SHP591S

IN THE MATTER OF AN ARBITRATION

 

BETWEEN:

 

                        CANADIAN NATIONAL RAILWAY COMPANY

                                (hereinafter referred to as the "Railway")

 

AND:

 

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW- CANADA), LOCAL 100

                                  (hereinafter referred to as the "Union")

 

 

                                             (Supplementary Award)

 

 

Arbitrator:                                          H. Allan Hope, Q.C.

 

Counsel for the Railway:                     Joseph Hunder

Counsel for the Union:                        Brian R. McDonagh

 

Place of Hearing:                                Prince George, B.C.

Date of Hearing:                                 June 7, 2004

Supplementary Award

 

[1]               This decision involves the resumption of a hearing initiated under the Canadian Railway Office of Arbitration (CROA) on February 25, 2003 with respect to two grievances challenging the imposition of 20 demerits and 30 demerits respectively for offences relating to the Grievor’s alleged refusal to perform work assignments and a third grievance filed with respect to the alleged failure of the Railway to accommodate a disability that restricted the Grievor’s capacity to perform all of the duties of his position. 

 

[2]               The parties agreed to enter into a process for the resolution of the grievances which would see the 50 demerits withdrawn from the Grievor’s record “subject to his cooperation in the pro tempore resolution process”, and a resolution of the duty to accommodate grievance through an expert evaluation of the Grievor’s degree of disability and whether it could be accommodated in the Railway’s Prince George operations. 

 

[3]               The “resolution process” was set out in a Memorandum of Resolution, (the Memorandum), dated June 2, 2003 which was “subject to recall by either party giving notice of the intention to have [the hearing] resume”.  That Memorandum should be read with this Award.  The principal issue to be addressed between them in the settlement process related to:

 

[T]he effect the Grievor’s current medical restrictions have on whether his resulting disability can be accommodated in Prince George.  The Union position is that the Grievor can be accommodated.  The Railway position is that he cannot be accommodated in Prince George but can be in Edmonton.

 

[4]               The parties embarked on the settlement process which, inter alia, involved evaluation of the Grievor by medical and occupational experts who were to be appointed jointly by the parties.  An initial report was prepared by an occupational expert, Mihwa Lee, in the form of a Physical Demands Analysis (PDA) dated March 18, 2003.  The parties agreed to that step as a variation in the process set out in the Memorandum.  Ms. Lee’s report was followed on March 24, 2003 by a report prepared by Dr. M.S. Piper, an orthopaedic surgeon who was selected by the Railway from a list proposed by the Union. 

 

[5]               Thereafter, following exchanges directed at clarifications in the medical report, Ms. Lee compared the medical restrictions identified through Dr. Piper with the PDA she had conducted prior to Dr. Piper’s examination of the Grievor.  Based on that comparison, Ms. Lee expressed the opinion that the Grievor was “unable to safely perform over 90% of the job duties required of a Car Mechanic”.  Her opinion was expressed in a report letter dated June 5, 2003.  On June 16, 2003 the Union provided me with a fax copy of a letter it had sent to the Railway.  In it the Union appeared to accept the reports of the two experts.  I will set out the text of that letter shortly.

 

[6]               The Railway concluded from that letter that the Union had accepted that the Grievor was disabled and that his disability could not be accommodated in Prince George.  That was a logical conclusion to draw from the text of the letter when it is read either in isolation or in the context of documented exchanges between the parties that preceded it.  However, on July 1, 2003 the Union gave notice that it wished “to invoke its right to return [to the hearing] for a full and final resolve of this matter”. 

 

[7]               I digress to note that the CROA process involves some procedural limitations designed to expedite the adjudication of disputes.  Not all disputes prove amenable to that process.  Initially this dispute met the CROA expectations in the sense that it involved the review of discipline imposed in response to similar incidents of the Grievor refusing to accept work assignments in the Railway’s Prince George operations.  The Union’s response was that the refusals arose because the Grievor was disabled in terms that the Railway had accommodated in the past.  The third grievance arose when the Railway took the Grievor out of service on the basis that the restrictions asserted on his behalf prevented him from performing many of the duties of his position and that disabilities that gave rise to the restrictions could not be accommodated in Prince George. 

 

[8]               From that relatively simple beginning, the dispute escalated in terms of the duty to accommodate issue.  In particular, it became apparent in the initial proceedings that the parties would benefit from a current assessment of the Grievor’s physical condition, whether it affected his ability to perform the duties of his position, and whether any restriction in his ability could be accommodated in Prince George.  It was acceptance of that reality that led to the settlement process.

 

[9]               That process, as indicated, was aborted by the Union, thus leaving the parties, at best, in the positions they occupied at the time the initial proceedings were adjourned.  At that stage, the Railway had presented its case in defence of the disability it had imposed and its decision to remove the Grievor from service.  The Union had presented its case and its response to the Railway’s position.  The only step remaining was for the Railway to present its reply.  Hence, in the ordinary course, a resumption of the proceedings would be limited to a presentation by the Railway of its reply to the submissions made by the Union.  However, as I will detail later, the Union sought to vary the process and to reopen its case in order to make new submissions with respect to the accommodation issue.  That variance involved complex questions of fact and opinions that are not usually nor comfortably addressed in the fact-finding medium which is characteristic of the CROA process. 

 

[10]             As stated, the parties recognized that limitation when they agreed to adjourn the initial proceedings in favour of the settlement process outlined in the Memorandum.  They conceded, in effect, that the two issues at the core of the dispute were best addressed in the form of expert opinions.  Those questions were whether the Grievor was disabled and, if so, the extent to which his disability could be accommodated in the Railway’s Prince George operations.  It was in pursuit of expert opinions in that regard that the parties adopted the procedure set out in the Memorandum.  The Union’s abrupt rejection of the settlement process, after it was virtually complete, left the parties with substantially the same factual vacuum with respect to the Grievor’s condition and his need for accommodation that existed when the Memorandum was first adopted. 

[11]             I pause to record my disagreement with the Union submission that the onus was upon the Railway in the initial proceedings to prove that the Grievor was disabled and could not be accommodated in Prince George.  The onus on the Railway in the context of the three grievances was to establish with respect to the two discipline grievances that the conduct of the Grievor in refusing work assignments was conduct deserving of discipline and that the penalties selected were not excessive.  Its onus with respect to the Grievor’s removal from service was to establish that it had just cause to take the action it did.  The Railway presented its case in support of its general assertion that it had just cause to take the action it did in both respects.  It then fell to the Union to meet the case presented by the Railway. 

 

[12]             In the discharge of its onus, the Union adduced facts supporting its assertion that the Grievor was disabled and that his disability had been both recognized and accommodated by the Railway in the past.  Its response on the accommodation grievance was to challenge the facts adduced by the Railway to the effect that the Prince George work place offered only limited flexibility and work assignments and that the Grievor’s disability, as asserted by him and by the Union, could not be accommodated in that restricted work environment. 

 

[13]             Hence, while the initial onus was on the Railway to establish that it had just cause to take the Grievor out of service, the Railway adduced facts that met that onus prima facie and it was for the Union to refute those facts in terms which would permit a finding that the Grievor’s asserted disability could be accommodated in Prince George.  The Union adduced facts in its Reply to the Railway and in the presentation of its case.  The only fact gathering aspect of the process left to be completed was for the Railway to reply to the case presented by the Union.  The adjudication phase was to follow to determine, inter alia, whether the Railway had established just cause to impose discipline, including the penalties selected, and to remove the Grievor from service.

 

[14]             Strictly speaking, the resumption of the process should be limited to the Railway presenting its Reply.  Accepting that the unique history of the dispute invited a review of the positions of the parties following the abortive settlement proceedings, there was still no basis established for concluding that there was an onus upon the Railway to prove that the Grievor was disabled or that the Union was entitled to adduce further facts with respect to whether his disability could be accommodated in Prince George.  In my view, the Union’s entitlement to a fair hearing went no further than a right to resume proceedings at the point at which they were adjourned when the evidentiary phase of the proceedings was limited to the Railway providing a Reply to the Union’s case. 

 

[15]             Accepting that the process became complicated by the introduction of the settlement process, it is necessary to keep the procedural implications of the adjournment in mind and to recognize that the questions to be answered are those which remained when proceedings were adjourned.  I will return to that conclusion later.  Before doing so, it is convenient to review the Union’s decision to resume the arbitration proceedings. 

 

[16]             That decision was the Union’s to make under the terms of the Memorandum.  That is, the Union did not have to seek leave to have the proceedings reconvened.  The complication came when the Union indicated, in effect, that the proceedings should not resume at the stage they had reached at the time of the adjournment.  The Union, in effect, indicated an intention to apply to reopen its case.  That intention was addressed in conference calls convened prior to the resumption of the hearing and the formal application was presented in this hearing as a preliminary phase, following which the Union made submissions on the merits of the new issues it intended to raise. 

 

[17]             The Union’s new issues were first identified in a letter it sent to the Railway on October 20, 2003.  They were repeated in the Union’s submission filed when proceedings resumed on June 7, 2004.  Following is an extract from the Union’s submission:

 

The circumstances which caused the Union to return this matter to the Arbitrator are outlined in a letter to the Company dated October 20, 2003 … The issues are listed as follows:

 

-                     The manner in which the “Memorandum of Resolution” was implemented.

 

-                     The withholding of documentation pertinent to this matter from Olaksew and the Union.

 

-                     The findings of the “Occupational Expert”.

 

-                     The findings of the “Qualified Medical Specialist”.

-                     The Company’s return to the “Qualified Medical Specialist” for further information after the issuance of his finding.

 

-                     Monetary issues relating to this matter.

 

-                     Other issues that may be connected to those outlined above.

 

[18]             I will return to those issues later.  Before doing so, it is convenient to recite a summary of the circumstances that preceded to the resumption of the hearing.  The Union’s July 1 application to resume proceedings led to the scheduling of a hearing to commence on November 24, 2003.  Its October 20, 2003 letter outlining the issues it intended to address resulted in that hearing being adjourned sine die when it became apparent in a pre-hearing conference call with the parties that there was no consensus between them with respect to how the hearing should proceed and what issues were to be addressed. 

 

[19]             In particular, on November 4, 2003, the Union forwarded an opinion dated October 14, 2003 written by Dr. Robert G. Froh, an orthopaedic surgeon who had been treating the Grievor intermittently since 1992.  The Union had indicated in its October 20, 2003 letter that it was awaiting an expert opinion with respect to the Grievor’s disability but it was not until November 4 that the nature of the opinion was disclosed and the Union advised that it intended to rely on the opinion as a basis for seeking the Grievor’s immediate reinstatement with full compensation for his wage loss.  Dr. Froh’s opinion reads as follows:

 

This patient was reviewed in my office on September 15, 2003.  I have been Mr. Olaksew’s attending Orthopaedic Surgeon for over ten years.  He was first seen by myself for bilateral osteoarthritis of his knees on December 17, 1992.  He was referred by his family physician Dr. A. Willms in Surrey.  I have done several procedures on Mr. Olaksew’s right knee which is the more affected knee.  His left knee was treated with a brace, he has since given up the brace as his symptoms do not warrant the use of a brace.  There has been no appreciable change in the functioning of Jim’s left knee, nor in the examination or x-rays of Jim’s knee since he was last seen in September of 1997.  Jim is quite capable of doing all of his duties at CN Rail.  He was obviously capable of doing them from 1997 when I last saw him and from which time his knee is unchanged.  The restrictions that were placed on Jim are entirely unnecessary.  As Jim’s attending Orthopaedic Surgeon I am removing all restrictions from his activities and he can engage in any kind of occupational or recreational activity.  He is free to do all of his normal duties.  If there are any further questions please feel free to contact me.  (emphasis added)

 

[20]             Not surprisingly, differences between the parties with respect to the procedure to be followed and the issues to be addressed resulted in the adjournment of the hearing.  On February 11, 2004 the Union again gave notice of its desire to resume the proceedings.  That led to the scheduling of the June 7, 2004 hearing that gave rise to this Award.  However, the procedural implications of the Union’s position vexed the process and continued to vex it through to the protracted deliberations giving rise to this Award.  In particular, its position raised issues which were not raised in the grievances and, in effect, were contrary to the Union’s position in those grievances.

 

[21]             In that context, the first vexing question relates to the status of the two discipline grievances which were the subject of the pro tem settlement.  Their resolution was made subject to the Grievor’s cooperation in the resolution process.  Hence, a question arises with respect to whether he can be seen as having cooperated in the process despite the fact that, in effect, the Union elected on his behalf to repudiate the opinions generated under its terms and to seek resumption of the arbitration proceedings for the purpose of introducing a controversial new issue.  Further, those grievances were settled on the basis that the Grievor’s refusal to work was caused by his disabilities.  A finding that he was not disabled would leave him without an explanation for his misconduct and raise a question about the status of the discipline grievances.

 

[22]             In considering that question, it is worth repeating that the three grievances addressed in the initial proceedings were consolidated by the parties into a single arbitration.  That was confirmed by the Union in letters sent to the Railway on August 9 and September 3, 2002 respectively.  They read in part as follows:

 

Please be advised that the Union will be proceeding to Arbitration in a dispute between Canadian National Railway and CAW Local 100 concerning discipline assessed to Car Mechanic J. Olaksew of Prince George for alleged refusal of duty on October 18 & 19, 2001 and again on February 18, 2002 and the Company’s decision to remove Mr. Olaksew from service due to his medical restrictions.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

As there is three (3) separate grievances all dealing with the same subject matter, I would suggest we fold them into one case and present them before the Arbitrator.

 

[23]             The two discipline grievances were resolved on the basis that the Grievor’s refusal to perform the work assignments was in response to disabilities which had long since been recognized between the parties.  The position of the Union and the remedy sought was summarized on March 22, 2002 as follows:

 

Mr. J. Olaksew was assessed twenty demerits (20) for allegedly refusing duty on Oct 16 and 18, 2001.  He was subsequently assessed a further thirty (30) demerits for an alleged refusal of duty on Feb 18, 2002.  Mr. Olaksew maintained throughout the investigations into these matters, that he had a medical condition, a knee problem, which prevented him from doing the duty requested of him.  Mr. Olaksew attended a medical examination arranged by the Company.  The results of that examination supported Mr. Olaksew’s assertions.  He was unable to perform the work asked of him due to his inability to be kneeling or squatting which changing wheels out in the yard requires.  Mr. Olaksew, on Feb 18, 2002, was improperly sent home by the supervisor on duty, Mr. Ron Brooks, and was also improperly held out of service until the investigation took place on Feb 21, 2002.  Due to the results of the medical examination which bear out Mr. Olaksew’s claims, I, respectfully, request that the fifty (50) demerits presently on Mr. Olaksew’s work record be expunged.  I also, respectfully, request that Mr. Olaksew be made whole for all wages and benefits lost during his improper work suspension.  (emphasis added)

 

[24]             The October 14, 2003 opinion of Dr. Froh upon which the Union sought to rely is fundamentally inconsistent with that position.  In any event, if the two discipline grievances are deemed to have been revived by the Union’s withdrawal from the settlement process, the Union’s current position contradicts the position it took at the time.  The Grievor, in effect, would be left without an explanation for his refusal to accept the work assignments that gave rise to the discipline. 

 

[25]             A similar but more difficult issue arises with respect to the duty to accommodate grievance.  The Union position was summarized in the April 2, 2002 grievance as follows:

 

I have included a copy of a Physical Demands Analysis performed by CN Rail outlining the tasks required to change wheels.  As indicated employees are required to bend, stoop, reach etc. all the tasks Mr. Olaksew, the Doctors, and the CN Medical Services group said he could not perform.  It is the Union position, CN was well aware Mr. Olaksew was working under medical restrictions for some time and Mr. Giese’s unilateral decision to remove Mr. Olaksew from duty contravenes Rule 17 of Agreement 12 and the Canadian Human Rights commission, Duty to Accommodate Act.  Based on the aforementioned, the Union requests Mr. Olaksew be returned to active duty in his former position and he be reimbursed all lost time and benefits.  (emphasis added)

 

[26]             Again, the Union’s current position is incompatible with the duty to accommodate grievance.  It is convenient in placing that issue in context to review the events that led to the resumption of the hearing.  As stated, the accommodation dispute arose when the Railway took the Grievor out of service in response to the determination that he was unable to perform the duties of his position in the Railway’s shops in Prince George.  The Union’s initial response was that the Grievor was under a degree of disability but that he could perform the duties of his position if his disability were to be accommodated as it had been in past years. 

 

[27]             When the issue first came to arbitration, the discipline aspect of the grievances, as indicated, was settled, (subject to the Grievor’s cooperation in the process designed to settle the duty to accommodate grievance), in a process which, in effect, was designed to measure the degree of the Grievor’s disability and the extent to which it could be accommodated in Prince George.  The settlement terms were recorded in the June 2, 2003 Memorandum.  In the implementation of the process the parties mutually agreed to the selection of Dr. Piper and Ms. Lee as experts who were to prepare opinions with respect to the Grievor’s condition and to assess the impact of any disabilities identified in the orthopaedic examination in terms of the ability of the Grievor to perform his duties in Prince George. 

 

[28]             The parties agreed to vary the process set out in the Memorandum by having Ms. Lee conduct a Physical Demands Analysis (PDA) in advance of receiving the report of Dr. Piper.  The PDA evaluation was conducted on March 18, 2003 and copies of the resulting report were filed on March 28, 2003 and circulated to the parties.  Dr. Piper conducted his examination on March 24, 2003 and he filed a copy of his report the same day.  Copies of his report were provided to the Grievor and the Union through the Railway and an additional copy was provided to Ms. Lee.  In an e-mail message to the parties dated May 8, 2003, Ms. Lee wrote in part as follows:

 

As per our phone conversation this afternoon, I have reviewed the medical report by Dr. Piper re:  Mr. Jim Olaksew.  Based on your email and our discussions, I believe my role is to provide my professional opinion on whether Mr. Olaksew is capable of performing the job duties of a Car Mechanic in Prince George or not.  Unfortunately, As Dr. Piper documents only the organic findings and no medical restrictions are provided, I am unable to provide my opinion based on the client’s function.  As you are aware, impairment does not necessarily correlate with function.  Therefore, I suggest the following three options:  (emphasis added)

 

1.       I can provide my opinion based on the medical restrictions (Feb. 27, 2002) outlined in your email (i.e. no squatting/kneeling, no safety sensitive work other than a forklift).

 

2.       A medical opinion by a physician can be provided based on the PDA I performed, dated March 18, 2003.

 

3.       A 1 or 2 Day FCE can be performed to assess the claimant’s strength, mobility, endurance, and consistency of effort.

 

It is my opinion that the 2 Day FCE would be the most accurate way of determining the client’s current functional abilities.  He would undergo multiple standardized tests, repeated over time to examine his endurance level.  Objective data will be provided.

 

[29]             The parties then agreed to have Counsel for the Railway contact Dr. Piper and obtain his response to the concern expressed by Ms. Lee.  Those initiatives were recorded in a letter from the Railway to Ms. Lee with copies to the Grievor and the Union.  That letter reads in part as follows:

 

This pertains to Canadian National Railway Company, and the Canadian Auto Workers, Local 100, joint request for your determination as to Car Mechanic, Mr. Jim Olaksew’s ability to perform the duties of his position at the Prince George, B.C. location.  In your email dated May 8, 2003, pertaining to the report dated March 24, 2003, from Medical Specialist, Dr. Piper, you state that:

 

“As Dr. Piper documents only the organic findings and no medical restrictions are provided, I am unable to provide my opinion based on the client’s function”.

 

The Company then, with agreement from the Union, requested our legal counsel, Mr. Donald N. Kruk, of Fraser Milner Casgrain LLP, to write Dr. Piper, on May 13, 2003, advising that:

 

“… your report, dated March 24, 2003 to Dr. G. Kenefick, Medysis Health Inc., was provided to the parties and the occupational health expert.  However, upon review of your report, the occupational expert has sought clarification that the medical restrictions to which you refer in your report (see last paragraph, page 4) remain adequate”.

 

Mr. Kruk advises that Dr. Piper has now responded to this request for clarification, and attached we submit to you a copy of Dr. Piper’s letter dated May 22, 2003, which detail the medical restrictions he has placed upon Mr. Olaksew in relation to his duties of a Car Mechanic.  We now look to you to provide, in view of these latest medical restrictions as outlined by Dr. Piper, your expert opinion in determining if Mr. Olaksew is, at this time, capable of performing the duties of a Car Mechanic, as outlined in your Physical Demands Analysis dated March 18, 2003.  Additionally, based on the information contained in Dr. Piper’s report dated March 24, 2003, and the information outlined above, would you please provide your expert opinion in determining if Mr. Olaksew would have been able to perform the duties of a Car Mechanic at the time of his original removal from duty in March, 2002.  (emphasis added)

 

[30]             The response of Dr. Piper referred to in that extract was dated May 22, 2003 and reads as follows:

 

This letter is in response to your’s of the 13th of May.  I have reviewed the E-Mail from the office of Dr. Bassett dated the 18th of March 2002.  I believe the restrictions, which include no squatting or kneeling, may drive a forklift, no climbing or descending from ladders, no working at heights (eight feet) are appropriate.  The letter dated the 12th of September does not include the restrictions related to climbing or descending from ladders and working at heights and, in fact, I believe these should be included.  I hope these comments are of benefit to you.  If I can expand upon these thoughts I would be happy to oblige at any time.  (emphasis added)

 

[31]             Based on her PDA, (which was revised in response to comments from the Union); the opinion of Dr. Piper; and Dr. Piper’s response to the issue raised through Counsel for the Railway; Ms. Lee provided the following report which was directed to the Railway with a copy to the Union:

 

In response to your request dated June 4, 2003, this letter is to provide my professional opinion regarding the following questions:

 

1.       Is Mr. Olaksew capable of performing the duties of a Car Mechanic at this time in view of his latest medical restrictions outlined by Dr. Piper?

 

As per the report dated May 22, 2003, Mr. Olaksew’s medical restrictions include no squatting, no kneeling, no climbing, no descending from ladders, and no working at heights.  Based on the Physical Demands analysis dated March 18, 2003, during a work shift, the Car Mechanic job duties include up to 33% of ladder climbing, up to 200 repetitions of partial kneeling (sustained for up to 3 hours), up to 3 hours of sustained squatting, and up to 3 hours of sustained crawling.  16 out of 19 jobs require repetitive or sustained kneeling or squatting or crawling.  Based on my observations, these duties cannot be modified without encouraging improper body mechanics.  Furthermore, Mr. Olaksew will have even less flexibility and less resources available to him to modify his duties when performing onsite repairs.

 

This allows Mr. Olaksew to perform 3 out of 19 daily or weekly job duties identified in the PDA.  The job Mr. Olaksew may be able to perform include air test, replacing brake shoes, and driving the truck.  When replacing brake shoes, however, the client will be required to stoop forward repetitively which is not recommended due to potential undue strain in the low back area on the body mechanics involved.  Driving of a truck may also require climbing in/out of the truck approximately 40 times per day.  It is therefore my opinion that Mr. Olaksew is unable to safely perform over 90% of the job duties required of a Car Mechanic.

 

2.       Would Mr. Olaksew have been able to perform the duties of a Car Mechanic at the time of his original removal from duty in March 2002?

 

Given that Mr. Olaksew’s latest medical restrictions were applicable in March 2002, my opinion of Mr. Olaksew’s ability to perform the Car Mechanic duties in March 2002 remain the same as stated above.  Please refer to Q1 for details.  Ms. Payne, please do not hesitate to contact me should you have any questions.  Thank you.

 

[32]             It can be seen from the opinion that the conclusion reached in the settlement process agreed to by the parties was that the Grievor was disabled and that his disability could not be accommodated in the Railway’s Prince George operations.  (The ability to accommodate his disabilities in Edmonton was not addressed further in the process and, in any event, was conceded by the Railway in its submission in these proceedings). 

 

[33]             Ms. Lee’s report triggered the response from Mr. Burns referred to earlier which advised, inter alia, that the Grievor’s Long Term Disability benefits claim should be initiated.  That letter reads as follows:

 

Given the conclusions reached by Mihwa Lee of F.A.I.R. with regards to her assessment on the capabilities of Car Mechanic J. Olaksew, I would request that CN Rail make the necessary arrangements to have Mr. Olaksew placed on Long Term Disability (LTD).  In addition I also request that any information in regard to Mr. Olaksew’s responsibility in this regard, be forwarded to him without delay.  It is the Union’s understanding of this matter that should a medical professional determine that Mr. Olaksew has recovered to the point where he can perform lifting and bending tasks of Car Mechanic in Prince George, he (Jim Olaksew), would be returned to his former position forthwith.  It is requested that a meeting be convened at your earliest convenience to discuss further options that may possibly settle this matter.  (emphasis added)

 

[34]             I pause to note that the Union did not rely on Dr. Froh’s October 14, 2003 letter of opinion as a determination by a medical professional that the Grievor had “recovered to the point where he can perform the bending and lifting tasks of a Car Mechanic in Prince George”.  Dr. Froh’s letter amounted to a denial of any disability.  That opinion appears to have been based on anecdotal facts provided to him by the Grievor which were not accurate.  The inference I drew from the evidence is that when the Grievor became aware of the results of the settlement process, he sought to avoid its implications.  In doing so he made what amounted to an assertion of bad faith against the Railway and the experts who had been appointed jointly by the parties.  It was then that the Union, apparently on the Grievor’s instructions, advised me on July 1, 2003 that it wished to reopen the proceedings.  Its letter reads as follows:

 

This is in regard to the case of Jim Olaksew employed as a Carman or CNR in Prince George, heard by you on February 25, 2003, to which you gave a declaratory award in March 2003 with respect to Mr. Olaksew’s 50 demerits and his being held out of Service account status of his ability, medically, to continue to work as a Carman.  Please be advised that the Union finds, what it believes are discrepancies in the findings of the Professionals retained to give their independent evaluation.  In view of this the Union wishes to invoke its right to return before you for a full and final resolve of this matter at your earliest convenience.  The Union has advised CNR of its intentions to return to the Arbitrator.  (emphasis added)

 

[35]             There followed a series of exchanges between the parties directly and in conference calls with the Arbitrator in which it became apparent that no understanding had been reached with respect to what issues were to be addressed in a resumption of the hearing.  Evolving from those discussions was the letter sent to the Railway by the Union on October 20, 2003 in which it detailed the basis upon which it was seeking to resume the hearing, including a summary of issues it intended to raise.  That summary was set out earlier.  The remainder of the letter reads as follows:

 

This is in response to your letter dated October 6, 2003 concerning returning to Arbitrator H. Allan Hope on November 24, 2003 in Prince George regarding the ongoing matter of Jim Olaksew.  As was explained on the telephone conference call with the Arbitrator, the union is exercising its right to return to the Arbitrator under Sections (n) and (p) of the Memorandum of Resolution issued by Arbitrator H. Allan Hope, Q.C. in March of 2003. 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

We are expecting a report from another “Qualified Medical Expert” attended by Jim Olaksew which we plan to utilize.  Unfortunately the Doctor has not seen fit to forward his findings to us to date.  We may have to have the documentation subpoenaed if the Doctor does not send it to us soon.  We do not agree with your position that you cannot send us medical information regarding Mr. Olaksew as it is that very evidence that this matter is about.  In addition Mr. Olaksew afforded the Union the right to see such Medical information in order to properly represent him.  In our view your refusal to supply the medical information pertinent to the resolve of this matter is an attempt by the Company to contravene the Memorandum of Resolution agreed in good faith by the parties.  We hope this clarifies the position of the Union in this matter.

 

[36]             On November 4, 2003 the Union sent the Railway and the Arbitrator the opinion of Dr. Froh previously cited upon which it relied in seeking to resume the proceedings.  Then, on February 11, 2004, the Union renewed its application to have the proceedings resume.  That letter reads in part as follows:

 

Please be advised that the Union wishes to invoke its right to return before you for a full and final resolve of this matter at your earliest convenience.  The Union has advised CNR of its intentions to return to the Arbitrator.

 

[37]             Following that letter, further exchanges took place with respect to the issues to be raised and the procedures to be followed in the resumption of the hearing.  Those discussions turned primarily on the advice of the Union that its purpose was to assert that the settlement process set out in the Memorandum had been co-opted by the Railway thus depriving the experts of their neutrality.  Based on that assertion, the Union indicated its intention to present Dr. Froh’s opinion as a basis for claiming that the Grievor should never have been taken out of service in the first place and was therefore entitled to be returned to his employment with full compensation. 

[38]             The Union’s outline of its position led to an application by the Railway for an order requiring that the Grievor submit to a further examination by Dr. Piper and a further evaluation by Ms. Lee.  Those initiatives were to permit the Railway to be in a position to meet the conflicting opinion of Dr. Froh, assuming its objections made to the admissibility of that letter and the resumption of the proceedings for that purpose were denied. 

 

[39]             A Preliminary Decision granting that application was published on May 17, 2004.  For further clarity, that decision should be read together with the Memorandum and with this Award.  Here it is sufficient to say that it was determined that compelling the Railway to confront an assertion first communicated by the Union on November 4, 2003 that the Grievor had never been disabled and was capable of performing the full range of his duties in Prince George would be contrary to the principles of a fair hearing. 

 

[40]             In the result, the Grievor was directed to submit to further examinations by Ms. Lee and Dr. Piper.  The Railway’s application was made on the basis that Dr. Piper and Ms. Lee would be treated as experts it had retained and that the opinions they had prepared under the terms of the Memorandum would be presented as reports prepared on its behalf as one of the parties to the litigation.  It further acknowledged that any additional reports prepared by Dr. Piper and Ms. Lee in response to its application would be presented and weighed as adversarial reports prepared on its behalf.  In the final analysis, the Grievor refused to submit to further examination.

 

[41]             When the proceedings resumed, the Union filed its submission in which, as stated, it adopted the extract from its letter of October 20, 2003 which set out “the circumstances which caused the Union to return this matter to the Arbitrator”.  Those issues were outlined previously in the Award.  The proceedings commenced with the Union’s application to reopen it case.  In its application, the Union wrote in part as follows:

 

The Union contends that the execution of the Memorandum of Resolution has raised a number of issues that go to the issue of intent, bias and good faith, which needs to be fully examined and considered.

 

[42]             In the lengthy submission that followed, the Union set out the assertions upon which it relied to support what amounts to an allegation of bad faith and misconduct on the part of the Railway and the two experts appointed under the Memorandum.  In support of its assertion of bad faith, the Union sought to revive documentary evidence which had been ruled inadmissible on the basis of relevance in the initial hearing.  Reference to that ruling was incorporated in the Memorandum.  The Union made reference to that extract from the Memorandum.  It reads:

 

The last paragraph of the Arbitrator’s Award reads as follows:

 

“[4]    In administering the Memorandum of Resolution it should be noted that the letter dated June 7, 1999 from J.T. McBain, the Railway’s Senior Vice-President of Operations to other management officials was ruled inadmissible on the basis that it was prejudicial and, in any event, was irrelevant because it was never implemented.  Hence, the documents at Exhibit 32 do not form part of the Record”.

 

It is the Union’s position that the Company did not present any evidence what so ever which would lead the Arbitrator to the conclusion that the directive from J.T. McBain, the Railway’s Senior Vice-President of Operations was ever retracted or otherwise rescinded.  The Union has presented real and cogent evidence of the Directive and feels it is incumbent on the Company to substantively demonstrate that the Vice-President’s edict has actually been retracted and when such retraction was ordered.  Otherwise the Union takes the position that the Arbitrator must vacate at least this portion of his decision and take the Union’s original argument in this regard into consideration.

 

[43]             In its submission on the merits of its position, the Union, as indicated, relied on its assertion of bad faith as a basis for rejecting the expert opinions generated in the settlement process.  The Union then sought to rely on the opinion of Dr. Froh to support its assertion that the Grievor was not disabled at any time material to the dispute and that:

 

He should be returned to duty at CN’s Shops and Yards in Prince George forthwith, without loss of seniority, benefits and full redress for all lost wages, benefits and any losses incurred as a result of his dismissal, including, but not limited to, interest on any monies owing.

 

[44]             In the course of its submission on the merits of its position, the Union made reference to changes in the work place at Prince George which would facilitate the Grievor’s ability to perform his duties in Prince George.  However, that submission was redundant in light of the Union’s representation that the Grievor had never been disabled and was capable of performing all of the duties of his position.  In any event, the evidence led in that regard was anecdotal and would require that the Railway be given an opportunity to test its validity.  

 

[45]             The Railway’s submission in response to the Union’s application to reopen its case and its submission on the merits began with a lengthy review of the facts giving rise to the resumption of the hearing.  Its position was that, leaving aside the procedural deficiencies, the Grievor and Union were under an obligation to cooperate in the search for the reasonable accommodation of a disability and that the Grievor had failed in that regard. 

 

[46]             The response of the Union was that contemporary jurisprudence placed the onus squarely on an employer to prove that it had taken reasonable steps to accommodate a disabled employee to the point of undue hardship and there was no onus on an employee or a union to prove that accommodation could be achieved. 

 

[47]             I agree with the Railway that the authorities with respect to the duty to accommodate, which are wide-ranging in terms of the factual issues addressed, are summarized in the context of the fact pattern raised in this dispute in the decision of Arbitrator Picher in Canadian National Railway and Brotherhood of Locomotive Engineers, July 14, 2003, CROA Case No. 3354. 

 

[48]             The principles raised in this dispute imitate those expressed by Arbitrator Picher in support of his conclusion that whether there is an onus on a union and a disabled employee to cooperate in designing programs which will accommodate a disability was settled in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 (S.C.C.).  There it is concluded that all parties have an obligation to cooperate in fashioning an accommodation for a disabled employee, including the employee. 

 

[49]             In the context of the principles that have application to the facts present in this dispute, I conclude that the Grievor failed to cooperate with the Railway and his Union in any meaningful sense.  He has persisted in seeking recognition of a right to continue to work in his trade in Prince George and has evaded exposure to any medium which would provide an objective assessment of his ability to perform that work in that location. 

 

[50]             Those are facts similar to those before Arbitrator Picher where he found that the disabled employee had a duty to cooperate in the accommodation process and that his failure to consider a move to a location with greater flexibility for alternate work was a breach of his obligation to cooperate in the accommodation process.  In the result, Arbitrator Picher concluded “that there has been no violation of the grievor’s rights in respect of the duty of accommodation” and that “the grievance must be dismissed”.  The Railway saw that reasoning as apropos the facts and issues raised in this dispute.

 

[51]             As stated, the remedy sought by the Union in these proceedings was for the Grievor to be returned to duty without loss of seniority or benefits and with full redress for all lost wages.  The decision sought by the Railway was recorded in its submission as follows:

 

VI.     Conclusion

 

182.   In summary, Olaksew is:

 

(a)      based on medical restrictions found by Dr. Bassett and Dr. Piper, unable to safely perform over 90% of the Car Mechanics duties in Prince George;

 

(b)     unable to be accommodated as a Car Mechanic at the Company’s Prince George facility;

 

(c)     not prepared to relocate to Edmonton to accept a position in the Car Department with modified duties;

 

(d)     not prepared to otherwise co-operate with respect to his accommodation;

 

(e)      not prepared to accept a bridging package from the Company, under the provisions of Employment Security and Income Maintenance Agreement; which includes a significant lump sum payment.

 

VII.   Relief Requested

 

183.   The Company respectfully requests that the remainder of the Union’s grievance be dismissed.

 

[52]             In addressing those submissions, I turn first to the settlement process and the Memorandum.  I conclude that the Union failed to establish any bad faith on the part of the Railway or the experts appointed by the parties to assess the Grievor’s physical condition and its effect upon his capacity to perform his trade in Prince George.  The points raised by the Union are answered in the facts recorded in the documentary evidence adduced by the parties.  That evidence, while it is lengthy and complex, supports the finding that the Union was kept fully informed of the steps taken to implement the settlement process set out in the Memorandum and no objections were raised until after the process had acted itself out. 

 

[53]             The facts adduced by the Union disclosed a measure of informality in the administration of the settlement process, but there was no evidence that the Union was unaware of what was occurring or that the Railway had taken any steps outside of the joint process to influence of the opinions of either Ms. Lee or Dr. Piper.  The Railway occupied a larger role in coordinating the process, but that appears to have arisen as a matter of convenience rather than design and, in any event, was done with the full concurrence of the Union.  In my view, the points raised by the Union in its submission fall well short of establishing any improper conduct on the part of the Railway or any compromise of the neutrality of the experts the parties appointed.  That is not to say that their opinions can be treated as independent in the hearing and thus binding upon the Union.  It was agreed by the Railway that those opinions were to be treated as adversarial and commissioned by it.  That represented a limitation on their use in the adjudication of the dispute.

 

[54]             I conclude that if the settlement process had continued to the point acknowledged in the Union’s June 16, 2003 letter to the Railway, the Union would be seen as having failed with respect to the duty to accommodate grievance.  Accepting as I do that the facts do not support a conclusion that the Railway acted in bad faith in its participation in the settlement process, I conclude that nothing in that process supports a right in the Union to reopen its case for the purpose of contradicting the expert opinions generated under its terms.  Conversely, nothing in the facts developed in the process support a right in the Union to reopen its case as presented in the initial hearing for the purpose of introducing the opinion letter written by Dr. Froh. 

 

[55]             I digress to note in that regard that Dr. Froh’s opinion letter, standing alone as it does, fails to support the meaning attributed to it by the Union.  In particular, Dr. Froh wrote in part that:

 

Jim is quite capable of doing all of his duties at CN Rail.  He was obviously capable of doing them from 1997 when I last saw him and from which time his knee is unchanged.  The restrictions that were placed on Jim are entirely unnecessary.

 

[56]             I agree with the submission of the Railway that the letter does not make it clear whether the Grievor had been examined by Dr. Froh on September 15, 2003 and, in any event, I note that his conclusion that the Grievor “was obviously capable of doing [his duties] from 1997 when I last saw him” is contrary to the evidence with respect to the difficulties experienced by the Grievor in that regard.  I conclude that the Grievor failed to inform Dr. Froh of the medical and occupational difficulties he experienced over that period.  In fact, it was the Grievor’s professed inability to perform the full range of his duties that gave rise to the imposition of discipline that first triggered the dispute.  In any event, permitting the Union to introduce that letter at this stage of the proceedings would be contrary to the principles of a fair hearing.

 

[57]             I digress to note that the McBain letter, which was ruled inadmissible in the initial proceedings, was not shown to offer any support for the Union’s position.  It should be noted in that context that reference by the Union in its submission to the “Arbitrator’s Award” was not accurate.  The Memorandum was not an Award in which the admissibility of the McBain letter was addressed.  It was ruled inadmissible on submissions made in the initial proceedings.  The reference in the Memorandum was merely to record the decision made in the hearing.

 

[58]             Sorting through the procedural complexities has been difficult.  However, in reconciling the unique issues with the principles of a fair hearing, I conclude that the place to start is where proceedings ended in the initial arbitration proceedings.  If that process had continued, the Railway would have called evidence in reply to the Union case and, in due course, a decision would be rendered.

 

[59]             The unique issues that have arisen out of the abortive settlement proceedings raise a question with respect to what additional facts should be considered regarding the three grievances.  The termination of the settlement proceedings prevents the Railway from relying on the opinions generated in the process other than as opinions generated on its behalf.  Leaving questions of admissibility aside, the opinion of Dr. Froh has inconsistencies on its face that affect its weight.  Even if it were admissible, its evidentiary value was further diminished by the refusal of the Grievor to submit to an examination by Ms. Lee and Dr. Piper.

 

[60]             When the facts developed in the settlement proceedings and the initiatives taken with respect to a resumption of the hearing are extrapolated into the dispute as it stood at the time that hearing was adjourned, the question is whether the Union succeeded in meeting the Railway’s case with respect to the three grievances.

 

[61]             On the facts, there is no basis for disturbing the settlement of the two discipline grievances.  Technically speaking, they were revived by the Union’s repudiation of the settlement process, but the resolution of them has not been questioned by either of the parties and, in any event, the settlement had been agreed to and implemented prior to the execution of the Memorandum.  Hence, those grievances are to be seen as resolved on the terms outlined in it.

 

[62]             The question with respect to the duty to accommodate grievance that remained at the time of the adjournment of the first hearing was whether the Railway had established that it had taken reasonable steps to accommodate the Grievor’s disability.  There was no continuing question with respect to whether the Grievor was disabled.  The Union itself advanced evidence in the initial hearing to the effect that the Grievor was disabled and the issue was whether his disability could be accommodated in Prince George.

 

[63]             At the end of the first hearing, the question with respect to accommodation was whether the Railway had established on the facts adduced that it had met its duty.  Those facts included those adduced by the Railway and those adduced by the Union in its Reply and its Submission.  Picking up on that question in these proceedings, I conclude that the Railway had just cause to remove the Grievor from service, that it did demonstrate that it had met its duty to accommodate, and, conversely, that the Grievor had not met his obligation to cooperate in the accommodation process.  On that basis, the duty to accommodate grievance is dismissed. 

 

[64]             In the result, the Grievor continues in the status he occupied at the time he was removed from service.  He has a disability that the Railway sought to accommodate in Prince George to the point of undue hardship.  The Grievor has failed in his duty to cooperate with the Railway’s efforts by his refusal to submit to a testing of his ability to perform his job and by his refusal to attempt a placement in Edmonton that may permit him to continue working.  There are remaining questions with respect to whether a surgical intervention would permit him to resume his duties in Prince George, with or without accommodation, and whether his condition has improved following his examination by Dr. Piper.  However, those are not issues within my jurisdiction in this dispute. 

 

                   DATED at the City of Prince George, in the Province of British Columbia, this 6th day of October, 2004.

 

 

                                        “H. Allan Hope, Q.C.”                               

                                          H. A LLAN HOPE, Q.C. – Arbitrator