Beart v Edmonton Public School Board, 2021 AHRC 3 (CanLII)

[1]         The complainant, Nicole Beart, alleges that the respondent, Edmonton Public School Board, discriminated in the area of employment on the ground of physical disability (the Complaint) in contravention of section 7 of the Alberta Human Rights Act (Act).[1] 

[2]         The respondent hired the complainant in September of 2002 as a Grade 1 teacher.

[3]         The complainant submitted, and the respondent’s information supported, that she requested a lengthy medical leave due to spinal injury sustained in a car accident:

[4]         The respondent noted that the complainant returned to work briefly in September of 2004 for full-time teaching at the lower elementary level for two years before requesting an unpaid leave.

[5]         The respondent noted that the complainant chose to apply for a general leave of absence without pay or benefits, notwithstanding advice from the respondent that she could apply for paid medical leave.

[6]         While on leave, the respondent submitted that the complainant actively and continuously worked for third parties, including starting her own successful company.

[7]         As her physical condition had improved, the complainant indicated that she contacted the respondent in the spring of 2010 to request a return to work for the 2010 – 2011 school year. The complainant and respondent both provided information about a series of communications at that time, which ultimately resulted in the complainant remaining on leave.

[8]         The complainant submitted that she tried to contact the respondent on numerous occasions but did not hear from them until the spring of 2017.  The respondent, however, suggested that they heard nothing from the complainant during that 7-year period.

[9]         In cleaning up its human resources records in 2017, the respondent reached out to the complainant to ask about her status. The complainant had a meeting with the respondent on March 27, 2017 and indicated that she would like to return to work, in alignment with the medical recommendations. The respondent replied that they would require updated medical information as many years had passed since 2010. The complainant obtained the requested information. Her documentation showed that she continued to suffer from a back injury and required modifications to a standard teaching role. An independent medical exam noted that teaching lower elementary children was not ideal due to the need for bending and twisting.

[10]      Both the complainant and respondent suggest that the complainant actively participated in obtaining medical information, including an independent medical exam, although there is some disagreement as to whether the delays in obtaining and reviewing results was the fault of the complainant, the respondent or both.

[11]      In August of 2017, the complainant and respondent agree that the respondent offered the complainant a series of teaching positions in elementary schools.

[12]      The complainant noted that none of these positions were suitable as they were all in elementary schools, which did not meet the medical accommodation requirements. The complainant suggested that the large school board had therefore failed in its duty to accommodate by their inability to find her a suitable position.

[13]      The respondent, however, noted that the medical recommendations were that the complainant’s injuries likely precluded teaching at the “lower elementary level.” Most of the positions offered to her were at the mid or upper elementary level, and met the restrictions indicated by the medical documentation, or could be modified appropriately.

[14]      Further, the respondent noted that the complainant failed to attend any of the planned return to work meetings, wherein the respondent intended to discuss the details of each possible placement and possible accommodations that could be offered.

[15]      The complainant filed a Complaint, accepted by the Alberta Human Rights Commission on October 24, 2017, alleging discrimination on the basis of physical disability.

[16]      In December of 2017, a literacy support position in a junior high school became available and was deemed an appropriate accommodation and a suitable position by both the respondent and complainant.

[17]      The complainant submitted that the return to work was not ideal, with an initial failure to follow the recommended modified schedule. Also, the complainant commenced work on January 8, 2018 and confirmed that a sit/stand desk, which was a recommended accommodation for her disability, was to be available for her first day of employment in accordance with the medical recommendation. Her sit/stand desk was delivered on February 14, 2018, however.

[18]      The respondent submitted a response on January 23, 2018 noting that much of the complainant’s information related to a time period that was time-barred for consideration. It submitted that the Human Rights Commission should not consider any information related to a time period more than a year prior to the filing of the Complaint. It also noted that the complainant was reasonably accommodated.

[19]      In its response, the respondent also submitted that during her leave of absence from September of 2006 until January of 2018, the complainant pursued other employment opportunities and represented to the respondent that she was capable but preferred not to return to work as a teacher.

[20]      In August of 2009, the respondent submitted that it advised her that it was reviewing her unpaid leave since the leave had extended beyond what was permitted by the collective agreement and the respondent’s policies and procedures.

[21]       The respondent noted that medical information was not provided to provide support for her return to teaching at that time.

[22]      The respondent then submitted that it heard nothing from the complainant until the spring of 2017, when it contacted the complainant to ask whether she was able to return to work.

[23]      Based on the medical information provided, the respondent submitted that it proposed eight possible teaching positions that would satisfy the complaint’s restrictions and a gradual return to work, but the complainant refused all of them since they were not her preferred placement in a literacy support program or junior or senior high school.

[24]      The respondent agreed that one of the positions put forward would not have been suitable upon further review as it required physical education teaching, which was against the restrictions. The other proposed positions could have accommodated the complainant’s requirements.

[25]      The respondent submitted that the role of a medical professional is to define the restrictions that must be accommodated, not to indicate what they believe would be a suitable role. The complainant had rejected positions that met the medical restrictions.

[26]      The respondent submitted that the complainant was myopic about the type of accommodation she required, insisting on a junior or senior high school position or else a small group literacy program, notwithstanding that other positions could accommodate her functional limitations.

[27]      Detailed notes submitted by the respondent demonstrate the efforts made by the respondent to test various possible positions against the medical requirements. Communications were exchanged in writing and the respondent also met with the complainant and her union representative.

[28]      In late December of 2017, the respondent and the complainant agree that the complainant accepted a posting in the grades 7 to 9 Literacy Supports program and returned to work on a graduated basis beginning in January of 2018. Thus, the respondent submits that it has fulfilled its duty to provide reasonable accommodation.

[29]      The test that I must apply in carrying out my review function under section 26 of the Act is whether there is a reasonable basis in the evidence for proceeding to a hearing before a Tribunal. The threshold is low and I am given wide latitude in performing this screening function. [2] 

[30]      As conceded by the respondent, the complainant had a disability that required accommodation.

[31]      The information supports the submissions of the respondent that the complainant had been, and is being, reasonably accommodated for her ongoing disability. The final accommodation was that the complainant actually received her preferred accommodation in a literacy support program at the junior high school level.

[32]      Although several months did pass between the provision of medical documentation and the ultimate accommodation role, the information provided did not suggest that the respondent was causing undue delay. The respondent met with the complainant and her union representative. Throughout the fall of 2017, several positions were offered that they believed met the medical requirements. These positions were refused by the complainant because they were still in elementary school, even though they did not involve lower elementary students. One position in literacy support in elementary school was believed to be acceptable, but, upon further review, the requirements did not meet the medical restrictions.

[33]      The complainant noted that it was not until she filed the Complaint that the respondent offered her the role that she accepted. The timing shows that respondent offered the complainant the junior high literacy support role, which met not only the medical requirements but also the preferences of the complainant, a couple of months after the Complaint was filed. No evidence suggested a link between the Complaint and the offering of the role. Even if the filing of the Complaint did precipitate the complainant being offered an accommodated role that met her preferences, that would not be evidence of a failure in the duty to accommodate. That would be evidence of the human rights process succeeding in precipitating the requirements of accommodation being met by an employer. The motivation behind the respondent offering the accommodation does not negate that the complainant is now being reasonably accommodated in a suitable, and indeed her preferred, role.

[34]      There appears to be a difference of information between the complainant and respondent as to what communication happened or failed to happen between 2010 and 2017, before the filing of the Complaint. No documentation suggested that the complainant presented herself as medically able and personally willing to return to work prior to 2017. The information supports no reason to examine what accommodation occurred in the year preceding the filed Complaint. Since 2017, the information supports reasonable, and ultimately successful, efforts being made by the respondent to accommodate the complainant’s disability.

[35]      The information suggests that the timing of the arrival of the requested sit/stand desk for the complainant was not ideal, as it arrived after she had already commenced working, but this does not appear to be an ongoing concern as the desk was ultimately provided.

[36]      Having reviewed all the information and for the reasons above, there is no reasonable basis in the evidence to proceed to a hearing. Under section 26(3)(a), I am upholding the Director’s decision to dismiss the Complaint.