FAQ's Cases - Stewart McKelvey

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made it clear that the applicant should not perform tasks beyond his medicalrestrictions.[70] I do agree with the Tribunal’s decision in Colella v. Toronto Catholic DistrictSchool Board, 2010 HRTO 2224, that the Code does not require a standard ofperfection, and every technical violation of a medical restriction will not necessarilyamount to a finding of a breach of the Code. However, I am satisfied, based on theevidence before me, that the applicant’s duties in April and May included some tasksthat were beyond his restrictions and consequently the respondent failed in its duty toaccommodate the applicant during this period. This constitutes a violation of theapplicant’s rights under the Code.2012 HRTO 1455 (CanLII)[71] I would briefly note here that the applicant also complained that other personswho were given modified duties were not required to undertake modified duties tasksassigned to the applicant, for example, using the sit down sweeper. I accept therespondent’s testimony that this was because modified duties were assigned accordingto the nature of the injury and that these other two employees who respectively had ashoulder injury and a foot injury were not given a job using the sit down sweeperbecause of the difficulty they would have in driving the sweeper.2) Did the respondent meet its duty to accommodate the applicant’s disability upto the point of undue hardship in June 2007?[72] There was evidence before me to suggest that the respondent was not initiallygoing to offer the applicant modified work in June. Mr. Castellano testified that therewas limited modified work available in June because of the number of persons on theafternoon shift who had injuries requiring accommodation. Ms. Roehl submitted a formto WSIB in May (page four of the WSIB Form 7) stating that “Saputo will be able toaccommodate the modified light duties until June 1 (inclusive) but will not have theselight duties after this date and that this is due to the light duties not being designated toone employee each day. The light duties are shared with all employees. Mr. Lagana22
was made aware on May 22/07 that his modified duties would not be made availableafter June 1, 2007.”[73] The fact that the respondent was of the view that they could and would notprovide modified duties for the applicant after June 1 could potentially give rise to afinding that the respondent did not meet its duty to accommodate the applicant in June.However, in my view there is evidence that the respondent was attempting toaccommodate the applicant after June 1. There is further evidence that raises aquestion as to whether the applicant was available to work in June and, if so, with whatrestrictions.2012 HRTO 1455 (CanLII)[74] According to the WSIB case manager’s notes of June 1, 2007 the respondentoffered the applicant a modified position driving a forklift beginning June 4 but theapplicant was concerned that he could not perform this job because he believed drivinga forklift in reverse would aggravate his back. On June 4 Ms. Roehl provided theapplicant with a blank functional abilities form for his doctor to fill in to clarify whatmodified work the applicant would be able to do.[75] The applicant’s doctor completed a functional abilities form for the applicant onJune 8. The doctor indicates that the applicant is physically unable to return to work andthat his next assessment is scheduled for mid-June. This functional abilities form doesnot identify the applicant’s abilities and/or restrictions and provides no expected returnto work date.[76] The efforts to accommodate the applicant continued. According to the WSIBcase manager’s notes of June 21 the respondent offered the applicant a sit downsweeper position for four hours a day and that the applicant was agreeable to thisarrangement and was prepared to return to work on Monday June 24. I heard noevidence as to why the applicant did not return to this offered modified position.However, shortly thereafter, the applicant provided the respondent with a doctor’s notedated June 28 stating that the applicant could return to light duties with reduced hourson July 3.23
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The Labour Relations BoardSaskatche
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3unionized workforce at their plant
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5[15] In addition, there was some h
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7Employee “D”: He was on his pr
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9[37] The Board did not have the be
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11[48] Shortly after Mr. Copeland b
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13credible reason for the disciplin
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15outlined by the Board in RWDSU v.
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173. Order for captive audience mee
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19for his failure to produce the wi
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21[95] Similarly as noted in the qu
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23[103] Also, in The Newspaper Guil
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25rights under the Act. The Employe
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27The determination of whether, in
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29respect to the section of the Alb
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31meetings, would have been within
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33[143] In respect of the complaint
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- 2 -[2] The plaintiff, Susan Chart
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- 4 -by the time she finished there
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- 6 -[24] Testimony was received fr
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- 8 -would feel grateful for the fo
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- 10 -[49] 2. Comfortable, even tem
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- 12 -[67] Another complaint was th
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- 14 -bottom of the problem and the
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- 16 -member about something amusin
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- 18 -[111] Given that the meeting
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COURT OF APPEAL FOR ONTARIOBETWEENC
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Page: 9D. ANALYSIS[23] It is well-s
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Page: 11[28] The appellant submits
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Page: 14[37] When parties contract
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Page: 16addressing the issue of a c
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Page: 202008 ONCA 479, 91 O.R. (3d)
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Page: 22[56] Notably, the concern e
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Page: 24termination without cause,
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Page: 26[64] The costs on the appli
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The parties agree this Board has th
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Mr. Wallace. The evidence is that M
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Mr. Mutter and Mr. Wallace each tes
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Mutter spoke. He testified he was a
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saw (or was told by the crew) Mr. K
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and heard, as well as other factors
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When viewed in that light, it is fa
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IN THE SUPREME COURT OF BRITISH COL
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Balogun v. Deloitte & Touche, LLP P
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Page 175 and 176: that the events of May 22 may have
Page 177: Accordingly, I am requiring the par
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FAQ's Cases - Stewart McKelvey

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