUE AGENCY
Respondent
REASONS FOR JUDGMENT
SIMPSON J.
[1] This application is for judicial review of the Respondent's decision of May 19, 2005 in which it determined that it will not pay the Applicant on a full-time basis during the period in which it makes the changes needed to accommodate her disability. The Applicant seeks a declaration that the Respondent has failed to implement the decision of an Independent Third Party Reviewer by refusing to provide her with full time pay and benefits since her reinstatement, and seeks an order of mandamus requiring the Respondent to do so.
THE BACKGROUND
[2] The Applicant has been employed by the Respondent since 1985, and has worked as an Electronic Commerce Audit Specialist (ECAS) since 1988. In 1994, she was disabled at work by a repetitive strain injury which affected her arm, shoulders and neck. She left work and received Workers' Compensation benefits. When the Applicant indicated that she was ready to return to work in 1995, the Respondent and the Ontario Workers' Compensation Board (WCB) tried to place her in a new position, but she objected.
[3] In January 1996, a WCB Reinstatement Officer ordered that the Applicant be returned to her former position as an ECAS. The Reinstatement Officer ruled that the Respondent had an obligation to accommodate the Applicant in that position.
[4] Following that decision, the Applicant returned to work and worked four hours per day while awaiting accommodation. Her manager retained the Neil Squire Foundation (NSF), experts in ergonomic accommodation. NSF completed two reports on the Applicant's situation, which included detailed recommendations about the changes necessary to accommodate her disability. The Applicant continued to work four hours per day while awaiting implementation of the recommendations contained in these reports.
[5] In 1996, the Applicant's manager was replaced and her new manager refused to proceed with the implementation of the NSF recommendations on the basis that the level of accommodation they proposed was not necessary. She also tried to persuade the Applicant to accept a different position. On September 3, 1997, the Respondent reduced the Applicant's salary from 7.5 hours per day to 4 hours per day to reflect the hours she was actually working. A grievance of this decision is outstanding.
[6] The Respondent then hired a consultant, Mike Arnold, to implement the NSF recommendations. Arnold informed the Respondent that the Applicant would never be able to return to full-time work. Based on that report, the Applicant was ordered to leave the workplace and obtain a medical assessment. She was suspended without pay, on the basis of a "lack of medical clarity". A grievance of this decision is also outstanding.
[7] The new manager wanted the Applicant to undergo a Functional Abilities Evaluation (FAE), but a dispute arose about the job requirements on which the FAE was to be based. For that reason, the Applicant refused to undergo the FAE. Instead she offered to take a test that would measure her ability to do the tasks she felt were required of an ECAS.
[8] In April 1999, the Applicant was fired for refusing to undergo the FAE. She grieved the termination, and was reinstated by senior management on the basis that she had not been warned that she would be fired if she failed to complete the FAE. After her reinstatement, the Applicant continued to refuse to undergo the FAE, and was fired a second time in August 2000. The Applicant grieved her termination of employment, and applied in April 2001 for an Independent Third Party Review (ITPR), which is essentially an arbitration conducted under the Canada Customs and Revenue Agency Act, R.S.C. 1999, c. 17.
The ITPR Decision
[9] The ITPR hearing began on November 5, 2001 with 19 days of oral testimony. Thereafter written submissions were filed and the decision was issued on February 26, 2003 (the ITPR Decision). It concluded with the following order:
I order that Ms. Simone Sherman be reinstated to her home position as an ECAS auditor, effective August 28, 2000. I should note, as well, that it flows from my findings, that the Employer's obligations to accommodate Ms. Sherman in that position have not been met and would, necessarily, continue upon reinstatement.
I find, as well, that such reinstatement entails the provision of all wages and benefits that would have been due and payable to Ms. Sherman, had she not been excluded from the workplace and had continued in her job as an auditor with the CCRA from August 28, 2000. (p. 89 of Applicant's record)
[10] The Respondent took the position that, pursuant to the ITPR Decision, the Applicant should be restored to pay at a rate of four hours per day. Counsel for the Applicant asked the ITPR Reviewer to clarify his order. On February 5, 2004 the Reviewer issued a clarification stating:
Any reinstatement would have been back to her substantive position which was a full-time position, and the retroactive pay and benefits calculated accordingly.
[11] The Applicant applied to the Federal Court for mandamus to require the Respondent to pay her retroactive pay for the period before her reinstatement, pursuant to the ITPR Decision, at the full time rate of 7.5 hours per day. On February 3, 2005, Justice von Finckenstein released a decision in which he granted her application. The Applicant has brought contempt proceedings in connection with the Respondent's compliance with that decision.
The Post-Reinstatement Period
[12] In a letter dated January 22, 2004, the Respondent asked the Applicant to return to work on February 2, 2004 (the Return Date). On January 28, 2004, the Applicant's physician wrote to the Respondent saying that it would be inadvisable and unsafe for the Applicant to return to work until there had been an appropriate assessment of her ergonomic needs and accommodations had been provided. The Applicant did not return to work, as requested, because no accommodations were being provided.
[13] In June 2004, the Respondent retained Marla Rosenfeld, an accommodation expert. Ms. Rosenfeld determined that since the Applicant had been away from work since June 1998, she was severely de-conditioned and needed time to build up to full time work. Rosenfeld advised the Applicant to begin work-readiness training. This the Applicant did. Rosenfeld also conducted an ergonomic review of the Applicant's workplace, and concluded that the existing equipment and facilities were unsuitable and required replacement. The necessary work was done.
[14] In January 2005, the Applicant returned to work, working 2 hours per day, 3 days per week under Rosenfeld's direction. On April 4, 2005 she increased her time at work to 2.5 hours per day, 3 days a week, and on May 16, 2005 she further increased it to 3 hours per day, 3 days a week. In her affidavit sworn on July 3, 2005, the Applicant stated that she had been provided with a workstation which included a chair and a computer to accommodate her needs. Ms. Rosenfeld indicates in her affidavit sworn on June 29, 2005 that, while her goal is to help the Applicant reach her maximum functional potential, she does not yet know what that will be. Therefore, she has not yet considered making accommodations beyond the Applicant's immediate office environment.
[15] Since the Return Date the Applicant has been paid as if she had worked for 20 hours per week even though she has never actually worked for more than 9 hours per week. However she has not been paid on a full time basis (i.e. 7.5 hours per day) and she claims entitlement to remuneration at that level since the Return Date.
THE ISSUE
[16] The narrow issue in this proceeding is whether the Respondent has a duty to pay the Applicant on a full time basis (regardless of the hours actually worked) from her Return Date until the process of making the changes necessary to accommodate her disability is complete.
DISCUSSION
[17] In my view, the parties' divergent views about the effect of the ITPR Decision are central to this dispute. Applicant's counsel acknowledged in oral submissions that the ITPR Decision does not include an order dealing with the amount to be paid to the Applicant after her reinstatement and, further, that an Independent Third Party Reviewer (Reviewer) has no jurisdiction to order post reinstatement remuneration. However, the Applicant says that because the ITPR Decision concluded that the Respondent had acted in bad faith and had failed in its duty to accommodate the Applicant, and because it ordered the Applicant reinstated to a full time position, the ITPR Decision, by necessary implication, created a duty on the Respondent to remunerate the Applicant on a full time basis in the post reinstatement period while accommodation was underway. However, Applicant's counsel acknowledged that there is no jurisprudence to support his submission.
[18] The Respondent's position is that it has no duty to pay the Applicant on a full time basis and that such a duty, were it to exist, must be clear to satisfy the requirement for mandamus. The Respondent says that the ITPR Decision cannot be said to create a clear duty because a Reviewer has no jurisdiction over post-reinstatement remuneration.
CONCLUSION
[19] I have not been persuaded by the Applicant's submissions. Because a Reviewer has no jurisdiction to deal with post-reinstatement remuneration, I have concluded that the ITPR Decision cannot, by necessary implication, impose a duty on the Respondent with respect to the Applicant's post-reinstatement pay scale. In my view, the correct approach is to view the ITPR Decision as the last step in a process in which fault was assessed and found, and a remedy provided. Once the Applicant was reinstated with retroactive pay and a right to accommodation, the ITPR Decision and the fault it found had no further relevance. This means that, on reinstatement, the Applicant became an employee with the same rights as comparable employees who had been injured in the workplace. Her pay, benefits, and other entitlements were to be treated like those of any other disabled employee in her position who returned to work in a situation in which ongoing accommodation was required.
[20] For these reasons, the application for a declaration and mandamus will be dismissed.
Sandra J. Simpson
Ottawa, Ontario
July 13, 2006
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