BETWEEN:

ARBITRATOR:

APPEARANCES:

FOR THE UNION:

FOR THE EMPLOYER:

HEARING:

� 5G6,S� oo1'12-r-.l--- tv (A/lCO lg��)

RE

Ministry o·r Lubour IN THE MATTER OF AN ARBITRATIO DRS -ARBITr-1ATION SERVICES

United Steelworkers, Local 2251

_; ("Union") -and.-

Essar Steel Algoma Inc.

("Employer")

Grievance-of Glenn Barill

Nimal Dissanayake

Bob Roussain (Presenter) Mark Molinaro (Presenter on motion only) Krys Ferguson and Glenn Barill

Dolores Barbini (Counsel) Sharon Nadeau and Peter McNichol

March 3, June 16 and 23, July 18 and 19, August 9 and 10 (View of plant) of 2011; January 17, March 14, June 25, August 13 and 14, September 19 and 20, October 23 and 24, December 07 of 2012; March 04 and 22, April 26, May 21, June 10 and December 12 of · 2013 at Sault Ste Marie, Ontario

2 AWARD

[1 ] The grievor, Mr. Glen Barill, commenced employment with the employer ("Essar") o n October

1 8, 2005. Since May 2008, he had several lengthy periods of absence. Essar offered him

modified work under its return to work program. The grievor, however, was not successfully

returned to work, since he claimed that the duties offered were beyond his physical abilities.

On January 14, 20 12, he was terminated by Essar for deceitful and dishonest conduct. In

essence, Essar claims that the grievor misled it about the extent of his injuries and disability,

that he deliberately engaged in a pattern of obstruction designed to make the accommodations

fail and refused offers of modified work within his medical restrictions. The union claims that

Essar terminated the grievor without just cause.

[2] Essar proceeded first and closed its evidence. The grievor was the union's last witness. During

his cross-examination the union moved that the grievor' s termination was null and void ab

initio on the grounds that Essar had failed to comply with article 9.02 of the collective

agreement. I ruled at the time that since the proceeding on the merits of the grievance had

substantially been completed, the motion would be heard after the completion of the hearing on

the merits.

[3] Motion to declare termination null and void

The relevant part of article 9.02 reads:

9.02 When an employee is disciplined the disciplinary action shall be taken within

twenty-one days of the Company's first reasonable opportunity to have

knowledge of the circumstances giving rise to the discipline.

[ 4] The evidence from Essar was that one of the offers of modified work made during his 201 0 absence involved driving a 3/4 ton pick-up truck within its premises. The griever took the

position that those driving duties were beyond his restrictions. He conceded that he drove his

own Yz ton pick-up truck, but always represented to Essar that he only drove it to run errands,

visit friends and for medical appointments. He repeated this during his examination in chief.

Then under pointed questioning during cross-examination, he was adamant that any driving he

did in his own truck was confined to city driving and for short distances. He explicitly testified

that he did not do any highway driving. Counsel asked him if he drove to Dubreuil ville and he

replied "no". At this point, counsel indicated that Essar had a surveillance video tape

3 establishing that on September 01, 2010, he drove his truck, which was loaded with a boat, a

distance of 380 kilometres from Sault Ste. Marie, Ontario to Dubreuilville, Ontario and sought

to enter it into evidence. The union objected on the grounds that it had not been disclosed and

was in violation of article of article 9.02. Essar counsel withdrew her request to put the video ' .

in, but proceeded to cross-examine the grievor on the trip to Dubreuilville with reference to the 1

private investigator's report, with an undertaking to call the author in reply.

[5] The motion was heard on June 10 and December 12, 2013, with Mr. Mark Molinaro presenting

on behalf of the union. :Mr. Bob Roussain, at the time a member of ·the union's Grievance

Committee, testified that he became aware that a meeting had been scheduled with the grievor

for January 14, 2011. Prior to the meeting, he approached Ms. Sharon Nadeau, Human

Resources Specialist, to find out is purpose. According to Mr. Roussain, Ms. Nadeau advised . '

that the grievor had declined all offers of modified work, and that Essar had evidence that the

grievor was capable of performing that work. When Mr. Roussain.asked. what that evidence

was, Ms. Nadeau stated that the company had "surveillance and video evidence". VYhen Mr. Roussain asked whether the union will see that evidence at the meeting, Ms. Nadeau replied

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"not today". The union introduced into evidence a copy of an undated hand written note,

.which Mr. Roussain testified, was made by him while talking with Ms. Nadeau. He pointed to

a line in his notes to the effect, "Company has evidence that he is able to perform said duties

(production@ mtg no) (summer & Dec)."

[6] In cross-examination, Essar counsel suggested to Mr. Roussain that, based on his own

testimony, as early as January 2011, he was aware that two surveillance videos existed, one in

the summer and one in the winter of 2010. :Mr. Roussain agreed. Counsel stated that Ms.

Nadeau would be testifying that Mr. Roussain's request was for disclosure of what Essar

"would be relying on" to discipline the grievor". Mr. Roussain disagreed. Counsel pointed out

that on January 26, 2p11, the /chair of the Union Grievance Committee wrote to Essar

demanding "the video evidence the company is relying on for the termination of Mr. Barill",

and stating that this request had also been previously made "at the termination meeting and

subsequent discussions and emails between the parties", and again suggested that Ms. Nadeau

would testify that the union had always requested only for disclosure of "what the company . ' �

was relying on". :Mr. Roussain agreed, and conceded that the union never specifically asked for

the summer surveillance evidence. He also agreed that Essar counsel did not include any

summer surveillance evidence in the disclosure, and that the union never asked '"where is the

summer surveillance", even though it knew it existed.

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[7] In re-direct, Mr. Roussain referred to an e-mail dated February 02, 2011 from him to Ms.

Nadeau, wherein he requested disclosure, inter alia, of '"Any/all video evidence that the

company will be relying on to present its case", and "Any and all documents that you will be

presenting". He testified that when he sought that disclosure, he expected to receive

'"everything the company used, examined and studied with regard to Glen".

[8] Ms. Nadeau testified that in dismissing the grievor, Essar relied only on the winter surveillance

evidence. She denied that she made any reference to a summer surveillance in discussion with

Mr. Roussain or anyone else in the union. Referring to e-mails from the union to her

requesting disclosure, she pointed out that in each case the request was for disclosure of what

the company would be relying on or presenting at arbitration, and that Essar fully complied

with that request.

[9] In cross-examination, Ms. Nadeau agreed that one reason she decided not to rely on the

summer surveillance was because she was concerned that it may be outside the 21 day time

limit in article 9.02. It was suggested to Ms. Nadeau that even if it was not out of time, the

summer surveillance evidence did not disclose any blameworthy conduct by the grievor. She

replied, "No. You can't conclude that". In re-direct, Ms. Nadeau testified that at the time the

union requested disclosure, Essar expected only to rely on the winter surveillance evidence to

present its case.

[ 1 0] In support of the motion, Mr. Molinaro submitted that an arbitrator must giVe effect to

provisions of the collective agreement. He relied on the e-mails requesting disclosure and

submitted that taken together, Essar must have known that the union was looking for all

surveillance evidence because it did not request anything specific. He pofnted out that Ms.

Nadeau was not prepared to agree that the summer surveillance did not disclose culpable

conduct on the part of the grievor. Therefore, she must have been of the view that it did

disclose culpability. If so, Essar was obliged to take disciplinary action '"within 21 days of the

company's first reasonable opportunity to have knowledge of the circumstances giving rise to

the discipline". The surveillance evidence was available to Essar in early September 2011. Thus, the '"earliest opportunity" was 21 days from that time. The union relied on the following

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awards: Re Algoma Steel Corp, (1987) 4 C.L.A.S.4 (Kn�pf); Re Algoma Steel Corp., (2008) 95 C.L.A.S. 187 (E. Newman); Re Children's Aid Society of City of Bellville, (1994) 42

. .

L.A.C. (4th) 259 (Briggs); Re Unimi Canada, (2008) 93 C.L.A.S.72 (Luborsky).

[11] Essar counsel submitted that the uncontradicted evidence is that Essar did not rely on the summer surveillance evidence. It was not disclosed because it formed no part of Essar's case to establish just cause. and the request specifically was for disclosure of anything Essar was relying on at arbitration. Essar brought up the summer surveillance for the first time during the grievor's cross-examination, for the sole purpose of contradicting his denial that he drove to Dubreuilville, and his evidence that he only drove in the city. She submitted that because the grievor was untruthful, Essar was entitled to impeach his credibility by putting contradictory evidence to him. Article 9.02 does not prevent the employer from doing that. Reliance was placed on Re-Great A&P Co. of Canada Ltd., (1992) 26 L.A.C. (4ht) 125 (Craven). The fact that Essar closed its case with no mention whatsoever of any summer surveillance evidence, is proof that it did riot rely on it to discipline the grievor.

[12] In reply, Mr. Molinaro accepted thatEssar had not relied on the summer surveillance evidence. He submitted that the reason was that Essar was aware that it was out of time. However, that evidence still ought to have been produced in response to the union's requests. He submitted that while Mr. Roussain may have only requested for information Essar was relying on, he should not be held to a high standard in drafting requests for disclosure because .he is not a lawyer. He had testified that he expected to receive all surveillance evidence Essar had, /

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notwithstanding the wording he used. Mr. Molinaro submitted that Essar should not be able to use evidence it had withheld, to impeach credibility. He argued that legal rules that apply in civil litigation ought not be applied in arbitration proceedings. The consideration instead should be on fairness and reasonableness.

[13] DECISION ON MOTION '

While the motion was said to be made under atiicle 9 .02, as it turned out, it was a two pronged motion. The union's primary position turned out to be that the dismissal should not be allowed to stand because of Essar' s failure to disclose the summer surveillance in response to its request. That, in my view is a discreet issue, since article 9.02 is not about disclosure. Disclosure obligations are not in anyway addressed in article 9.02 and are governed by arbitral principjes_!h�t_11a."Y.� �y()lved t�oug_h_!he case law. Therefore, I shall deal with it separately.

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[14] Disclosure Based on the submissions, I am required to determine whether Essar had failed to comply with its obligation to disclose, and if so, what flows from that failure. Recent arbitral jurisprudence favours a broad right to pre-hearing production. Where a party is not satisfied with the production made by an opposing party, it is entitled to seek an order for production from the arbitrator. The basic principle that governs is that all documents that are arguably relevant to the issues in dispute at arbitration must be produced unless they are protected by privilege.

[15] In the present case, the foregoing principles do not come into play, however, because Essar complied with the production request the union made. The union's requests were for all surveillance evidence and documents Essar was relying on to present its case. There is no evidence or suggestion that Essar failed to produce anything that it relied on to present its case that there was just cause for the grievor' s dismissal. The issue in dispute in this arbitration is one of just cause. Essar has the onus in that regard. Therefore, it proceeded first and closed its evidence with no reference whatsoever to any summer surveillance. That is absolute proof, and is consistent with Ms. Nadeau's evidence, that the grievor's activity observed in the summer

· surveillance did not form part of the just cause Essar intended to rely on to di'smiss the grievor. The union's own evidence is that even before the grievor's dismissal, Essar made it aware that it had summer and winter surveillance evidence. When only the winter surveillance was disclosed, the union was entitled to seek the summer surveillance which it knew existed. Had it done so, and Essar did not comply, the union was entitled to seek an order for disclosure. None of that happened.

[16] I conclude that Essar complied with the union's disclosure request. In terms of the union's submission that fairness and reasonableness, rather than legal rules, should be the governing consideration, I note that the union did not in any way suggest how disclosure of the summer surveillance would have helped its case or how its absence adversely affected its defence of the gnevor.

Article 9.02

[ 17] The language relevant to the motion reads, " . .. disciplinary action shall be taken within 21 days of the Company's first reasonable opportunity to have knowledge of the circumstances giving

7 rise to the discipline". The effect of this language, even under the union's interpretation is that when Essar became aware of the grievor's activity in early September, it had to act within 21 days if it were to rely on that activity to discipline the grievor. The uncontradicted evidence, however, is that Essar did not rely on that information. Mr. Molinaro ultimately conceded that. As previously noted, Essar closed its case, with no reference whatsoever to the grievor' s drive to Dubreqilville. It was presented in. evidence during the grievor' s cross-examination to contradict the grievor' s insistence in chief as well as in cross-examination, that he only drove his truck in the city and that he did not drive on highways. To hold that factual information in the employer's possession may not be used to impeach credibility of a witness on the grounds that it had not been disclosed or because it does not meet the 21 day limit in article 9.02 is _

absurd. For example,_if an employee testifies that he has had an excellent record of attendance, it would preclude the employer from confronting him with attendance records which contradicts that assertion if those records had not been produced to the union, or if it is beyond 21 days from the date of discipiine. The same .result would follow for example where a manager testifies that he ,was not aware of the grievor's disability, and the union wants to contradict that by putting to the manager a letter the doctor had written to him which included that .information. That is an absurd result I say, because the attendance records, and the doctor's letter, like the surveillance evidence in the instant case, became relevant and necessary only because of the untruthful testim,ony. It is unreasonable to expect any party to disclose information in advance, in anticipation of what the testimony would be. In short, a party to litigation is not obligated to anticipate that a witness would deny what is factua(�r assert what is not factual, whether due to faultY recollection or deliberate dishonesty. When that happens that party must have the ability to present information it has, to refresh the witness' memory or

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impeach his credibility, as the case may be. This is fundamental because the goal of an arbitration hearing is to get the truth .

[18] In conclusion, the evidence establishes that the discipline imposed on the grievor did not arise out of the information disclosed in the summer surveillance. Therefore, even on the union's interpretation of article 9:02 Essar did not violate it .

. [1�] Employer counsel submitted in the alternative that even if the employer had� relied on the summer surveillance in deciding to terminate the grievor, in the particular circumstances of this case there would be no contravention of article 9.02. Counsel argued that the grievor was not terminated because he engaged in the activity seen in the summer or winter surveillance. He

8 was terminated for dishonesty and fraud. There was a pattern of suspicious conduct by the grievor since his April 2008 accident, culminating with him taking the position that he could not even cut open plastic bags with an exactor knife. To confirm its suspicions Essar obtained Surveillance evidence twice. Based on all the evidence it had, Essar concluded that the grievor had been dishonest and fraudulent throughout its attempts to return him to work to modified work. He was terminated for dishonesty and fraud and for making misrepresentations to Essar and to his medical professionals. The surveillance is used by Essar only as evidence to prove that dishonesty and fraud. Counsel submitted that there is no requirement in article 9.02 that

- evidence meet a 21 day time limit, and that Essar is entitled to use any evidence to establish a pattern of dishonest and fraudulent conduct. I shall have more to say about this alternate argument in my reasoning on the merits.

The Merits [20] Throughout this proceeding reference was made to the fact that under Essar' s "'Employees

Conduct Rules" ("the rules") the penalty specified for "'Dishonesty, Deception or Fraud" is 100 demerit points. That document also states that "'An accumulation of 100 demerit points will result in dismissal". This document was unilaterally established by Essar. The only provision in the collective agreement making reference to these rules is in article 9.01.20, to the effect that "'when it is the company's intention to discharge an employee for the accumulation of 100 demerit points" it would first meet with the union, and that, subject to certain specified exceptions, the employee wguld be allowed to continue working until his grievance is resolved through the grievance procedure. It is important to observe at the outset that nothing in the "Rules" or article 9.01.20 impacts upon the arbitral principles that apply in a discharge grievance. Essar still has the onus of establishing just cause for discharge and all of the usual considerations, including mitigatory factors, would come into play in determining the appropriate penalty. To illustrate, because the rule states that dishonesty equals 100 demerit points and 100 demerit points results in dismissal, it does not mean that any act of di-shonesty is just cause for dismissal in all cases. An arbitrator must still make a decision based on an analysis of the gravity of the dishonest act found, in light of all of the circumstances. The importance of the rules is that it puts employees on notice that the Essar views fraud and dishonesty as serious misconduct warranting serious discipline.

[21] On January 14, 2011, the grievor received a Notice of Discipline issuing him 100 demerit points for violating rules, 6 and 20 of the Rules. It stated:

9 YOU HAVE VIOLATED THE ABOVE EMPLOYEES' CONDUCT RULE IN

THAT: Maintained a claim of being totally disabled and unable to accept offer of modified duty while illustrating his ability to perform the offered assignment. This dishonesty results in an extreme breach of trust.

Following the filing of the grievance and a step two meeting held the same day, Essar wrote to · the union, inter alia:

Following further review and full consideration of this matter, the Company maintains that the 1 00 demerit points issued to Mr. Barill under Employee Conduct Rule #6 and #20 is appropriate. Mr. Barill declined, the Company's offer of modified work (driving a % ton truck) stating that he was unable to drive, while the Company finds that he regularly performs the offered assignment.

As advised at the Step 2 meeting, Mr. Barill's employment with ESSAR is terminated with the accumulation of 1 00 demerit points. Contrary to the face of the grievance, Mr. Barill was not denied justice and dignity, but rather Mr. Barill has declined the offer of suitable modified work presented by the Company and failed to disclose that he was able to perform the task of driving a % ton truck. The information gathered by the Company clearly demonstrates his ability . to drive a % ton truck, therefore the termination is upheld.

[22] In this proceeding Essar has the onus of establishing on a balance of probabilities that the grievor acted dishonestly by claiming that he was totally disabled when he had. the ability to perform the modified work offered by Essar under its accommodation and return to work program. If culpability is established, I must proce�d to consider whether that culpable conduct constitutedjust cause for his discharge.

[23] The grievor was hired by Essar on October 18, 2005, in the position of Erector. The griever's first period of absence relevant here was from May 28, 2008 to February 16, 2009. The Workplace Safety and Insurance Board concluded that while working overhead with a chainfall on May 24, 2008 the grievor had aggravated a pre-existing neck injury. On July 4, 2008, the WSIB allowed healthcare benefits up to August 16, 2008. Loss of Earning (LOE) benefits were initially denied on the grounds that he had chosen not to return to work, despite the fact that the medical file indicated that he could return to work with restrictions. The grievor obtained medical authorization from a physiotherapist on June 6, 2008 that he was unable to work. The WSIB allowed LOE benefits from June 6 to August 16, 2008, on the basis of temporary total

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10 disability. In May and June, Mr. Peter McNichol, Essar' s claim manager (a member of

another bargaining unit) contacted the grievor several times and indicated Essar' s desire to

return him to modified work. Mr. McNichol testified that Essar aggressively attempts to return

even employees with severe restrictions to work by offering sedentary office type duties.

When he contacted the grievor, there was no discussion of what specific modified work would

be available because the griever's position was that he was not able at the time to do any

modified work.

[24] On July 25th, and again in late August 2008, Mr. McNichol called to discuss modified work.

Each time the grievor declined any consideration of returning to work and advised that he had

an appointment with a neurosurgeon. On October 28, 2008 Essar was advised by the WSIB

that its doctor had determined that the grievor was not totally disabled, but had set out some

restrictions for the grievor. Mr. McNichol was of the view that Essar would be able to find

modified work within those restrictions. Since the grievor was continuing to take the position

that he was not able to return to work, and WSIB's position was that from August 15, 2008 he

was capable of returning to work subject to some restrictions, advised the grievor and the union

that if the grievor was not prepared to discuss a return to work, his sickness benefits would be

terminated.

[25] A Functional Abilities Form dated October 27, 2008 from the griever's physiotherapist also

determined that the grievor was capable of returning to work subject to the following

restrictions: No lifting from floor to waist in excess of 5 kilograms; no lifting to shoulder; no bending/twisting repetitive movement of neck; no work above head; limited use of hands;

limited pushing/pulling with arms; no excessive use of either ann. He was found to have "full

abilities" to walk, stand, sit and to "drive a car", and was authorized to work regular full-time

hours. The evidence is that on the basis of this. medical information, the griever returned to

work on October 27 and 28, 2008. On the 2i11 he performed office type duties, and on the 28th was assigned duties driving a % ton company truck inside Essar premises. Then the grievor

went off work on the basis of a medical certificate dated October 29, 2008 from his family

physician Dr. Rosemarie Gieni.

[26] On October 31, 2008, Mr. McNichol called the grievor and advised that Essar had "all sorts of

modified work available". He was cautioned that if he continued to remain off in the face of WSIB' s finding that he was able to do modified work, he ran the risk that WSIB may cut off

11 his LOE benefits. The grievor reiterated that he was not able to return and that he had a referral to see a neuro-surgeon. Essar decided to give the grievor the benefit of the doubt and advanced wages expecting to recoup the amount paid from WSIB if the neuro-surgeon decides that the grievor was totally disabled, or to recover the amount from the grievor if the neuro­surgeon decides to the contrary. Correspondence filed in evidence indicates that the union protested the WSIB' S decision that the grievor was not totally disabled and relied on certificates from Dr. Gieni putting him off work. In response, the WSIB reiterated that despite Dr. Gieni's medical certificates, there is no evidence on file to support total disability, and that Essar had repeatedly indicated to the grievor that it was willing and al;>le to provide modified work within his restrictions. On December 16, 2008, Mr. McNichol called the grievor and advised that, given the WSIB's position, Essar was conceJ;:ned that it was continuing to advance wages, which it may never be able to recover. Mr. McNichol advised the grievor that he should make sure that Dr. Gieni is aware that Essar has a comprehensive return to work program and that he was repeatedly told that modified work was available for him.

[27] Filed in evidence is a medical certificate dated February 06,2009. It declared the grievor fit to return to work on February 16, 2009 subject to restrictions, no lifting over 5 kilograms floor to waist, no climbing, no repetitive twisting bending or movement of neck, no lifting waist level

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or above, no excessive use of either arm, and limited use of hands� A formal case resolution process was held, where the grievor, union representatives, Essar representatives, and a WSIB return to work specialist discussed the work available. Following discussion, work was identified as suitable as a work trial, to be performed at two separate work stations within the central trades area, "the Erector Crib" and the "Welder Cage". A Case Resolution Report was signed off by the union and Essar. The grievor was to work 5 days a week, 4 hours a day during the first week starting February 161h, 6 hours a day in the second week and 8 hours a d�y thereafter. The employer undertook to pay at 8 hours a day regardless of the actual hours worked during this period, and the grievor was to report any difficulties with work to his supervisor.

[28] The grievor returned to work on February 16, 2009 and performed modified work at the Erector Crib for some 3V2 months. On June 4, 2009, his physiotherapist updated his restrictions, considerably lessening them. There was no longer any restriction on- climbing, lifting, excessive use of hands/arms, and no preference for desk/office work. Essar determined that there had been significant recovery, and the grievor was assigned to his pre-injury erector

12 position, but with modifications in view of his r.emaining restrictions. On July 26, 2009, the grievor was at work and travelling in a company mini bus as a passenger. A similar bus bumped his bus from behind at a stop sign. The grievor claimed that he was injured as a result of the collision, and was transported to hospital. The doctors at the hospital put him off work for 48 hours. The employee who was driving the bus in which the grievor was travelling submitted a statement the same day stating that it was a very minor collision and that he thought that it was only a "hard transmission shift". He also stated that the grievor claimed that his neck was very sore, and wanted to be medically examined. The grievor' s report of injury stated that he suffered a neck injury as a result of the impact.

[29] Essar also interviewed the driver of the second bus and one of the two passengers. Essar concluded that at the time the second bus hit from behind, it was travelling at 5 to 10 K.PH, that there had been a minor impact from behind, that neither vehicle was damaged, that there was not even a transfer of paint, and that none of the other four men in the buses suffered any injury. The grievor remained off work, having submitted a medical certificate to be off until July 31,2009.

[30] The grievor returned to work on August 4th as an erector with the same restrictions. He worked until September 24, 2009 and went off again until June 3, 2010 on a non-occupational injury. On June 3, 2010 he returned to work again but went off on July 3, 2010 and was off until October 6, 2010. This resulted from what was referred to as the "boom truck accident". The grievor claimed that he hit his head on a boom truck while getting off. He requested that he be taken to hospital, complaining of severe neck pain and numbness in arms and hands. He returned to work the same day, but with a medical note from a hospital physician, with the restriction "desk duties only for 5 to 7 days". On June 30th, Mr. McNichol met with the grievor and advised that for the next week he would be accommodated on desk work. The grievor demanded that as an accommodated worker, he ought to be scheduled on day shifts only. Mr. McNichol explained that there was no medical restriction limiting him to day shifts and that Essar schedules its workers based on needed skills and seniority.

[31] The next day the grievor was scheduled to work was on July 3, 2010. He did not call in or report for work. For his next scheduled shift on July 51h, the griever did call in sick. Mr. McNichol called the grievor at home and was advised by the grievor that for the past week his neck had been getting worse. When Mr. McNichol raised the possibility of modified work, the

13 grievor stated that he was lll1able to do any work, and that he .could not even drive his own truck. In his report of injury the grievor had noted an employee Dale Brown as a witness to the boom truck incident. On July 7, 2010 Mr. McNichol met with Mr. Brown who denied that he saw the griever ·bump his head on the boom cylinder, and stated that he heard about the accident from another employee subsequently.

[32] On July 13t\ the grievor presented .a medical note putting him .off work until July 17, 2010. When he had not reported for duty, on July 20t\ Mr. McNichol called the griever and advised · that the same modified work he had previously done in the erector crib was available. The grievor responded that he was waiting for an appointment with Dr. Gieni, and that .he did not want to return without·her approval. He lll1dertook to provide an update once he sees Dr. Gieni. The evidence is that when the grievor did contact Essar on August 19th he had a m�dical note keeping him off work until reassessment in four weeks. The same day Mr. McNichol wrote the following letter to the grievor, with copy to the WSIB:

I note that you have been off work with your last day worked b.eing Jlll1e 30, 2010 with your first missed shift being July 03/10. I have stated to you beginning with the date of this !njury of the Company's willingness to provide suitable modified duty, of which you did participate in from the date of injury lll1til going off work as indicated above. I have also spoken with you on several occasions throughout your absence on the telephone and in person to detem1ine whether your status had improved and reiterated the offer of modified duty to you that occurring July 13, 20 and Aug. 19, 2010. You provided documentation to the Company stating initially that modified duty was appropriate dated June 29/10 however you" later provided documentation to the Company that indicated that you were to remain off work, July 14, 27, Aug.05, 19, 2010. On July 20, 2010 n:'iodified duty was again discussed however you advised me that you were not sure if you could presently do the job ()f "Erector Repair Shop-Crib" right now, but acknowledged that you had no problem with that assignment before, when on modified duty and suffering a flare up of your neck. I called you yesterday however could not leave a message. You acknowledged seeing that I called, were surprised when I· advised you that you did not have an answering machine, yet you made no attempts to return my all. Meeting with you in person today, I advised you again th<':lt the "Crib" or other modified duty would remain available to you should you­believe you have recovered to the point that a return to modified duty had been attained. You replied that '�my doctor would not let me come back to work". I expressed concern noting that the Board had not allovved the claim for "loss of earnings" benefit and that you have been off work for 7 weeks without earnings, again mentioning of modified duty being available to you. You stated that the Board often takes two1or three months to make a decision. I then requested that you contact your WSIB Case Manager (L. Lamontagne) and provided you her toll free number.

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14

Please be advised that Essar Steel would like the opportunity to provide suitable modified duty to you and the former job "Crib" which was offered to you before when sedentary duty was requested remains available to you. When you .believe that you have recovered to the point that a return to work can occur please have your doctor provide limitations so that accommodation can be determined.

[33] On September 20, 2010, the grievor presented a medical note from Dr. Gieni keeping him off work for a further two weeks. Mr. McNichol felt that despite the note, Essar had a legal obligation to accommodate if at all possible. Therefore, he offered to the grievor modified work driving a company pick-up truck within Essar premises. The grievor declined, stating to the effect that "my doctor says no". Mr. McNichol testified that he felt that the mini-bus and boom truck incidents were not significant events and that the grievor should at least try the offered modified work. He was influenced in this regard by the fact that despite all the medical notes keeping the grievor off, the WSIB had maintained the position that the grievor was not totally disabled, and the fact that the grievor was continuing to drive his own truck which was not much different from the Essar truck offered. Mr. McNichol testified that he was not certain whether Dr. Gieni was aware of the offers of modified work. However, from discussions with the WSIB he concluded that Dr. Gieni was aggressively advocating on behalf of the grievor. She had called the WSIB offices in Thunder Bay as well as in Toronto, seeking an explanation for the denial of LOE benefits. The WSIB informed Dr. Gieni that where suitable modified w.ork is available to a worker who is not totally disabled, the worker is not entitled to that benefit if he declines that work. Mr. McNichol testified that Dr. Gieni did not at any time contact Essar to inquire about availability of modified work.

[34] Dr. Gieni approved the grievor to return to work on October 6, 2010 and provided restrictions. A return to work meeting, attended by union and Essar representatives, the grievor and the WSIB official was held on October 15, 2010. It was determined that the griever's home position of Erector was not suitable. The discussion then turned to modified work in the erector crib. It was agreed that due to his five pounds lifting limitation that was also not a viable option. Essar then advised that permanent placement was available for the grievor, driving a % ton pick-up truck. It would require him to transport employees and supplies to various locations within the Essar property. The griever expressed concern that the parts he would have to handle may not meet his 5 pound lifting limitation, and that the opening and closing of the tail-gate would be an issue. Following discussion it was agreed that others would

15 be assigned to do that work, and that the. grievor's sole responsibility was to drive the truck .

. The grievor and the union, then raised additional concems about his ability to drive the truck. While 70 to 80% of the roads within the Essar. property were paved, the grievor was concerned that driving on unpaved sections would aggravate his neck injury. He also stated that if the truck had no convex mirrors, 4e would have to constantly tum his neck to check the blind spot. Finally, he stated that he could not drive the truck unless it had tilt steering. Essar representatives made telephone inquiries and determined that the truck in question did not have tilt steering or convex mirrors. However, Essar agreed that convex mirrors could easily be installed. Discussion followed with Essar, particularly Mr. McNichol, trying to make the case that the driving duties offered would be comparable to the driving the grievor did on a day to Clay basis on his own pick-up truck. It was discussed that the grievor could drive as slow as he wants, that if he could drive his own truck with no tilt steering he could drive the company truck also, and that in any event he could place his hands on the steering wheel low at ·"8 and 4" to meet the restriction "no above shoulder work". Mr. McNichol testified that he put three questions to the grievor. He pointed out that there are some rough roads with pot holes in Sault Ste. Marie and asked whether he did not "drive around town" in his own truck. The grievor respC?nded that he drove his truck only to run errands and get to appointments. The second question was whether he did not drive on highways. The grievor's reply was "no". Next, Mr.· McNichol asked, "Would you get in your truck and drive to Wawa?" The grievor replied "no"; and added that he did not drive even in the city except to get to appointments.

[35] Essar representatives were convinced that the driving duties were well within the grievor's ability: However, they felt that there was no sense forcing him, because he would likely get a doctor to add restrictions which would prevent driving. Therefore, they instead attempted to address the concerns raised.· They advised the grievor that he would not have to drive on unpaved roads, that convex mirrors could be installed, and that in the absence of tilt steering he could address his concern by adjusting his hand placement on the wheel to suit him. The grievor still would not accept the offer. It was determined that the discussions about the driving job were at "a dead-end", and that the parties ought to search for some other modified work.

[36] Mr. McNichol testified that by this time he had observed a pattern. Every time an offer of modified work is made, the grievor would raise a barrier which would make that accommod�tion impossible. He would make the accommodation fail, and use that failure to

16 obtain additional medical restrictions. Whenever he asked the grievor if he could do some particular assignment, he would not say "yes" or "no". Instead, his standard answer was "I don't know, I have to ask my doctor". Mr. McNichol testified that in his view, the grievor would know best, based on the his outside activity, what he could and could not at least try at work. His constant deferral of the decision to his doctor, raised a "red-flag" in Mr. McNichol's mind. He was convinced that if he was forced, the grievor would ensure that the driving assignment fails.

[37] Following further discussion it was identified that the grievor would be placed to perform duties at the Welder cage. The grievor, being an erector, had no entitlement or seniority, to claim that position. It was regarded as a plum job sought after by senior employees. Nevertheless, it was a sedentary job and met the grievor's 5 pound lifting limitation. Therefore, Essar was prepared to deal with any backlash by senior employees from the welding area. The goal, from Essar's perspective, was to get the grievor back to' work, and once he is work hardened and his 5 pound lifting limit is removed, to assign him to the erector crib on permanent accommodation. It was discussed that a certified worker with experience would train the grievor and that the grievor would be trained so that he could obtain certification in welding to be able to do torch repairs. The grievor requested that he return to work on graduated hours - to start at 4 hours a day for 2 weeks, followed by 6 hours a day for the next two weeks, then to full time hours. Essar not only agreed, it agreed to pay at 8 hours a day regardless of the actual hours worked during the graduated return.

[3 8] After he started at the welder cage on October 18, 2010 the grievor left during work hours for physio treatment as needed, explaining that the treatment was not available after hours. Essar authorized those absences with no loss of pay. On November 3, 2010, the supervisor of the welder cage, Mr. Al Bean advised Mr. McNichol that the grievor was not doing any productive work and that for most of the day just sat there. Shortly after, Mr. Bean reported that the grievor had stated that he could not cut open plastic bags with a knife. Mr. Bean advised that if the grievor could not do such a simple task, it was impossible to find any meaningful work for him. A sample of the bag with contents was filed in evidence. It is a plastic bag, like a sandwich bag, approximately 6x8 inches, and contains very light fittings. The grievor's task was to cut the plastic bags with an exactor knife.

17 [39] The grievor's employment on modified work was interrupted when he went off on

November 17, 2010 after suffering a non-occupation injury on November 16th. He was seated on a wooden bench in the sauna room of the YMCA, when the bench collapsed and he had to be taken to hospital. When he was authori:zed to return to work effective December 5, 2010, he · ·

had increased restrictions imposed by Dr. Gieni. Although the grievor reported to work on December,_2010, he did not start work. Mr. McNichol testified that while assigned to modified work in the welder cage before the YMCA incident, the grievor had done very little work. He had been instructed to let Mr. McNichol or his supervisor know if he had-any difficulty. He did not do that, but instead chose to just sit there, Mr. McNichol met with him and asked why he could not polish the repaired parts using the bench sand blaster. The grievor had pointed out that he had a restriction - no exposure to vibration on both hands. Mr. McNichol acknowledged that, but suggested that the grievor try a "little bit of sandblasting at a time' and take a rest, and see if he could tolerate it. He was assured that if that caused negative symptoms, the work could be discontinued. The grievor was not willing to try. Essar concluded that it had exhausted alJ options, and that.if the grievor could not be accommodated even at one of the most sedentary jobs, the welder cage, it was not possible to accommodate him anywhere. Thus the grievor remained off on sickness benefits.'

[ 40] Shortly after, Essar retained a private investigator to conduct surveillance of the grievor. Mr . . McNichol testified that due to a number of factors, he had suspicion that the grievor was capable of doing much more than he presented. Ever since the initial injury in 2008 every time modified work was made available, the grievor found some reason why he could not do that. He would go to his doctor and have restrictions increased that would make. the work offered unsuitable. Mr. McNichol found it extremely strange that the grievor was defensive and guarded anytime he wanted to discuss what he was or was not capable of doing. He did not want to answer when Mr. McNichol asked what activity he did outside work, whether he· mowed the grass, carried the garbage out etc. His standard position was that he had to ask his doctor. Mr. McNichol testified that in his experience injured workers were always willing to discuss what they may or may not be able to do, although they may seek medical approval subsequently before accepting modified work. Also, Mr. Bean had informed him that he had ·

overheard some employees joking that the grievor cannot do any work, but had gone deer hunting. Mr. McNichol reported this to the grievor's WSIB case manager, who ·reported back that he had interviewed the grievor, that he had initially denied that he had gone deer hunting,

i I . I

I

but later admitted that he did and wanted to know who had "snitched" on him., Mr. McNichol testified that in view of all of these the decision was made to order surveillance.

18

[ 41] The surveillance occurred on December .16, 2010. The surveillance video was shown at the hearing with the investigator providing commentary under oath. The investigator's report was also filed in evidence. The synopsis of his report reads:

Surveillance of, Mr. Glen Barill, the claimant of this investigation, was conducted over one day.

Mr. Barill continues to reside at (address omitted) in Sault Ste. Marie, On.

During our surveillance period, the subject was first observed when he arrived at Essar Steel, as it was known that the subject would be at this location at some point on this day. FrolJ1. here, the subject went to the Northern Credit Union on Second Line, a Petro Canada gas station on the corner of Boundary and Trunk Roads, a Country Style drive­through, the Napa Auto Parts store on MacDonald Avenue and the Station Mall where he attended the food court inside. From here, the subject returned to his residence briefly then went to the YMCA and remained there for a while. Afterwards, the subject went back to Essar Steel where he attended a scheduled appointment then left. The investigator did not follow the subject at this time as the investigator met up with the client shortly after the subject left. Surveillance was discontinued a while later.

Mr. Barill was not observed to wear or use any visible medical aids. In fact, the subject did not appear to have difficulty quickly getting in and out of his vehicle or driving around a lot. The subject was also observed to walk around normally and sometimes quickly. It should be noted however, that the only time the subject appeared to walk a bit more slowly was after he left Essar Steel the second time.

[42] When the grievor visited Essar on the day of the surveillance December 16, 2010, Mr. McNichol met with him. Mr. McNichol advised that given his current restrictions, no accommodation was available for him in the erector crib or welder cage, but advised that the job of driving a % ton pick-up truck was still available. The grievor declined. Mr. McNichol pointed out that the truck was no different than the grievor's own truck, and asked "don't you drive your own truck?" The grievor replied, "Yes. But only to and from appointments". When specifically asked whether he did not drive "all around town", the grievor replied, "no. Only to appointments with doctors and physio. Then home".

19 [43] Mr. Ricardo Sierra, Superintendent of Construction, testified that he was involved in the

offer of truck driving to the grievor. The grievor's job was to pick up workers as well as supplies and drop them off at various locations within the Essar property. He testified that the grievor did this function on October 28, 2008. At the end of the day the supervisor advised him that the grievor had taken the position that he could not continue driving due to the bad condition of the unpaved roads. As a result that modified work assignment was discontinued.

[44] In October 2010, accommodating the grievor at the erector crib became impossible when a lifting restriction was added. As a result he was again offered the driving duties. The grievor was advised that others would be assigned to load and unload material. However, the grievor raised other concerns. The first concern was the jarring that would result from driving on rough unpaved roads. In response, the grievor was assured that he would not have to drive on any unpaved roads, and that he could drive as slowly as he would like. Mr. Sierra agreed that . there were numerous rail crossings and blind spots wi�hin the Essar property. At rail crossings, the speed limit was 15 KPH. At blind spots flashing red lights and a siren come on if a train, or a large vehicle such as a pot hauler was approaching. -The rule was that large vehicles had the right of way. He testified that pedestrian traffic is at its highest around punch in/out times, but the vast majority of it was confined to designated walk ways. He testified that pedestrian volumes were far less than on city streets. At Essar, drivers need not · be concerned about cycles, motorcycles, children or animals. Also, Mr. Sierra testified that the assignment did not involve driving straight for 8 hours. Essar was prepared to be flexible and allow breaks as needed by the grievoi: Mr. Sierra testified that the grievor also raised the concern. that he would not be able to open or close the tail gate of the truck. Essar assured that someone would be assigned to do that.

[ 45] Also raised was a concern that without tilt steering the grievor would to have his hands above shoulder level while driving. Essar representatives pointed out that the grievor can remedy that by placing his hands low on the steering wheel. The grievor also was concerned that the tail gate would block his view from the rear view mirror. It was pointed out that convex mirrors could be installed on both sides. The grievor expressed concern that he would still have to turn his neck to look at the side mirrors. Mr. Sierra testified that in his view Essar had addressed all substantial issues raised by the grievor, but the grievor would still not agree to try the driving with the various accommodation�: in place. He denied that any request was made for an "air­ride" seat. Mr. Sierra recalled that Mr. McNichol asked the grievor how often he drove his own

20 truck around town, and that the grievor responded that he did not drive often and drove only for medical appointments and that he found even that to be very difficult. He also recalled Mr. McNichol asking the grievor whether he had driven outside the city on highways and that the grievor replied that he did not.

[ 46] In cross-examination, union presenter, Mr. Roussain suggested that, when asked about driving his own truck, the grievor's response was to the effect, "I drive from point A to B". Mr. Sierra disagreed and reiterated that the grievor stated that he drove only for doctors and therapy appointments. Under questioning, he also testified that there are no multi-lane roads at Essar, and therefore no lane changes are required, and there would be minimal need to check the blind spot.

[47] Mr. Alan Bean, managed welders and ·�rectors He testified that the welder cage performed functions including the repairing and refurbishing of various torches, regulators, hoses and other fittings used by welders. It was a popular job because it was very light work performed indoors in an air-conditioned environment. He testified that he was not aware of any other occasion where an erector had been placed there, and described the grievor' s placement as a "morale killer" for senior welders. However, Essar decided to accommodate the grievor there because he had refused all other offers. Mr. Bean testified that when the grievor came to the welder cage on October 18, 2010, he was shown the work performed there and what duties he could do within his restrictions. He was to work alongside a fitter welder Mr. Ken Hawdon. The grievor was instructed to let Mr. Bean know if he had problems with work. The grievor was asked to cut off steel bands on hoses with a hack-saw and clean the hoses. H� did that duty for four hours a day for two weeks because he was on graduated hours. Then during his third week back, on November 3, 2010 the grievor was assigned to cut open plastic bags containing small fittings with a knife, discard the plastic bag and to put the fittings in a bin. Mr. Bean testified that Mr. Rawdon informed him that the grievor did not do that duty at all. Mr . Bean spoke to the grievor and was told that it hurt too much to do that work. Mr. Bean testified that he e-mailed Mr. McNichol that the grievor sat around all day doing nothing despite being told that he could work at his own pace. He testified that the grievor was entitled to one l;i hour lunch break and two coffee breaks of 20 minutes each. However, he observed that the grievor was taking a break at least every half hour, wh:m he would either go outside and smoke, or talk with erectors in the erector area.

21 [ 48] Mr. Bean testified that the following week, he had an experienced torch repairman work with

the grievor to train him on the duties involved in the repair of torches. A big part of torch repair was the buffmg and sandblasting of the items repaired. The grievor refused to do those functions, claiming that the vibration was not within his restriction. He did only the lightest aspects of the work, requiring the experienced worker to do the rest. In Mr. Bean's view, the end result was that less production was achi.eved between the two of them than would have been the case if the experienced worker had worked alone. The grievor appeared to be not motivated and not interested in trying to make the accommodation work. Mr. Bean testified that in this period, while he was outside assigning work, he over-heard some workers "joking around" that the grievor cannot do any work but can go deer hunting and four wheeling.

[ 49] In cross-examination, Mr. Bean reiterated that he was outside in the smoking area, when he heard some workers joking about the grievor bragging that he had gone deer hunting and four­wheeling. He . identified Mr. Rob Mackey as one of the workers in the group. He agreed that apart from what he heard, he had no "concrete evidence" that the grievor/ engaged in that activity. On consent, Essar recalled Mr. Bean to testify. He reiterated that he had definitely heard the conversation he had testified about. When Mr. Roussain · stated that the union has indicated that Mr. Rob Mackey would deny that he made a CO!I'.Jnent about the grievor going hunting and four-wheeling, Mr. Bean replied that he could not say who actually made the comment, but his testimony was that Mr. Mackey was one of the worker� in the group.

[50] Mr. Ken Rawdon, a fitter welder, testified that he first met the grievor when the grievor came to the welder cage on October 1 8, 2010. He was advised that the griever had a five pound lifting limitation, and was asked to provide him some work in the welder cage. He gave a pail full of hose ends and asked him to cut off the metal bands with a hack saw. The grievor was

I . '

told that he could work at his own pace, and that he could work seated or standing. The grievor did that work during the first two weeks at 4 hours a day and 6 hours a day from the third week. All the bands had been cut-off -by the end of the third, week. During this period the grievor went outside on break every 20 to 3 0 minutes, in addition to taking scheduled breaks. Mr. Hawdon testified that the grievor made no complaint about the work, nor di_d he observe that the grievor was having any difficulty cutting the bands.

[5 1 ] Mr. Hawdon then asked the griever to clean the fittin�s he had removed from the hoses with a table top sandblaster. The griever told him that using the sandblaster was not within his

'

22 restrictions. Then he asked the grievor to clean the fittings using a Wire-wheel buffer. The griever did about a dozen and reported that the vibration from the buffer was too much for him. Mr. Hawdon testified that subsequently the griever did only the easi�st of the tasks in the welder cage. All of the other work including the sandblasting and buffing was done for him by others. In his estimation, the grievor did no more than 1 0 percent of the torch repair function.

In effect, two people were doing the griever's job. Mr. Hawdon testified that he asked the griever to cut open plastic bags with a utility knife and put the contents into a drawer. The griever did not try that work at all.

[52] In cross-examination, it was suggested that the day he was asked to cut open plastic bags, the griever told Mr. Hawdon that he was in a lot of pain. Mr. Hawdon disagreed and replied he did not tell him anything, but just sat there most days doing nothing. The only work he did in the

month he was at the welder cage was cut metal bands from a pail full of hoses, and he did some silver soldering. Mr. Hawdon insisted that the grievor did not cut open plastic bags the

following day.

[53] Mr. Wayne McNichol, a private investigator ("the P.I.") licenced by the Ontario government, had previously been employed as a police officer for 1 3 years. He has carried on his own

company as a P .I. for some 24 years. He testified Ll]at when hired by Essar, his mandate was to do surveillance on the grievor' s day to day activities on consecutive days. He was provided the griever's personal information and home address, but was not informed why surveillance was

ordered. The PI testified that he did surveillance by following the grievor around, while

speaking into a recorder his observations. Whenever he could, he also video-taped the grievor' s activities.. Upon completion, the audio tapes were transcribed by his secretary. Subsequently a report was submitted to Essar outlining in detail his observations during surveillance. Reviewing the report, the PI testified about his observations during the 4 days of

surveillance on December 1 3 , 1 4, 1 5 and 1 6 of 20 1 0.

[54] Under cross-examination, the P.I. testified that when he wrote in the report that the griever "drove around a lot", he meant the number of times he drove, and not the duration or distance driven. He reiterated that at stop signs the grievor turned his head side to side and up and down two to three times before proceeding. He agreed that on the four days of surveillance, the griever drove his truck for totals of 1 00 minutes, none, 33 minutes and 1 25 minutes

respectivelY. He testified that on December 15 he observed the grievor exit the Beer Store with a 12 pack beer case and ·carry it about 60 feet to his truck.

23

[55] Mr. Jim Rennie, Essar's Vice-President Human Resources, was the effective decision-maker in the grievor's dismissal. He testified that Essar is usually able to find modified work even for workers with very severe restrictions, because it had a diverse operation with 450 to 500 .

defined jobs. Essar often bundled duties from different jobs in order to acconunodate. Mr. Rennie testified that he was kept informed about the grievor's various periods .of absence and

. r

the offers of modified work. During the grievor's absence from May 2008 to February 20q9, his restrictions were such that management was of the strong view that he could be quickly returned to work. However, the grievor remained off aild returned only when his sick pay was about to go down from 100% wages to 55%. Then in July 2009 the grievor chose to be off for five days claiming that he was incapable of doing any work as a result of the mini-bus incident. Essar considered that to be a very minor bump from behind. Yet the grievor refused to consider any modified work and claimed to be totally disabled. Mr. Rennie testified that around this time it became increasingly evident that the grievor was taking every opportunity to stay off work, despite the position of the WSIB as well as Essar that he was �ot totally disabled and that modified work within his restrictions was available. Mr. Rennie testified that this trend continued during the period September 2009 to June 2010 when the grievor chose to stay home for 8 months following the accident at the YMCA.

[56] Mr. Rennie testified that his suspicions increased when in July 2010 the grievor went off again for a period of over 3 months, claiming to l?e totally disabled as a result of bumping his head on the cylinder of a company boom truck. First, no one witnessed him hit his head, although several people were around. Second, the alleged accident occurred exactly the day before his work schedule was to change from straight 8 hour day shifts, to rotating 12 hour shifts. The management had a discussion that throughout this period the WSIB had maintained that the grievor was capable performing modified work. While the grievor had some restrictions, Essar felt that those could be easily accommodated. Therefore it was decided that a return to work meeting should be held. Essar was very confident that suitable modified work could be found for the grievor since the restrictions in place at the time were relatively insignificant.

[57] Mr. Rennie compared the driving assigmnent offered to the grievor at the �eeting, with the grievor's driving of his own truck around town. He testified that approximately 80% of Essar

24 roads were paved. Because those roads are used by heavy equipment, Essar's roads are paved to a higher standard than city roads. There are no pot holes on Essar's paved roads. He pointed out that the presence of heavy equipment does not make driving difficult because they are visible from Y2 kilometre away and the maximum speed on Essar roads is 30 K.PH. Smaller vehicles simply have to give the right of way . . The grievor would not have to worry about cycles, motor cycles, vehicles backing out of drive-ways, animals or pedestrians. There is minimal need to check for blind spots because there are no multiple lanes and no lane changes. In sum, Mr. Rennie opined that driving the company truck on Essar roads would be much easier for the grievor than driving on city streets. Mr. Rennie testified that when the grievor would not agree to the driving j ob, Essar agreed to put him in the welder cage because Essar was determined to return him to work somehow. However, shortly after the gri�vor started in the welder cage, it was reported that he was not doing any work and just sat there. He described the grievor' s refusal to cut open plastic bags with a utility knife as "the straw that broke the camel's back". Mr. Rennie concluded that the grievor was "playing games" and that consideration must be given to terminating his employment with Essar.

[58] Mr. Rennie was shown a health information form, where the box "no motor vehicles" had been checked off and the words "heavy equipment" inserted by hand. He viewed it as a restriction against driving heavy equipment only and not of all motor vehicles, and pointed out that throughout this period the grievor was driving his own truck. MI. Rennie acknowledged that following his absence as a result of the YMCA accident, the grievor had submitted medical evidence that he was ready to return to work at the welder cage. Mr. Rennie testified that at that point he was not prepared to put the grievor back in the welder cage. First, Essar had received no value for the 1 00% wages it paid while the grievor was there because he did very little work. Second, he was convinced that the driving job offered was well within the grievor' s restrictions. That would have been very productive since that was work that needed to be done, and was being done by senior tradesmen because of a shortage of drivers. In the circumstances it was decided that the driving job was ideal to accommodate the grievor' s restrictions. When the grievor would not agree to do the driving job, Essar had reached "the end of the road" and was convinced that he was fraudulently exaggerating and misrepr7senting the extent of his injury.

[59] In cross-examination, the union put to Mr. Rennie that the grievor's Y2 ton truck was smaller than the % ton Essar truck. . He agreed, but pointed out that the medical restrictions in place

25 only prevented the grievor form driving heavy equipment and that neither truck was "heavy

equipment". He also stated that if the grievor had an issue with the size of the truck, he would

have said that he would take·· the driving job provided he is given a Yz ton truck, and Essar

would have considered that. But the grievor raised no concern about the truck size or tonnage

capacity. It was suggested to Mr. Rennie that unlike the intermittent driving the grievo:r did in

his truck, the accommodation offered was for him to drive for a full 8 hour shift. Mr. Rennie

pointed out that there was no restriction on prolonged sitting imposed on the grievor. That box

. was not checked off. In any event, the grievor would not be driving for 8 hours straight. He

would be driving for no more than 3 0 to 45 minutes at a time before he would be able to get out

and nave a break. There was no reStriction that prevented 11im from doing that. Iv1r. Rennie

denied that the union or the grievor raised the need fo; an air-ride seat during the return to work

meeting. Under questioning, Mr: Rennie reiterated that driving on Essar roads is less

hazardous than driving on city streets . While there is rail traffic at Essar, trains run only three

times a day at scheduled times. Mr. Rennie testified that the report he received was to the

effect that the grievor had claimed that he could not cut open plastic bags with a utility lmife.

There was no indication that he did that work the next clay.

Union Evidence

[60] Mr. Andy Ladouceur, union WSIB committee chair, testified that his adyice to injured workers

generally is to refuse work if it exceeds restrictions in place, because that is the worker's legal

right. He testified that when the welder cage came up at the return to work meeting in October

2010, there was discussion that the sandblaster and bench grinder were vibratory tools and

therefore beyond the griever's restrictions, and that it was agreed that these issues would be

dealt with as they come up once the griever starts. Refen·ing to his notes fi·om the meeting, he

testified that in addition to raising concems about unpaved roads, the tail gate, lifting, tilt

steering and mirrors, he also suggested that an air-ride seat would be helpful to the grievor. It was pointed out to Mr. Ladouceur that Essar takes the position that the only restriction imposed

on the_ grievor at the time was no driving of heavy equipment, that there was no prohibition on

driving motor vehicles. Mr. Ladouceur testified that in his view the grievor was allowed to

drive his "personal vehicle". Asked, "Does the restriction prevent him from driving a % ton

Essar truck"?, Mr. Ladouceur replied, "It should".

[ 61] Under cross-examination, Mr. Ladouceur agreed that the WSIB had taken the position that the

grievor was not totally disabled a..11d that he had been cffered suitable modified work. He

26 testified that he disputed the WSIB' s statement that the grievor "chose to remain off', when

in fact the grievor was simply following his doctor's orders. Mr. Ladouceur testified that he

was not arguing that the grievor was totally disabled. His argument was that if the grievor is

not offered work within his restriction, he was entitled to WSIB LOE benefits. He disagreed

with the WSIB that the driving job was within the grievor' s restrictions.

[62] Employer counsel reviewed with Wlr. Ladouceur, numerous pieces of correspondence in which

Essar states that suitable work was available for the griever. Mr. Ladouceur acknowledged

that, but insisted that the griever was obliged as pmt of the duty to cooperate, to follow his

doctor' s treatment plan. This includes following orders to remain off work. He testified that he

was surprised that Essar would offer the grievor work of any kind, when he was under doctor's

' orders to remain off. Counsel listed the concerns raised at the October 20 1 0 return to work

meeting about truck driving. Mr. Ladouceur agreed that Essar addressed the concerns about

loading/unloading, and the tail-gate. He also agreed that the grievor was assured that he would

not have to drive on unpaved roads, and that Essar was willing to install convex mirrors. Mr. Ladouceur testified that the concern about the absence of tilt steering related to a restriction the

grievor had against working "at or above shoulder level". He testified that the griever had told

him that as a habit he drove with hands at 1 0 and 2 o'clock and that it was difficult to change

that habit. When confronted with documentation, Mr. Ladouceur agreed that the restriction in place at the time only prevented work "above" shoulder level, and not "at or above". He

disagreed with Counsel' s suggestion that driving the % ton Essar truck would be similar to

driving the griever's Yz ton truck. He said that personal trucks, unlike work trucks, usually

come with more options. He agreed with counsel that dealers do not sell trucks as "personal"

or "work" trucks, but insisted that Y2 trucks have better suspension systems than % or one ton .

trucks, and the drive is smoother. He stated that he did not know whether the griever's

personal truck had an air-ride seat.

[63] Mr. Ladouceur agreed that the griever was not doing productive work at the welder cage. He

agreed that despite his testimony in chief, he was not " 1 00% sure" that vibration was raised as

an issue when the welder cage was discussed at the October 20 1 0 return to work meeting. He

agreed that no restriction on exposure to vibrz..tion v.,ras in place in October 20 1 0 and that it

came only at a later point in time. He agreed that a restriction against driving of motor vehicles

would necessarily prevent driving of heavy equipment also. It was put to him that the insertion

' .

(by hand) of the words "heavy equipment", therefore, must mean that the · prohibition is limited to heayy equipment. Mr. Ladouceur replied, "It seems so".

27

[64] The union called Dr. Rose Marie Gieni, the grievor's family physician since 1 993 . Her clinical I

notes were filed in evidence. The evidence is that except for two days, October 27 and 28,

2008, the grievor was off from May 28,2008 to February 1 6, 2009. He worked on the two days, but claimed that the truck driving he did on October 28th aggravated his injury due to "jostling" and was put off work by 'Dr. Gieni with consecutive medical notes. During this absence the .grievor had an MRJ done; and was referred to specialists, Dr. Nolan (Neurologist), Dr. Adegbite (Neuro Smgeon ) Dr. Schneider (Neuro Surgeon) Dr. Costain (01ihopaedic Smgeon), Dr. Ley (Anaesthesiologist) . The evidence is that while the procedures carried out by them found some issues, they were generally of the view that those issues did not explain and were not consistent with, the symptoms reported by the grievor. Dr. Gieni testified that since the grievor claimed that he was unable to work, she kept him off work until the medical professionals were able to pin down the cause for the grievor' s symptoms.

� '

. [65] Dr. Gieni viewed the summer smveillance video during her testimony. She was asked whether .

[66] .

the restrictions he had at the time prevented the grievor from doing the activity shown, such as, assisting to lift a snow-blower, lift arms above his head to close the lid, carry a 12 pack of beer, etc. She replied that the grievor was able to do those things and that it was the repetitiveness that was not allowed. She testified that she saw hothirig in the video that was inconsistent with the griever's restrictions. Dr. Gieni was asked by Mr. Roussain why she questioned the suitability of driving for Essar, if the grievor was capable of the activities shown on the video. She replied that "it depends on how long he drives, where he drives and the size of the truck". She testified that even if the grievor had the ability to drive with his hands low on the steering wheel, the j arring due to road conditions and the duration of driving would be concems. She· noted that the grievor had reported to her that the j ostling while driving the Essar truck aggravated his injury, and that she had no reason to disbelieve him. \

Under cross-examination, Dr. Gieni confirmed that during a visit on May 22, 2008, the grievor described the pain and aggravation that resulted from his dri\ring the Essar truck following his chain fall injury. She agreed that the only obj ective finding she made was a slight decrease of lateral flexion on the left side of the neck. She accepted what the grievor told her about the increased pain and put him off work until fw.iher investigations as to the cause qf the symptoms

28 the grievor had described. She agreed that she did not know, and did not inquire, about the condition of the roads at Essar, for how long he ·was driving or what other duties were involved.

[67] Dr. Gieni testified that at an appointment on June 1 2, 2008, the grievor reported that his symptoms still persisted. She confirmed her reference in her clinical notes that the grievor advised her that the only work available for him at Essar was truck driving, and that she took his word on that. She agreed that on the basis of what the grievor had told her, she put him off work indefinitely. She confirmed that even at this point, apart from the symptoms described by the grievor, the only objective assessment she had made was some reflex deficiencies; which did not explain the grievor's symptoms. She kept him off because she wanted to know "what was going on with him". Referring to her clinical notes from a visit on July 22, 2008 to review the results of a MRI, Dr. Gieni testified that the grievor expressed concern about doing any activity, even driving .his own vehicle, due to fear of suddenly being paralyzed. She assured her that there was no such risk and advised the grievor that he was able to do regular activities, as long as he avoids prolonged flexion or extension of his neck. When counsel suggested that any restrictions the grievor had at the time was not inconsistent with driving, Dr. Gieni replied, "Yes. Not with just driving".

[68] Essar counsel referred Dr. Gieni to a letter from WSIB dated November 1 4, 2008 to the grievor and union, which states that the grievor was not totally disabled and that modified work was offered by Essar. Dr. Gieni stated that the grievor did not tell him about any offer of modified work other than truck driving. Nor did he tell her that the WSIB had cut off his benefits on the grounds that he had chosen to remain off when suitable modified work was available. Dr. Gieni was asked whether she agreed with the WSIB's position that there were no objective findings supporting that the grievnr was totally disabled. She replied, "Yes . . He was not totally disabled from doing anything". Dr. Gieni confinned that subsequently during a visit on September _1 8, 2008, the gr-Jevor infom1ed her that the WSIB had cut off benefits. Asked whether the grievor told her why benefits were cut off, she replied that the grievor told her that the WSIB was taking the position tt�at the April 1 008 injury was not a new injury but a continuation of his 2006 injury. She agreed that the grievor never told her that the WSIB had cut off benefits because it was of the view that Essar vvas offering suitable modified work and the grievor declined those and chose to stay off

29 [69] Dr. Gieni was referred to Dr. Nolan' s report dated October 24, 2008 where it is recorded that

the grievor informed Dr. Nolan that he had on-going symptoms in his upper extremities "going

back several years" suggesting that since his 2006 injury the syinptoms had continued. Dr.

Gieni agreed that this was different from what the. grievor had told her. He had infmmed her

that the 2006 issues were resolved with a few weeks of physiotherapy, and that he had no

further problems until the April 2008 chain-fall injury.

[70] Dr. Gieni agreed that on October 28, 2008 the grievor called her office and told the nurse that

the WSIB made him return to work, that he had been assigned office work and that he felt he

should not be at work, and that she advised the grievor that he was able to work in an office, .

but should refuse any work beyond his ability. On October 29 the grievor called again and

informed that he had been removed from the office and assigned to drive a truck and that his

pain and symptoms had been aggravated from the driving. She agreed that she provided the

, grievor a note to be off until his November 3, 2008, appointment based ·solely on what the

grievor stated over the telephone. At the November 03 , 2008 appointment the grievor again

told her that due to the jostling while driving his symptoms ha(j increased. She accepted that

and put him off work indefinitely. Other than check his blood pressure, no other' assessment

· was done.

[71] AskeQ. what her understanding was about the driving the grievor did on October 28, 2008 that

caused his pain to increase, she testified that he .drove a 14 ton truck for the majority of a 8 hour:',

shift, that Essar roads were rough and that there were ''lots of heavy vehicles". Dr. Gieni

agreed that she was aware that the grievor was driving his own Yz ton truck. Asked to explain

why he coul'd drive his own truck, but not the Essar truck, Dr. Gieni replied that the grievor

would not drive l).is truck for long periods and had the option to · not drive if not feeling well .

She testified that "it is unlikely" that Essar would !3-llow him to take a break after driving for

one hour and he would be driving for several days in a row. She stated that she assumed that to

be the case "because typically employers 'don't allow drivers to stop early or to not come in if

not feeling well". She agreed that she had not made any assessment as to how long the grievor

could tolerate driving. Nor was she able to make an assessment as to · what about the driving

the grievor did caused the aggravation, althm�gh she believed that having hands on the steering

wheel above shoulder level, and the prolonged vibration and jostling could have been the

problem. Counsel pointed out the restriction the grievor had was "no work above shoulder

level" and asked whether one must have hands above shoulder level on the steering wheel

30 when driving. Dr. Gieni replied, "I think legally your hands have to be at 2 and 1 0 o'clock".

Counsel put to her that there was no such legal requirement and suggested that it is possible to

drive without placing hands on the steering above shoulder level. Dr. Gieni replied, "If he can

do that, that' s fine".

[72] Asked what "prolonged vibration" she was referring to, Dr. Gieni replied that every vehicle

has steering vibration. She testified that she did not ask the grievor whether he had difficulty

due to prolonged vibration when driving his own truck. She testified that there is always

"jostling" when driving, but it would be worse on rough roads. She testified that in his own

truck, the grievor is able to drive to a point of toleration and stop, and added ''I don't expect

that the employer will allow him to drive to his level of toleration". She agreed that she made

no inquiry in that regard, but assumed it to be so.

[73] Confronted with their reports, Dr. Gieni agreed that Dr. Nolan and Dr. Adegbite had found no

significant abnormalities . She also agreed that as of November 2008, she had not been told by

the grievor that Essar had advised him that modified work was available for :him other than

driving. She reiterated that she kept the grievor off work indefinitely b�cause of the pain and

symptoms he described and no explanation had been found for those symptoms. Dr. Gieni

testified that during a visit on January 15, 2009, she infom1ed the grievor that the MRI was

completely normal and advised him to increase activity for work hardening and building up

stamina. She testified that the repmi from the neuro surgeon Dr. Schneider sum...rned up that she

could not explain why the grievor was expe1iencing the pain he was describing. Similarly

Orthopaedic Surgeon Dr. Costain' s report was to the effect that he could not explain what was

causing the grievor's problems because the testing did not show any abnormality.

[74] Dr. Gieni agreed that the only medical she issued imposing restrictions on driving was in a letter dated February 8, 2009 to the WSIB and that she had not communicated a driving

restriction to Essar.

[75] Dr. Gieni was asked to explain why the grievc·r was retum:�d to work on February 1 6, 2009. She replied that by then the speciali5:ts had ::t�led out any significant abnormalities, the grievor

had informed that he was tolerating his pain and had increased �1is activity and was able to

return. She said that she was not aware that February 1 6, 2009 was the exact day the grievor's

sick pay would have decreased from 100% of wages to 55%.

3 1

[76] :Dr. Gieni agreed that in March 24, 2009, the grievor informed her that he had not been able to go for physiotherapy because the sessions caused too much pain. ·shown the physiotherapist 's

reports at the time, she agreed that those make no reference to the grievor having any

difficulties or missing sessions, but on the contrary confirms that the grievor had reported to the physiotherapist that he was 75% better, and that the physiotherapy was going very well. She agreed that all medical ·professionals were advising the grievor to increase physical activity as long as they are within his restrictions. Dr. Gieni testified that the psychiatrist made a finding that the grievor was pre-occupied with pain which caused depression, and recommended psychotherapy. She testified that psychotherapy did not happen because it was not covered by the insurance plan. The psychiatrist repmied that the grievor' s symptoms "suggested something like thoracic outlet syndrome", although the testing, imaging and clinical examination showed no significant abnormality. She agreed that this was consistent with �he reports of all other specialists that they could not explain the symptoms described by the

grievor.

[77] Dr. Gieni testified that on May 26, 20 1 0 the grievor told her that his depression was much

better, that he is able to wo:rk \Vit.h. some restrictions, and requested a note authorizing his return

to "':'ork. She gave the note as requested, \Vithout doing any objective assessment because the psychiatrist had also stated that it would be advisable for the grievor to be at work. Essar

counsel pointed out that the grievor had been off for over 8-9 months, and asked on what basis she imposed the same restrictions as 8-9 months earlier, when he returned. Dr. Gieni replied

that the grievor told her that there was no change in his symptoms,. and she therefore assumed that there was no change in his restrictions. ·

[78] Reviewing her clinical notes, Dr. Gie!u agreed that when the grievor visited a clinic 12 days

· after the July 1 , 20 1 0 boom truck accident, other than the grievor' s ovvn description of pain, there was no objective findings that his condition had chru1ged as a result of the accident. The

assessments done disclosed no issues. Dr. Gieni agreed that on the grievor's request, the nurse issued a note putting the grievor off work from July 1 to 26, 20 1 0, although she had not seen

the grievor, because the next available doctor's appointment was for July 29'h . Dr. Gieni agreed that during that appointment, the grievor complained to her tha.t Essar had put him to "labouring type work", wh::n he was "supposed to be doing office work". She agreed that the

grievor' s restrictions at the time did not limit him to office work, and that it was not true that

he was supposed to be doing office work. She could not recall if she corrected the grievor.

32

[79] Following an appointment on August 1 7, 201 0, Dr. Gieni had put the grievor off for 4 more weeks to September 141h. Dr. Gieni testified she had no contact with Essar at this time.

Counsel put to Dr. Gieni that during this absence Essar had offered modified work to the grievor at least three times, and the grievor's response each time was "my doctor won't let me do any work". Dr. Gieni responded that the grievor did not tell her that Essar had offered modified wok, but had stated that he was put back on regular duties.

[80] Dr. Gieni agreed that when she extended the grievor' s absence again to October 1 6, 2 0 1 0, it meant that he was still incapable of doing any work including driving. She was asked what her understanding was at the time about the driving the grievor did in his own vehicles. She replied that he had told her that he only drove to attend physio and doctors' appointments, to visit

family and get groceries, and that he did not do any "prolonged trips". She agreed that in October 201 0, the grievor did not have a restriction on driving, but had a "no jarring"

restriction. Therefore, he was capable of driving provided he was not "bouncing up and down".

[8 1 ] Dr. Gieni- confirmed that while the restrictions in place as of November 04, 20 1 0, precluded driving of heavy equipment, it did not prevent the grievor from driving a truck for Essar. In

fact, the physiotherapist had found that the grievor could drive anything. She also confirmed that during a visit on September 20, 20 1 0, the grievor told her that he suspected that private

investigators were watching him.

[82] The grievor was the union's last witness. He testified that following his chain fall injury on April 24, 2008, he was accoiTLmodated with truck driving duties. In a 8 hour shift, he was

driving for at least 7 hours, and all over the Essar property. In addition, he had to lift items he delivered, including oxygen bottles which weighed about 100 pounds. He testified that there were pot holes on unpaved roads and there was "lots of traffic" including heavy equipment like pot haulers. He stated that although the truck was a brand new % ton truck, it had heavy suspension, and was "consistently bouncing". Even on paved roads there was "constant jarring and bouncing" and he felt the steering vibration. He drove the truck through April and May 2008 . Every day his soreness and pain got worse. The rough roads affected him the most. He testified that pot haulers an.d over-sized dump trucks "c8JL110t see me" .. particularly at blind

3 3 comers, and often he had to race to get out o f the way. The roads were covered with debris like pieces of scrap metal and he had to drive around them. He was always turning his head left and right looking _out for heavy equipment because they had the rightrof way.

[83] The gnevor testified that he stopped working effective May 27, 2008 because he "got progressively worse". He agreed that during June 2008, Mr. McNichol called him several tinies about modified work. According to him each time Mr. McNichol told him that modified work was available whenever he was ready to return, but did not offer any specific work. He told Mr. McNichol that he was in pain and that on the orders of Dr. Gieni, "medically I was to be off work". He testified that through July, August and September there was no change in his condition and he remained off On October 23, 2008, however, an adjudicator from the WSIB decided that he was not totally disabled, contradicting Dr. Gieni' s decision, and dire<;ted that he should return to work subject to ceriain restrictions. He returned to work on October 27, 2008,

and was assigned to review manuals sitting at a desk. He expected to continue in the office the next day, but was instead assigned truck driving duties. He described the various roads he drove on and testified he was still feeling a lot of pain. He testified, "I am supposed to be doing office work. Not driving a truck on bw:rlpy roads." By evening he was so sore and in pain, he did not report to work the next day.

[84] Mr. Roussain referred the grievor to a letter from the WSIB dated November 1 4, 2009, stating . .

inter alia, that a worker has an obligation to participate in the employer' s return to work program. The grievor testified that to do that he must be authorized medically to return. He had been ordered to remain off work. Asked t·D describe. his activity at' home while off work, the grievor said that he took his two dogs for walks, and occasionally wen! out with friends or family for a drink or to eat.

[85] The grievor testified that at a return to work meeting on February 6, 2009 it was agreed that he would return

-to work on Febmary 1 6rh at the erector shop with graduating hours. The

documentation indicates that his restrictions were no lifting over 5 kg floor to waist, no lifting above waist, no repetitive twisting, bending, pushing, pulling a:r1d .jarring of neck and limited use of hands. There was also a notation "desk work preferred". At the erector shop, he had difficulty with the weight of some items over 5 kg. He had another employee to do what he felt was beyond his ability. He did this modified work for a "couple of months" after which he had to stop. Asked why, he testified that he was "suffering from depression". He explained that

34 due to the injury his life had totally changed. He could not do work he was used to, and was

no longer able to engage in extra-curric1..1lar activities and sports . The grievor acknowledged

that on June 4, 2009 his previous restrictions were considerably lessened and he was improving with physiotherapy.

[86] The grievor testified that since his injury in April 2008 he drove his personal vehicles, a 1 998 Yz ton Dodge R am truck cm d a Dodge Intrepid car. His truck was a XLT model with a luxury

package and had a smooth ride. Asked for the extent of his driving, he said, "'I drove to work,

to physio, Doctor' s appointments and to visit friends and family".

[87] Asked to describe the bus accident, on July 28, 2009, the grievor said that he was in a modified

bus driven by Jason Ambreault, travelling inside the Essar property. When the bus stopped at a

stop sign another bus hit from behind. Mr. Ambreault kept going, but "'within minutes" he

asked Mr. Ambreault to drive to the Essar medical office. The grievor testified that the driver

of the second bus, Mr. Mike V az, who had heard that he was going to report the accident was at

the medical office and told him and J.\,1r. An1breault that he had actually hit from behind

purposely, and asked that the incident be do-vvn-pla.yed so that he would not be disciplined for

horseplay. The grlevor testified that wh]e no o:ne else was injured, due to his previous injury,

within 2-3 minutes he experienced pain. He was not wearing a seat belt, but was not thrO\vn off

his seat. However, he said, "'my whole body just went forward in a whiplash motion". After

reporting the accident to the medical office, the grievor went to the hospital emergency

department. The attending physician put him off work until July 3 1 , 2009. He returned to

work on August 41h, subj ect to a restriction "Desk/bench or sitting work primarily". While he

was provided work witJ:-.dn those restrictions, the grievor testified that "it was not going well".

He had constant neck pain and his fingers felt numb . .

[88] About the boom truck accident on June 29, 20 1 0, the grievor testified that after loading the

truck he was getting off the truck while looking down to avoid stepping on the clutter on the

floor. He said that he "walked right into the cylinder of the boom". He said "it snapped my

head back". Even though he had a hard hat on, he felt "really flushed and dizzy". There was a

sharp pain in his neck, and numbness in his hands. Tbe pain in his anns and shoulders

increased. The grievor testified that co-worker Dale E�·o'iN�·l was at the contrc-ls and was a

witness to his accident. At the hospital emergency department he was given a note putting him

on a «desk duties only" restdction for 5 to 7 days.

3 5

[89] The grievor was shown e-mails between his supervisor and Mr. McNichol indicating that a few .

days before the boom truck accident, his supervisor had advised him that he would no longer be

on straight day shifts, and that based · on his seniority he would be scheduled on all shifts

including afternoons and nights, and that he took the position that as an accommodated injured

worker he should be on day shift only. The grievor den�ed that he requested to be on day shifts

only, and added that he had no problem with shift work.

[90] Shown Mr. McNichol's note that on July 20, 20 1 0, he called him and offered the pre-inj ury

modified work at the crib which he declined, the grievor replied that at that time he was in so

much pain that he could not do even that work. The grievor was shown a certificate dated

August 1 9, 201 0, which put him off work for a further four weeks, and asked whether he d�ove his personal truck during that period. He replied that he drove for physiotherapy and doctor's

appointments, to visit family, to shop and get a coffee. He was asked if so, why he was "not ·

allowed" by his doctor to drive a truck for Essar. He replied, "it was because the ro�ds at Essar

are rough. To prevent sudden j arring . . To protect me from aggravating my injury".

[91 ] The grievor agreed that at a return to work meeting on October 1 5 . · 20 1 0, modified work

driving a truck was offered, and that he raised concerns about "the condition of employer roads,

location of steering wheel, the requirement to check blind spots, and lifting tail gate". He

testified that although not reflected in the documents, he also raised the need for a "air-ride

seat". He testified that Essar was of the view ,that driving was "a legitimate grey area" for him

and agreed that shs>P work was "the right direction to go". Everyone agreed that the welder

cage was best because it was light sedentary work. He started modified work there on October

1 7, 201 0.

[92] The grievor testified th�t for the first tw.::J we,::ks in the welder cage he worked four hours a day,

. repairing approximately four regulators a day. He estimated that he performed only 1 /3 of the

job because he could not use the sa..ndblaster and wire wheel buffer. They caused vibration and were contrary to his "no vibration" restriction. He testified that after two weeks, there was no

regulator repair work left to be done, and he was asked to cut steel bands on hoses using a hacksaw. He did that "on and off' for the next two weeks at 6 hours a day, although it caused a

lot of pain.

[93) The grievor agreed that on November 3, 20 1 0, he refused to cut open plastic bags containing 36

small fittings, using an exactor knife. H e refused because that day h e was in so much pain it was "agonizing" to do that work. He testified that the next day he cut open about 200 plastic

bags. However, for the rest of the week he was not able to do any work. He explained that as a result of driving the Essar truck all over the plant and repetitive work in the welder cage, he

was in pain even before stfu-ting his shift.

[94) Asked to describe the accident at the YMCA on November 1 6, 20 1 0, the grievor testified that

the wooden sauna bench he was seated on broke and he fell backwards, hitting his head on the back of the sauna. He was in extreme pain. He went to the first aid station, and was examined

by a physiotherapist. On December 2, 201 0 he saw Dr. Gieni who put him off work until

December 5th. She authorized him to return to work on December 6, 201 0 subj ect to restrictions. He presented the restrictions to Essar Human Resources but was advised that there

was no work available within his restrictions. The grievor testified that he was prepared at the time to return, either to tp.e welder cage or other sedentary j ob. Instead Essar placed him on

sick benefits.

[95) Mr. Roussain questioned the grievor at length about his activity on D ecember 1 3 to 1 6, 201 0 as shown in the surveillance video. He stated that not..hing he did was inconsistent with the

restrictions he was under at the time. He testified that the video shows him engage in certain

activity for a few minutes. On his own time he was able to decide what he can do and for how

long. Driving for Essar in contrast required repetitive twisting and bending for 8 hours straight. The grievor testified that ever since his April 2008 inj ury he did the type of driving in his ovvn truck, as shown in the video. He said that Dr. Gieni had never advised him not to drive his own

truck. He discussed with her the difference between driving his own truck and driving for Essar, and she decided that he ought not be driving the Essar truck.

[96) The grievor was referred to Mr. McNichol' s notes taken at the meeting on December 1 6, 20 10 . The notes indicate that the grievor was asked whether he was driving his own truck and that he

replied "yes. But only to and from appointments". The grievor recalled the question, but te,stified that as he recalled his reply was "I go from point A to B". The notes document a question to the effect "So you don't drive all around town?" and the grievor's answer, ''No. Only to appointments, physio fu!d doctor and f:ilen home". The grievor testified that he could not recall that question being asked.

37

[97] Mr. Roussain asked the grievor what his understanding was as to why he was terminated. He replied, "Because I was driving my truck outside, when I had said I couldn't drive a truck for the conipany 8 hours a day". He testified that Essar nor the WSIB had ever warned him that if he drove his truck while claiming he could not drive at work, he would be terminated. He had never tried to hide the fact that he drove to docto'rs ' appointments, physiotherapy, meetings and other personal activity. He testified that Essar had to have known that he drove his truck,

because in October 20 1 0 he was issued a gate pass.

[98] In cross-examination, the grievor agreed to the following: that following his April 2008 injury, he returned to work and was assigned modified duties driving a truck; that after doing that for about a m onth he told Dr. Gieni that driving on rough roads at Essar increased his pain and that she put him off work; that Mr. McNichol called him on June 2, 2008 a..11d advised that modified work was available for him and that he told Mr. McNichol that he was in too much pain to do any work. The grievor acknowledged that on July 4, 2008, the WSIB denied him LOE benefits because in its view, he had chosen to stay off when modified work within his restrictions was offered.

[99] The griever agreed that on June 1 2, 2008, he told Dr. Gieni that he wanted to remain off because of the · symptoms and pain, and that on June 1 9, 2008 when Mr. McNichol again wanted to discuss return to work his respons,e was that he was medically authorized to be off. He agreed that following his MRI in July, on July 22, 2008 Dr. Gieni advised him that the MRI did not disclose any issues, assu::ed him that his fear . of paralysis was unfounded, and advised him to increase his physical activity. He testified that he could not increase physical activity b�cause he was in so much pain and he did not lrnow ·why. He said that even when he wal�ed his dogs, h� did not have them on leash as the tugging caused too much pain. The griever agreed that in the note provided by Dr. Gieni on July 22 she wrote that he could do regular activities, and more importantly, did not say that he was not .able to work. Yet on August 1 9t\

. he again told Mr. McNichol that he was unable to do any work,.

[ 1 00] Counsel referred to Dr. Gieni ' s clinical notes indicating bat on September 1 8, 2009 he told her that WSIB had cut off benefits and would no longer pay for his physiotherapy costs, but that Essar's insurance career had picked up those costs. He agreed, therefore, that as of September 2009 he knew that if WSIB coverage is not availabLe for physiotherapy, it would be covered b y

38 the insurer. Counsel asked, why then he told Dr. Gieni in September 201 0, that he had to stop physio because WSIB had cut off benefits. Initially the grievor stated "OK. I was wrong"." When counsel asked again why he said what he knew was not true, the grievor replied that he said that because he felt the WSIB should have covered his physio costs. When counsel asked the question again, he replied "I don't know why I said that".

[ 1 0 1 ] Counsel had the grievor confJ.IIP. his testimony in chief that although he had an injury in 2006,

those symptoms were fully resolved within a few weeks. Refening to clinical notes, counsel

asked why he told two different doctors in October 2008 that his symptoms had continued since

his 2006 injury. The grievor replied that he did not say that, and that the doctors must have

misunderstood him. Counsel pointed out that two different doctors could not have misunderstood, and asked if it is possible that he led the two doctors to believe' that he had the

symptoms since 2006. He replied "yes".

[ 1 02] Counsel referred to a letter dated October 23 , 2008 from t..he WSIB, to the effect that his benefits are cut off because he was not totally disabled and work was available within his restrictions. The grievor agreed that the restrictions in place at the time did not preclude driving a truck. Counsel asked why, despite that position. of the WSIB, he was not willing even

to try when on October 24, 2008, Mr. Nl.cNichol told him that modified work was available. The grievor replied, "because I was authorized to be off'. Counsel reviewed with the grievor

the restrictions in place as of October 2008, and suggested that there was nothing precluding

driving a truck. The grievor disagreed, and said that driving for 8 hours would he contrary to

the restriction, "no bending/twisting repetitive movement of neck". Counsel asked why he · would have to repetitively twist or bend his neck when driving. He replied that he had to do that "to be aware of overhead cranes". Counsel suggested that at Essar there were no overhead

cranes outside. The grievor replied that overhead cranes operate inside buildings and that sometimes, it is necessary to drive into buildings. Counsel suggested that if he had concerns

about those rare occasions he could have asked for accommodation. The grievor agreed.

[ 1 03] The grievor agreed that he returned to work on October 27, 2008 ar1d did office work. The next day he was assigned truck driving duties. Before doing any driving he called Dr. Gieni's office and told the nurse that the WSIB made him return to work, that he felt he should not be at work, and asked for a note to be off until his November 3rd app::>intment with Dr. Gieni. He agreed that the nurse declined and told him that he should work and refuse to do any duties he

3 9 could not do. The grievor agreed that later the same day, he called Dr. Gieni 's office again and reported that as a result of driving the Essar truck he hurt his neck and asked for a note to be off. On the basis of the telephone call, this time the nurse issued a note putting him off work

until November 1 8th. Counsel put to the ·grievor that what he told the nurse, that Essar assigned driving duties when he was "supposed to be doing office work", was untrue because his restrictions did not limit him to office work, that he was allowed to do any work within his restrictions, and that office work was only said to be "preferred". The grievor agreed.

[1 04] The grievor agreed. that he had been off since May 2008, then worked two days -office work on October 27 and driving on the morning of October 28 - and then went off again claiming total disability. Asked why he declined when Mr. McNichol called on October 31, 2008 and said that modified work was available, the grievor replied, "Because I was authorized to be off". He

agreed that in this p(':riod, Essar had told him numerous times that modified work within his restrictions was available and he declined. Counsel asked why he did not tell Dr. Gieni that modified work other tl}an driving was offered. He replied "Because I was not told what that work specifically was". He agreed that he never asked Essar what the work available was, but took the position that he was not prepared to do any 1;vork because he had a medical note to be off. Counsel asked, "It v1as you saying you should not be at work. Dr. Gieni did not say that".

The grievor agreed and explained t.1.at he said that because of his increasing pain. The grievor agreed that he drove the Essar truck only on tl1e morning of October 28, 2008, after which he told Dr. Gieni that the jostling while driving that morning aggravated his pain, and he could not do any work. She put him off vvork until November 1 8th based on what he told her.

[ 1 05] The grievor agreed that the union protested when the WSIB terminated his LOE benefits . Counsel referred to the following passage in a letter dated November 1 4, 2008 from the WSIB in response . "With regard to medical authorization to be o±I work, as outlined in my October 23, 2008 letter, the medical evidence on file does not support Mr. Barill was totally disabled. While I understand Dr. Gieni has authorized the worker to be off work, the objective findings

do not support total disability and restrictions were provided to the employer fer Mr. Barill 's early and safe retu.rn to .work by the WSIB". Counsel asked the grievor whether he took any steps to get information about what modified work Essar had in mind, after readin.g the WSIB letter. The grievor replied that he did not. The evidence is that the u.11ion responded to the WSIB taking the position that when the grievor remained off despite offers of modified work, he was "simply following doctors' orders". The "\VSIB reiterated that there was no medical

40 evidence supporting total disability a.11d that the grievor was "only partially disabled and

capable of modified duties". However, the WSIB went on to state, "I will be happy to review

entitlement to loss of earnings benefits if Dr. Gieni is able to provide findings as to why the

worker is incapable of working, what the circumstances are and what physical findings are, that

support total disability". The glievor stated that despite this insistence by the WSIB that he

was capable of doing modified work, he made no inquiry about what work \Nas available

because he was authorized to be off. The grievor testified that on December 1 8, 2008 Mr.

McNichol told him that he should discuss with Dr. Gieni that Essar was offering modified

work. Essar counsel asked whether in light of the WSIB's request for information from Dr.

Genie and Mr. McNichol' s instructions, he discussed those matters with Dr. Gieni. The grievor

replied "'No. I didn't feel I had to because I was authorized to be off'. The grievor agreed that

on January 1 5, 2009, Dr. Gieni advised that the MRI report was completely normal and advised

him to increase physical activity to a level he could tolerate. Still he did not inform her that

Essar was offering modified work. Instead, he told her that he could not do any work. The

grievor acknowledged that since May 2008, up to January 1 5 , 2009, except for the 2 days

October 27 and 28, 2008, his consist�nt position \Vas that he \Vas not capable of doing any

modified work.

[ 1 06] The grievor agreed that there is no indication in Dr. Gieni's notes that between January 1 5 and

February 16 , 2009, there was any improvement in his symptoms, and that on February 41h he

had in fact reported increased pain. Counsel pointed out that February 1 61h happened to be the

exact date when his sick benefits ivould have gone dovm from 1 00% tCI 5 5% of wages. He was

asked why he suddenly told Dr. Gi eni thE:� l1e w1s E.ble to return to work on February 1 6ih . He

replied that he realized that sitting at home be was getti.n.g depressed, and decided he had to get

more active. Counsel pointed out that the cli11ical notes do not indicate that he had mentioned

to Dr. Gieni anything about being depressed. The grievor agreed, but insisted that at the time

he was concerned �bout depression as a result of just sitting at home and that it was only a

coincidence that he decided to return to work on the exact day his sick benefits were to

decrease.

[ 1 07] Following his return on February 1 6, 2009, the gri�vor ::lid moC:ified ·work at the erector crib

until June 2009 . ReferTed to clinicai notes, the grievor agreed that on March 26, 2006, he

reported to the physiotherapist that physio was really helping and that he was 75% better.

Around the same time Dr. Gieni had :ecorded thE,t his range of motion was normal. Counsel

41 asked the grievor to explain why on March 24, 2009, he told Dr. Gieni that he had been unable to go for physiotherapy because he was in too much pain, which was the opposite of what he was telling the physiotherapist. The grievor replied that he told the kinesiologist about ·

the problems he had doing physio. Asked why he did not mention that to the physiotherapist who was in charge of his physio treatment, the grievor replied "perhaps I should have". When ·

asked why he told the physiotherapist the opposite, that physio was going well and he had improved 75 percent, he said, '"I don't know why" .

[ 1 08] Questioned ab_out the July 26, 2009 mini-bus incident, the grievor disagreed with the driver' s view that it felt like a rough transmission shift. Counsel refened to a psychiatrist' s repo1i dated November 12, 2009 which records that the grievor told the psychiatrist that he had been forced to return to work, on February 1 6, 2009, and put to him that was untrue because it was the

. \ ' grievor who chose to return to work on February 1 6, 2009 and was not forced by anyone. The grievor agreed, but added "But I had never had a chaiJ.ce to fully recover". Counsel pointed out that he had told the psychiatrist that as a result of the bus accident he had developed "whiplash" and suggested that this Vl'a£ also untrue because no doctor had ever said he had whiplash. The grievor agreed, but added "I said that because that is how I felt". He agreed that he told. the psychiatrist that he was able to drive with his hands on the lower part of the steering wheel. The grievor had told the psychiatrist that Essar v,ras giving very small jobs which "made him feel belittled". He was asked what j obs he was referring to. He replied that he could not recall. When pressed, · he stated that he was refeui.ng to the modified work in the welder cage. Counsel pointed out that several witnesses had testified that the welder cage was regarded as · one of the most "plum j obs" sought by senior employees and that what he told the psychiatrist was untrue. He replied that he told the psychiatrist that because that was the way he felt.

[ 1 09] The grievor agreed that from September 24, 2009 to June 2, 201 0, he was off because of depression. He acknowledge that during t�1is absence on April 2 1 . 201 0 he got man·ied in Cuba. On June 2, 201 0 he returned to do his pre-injury e:cector job with only minor restrictions. Referring to Dr. Gieni ' s clinical notes, counsel put to the grievor that he had asked Dr. Gieni for a note authorizing him to return to work. i\,..fter returning to work on Jun� 2nd, on June 29,

201 0, he had the boom truck incident. He agreed that he reported severe neck pain and numbness in hands and mTns as a result of bumping his head, although he was 'Nearing a hard hat, did not fall or lose conscioumess. He agreed that on the next work day, he was to go :fi·om a schedule of straight day shifts to rotating 1 2 hour shifts including afternoon and night shifts.

42 He denied requesting that he be allowed to remam on day shifts because he was on

accommodation. Shown an e-mail dated July 5 , 2010 from Mr. McNichol to the griever' s

manager which refers to an "earlier request" from him to . be '"on day shift only, being on

modified duty", the grievor insisted that the e-mail was wrong. He testified that he had no

problem doing shift work and actualiy preferr-ed it. He insisted that it was just coincidence that

the accident happened the day before the schedule change.

[ 1 1 0] Counsel pointed out that in his accident report he had written that Mr. Dale Brown, the driver

of the boom truck witnessed him hit his head. Mr. McNichol had testified that during his

investigation, Mr. Brown had denied that. The grievor insisted that Mr. Brown witnessed him

hit his head and asked if he was '"ok". The grievor agreed that after he bumped his head, he

wanted to go to the hospital, and that an MRI and x-rays done "found nothing". Then he

waited 12 days before seeing a doctor. He told the doctor that his level of pain was 9 out of a

scale of 10. He agreed that in her notes, t.1.e doctor had noted that he appeared comfortable and

showed no apparent distress. Cotmsel pointed out that after the boom truck incident on June

29th, on July 5th Mr. McNichol called and offered modified work and he declined, stating that

he was in so much pain he was not able even to drive his own truck. Counsel asked why he

waited 12 days to see a doctor if he was i:n so much pain. The grievor replied that he called Dr.

Gieni' s office and spoker:. to the secretary and added, "I think the doctor was on vacation".

When counsel suggested that he could have go:1e to another doctor or a walk-in clinic if he was

in so much pain, he agreed. He agreed that on July 20, 2010 he called Dr. Gieni' s office

looking for a note to remain off work and that he asked whether he had to come in and see the

doctor to get the note. The grievor explained that he asked t..l}ct because he was in so much pain

and did not want to drive. He agreed that he was given a note to be off until July 3 1, 2010,

without the doctor seeing him.

· [ 1 1 1] Dr. Gieni 's clinical notes record that when the grievor saw her he told her that Essar put him on

erector work when he was "supposed to be" doing office work. Counsel put to the griever that

it was untrue because his :restrictlons at the time did not limit him to office work The grievor

admitted that he was '"incmrect". He agreed that based on what he told her and his description

of severe pain, Dr. Gieni extended authorization to be off to August 1 8 , 2010. Dr. Gieni 's

notes indicate that on August 1 7t\ the grievor visited her again, told her that his pain was even

worse, she gave a further extension of leave to September 1 4th. The grievor agreed that at this

time Mr. McNichol told him several times that suitable modified work was available and on

43 August 1 9, 20 1 0 confim1ed the offer in writing. The grievor agreed that each time his response was to the effect ".mY doctor won' t let me return to work". He gave the same response when on September 1 0, 20 1 0 J·v1r. McNichol again offered modified work including "sedentary truck driving";

[ 1 1 2] Counsel put to the grievor that based on his testimony, his position was that from the date of the boom truck incident on June 29, until October 6, 20 1 0, he was off because he was unable to do any type of modified work, including driving a truck. The grievor agreed. Counsel put to him his testimony in chief that during this absence he drove his own truck, but only around town to run errands, visit family. and to get to medical appointments, and asked if that testimony was accurate. The grievor said that it was. Counsel explicitly asked if he drove only on city streets and that he did not drive for prolonged periods or long distances. The grievor replied "yes", but• qualified his answer that his home was "technically outside city limits".

)

[ 1 1 3] Counsel asked the grievor whether he drove 3 80 kilometers to Dubreuilville on September 1 , 201 0. The grievor amrwered "no". Counsel put to the grievor that Essar has a surveillance evidence that he drove �.vith a friend to Dubre'Jilville that day in his truck, that there was a boat loaded on the truck, and asked whether he was still denying despite that evidence. After a long ' pause, the grievor replied, "'I don't recall whether I went on September 1 5"'. Counsel asked, "Do you recall driving to Dubreuilville any time during this absence when you were supposed _to be totally disabled from working for Essar?" he replied "no". Counsel put to the grievor, "not only that, once you · got to �ubreuilville you turned into a logging road. The private investigator follov.red you for 20 miles on the logging road ur1til he was no longer able to follow - isn't that true?" The replied._. "yes . · That' s true" .

.. \Vhen counsel said "So now you suddenly

recall", he replied "yes". Counsel said "you now recall driving to Dubreuilville, although two minutes ago you had no recollection at all?" He said "yes". Counsel put to the grievor that he

. \

_ lied under oath when he testified that during this absence he did not drive outside the city or long distances. He replied, "yes. I was in error" . Counsel suggested that it was no en-or, and asked, "you did not tell the truth under oath?" The grievor replied, "I guess so".

[ 1 1 4] Counsel put to the grieve-r ths:t the distance- to Dubreuilville from Sault Ste. Marie was approximately 380 ldms and asked whether he drove all the way and vvhether there was a. boat in the back of his truck. To each question, th�� grievor replied that he could not recall. Counsel asked why he went to Dubreuilville that day. The grievor replied that his friend was getting

�

44 custody of his son from his mother who lived in Dubreuil ville, that his friend was bringing

the boy to Sault Ste. Marie to spend time with him and the grandparents. Counsel asked why

he needed a boat, if the trip was to pick up the boy from Dubreuil ville. He replied, '"I have no

idea". Counsel asked whether he was not on a fishing trip. The grievor replied that he did not

go fishing, and added, '"Have to ask my friend whether he was dropping off the boat at his

brother's or brother-in-law' s" . When asked whether he recalled that at Dubreuilville, he turned

into a logging road and drove at least 20 miles on it he said he did. When counsel suggested

that the boy did not live down that logging road, he replied that he could not recall why he

drove down that road. He agreed that "the logging road had nothing to do with the boy".

When counsel pressed as to why he drove on a logging road, the grievor explained that he

could not recall because at the time he was grieving his grandfather's death and it was "a long

time ago".

[ 1 1 5] Upon questioning, the grievor reiterated that the boy was picked up from his mother in

Dubreuilville and brougb,t back to Sault, Ste. Marie. Counsel put to the grievor that reply

evidence would be led that the boy was actually picked up in Wawa and travelled with the

griever and his friend to Dubreuilville. The grievor replied, "I know we picked him up

somewhere". Asked why he drove to Dubreuil ville, if ;:he boy was not picked up there, the

grievor replied, "I know his mother lived in Dubreuilville". When questioned, the glievor

could not recall whether he stayed overnight in Dubreuilville, how long he stayed there or how

his p ain was upon returning from the trip.

[ 1 1 6] Counsel asked the grievor why he had repeatedly told Essar that during this period of absence

from July to October 20 1 0 he did not drive outside the city or long distances and did not

mention his trip to Dubreuilville. The grievor replied "I didn't feel my personal life is anyone

else' s business". Counsel put to him that he not only failed to mention t.h.e trip, he actually told

Essar that he did to drive outside the city or for long periods which was a lie. The grievor

replied, "I guess so". The grievor agreed that during this absence he had claimed that he was

totally disabled and unable to do any work at dl, but pointed out that he was authorized by his

doctor to be off. Counsel put to the griever that he never told Dr. Gieni thc:t he drove to

Dubreuilville either. He replied that he could not recalL Counsel pointed out that Dr. Gieni

had testified that her unde:-stc:nding vJas that he only drove on city streets to run errands and to

get to medical appointments, so she couU not have becL aware that he drove long distances.

The grievor again respor1ded, "I don't remember if l told her".

45

[ 1 1 7] Counsel reviewed Mr. McNichol's testimony to the effect that during this absence he received

information that the grievor had gone deer hunting, that he relayed that infonnation to the

WSIB case manager . who reported back that he had questioned the grievor, and that after

initially denying, the grievor had admitted that he had been deer hunting. The grievor replied

that he did not recall such an interaction with the WSIB. 'iiVhen counsel suggested that if he

had no recollection it is possible that it happened, the grievor replied, "Anything is possible".

Counsel also referred to Mr. Bean's testimony that he had overheard some workers j oking

about how the grievor was unable to do any work but was able to go deer hunting, and asked

the grievor whether he went deer hunting during his absence between July and October 20 1 0. He replied that he did not go deer hunting but had gone camping. Asked where he went

camping, he said "Dubreuilville". Under questioning, the grievor was very clear that this

camping trip to Dubreuilville was a second trip, separate and apart from the September 1 st trip,

which he now said was "to drop off the kid in Dubreuilvi1le". He testified that he camped "in

the bush" on this trip and had to drive on a logging road also. The grie�or testified that this trip

was also on his own truck, but he could not remember the date of the trip, how long he camped

or whether he drove all the way. He reiterated that he did not mention this second trip to Essar

or to Dr. Gieni either "Because it is my personal life".

[1 1 8] Counsel put to the grievor that there was nothing in the restrictions i�1 place at the time of the

October 1 5 , 20 1 0 return to 'iVQrk meeting, tlmt prevented driving. The grievor disagreed and

pointed out that the "no jarring" box is 8ht·ckec1 off and that it "implies no driving on Essar

roads 8 hours a day". Counsel asked why he could not drive on Essar roads when he could

drive on logging roads. He replied that he did not drive 8 hours straight on logging roads. He

agreed that no one had told him that at Essar he had to drive 8 hours straight and that he could ' '

have asked for accommodation. Counsel nointed- out that Dr. Gieni had testified that the " .

restrictions at this time did not prevent him from driving and asked if he was disagreeing with

his doctor. The grievor replied, "I go by the boxes checked off'.

[ 1 1 9] The grievor agreed that at that meeting he nor the union raised any concern about how long he

would have to drive. He agreed that his concerns about having to lift over 5 pounds, opening

and closing the truck tail gate, driving on ro1gh unpaved roads were resolved. The grievor

disagreed with co1.msel that he \:vas ass·Jred thc!t the Essar truck was equipped with convex

mirrors, but agreed that he was told that convex minors could easily be installed. He agreed

46 that his own truck had no convex mirrors either, but stated that he always drove on the right

lane to avoid having to change lanes, and checked the blind spot only if he had to. He agreed

with counsel that at Essar he would never have to change lanes since there were no multi-lane

roads. Counsel pointed out that with regard to his concern about the lack of a tilt steering

wheel, the only relevant restriction was "no work above shoulder level", and suggested that if

he placed his hands on t.h.e lmver part of the steering wheel he would be within that rest1iction.

The grievor replied, "'I don't l<..now how long I can do that". Counsel pointed out that he had

told the psychiatrist that he was able to drive that way and he agreed.

[ 1 20] Counsel put to the grievor that at the meeting Mr. McNichol asked him three questions about

his personal driving. The first was "'Do you get in your truck and drive around town?" and that

the grievor had replied that he only drove for appointments and errands, leaving the impression

that he did not drive outs}de the city. The griever replied, "I guess I left that impression".

Counsel put to the griever that Mr. McNichol also asked him "Do you drive on highways?" and

that he said "no". The gtievor agreed, and explained that he assumed that Mr. McNichol knew

he drove to South Ontario because he Vias n:ade aware that he had specialists' appointments

there. However, he agreed that he had not specifically told Mr. McNichol how he travelled to

out oftown appointments or who dro;re if he went by road. Counsel put to the grievor that Mr.

McNichol asked a third question "Did you drive to Wawa?" and that he replied "'no". The

grievor replied that �e could not recall that question being asked, but agreed that it was possible

the question was asked.

[ 12 1 ] Returning to the September 1 , 20 1 0 trip to Dubreuil ville, counsel put in some detail the

evidence the private investigator would be giving abou� his observations that day. To most,

including t.he purchase of tvvo 24 packs of beer, the griever' s response was that he could not

recall. Counsel put to him that the boy was picked up from a residence in Wawa and not in

Dubreuilville. The grievor replied that he cou�d not recall where the boy was picked up. Then

after further questioning, the grievor stcJed that "as best as I can recall", the boy lived in

Dubreuilville. Counsel asbd "Then how is it that you picked him up in Wawa?" The griever

replied that the boy's mother worked in \lv'awa and that he horiestly could not recall "how it all

happened". Counsel put to the grievor that or1 arrival in Dubreuilville he went into a store that

sold live bait. He replied that he could not resa!l that. Vlhen coLmsel said, "you had a boat in

the back of your tmck?". He replied "It appe.:;rs". Then counsel suggested <<So il appears you

were going fishing and bLmting with your friend?" and the grievor replied "I don't remember".

47 Counsel put to him,\ "the boat, the live bait, 2 cases of beer - so it can't be you were j ust

picking up a boy?" The grievor replied "I can't answer". When counsel said "You won't need

live bait to pick up a boy?", the grievor laughed and said "yes". Upon questioning, the grievor

testified that his second trip to Dubreuilville was in September or October 20 10 and it was for

camping and not htmting. He agreed that October is the height of the deer and moose hunting

season in the area. Asked "But under oath you say you went just camping and not hunting?"

The grievor replied "yes". ,

[ 122] The grievor testified that at the return to work meeting on October 1 5, 20 1 0, a document was

signed off under which he was accommodated at the welder cage. The agreement specified-that

he was to report any work issues to his supervisor Claudio Tucci. When counsel suggested that

he had not raised any concern with Mr. Tucci, the grievor replied that Mr. Tucci was away and .

that he talked to a temporary foreman Mr. Vinette, that one day Mr. Vinette got Mr. Bean

involved, and that he told th�m that he was only repairing regulators and was not getting

training in torch repair. Upon questioning, the grievor agreed that to do torch repairs he needed

to have the welding trade ticket, and that the training for: the ticket is offered externally only once or twice a year. He also agree� that while there was agreement that the goal was for him

to ultimately obtain the training and get the ticket, there was rio agreement that he would be

trained immediately. Asked 'Ahat his c.omphint then was, he replied that he ran out of

regulators to repair, and also when other wo!'kers were brought in to assist him, they were not

happy. Counsel pointed out that he had previously testified that the co-workers had helped

him. He explained that while they did help, they made comments that it was not their j ob to

help him. Asked who "they" were, the grievor rep}ied it was . only Jody. He agreed that Jody

did assist him with his, :rrJocjfied work a.11d his only concern was that Jody was not happy about

having to do it. The grievor was asked v,rhether he had any other concerns besides not getting

training to repair torches and about Jody being tinhappy about having to help, he replied that he

told Mr. Kenny Hawdon that he was too sore to do anything. When counsel pointed out that

Mr. Hawdon was a bargaining unit employee, and tl1at he made no complaint to management,

the grievor replied that on occasion he raised concerns with Mr. McNichol and \NrSIB . .

Specialist Terry Peters. Asked \Vhen he raised concerns with Mr. McNichol, he replied that it

was arou_n.d the time of his YMCA accident m1d that it vms in the Hum.an Resources building.

Asked what concem w;;_s ta.ised with Mr. McNichol, he said, "about people asking me to do

things beyond m:r restrictions like using the sandblaster and buffer wheel". Asked for details,

he said that Mr. McNichol, Mr. Vinette, Jody and Mr. Bean had all asked him to try

sandblasting and buffmg.

48

( 123] The grievor agreed that o n November 3 , 20 1 0, h e was asked to cut open plastic bags with an

exactor knife and that he refused. He agreed with the testimony of employer witnesses that he

was allowed to work at his own pace and to take breaks as needed. Counsel referred to Mr.

Rawdon' s testimony that the grievor did not ever try cutting the bags, contradicting his

evidence in chief that he cut open about 200 bags the next day. The grievor replied that Mr.

Rawdon was mistak.en. Counsel refened to testimony by Mr. Bean and Mr. Rawdon that they

did not notice the grievor to be in any pain while at the welder cage. The grievor replied, "that

is their perception". He disagreed with Mr. Rawdon' s testimony that at the welder cage he was

doing only 1 0% of the j ob and reiterated that he did 1 /3 of the j ob.

( 124] Counsel refened to the surveillance video from December 201 0, and asked whether the

activities shown were typical of what he did during the absence claiming total disability. The

grievor replied that it was. He agreed that the video shows that he was able to drive, back up,

and pull in and out of parking spots safely. Asked why he could not do the driving modified

work offered, the grievor replied "We gave our requirements -air ride seat, convex minors and

tilt steering - a..nd they dDse not tc do it. If they had, I would've tried it". Counsel csked

whether the grievor or the union stated at the rct':.u:n to work meeting on October 1 5, 20 1 0, that

if those three things are provided he would try the driving. The grievor insisted that it \vas said,

even though he agreed that such a statement i:: r ... ot refle.:ted in any of the documents.

(1 25] Counsel refened to Dr. Gieni' s testimony that the restrictions in place when the grievor

returned to work following the YMCA accident only required avoiding operation of heavy

equipment and did not prevent driving. The grievor replied that in his view a % ton truck is

heavy equipment. He agTeed that there was more "neck use'' when driving in the city than at

Essar and that at Essar the speed limit was only 30 KPH, and there were lights and sirens at all

blind spots, and the only pedestrian traffic is at shift cha..nge time and that there are designated

pedestrian walkways. He disag:·eed that there vvas mor:; t:;-affi.c on city streets than at Essar, and

asserted that at certain times traffic \VE..s heavier at Essar .

[ 126] The grievor had a lifting !imit of 5 pou...'1ds at the time of the December 20 1 0 surveillance.

Counsel referred to the inve2.tigator' s t:;stimony t)Jat or. December 13 11\ the grievor carried a 1 2

49 pack of beer a distance of about 60 feet from the store to the truck. The grievor disagreed

and stated that he carried the beer only 20 to 3 0 feet before handing it to his friend. When counsel put to him that according to google a 1 2 pack of beer weights between 1 8 to 2 1 pounds, the grievor testified that "it felt more like 5-10 pounds".

[ 127] Counsel referred to an occupational therapist's report advising the grievor to avoid exposure to

cold as much as possible, and to wear warm gloves and foot wear in cold conditions. She pointed out that the weather records indicate that on December 1 3th the temperature in S�clt

[ 1 28]

'

Ste. Marie was between - 1 2 . 8 to -20.3 centigrade, and yet he was not wearing any gloves or a

scarf. The grievor replied that he kept gloves in the truck but did not need to wear them as it

was warm ins�de the truck. Counsel pointed out that he is seen outside filling gas with no . .

gloves. The grievor agreed:- Counsel pointed out to the grievor that he recalled in detail what

he did on December 1 3 th, and also specifically recalled that ;n December 1 4 he did not drive at

all because he was in paii"'l as a result of the driving he did he previous day. She asked how he was able to recall all that detail, but could not recall why he drove 380 klms to Dubreuilville on September 1 , 20 1 0. The grievor explainE;d that he was gri .:;Ving his grandfather's death at the

time. Counsel pointed to the grievor' s earlier testimony that his activity �n December 1 3 was typical of his daily activity, and asked whether his testimony was that due to that routine

activity he \7-,laS in so much pain the next day and unable to drive. The grievor replied "yes".

The grievor agreed that the 3-{ ton Essar tn1ck \Vas "'bra:.1d new", �.:vhile his own truck was 1 5 I '

years old. Counsel referred to ·the grievc,r's. tesrimony 'i:ha·� his truck was smooth because "it

had the best suspension one ca�� g·ef' <t..rld aske·:l · whether his truek had· an "upgraded suspension". The grievor replied, "I think so". Com"Jsel referred to documentation which indicates that on that Dodge Ram 1 500 model, there v,ras no option available to upgrade the

suspension. The grievor ackr.to"Yvl-::dged tha.t according to the documentation that seems to be so. Asked whether it still was his position that his 1 998 truck had a smoother ride than the

brand new Essar truck, the grievor said that it was.

[ 1 29] In re-direct, the grievor -'�'as questio:1cd aboFi: the driving he did to Sudbuty, Toronto and Hamilton for medical appointrnents. He T,;;,a-s asked about the time it took to get to t.he vario us locations, �ow many stops were rnade on the vvay, and vvhether he retmned the same day. He testified that whenever he vJent �o South Ontario he drove- only up to Parr·y Sound and then his

fiance took over. He stated that since he kept Mr. McNichol informed of upcoming

appointments, he would have known that he was driving to those locations.

50

[130] The private investigator, Mr. Wayne McNichol testified in reply, refen·ing to a surveillance report he had submitted to Essar. H� stated that he conducted surveillance on the grievor on

August 3 1 , September 1 and 2 of 20 1 0. On August 3 1 he observed nothing unusual. On September 1 5\ he watched the grievor' s residence starting at 7 :00 a.m. At 8 :3 5 a.m. the grievor

backed out of his driveway in his truck. A 12 to 1 4 foot aluminum boat was strapped down in the back of the truck. The grievor drove to a residence and backed into the drive way. At 9 :09

a.m. the grievor drove off with a "friend" in the front with him. They went through a Tim

Horton's and continued north on highway 1 7 for about 1 00 klms where a motor home had gone off the road. The grievor drove past it, tumed around and came back. The investigator also did the same, but could not see what the grievor did at the scene. He observed the grievor's truck

continue on highway 1 7 , and he followed. At 10 :47 a.m. the grievor stopped at an abandoned gas station. The investigator went past and waited at a side road. Within minutes, the grievor' s

truck drove by and he follo'.ved again. At 1 1 :45 a.m. the truck pulled into a residence in \Vawa. The grievor got out, checked the: boat straps and both werr� in. At 12 :0 1 p .m. they drove off

again. The investigator noticed there was a boy in the back seat. At 1 2: 04 p .m., the truck stopped at a beer store. V/hile the friend went in, the grieYor got out, bent down and checked under the boat. The frie::1d rel:urned with two 24- cases of beer aild a bag of ice. The grievor pulled the tail gate down, reached way into the back with his left leg up in the air, pulled out a cooler, and they put the beer and ice in it. Then the grievor pushed the nose of the boat up, so

the friend could push the cooler back in under the boat. The griever used a ratchet to tighten the straps and adjusted the 2x4 support bar. The investigator testified that he did not observe the grievor to be in any discomfort. After a brief stop at a convenience store, the truck proceeded on highway 1 7 and tumed East on rigb;v·ay 5 1 9. They arrived at a residence in Dubreuilville at 1 :07 p.m . . The grievor got out and spoke with a man who also had just driven in. After checking the boat again, the grievor drove off. The investigator testified that he could

not see whether the boy was still in the trucl<.. The truck stopped at a live bait store and the grievor and friend -vvent in. They drove off E,gain, and tLrrned into a forest access road, which branched off into seve:ral }ugging roads. The truck turned i:.1to one of those. The logging road was muddy grave] and the investigator kept '' distance behind but was able to follow the tire tracks on the mud. He followed the grievo:r' s truck on the logging road for one hour and 8 minutes, but stopped when the truck tc:�.rntd into Jl1 isolated area. He got out and looke;d

5 1 through the bushes, but could not see the grievor' s truck. He ended surveillance and drove back. The investigator testified that in some stretches of the logging road the grievor drove as fast as 50 kpm. He confirmed that the grievor did all of the driving that day. He saw a "body of water" through the trees, but could not say how big it was.

[ 1 3 1 ] Under cross-examination, the investigator agreed that the grievor drove for 1 hour and 3 5 minutes to get to Wawa and that he made three stops in that period. Union counsel referred to a

MapQuest print out indicating that the distance from Sault Ste Marie to Dubreuilville was

298 . 1 klms, and asked how he got 3 80 klms. The investigator replied that he set his odometer ·

at zero in the morning at the grievor' s residence and when he ended surveillance and turn�d around to return from Dubreuilville the odometer read JSO �lms. Counsel asked whether it is

possible that the grievor drove 20 klms on the logging road and not 20 miles, since the investigator's odometer was in kilometres, the investigator agreed it was possible but added

that whatever the distance was the grievor drove on the logging road for one hour and 8

minutes. The investigator confirmed the information in his report that between 7 :00 a.m. and .

7:00 p.m. the _following day, he drove past the grievor's house /three times, sat in the vehicle and watched the house, dmve past the residence vvhere the grievor had picked up his fi:iend, but saw no sign of the grievor or his truck_ Tbe investigator \V8S asked what directions he received when he was hired by Essar. .He replied, ''Just to see what he does on a daily basis pn consecutive days and to document what I observe".

[1 32] In re-direct, the investigator testified that vvhile the truck stopped three times on the way to

Wawa, he did not see whether the grievor got out of the truck on any of those occasions. Asked how far the griever drove on September 1 , 201 0, he said that he drove 3 80 klms and that if he drove more than the grievor did, the difference would ·be only a couple of kilometres.

[ 1 33 ] Called to testify i n reply, :Mr. Dale Brovv-rl confirmed that he was driving the boom truck at the time of the boom truck accident. He said 1ha'� he made a stop to use the toilet. '-llhen he returned, the grievor and another worker were S·�ated on a bench. He was not sure who, but one of them told him that the grievor had hit his h�ad on the truck boom. He testified that was the

' -

first time he became av,rm··�: that the grievor had an accidei1"�. Shown Mr. McNichol ' s notes to the effect that Mr. Bro';1;n to1d him that he did n.ot -vvitnes3 the accident and that "a'1other employee" told him that the grie,.ror had bumped hi� head on the boom, Mr. Bro,:vn confinned that the notes were accurate.

52 Submissions

[ 1 3 4] Essar counsel reviewed the evidence about the varwus periods of absence, the medical

restrictions in place for the grievor in each period, and the attempts by Essar to offer modified

work within those restrictions. She pointed out that Essar had been very compassionate with

the grievor. It advanced wages to him although he was not at work, when the WSIB tem1inated

his loss of earnings benefits. On two occasions he was allowed to gradually increase hours, but

paid him for a full shift regardless of actual hours worked. Counsel submitted that in view of

Essar's generosity, it was even more incumbent on the grievor to cooperate and assist with

Essar's attempts to return him to work v,rithin restrictions. Counsel proceeded to review the

evidence in detail, which in her view, shows a pattern of the grievor taking no interest in \

making the accommodation work. Instead, he found some reason why the duties were not

within his capabilities. Whenever work was found within his restrictions, he would get his

doctor to put in a restriction that would prevent him doing that work. With no obj ective

medical substantiation, he would obtain medical notes to be off work altogether.

[ 1 3 5] Counsel referred to the many occasions when the WSIB refused to rely on the medical notes

and maintained the position that !he grie·•or was not totally disabled, and that Essar was able

and willing to offer work within his restri:.ti.ons. His LOE l:Jenefits were cut-off because, in its

view, the grievor chose to stay oil� refusing suitable work. Counsel pointed out that the WSIB

rejected the union' s rtpresentation that the grievor was "'just follcvving docto::-'s mders", because the medical r_u�es \;l,'t::-e not supportable by anything in the grievor's medical file.

Counsel highlighted evidtrD:::, vvhich she subm�·tted, establishes dishonesty on the p art of the

grievor. For example, having been off work claiming total disability, he suddenly told his

doctor that he was able to return to work on February 1 6, 2009, and did return to work.

Counsel submitted that in the ab.sence: of rmy evidence that his restrictions had changed in any

way, he miraculously recovered 0:1 Feb:mary 1 6t\ which happened to be the exact day when his

sick pay would have beer.i. r�duce:::l by 45 percent. It sho 1vs that be was able to work if only he

wanted to. Counsel JY\/Ie'Ned the evidence rchfng to the mini-bus and boom truck in�idents,

· and submitted in essence that the grievor i..l.seC.. 'Jery rn.inor incidents as an excuse to go off work

claiming total disability. Counsel pointed out that the evidence establishes that the grievor had

taken the position that as an accommodated Vvorker, he should only be working day shifts .

. Essar disagreed and took the posi-�ion that his restriction3 did not limit him to day shifts. Then

he happened to hit his hea3 on the 1.Joom of a truck, the very da.y before he was to go from day

shifts to rot2Jing shifts, an::! '.Vent )ff for four 1vee:ks. He reported to the employer and testified

53 that Mr. Howden, the driver, •.vitnessed him hitting his head and asked him if he was OK.

Mr. Howden contradicted this and testified that he oniy heard later from another worker that

there had been an incident. So no one had v..ritnessed the grievor hit his head.

[1 36] Counsel pointed out that on August 1 9, 20 1 0, Essar had offered to return the grievor to "the

crib or other modified work". Even without asking what modified work may be available, the

grievor took the position that "my doctor vv'on't let me retum to work". Counsel pointed out

that this claim to total disability was made less than two weeks before his trip to Dubreuilville.

Moreover, on September 1 9, 201 0, the grievor ·was offered "sedentary) work in the crib or

driving duties". Essar discussed the possibility of providing a Yz ton truck, which was similar

to the truck he had driven to Dubreuilville less than three weeks earlier". The grievor was not

willing even to try, and again gave his usual response, "my doctor says no".

[ 1 3 7] Counsel reviewed the evidence about the retum to work meeting on October 1 5 , 20 l 0. She

disagreed with the union's position that Essar decided that driving duties were unsuitable for

the grievor. She submitted that the eviden:.e is clear that the grievor refused to even try that

work eventhough Essar had addressed almost all of the concerns raised by him. Counsel

pointed out that while the grievor and tl1e unim1 asserted at arbitration that the grievor' s

inability to drive for long periods at a stretch prevented' him from doing the work offered, that

was never raised as an issue at the meeting. The g::-ievor never mentioned an air-ride seat.

While the union Jeprescn.tative stiggested tha� m air-ride s.:::at "IT.:.ay help", it was riot r2ised as

an obstacle. This is consistent ·witl-.t the evider.ce that the grievor was able to driv� his ovvn

truck with no ·air-ride seat. Thus, submitted counsel, the only concern that remained unresolved

was the absence of tilt steering. However, this con�ern was unfounded since the grievor was

driving his truck with no tilt steering. In fact, it i2 documented that he told his psychiatrist that

he was able "to drive his truck without exceeding the restriction "no work above shoulder level",

by keeping his hands low on the steering. If he could do that on multi-lane city streets and

highways, there was no credible explanation why he could not at least try to drive the Essar

truck in similar fashion. This is mc•re curious since the speed lirrlit on Essar roads is

significantly lovver than on putlic roads. Counsel emphasized that despite the grievor' s

unreasonable refusal, due ·to Essa.r's deten:.1i112iticm t o somehov,- return him to work, it "bent

over backwards" and placed him in the plum jc':J at the welder cage .

/

54 [ 1 3 8] Counsel reviewed the evidence that the grievor was paid for full-time hours while at the

welder cage, although he was on a graduated scale and was not at work full time for the first 6 weeks. Even when he was at work, he took frequent breaks and left eaTly for appointments as

he wished. He did only a very small part of the j ob and had others do most of the core duties.

He refused to even try the sandblasting and buffing to see if he could tolerate it. The evidence

was that most of the time he just sat there doing nothing. It was pointed out that at the time the

grievor did not have a "no vibration" restliction. Counsel pointed out that during the view the

arbitrator tried using the sandblaster and grinder and urged me to conclude that there was very

little vibration anyway. Counsel refened to the griever's refusal to cut open plastic bags with

an exactor knife as "the last straw". Essar had placed him in a plum j ob which was sought after

by senior welders. Other workers were assigned to assist him. Yet the grievor accused Essar

of assigning him duties that belittled him. He accused Essar of reneging from an agreement to

immediately provide training to obtain trade certification to repair torches which was untrue.

Under cross-examination, when confronted with documentation he was forced to admit that

there was no truth to that allegation.

[ 139] Counsel submitted that Essar had given t�1.: grievor complete flexibility at the welder c2.ge. He

could work at his own pace, could sit or stand and was able to seek assistance from another worker. He was allowed to, and did take, unS·2l:eduled breaks as needed. Yet he made sure that

the accommodation would fail . Counsel submitted that the grievor' s ;:estimony that he cut open

plastic bags the next day, is not credible. Mr. Hawdon, a bargaining unit employee who

worked alongside him, was adamant that the grievor did not ever Lry cutting bags. Then the

grievor went to his doctor and haj his medicc!l restrictim1s increased so as to make the welder

age work unsuitable. Cc·un.3el referred to thi�. as the griever ' s d·eliberate strategy to show that

every offer of modified v.:ork was unsuitable, so that he CO'-tld stay off and assert that he should

be getting LOE benefits from the WSIB. C�:>:Jcsel submitted that he seized every c·pportunity to stay off work rather than p erfo:rrn modified ��-veo:rlc Because he had a restriction of "no heavy

equipment" he refused truck driving duties, even though he was driving his own truck. Dr.

Genie agreed during testimony that the restriction on heavy equipment did not prevent driving

of a truck.

[ 1 40] Counsel pointed to Iv1r. McNichol ' s tes��mony· that '·.vheneve�· he suggested modir!ed work or

asked about his outside physical activitic:s, the gricvor' s respo:.1se was t.i1.at he had !c ask is

doctor. He would then tell his doctor :tat h� 'i 1as. unabl e to do thi:!t wcrk. Based solely on that

\

55 subj ective assertion b y him, the doctor wou!d issue a medical note. Counsel pointed o ut that

this has to be contrasted with the fact t.�at the griever had admitted that he drove to

Dubreuilville on two occasions, and had driven for over an hour on logging roads; while . claiming to be totally disabled and unable to drive for Essar. The griever had repeatedly told

Essar during his May to Ostober 200 8 absenc.� that his do.�tor ·would not allow him to drive a

truck for Essar. He asserted the same testify2r.:g under oath in chief. However, Dr. Genie was

clear in her testirnony that' she did not decide that the grievor could' not drive a truck :for Essar.

She agreed that it was the griever who told her that be could not do that work, that he

experience pain, and should be offwork, and that she accepted his subj ective assertions. When

confronted with Dr. Genie's clinical notes and her testimony, the grievor accepted that it was

he, and not the doctor, who decided that he could not drive the Essar truck.

[ 1 4 1 ] Counsel referred to Dr. Genie's evidence)hat the griever did not ever tell her that the WSIB

had cut-off benefits because it was of the vi.:;'ii'/ that he had chosen to be off when Essa.r was

Offering suitable modified work. She suggested that . the grievor deliberately hid that .

information because he did not want Dr; Genie to inquire about what modified work was

available. He misled the doctor -into believing that the only modified work available at Essar

was truck driving, told her that he could not do that, and obtained medical notes to be off.

Once he had a· medical note, he took the position with the employer that his doctor would not

allow him to return to work and ths.t he \ii'�:s :r.ner·::l:;r �allowing his doctor' s orders . This,

submitted counsel, was his strategy tl:�oughui.C

[ 1 42] Despite the fact that he was driving his own truck r�gularly, he drove for Essar in the morning

of October 28, 2008, and repo1ted to tht doctor that the driving hurt his neck. \Vith no

assessment of her own, Dr. Genie put him off work. Counsel suggested that Dr. Genie did not

know or did not verify, �;vhat restrictions were in place for the grievor. She just took the

grievor's word on that also. Thus, she did not correct the grievor ',:vhen he told her that Essar

made him drive a truck \Vhen he ·was· "suppm;ecl to te doing cJfice work". Both Dr Genie and

the griever agreed under cross-examination that no restriction confining the grievor to office

work existed at the time.

[ 143] Counsel argued that despite letters fron:� the �NSIB · a�serting that Essar vvras offering suitable

modified work, the grievor shCJwed no i r:rter,::st in £:1ding out what that work was, because he

preferred to stay off and cc•llect benefits. 0�-:, D�cembe:r 11 6, 2008, Mr. I\.1cNichol �gain told the

56 grievor that modified work was available and once again the grievors response was that the

doctor wants him to remain off. Mr. McNichol's notes indicate that he explicitly told the

grievor to inform the doctor that Essar was offering him modified work. Dr. Genie' s clinical

notes establishes that the grievor instead called her the same day requesting a medical note to

be off for a further month and got such a note even without visiting the doctor. There is no

indication in the doctor' s notes that the g1ievor informed her, as instructed by Mr. McNichol,

that Essar was offering modified wo_rk. Dr. Gie:ni confirmed during testimony that the grievor

did not make her aware of that.

[ 1 44] Counsel referred to several instances of what she viewed as examples of misrepresentation by

the grievor to medical professionals. He informed the WSIB, the employer and Dr. Genie that

the injury he suffered in 2006 was resolved within a few weeks. On the other hand he told the

neurologist that his injur; from 2006 persisted for several years . Asked to explain the conflict

under cross-examination, the grievor stated that the neurologist must have got what he said

wrong. On March 24, 2009, the grievor told Dr. Genie that he had not even been able to go for

physiotherapy because of in,creased pain. Y et two days later he told the physiotherapist the

opposite, that physiotherapy was really helping and that he V�/EtS 75% improved. Counsel

pointed to the evidence that during his absence S eptember 2009 to Jl1.'1e 20 10, on November 2,

2009 he reported to the _!=·sychis:trist that h;: had "suffered a wl1iplash" and had been "forced

back to work" Under cru3s -examination, he agreed that no one had forced him to return, and

that there had been no diagnosis c,f whiplash. Bis explSI:.ation that he said that because to him

it felt like a whiplash was not crec:ible. Counse1 noted that vvhile in receipt of benefits claiming

to be totally disabled, in .t\pril 20 i 0 he got mruTied in the Caribbean.

[ 1 45] On June 2, 201 0 the grievor returned to 'Nork. He agreed that Dr. Genie authorized him to

return only because he told her he war1ted to. The evidence �s that when he became aware that

effective June 2 9th he w.::Ju1d gc from straight day shifts to rotating sbfts, with a union

representative he approached m� .. nagemen.t and took tb.e position t:hat as an accommodated

worker he should remain en strai.ght days, bu:: management pointed out that his restrictions did

not prevent him from doing afternoon and night shifts. Then on the very day that he1 was to go

on rotating shifts, he claimed that he hit ilis head on the boom truck and went off work.

Counsel stated that this was another suspicious co�n(:idence, and that the evidence including

that of the union reiJiesentative co:1tradicts tl-::e grjevor':> t:stimony thc.t he had no problem with,

and in fact prefened, shifl work. After the �nl·ident he c:�imed that h�s level of pain was 9 out

57 of 1 0, yet waited 12 days before seeing a doctor. Then he obtained consecutive medical notes form Dr. Genie to be off based solely on his si.rbjective reporting of pain and inability to do any work.

[ 1 46] Counsel reviewed in detail the evidence about the griever' s drive . to Dubreuilville on September 1 , 20 1 0 . Initially he denied going there. Then he testified that he did not recall going to Dubreuilville. Then he recalled not one, but two trips to Dubreuilville. . He changed his story several times as to the purpose of the trip on September 1 51• First he said it was to pick

' .

up the boy from Dubreuilville. 'When he realized that Essar had evidence that the boy was picked up in Wawa on the way to Dubreuilville, he said he was dropping off the boy in Dubreuilville. He had no explanation as to ·why he had a boat in his truck and bought live-bait, if the trip was about the boy. Unable to explain, he finally decided to state that the purpose of the trip was "camping". He denied that he did any fishing or hunting, and could not even recall . '

if he stayed overnight in Dubreuilville. He never disclosed in testimony how long he spent there or what he did while in Dubreuilville. Counsel argued that the griever's testimony about

the trip was "one huge lie". He pointed to the activities disclosed by the surveillance evidence including the long distances he drove or:. righways, how he squatted down, lift.ed the boat up and opened a.11d closed the truck tail gate. He drove for over one hour on a rough Jogging road. All of this activity was carried out with no sign of restriction or discomfort, as the investigator testified. That evidence des.rly contradicts the position the grievor consistently took with Essar that he was totally disabled and 1.mable to do any modified work, 'inclliding dri\;-ing a truck. Counsel submitted that c:;espite his denial, the evider1ce is clear that he v;as on a fishing trip. The grievor was completely cbhonest) and fraudulent and did not "come clean" even at arbitration.

[ 14 7] Counsel pointed out that after Mr. J?ean overheard some 1.vorkers joking about how the grievor

was bragging about having gone · deer hunting, lVlr. McNichol brought that information to the attention of WSIB case rnanager, Mr. Stroyan. Mr. Stroyan had repmted back that he had questioned the grievor, that the grievor had initi2Jly denied going deer hunting, but later admitted doing that. - Vv'hile the grievor at first s�.::ted during c.ross-exarrjnation that he did not recall that conversation, •;�/hen co:-1frontGd Y�iith CC<ITespor:.de:::K;e bdween l\.1r. Stroyan and Essar, he admitted that it was possible -Jmt it happened. All of the evidence leads to the conclusion that he had been deer hunting, which is inco�1sistent j;iith his claim to be totally disabled.

5 8 [ 1 48] Counsel pointed out that by his own admission, the gnevor had made two trips to

Dubreuilville while claiming that he was not able to do any work at all for Essar. It is very

notable that he hid this infom1a:i:ion from his doctor as well as Essar. Moreover, he in fact

misrepresented to them that the only driving he did was within the city and did not drive on

highways. After driving an Essar truck for just one day on October 28, 2008, he refused to ever

try it again claiming that it hurt his neck. Two years later he continued to refuse, despite the

fact that the driving duties offered in 20 1 0 were significantly different than the duties offered in

2008. At the return to work meeting on October 1 5, 20 1 0, Essar had accommodated all but one

of the concerns he raised. The one concern not resolved was the absence of tilt steering.

Counsel argued that refusal to try the job on that basis was not reasonable. His assertion could

not have been based on &. genuine concern he had. At the time the relevant restriction he had

was "'no work above shoulder level" _ Despite this restriction, the griever was regularly driving

his own truck which also had no tilt steering. He had told his medical specialist that he was

able to drive his truck within his restrictions by placing his hands low on the steering wheeL If

he could drive his truck in busy multilane city streets in that marmer, there is no credible reason

why he could nor drive on single lane Essar roads.

[ 1 49] The union takes the po�-;itior1 s.-c arbrtrc,tion that intermittent driving in his own truck was

different from driving for 8 hours straight o::-� a shift. Counsel submitted that this assertion was

disingenuous. First, hov.r long the griev::.rt couid drive wa.s never :raised as a con::.em any time

prior to arbitration. At the ::-etum to V\'OL< meeting nurnerous concerns were raised. The

duration for which he was able to drive at a stretch was never mentioned. Second, if it was a

genuine concern, the grievor should, and would, have told Essar that he could try driving but

""only for x hours" at a stretcl1. Th::n Essar \'Vould have addressed that concern. Third, while

the grievor told his doetor t�-:.at he wa::� requin:d to drive for 8 ho ,1rs, he agreed that Essar had

not told him that. He had te�:tified that ·vvbe;.1ever he was :J.ccom:::nodated, he WcLS allm�recl to

work at his own pace an:l a.llowed to wke as many breaks as he needed. He. could not have

believed that Essar would act :my differ�ntly '�li:hen ��ccoDmodating him in the driving job.

Counsel urged me to conclude that the concen� about dri-ving for long periods was an argument

the griever a.."'1d the wioE had come up i'-'ith at a:;:bitrz:ti·)n, and not one genuinely held at the

time.

[ 1 50] The evidence indicates tl·:::rt \\"h:'-:1e', ei E�sa:.- offered any type of modified work, the grievor' s

response '�·as "I have tc �tSK 111)' doctC'.r" . A�: :trbltrc .. tio'l t:·1e gt i t:vor :md the union took the

- 1 I

59 position that the grievor was justified being extra cautious because he was very concerned

about not .aggravating his injuries. He was entitled to obtain medical approval before engaging

in any work activity. Counsel argued, however, that the evidence casts doubt on the honesty of

that position. The evidence is that the grievor drove long distances to Dubreuilville on two

occasions, drove on lggging roads, was fishing and had gone hunting. He was seen on video

carrying a twelve pack of beer 'iiiieighing 1 5 -20 pounds, Vlhen he had a 5 pound limit. He was

opening and closing the tail gate of his truck, and was outside in freezing temperatures with no

gloves or scarf directly in contravention of medical advice. This evidence is not consistent with

an individual who was extra cautious and concerned about aggravating his condition. He

engaged in all of this activity without consulting any medical expert. In fact, he hid this

activity from them. Essar counsel submitted that the evidence casts doubt on the symptoms the

grievor was claiming to be experiencing. Four or five specialists did extensive· testing, but

could not find an explanation for the grievor's complaints abom pain .. numbness in hands etc.

To alleviate the complaint about numbness in his hands, a specialist explicitly advised him to

wear warm gloves in cold 'veather. If the grievor actually had numbness in his hands he would

have complied. He did not.

[ 1 5 1 ] Referring to Dr, Genie's testimony, counsel pointed out that she admitted that the vast maj ority

of herqonclusions and medical notes ·vvere based not on my objective assessment, but what the

grievor told her. She testified that she belie1Jed everything the grievor told her. Specifically,

she admitted that the only inform:�tion she had about ·wh2.t modified work \Vas a\·ailable c&'11e

from the grievor . . She did not question him or make fu1)' inquiry fi:om Essar. · Counsel pointed

OUt that this evidence must be taken together \Y!.!h the evidence that the grievor gc:.ve inaccurate

and untrue information to her and told h::r or1Jy what he wanted her to know. She was never

informed that the WSIB had cut off benefits because in i ts view Essar had repeatedly offered

suitable modified work. The grievor led Dr . Genie to believe that the only modified work

available was driving. Si:e kept him off work for long periods simply based on his word. Several of those medical n�:.tes vvere p;:-ovidt:d at �he gri eY:.)r' s requ·=st even v.:ithout a visiL All

he had to do was call her .:,ffice and request a note t) be off. ,

[ 1 52] With regard to the driving duties offered, Dr. Genie admitted in cross-examination that spe '

assumed that the griever would be driving on rough unpaved roads, that he would be driving for 8 hours with no flexibility, and that :Sssn.�· roads had heavy traffic with big vehicles that made driving very da.11g,:-rous. The eviclerJC:c est3.blishes that those ass1.unptions vrere simply

60 wrong. She admitted that she never attempted to ascertain why the grievor was able to drive

his own truck, but not the Essar truck. Yet she assumed that driving the brand new Essar truck

resulted in more jostling than the griever' s 1 5 year old truck. She never put her mind to

whether he could meet the restriction by placing his hands low on t.he steering, as he did in his

own truck. She was unable to provide a credible explanation for the difference between the

two trucks which made one acceptable, b'Jt not the other. She was ready to accept whatever the

grievor told him and to advocate on his behalf. The grievor exploited her trust with a "circle of

lies".

[ 1 53] Counsel referred to Dr. Genie' s testimony under cross-examination that the only specialist

referral she made with a request that the grievor' s capacity to work be assessed was to Dr.

Harvey in Hamilton. Dr. Harvey conducted tests, and physically examined the grievor. His

conclusion in essence was "There is nothing wrong with you, be more physical and get back to

work". Despite this specialist' s objective opinion, Dr. Genie continued to keep the grievor off

on the basis of what he was telling her.

[ 1 54] Counsel pointed out that follmving the boom truck ac:::ident the grievor v..·as off from July 1 5 to

October 1 6, 201 0, claiming to be totally disabled. The grievor' s first visit to Dr. Genie

happened only 1 2 days after the incident. She issued a note to be off, again with no objective

assessment. Then the grie';or hacl the note •:xtended to July 26!11 'imthout a visit. On July 29th

he saw Dr. Genie and misreprE'sented to ber that Essar was violating his restrictions by making

him work at the erector c:.rib, v/hen he was "supposed to be:· doing office work". Instead of

correcting the grievor that there was no such limitation Dr. Genie put him off for another four

weeks.

[ 1 55] Counsel pointed out that it was duriEg this absence when the grievor was claiming to be totally

disabled that he drove to Dubreuilville twic= . \\'her-1 askt:cl what her understanding was at the

time about the griever physical activity and abo:.:�t the driving he did in his truck, Dr. Genie

responded that the grieve:· wld her that he did only very light activity, that he could not do any

prolonged driving and only dro-ve "to run errands and visit family in town". Counsel submitted

that the griever had clearly lied to her.

[ 1 56] Counsel pointed out that when she sugg;� sted t•} Dr. Gerrie that the grievor was never under a

"no driving" restriction, :;he C.isagreed and ��:.stified �hat :be ··'no j arring" restrict:on implicitly

6 1 prevented driving. Counsel argued that this position is not ingenuous nor credible . · Dr. Genie was aware that the grievor was driving his own truck regularly, and that Essar was · offering him modified driving duties. If she was of the opinion that the grievor was not able to drive, she would have simply put in a "no driving" restriction. She did not do so. After the ·

fact, in her desire to advocate for the grievor, she was interpreting a "no j arring" restriction as including a prohibition on driving. Her DlC•)nsistency is further demonstrated by the fact that when referred to medical documentation containing . a prohibition of operating "heavy equipment", she agreed that it did not prevent driving a. truck. She conceded that she was aware that the grievor was driving his O\.vn truck. Yet without inquiring about what was involved in driving for Essar, the condition of Essar roads, or the accommodations· provided to the grievor, she testified that driving the brand new Essar truck was beyond the gri evor's ability, while he was able to drive his ovvn truck.

[ 1 57] Counsel submitted that Dr. Genie's testimony should be given l ittle or no weight because she was . acting as the grievor' s adv<;>cate and simply putting forward and supporting the grievor's claims with no medical substantiation. The 'V\/SIB had concluded that her medical notes . keepjng the grie·vor off vv-er\� not suppori:abk by a:..'l.y medical findings. Despite her medical

notes the VlSIB maintain;:;d that fie grievor war:.. not total�y disabled and should be at work with some restrictions. In the alternative, counsel submitted that in any event Dr. Genie' s conclusions should be dis::-egarded as unr.;;.liz.ble ·:,ecaus·:! they were based on her acceptance of wp.at the grievor told her . The .�:·vidence is that tht grie·vm· \Vas not fortl: .. .right with his doctor, made various misrepresentation.s, and told he:: only what ·Nould support his own position that he was totally, disabled.

[ 1 58] In conclusim1, Essar counsel submitted that the �:.vidence rs overwhelming thc:.t the gnevor engaged in a pattern of conduct daiming tt,tal disability and· refusing suitable rnodif1ed work. His claim to total disability vvas clearly not consistent with evidence about his outside activities, which he deliberately hid fi·om his doctor ·c:md his employer. That establishes his dishonest and fraudulent intentions. His :position tha he Vias entitled not to disclose his outside activity becc:.use he 1vas medically authorized Lo be off, and that what he doe? while medically off is "nobody else ' s bl.ISi:Jr:;.ss", r.r:.skes no sense. He not on!y hid his activity from Essar and Dr. Genie, be lied to Essar, �.s 'Nell as to D.:· . Geni.: that h: ·:mly drove in town to run elTands ·

and visit family, and did not dri.v=: long dista;:-... ces.

62 [ 1 59] Counsel submitted that if l agree that the griever had been dishonest, the grievance should be

dismissed. She pointed out that the griever had not accepted any fault on his p8.1i even in the face of overwhelming evidence. He was untruthful under oath. He continued his pattern of

dishonesty at arbitration. She said "He has lied to everyone including yourself'. In the

circumstances, there were no mitigating factors that would justify any interference with his

dismissal .

Union Submissions

[ 1 60] Mr. Roussain relied on article 9.02 and pointed out that aJ.iicle 1 3 .06(30) provides that an

arbitrator has no power to modify the collective agreement. It was his position that whether or

not the grievor engaged in dishonesty should be dete1mined solely on the basis of what the

winter surveillance discloses, because that was the only conduct on the part of the grievor that

came within the 2 1 day t:me limit in article 9.02. He submitted "Tbis dismissal ought not have

anything to do with the gri.�vor' s past history of injuries and his interaction with do�tors". He

argued that the employer was broadening the grounds set out in the letter of dismissal by

relying on information it disccvered th!ough disciosure after the dismissal and the filing of the

grievance. Essar was attempting to strengthen its case by relying on new information that came

to light through disclosur.e and du::ing the arbitration hearing. It is even attempting to rely on

the summer surveillarH::e evidence v.rhich i;: hid from the union. Mr. Roussain submitted that

Essar discriminated against the grie·,-or by !lOt of::ering him work within his restrictions 8.lld

dismissed him when he refused to do work outside his restrictions.

[ 1 6 1 ] Mr . Roussain reminded that the griever has had numerous absences. H e was not disciplined for

any of them, until Essar had the w·inter S!J..-veill<mce t·vid�::rce i�1 December 20 10 . He submitted

that the injuries the grievor suffered as a result of i.he boom tmck and mini-bus incidents were

_"bona fide". Essar wc:s cas-cing aspersions l.:·ased on evidence by others which he said was

hearsay. He refen-ed tc. Essar's evidence th2.t it h2.d an aggressive return to wo-:k policy and

bent over backw8.1·ds to re�urn irjured \MC·rkers to work as soon as possible. This policy, he

submitted has the goal of cost saving for Essar, but has a negative impact on injured workers.

[1 62] Mr. Roussain poi..11ted ont tbt the grievor did noth.�ng 'Nror,g by driving to Dubreuilville in the

summer of 20 10 . At the time he v·ras mc:di·:;ally authJ:-ized to be off work. He had no

restriction in place preventirc,; driving his tmcL Even if be did something wrong, Essar .ha.d to

discipline him within 2 1 dc.:ys ·A :·ecci v!ng �he survei�lance evidence. It did not discipline him

63 for that at all, but tries to rely on that at arbitration. Mr. Rennie concluded that the grievor was dishonestly claiming that he could not do modified work, based on his own interpretation of the griever's activities shown on the surveillance video. He submitted that only a medical doctor is qualified to interpret the grievor's activities. Dr. Gieni had testified when viewing the video that the grievor had not engaged in &'1y activity which violated the restrictions in place,

' that the amount of driving he did was within his ability, and that he was able to do the other activity shown, up to his level of tolerance.

[ 1 63] Mr. Roussain refened to exhibits 6 1 , 66 and 95. as including a restriction against driving the

Essar truck. In exhibits 61 and 66 the box for "no motor vehicle, crane, mobile equipment operation" is checked off and "(heavy equipment)" is added by hand. In exhibit 95 the box "able to drive a car" is checked. The box restricting "operating motorized equipment, eg. Forklifts" is checked off and the words "heavy equipment vehicles" are added by hand. lt was the union's position that these prevented the grievor from driving the % ton Essar truck. Mr. Roussain urged me to conclude that at the October 1 5, 20 1 0 retun1 to work meeting, it was Essar that decided that the driYing j ob was not suitable a.nd offered the grievor work at the welder cage. He interpreted s letter :Mr. McNichol ·wrote b Dr. Gieni as conceding this point.

[ 1 64] The union submitted that the driving the gr�e:vor did in his 0 1Nn truck was very different than driving on Essar roads ·"delivering men and rnatericJ". In his truck he could drive "as tolerated". Oi1. city streets '•there are no steel mills, coke ovens, blast furnaces or melt shops. There are nc· pot haulers, slab carriers or iron ladles on city roads. Although Mr. Reni1ie and Mr. Sierra had testifi�d that there was flexibility and that the grievor would not be driving for 8 hours a day, there is no evidence that such flexibility was specifically offered.

[ 1 65] According to the umon, Essar was un ... r.::·ascmtbly clov.mplaying the extent of the mini-bus '

accident. It obtained witne.:;s statements at the; ·::ime <md filed them in evidence. The driver of the bus in which the grievor was a passenger states that to him it only felt Eke a rough transmission shift and that the:�·e was not even ar�y paint transfer between the two vehicles·. Counsel argued that this evidence should be ign::>red because the individual did r:.ot testify and there was no opportunity to cross-·examin.e him. Essc:.:r' s posit: on that because there was no damage to either vehicle and beca·':.lSe no cne else v.ias injured, the grievor alone wulcl not have been injured, ignores the fact that t.�e . grievor had an existing injury. Counsel for Essar had argued thB.t folloy1ing this accijent the gl·ievc·t w�nt off cbimi::2g total disability and during this

64 absence got maiTied in the Caribbean. The union pointed out that counsel did not ask Dr.

Gieni while on the stand whether the grievor was fit, despite his injury, to travel to the

Caribbean to get married.

[ 1 66] The union refened to the two Dubreuilville trips as "non-evidence". Mr. Roussain submitted

that the grievor agreed that he did the trip on September 1 , 20 1 0. However, he could not recall

details. His explanation that at the time he was grieving the death of his grandfather and that

his memory was a blur is reasonable. As for the purpose of the trip, his "best recall" was that it

was a camping trip. He submitted that Dr. Gieni had advised the grievor to be more active and

less cloistered. The grievor had no restriction against driving as tolerated. Therefore, it was

perfectly reasonable for him to get out of the city to get some fresh air, because it is healthy

activity. The union pointed out that while the grievor had gone camping twice in the

summer/fall of 201 0, he denied going hunting. The only evidence to contradict that is the

hearsay from Mr. Bean that he overheard some U11identi:t1ed worker say that the grievor had

been bragging about having gone deer hunting. The union submitted that Essar was making

""all kinds of aJJegations c.f dishone-sty and fraud''' b?J.sed on hearsay and mmour. He subr:.1itted

that staying off work and seeking vVSIB b ::ne:fits or sick pay is not dishonest or frauciulent,

when his doctor had ordered him to remain off work. Essar pointed to several negative

comments the grievor had made about his employer. He made these comments to his doctors

and not to the Toronto Sun. That is unde2standable because he was frustrated with Essar

repeatedly trying to get him t.J drive a -cruck 'Nhc:� h� was medically authorized to be off.

[ 1 67] Essar had argued that the gri�vor was able to return to work when it suited hin: but claimed

total disability when he did not V�:ant ·cc be �t work. Essar argued that he decided to retum to

work on the -very date when his sick benefits were t.J go ±!-om 1 00% of wages tc 5 5 %. Essar

stated that his boom truck a..ccident oc.::.unec. �h � day before he was to go from straight days to

rotating shifts. The griever had test.if!.ed tha·� be retmned to ·1.vork at the time because he was.

getting bored and wanted tD get more active. He also testfie.d that he Eked shift work and had

no motivation to avoid rotating shifts. Tbe union s 1bmitte:d that the timing of these events was

purely coincidenee and not evidence of disi' .. onesty. Mr. Roussain urged me to acce:;Jt the

grievor's testirnany that he n:fnsed to C''.;J c.��::.:;r. pla��tjc be.gs with an exactor knife on the first

day because he was in severe :Jain, a:.1d that h e did that work the next day. Essar g,ttemptcd to

force the grievor to use the sandblaster an.:.i grinder 1:vhile accommodated at the welder cage.

Dr. Gieni testified that those were vibratory tonls ar!d the g!·ievor had a no vibration restriction.

65

[ 1 68] The union distinguished Essar's case law and -also filed several cases of its own. I will not review that case law because whether or not there was dishonesty depends on the facts of each case and the credibility of the respective wit11esses. In the instant proceeding the union's position is that the grievor was not dishonest or fraudulent when he remained off work and

' .

refused modified work offered. Essar disagrees and has tal::.en the position that the grievor engaged in a pattern of dishonesty and misled and lied to his employer as well as his doctors. Keeping in mind that Essar has the onus of proving just cause, I must make a determination based on the evidence before �e. I will consider that evidence in light of my own observations and experience while taking a tour of the Essar plant, which included a ride on Essar roads in a % ton Essar truck.

Conclusion

[ 1 69] I am required to determine whether the griever engaged in conduct that justified discipline. If I conclude that he did, I must proceed to decide whether in all of the circumstances disn1issal

.

was an appropriate penalty. I first tum to the union' s position that the only 'evidence -I should consider in determining whether the grievor vYas dishonest or fraudulent is. that contained in the winter su..rveillance evidence. The 1mion sub�Ylits that all other e-v-idence should be disregarded because it is either out of time under articl:· 9.02 or was acquired after the tennination. To allow that e·liidence wpuld be to allcvv Es.;ar tc expar1d the grollnds for dismissaL I respectfull)' disagree. The letier of discipline sets out the conduct attributed by Essar to the grievor that led it to dismiss him. It alleges that the g:-ievo:r "maintained a claim of being totally disabled and unable to accept offers of modified duty v1'hile illv.strating his ability to perfom1 the offered assignment. This dishonesty results in an extreme breach of trust".

[ 1 70] The union's argument that the winter surveillance did not disclose any misconduct on the grievor's pmi a..11d that his restrictions did not prevent him from engaging in that activity, completely misses the point. Essar has not accused the grievor of engaging in any culpable conduct while under surveillan:::,e . It agrees in fact that the grievor was capable of doing ·.:he activities observed during surveillance. Its positiot� is that his ability to ·engage in that activity as well as evidence about his other outside activity establishes that his claim that he was totally disabled and unable to drive for Essac· despite the many accommodations, was dishonest.

66 [ 1 7 1 ] I am also convinced that article 9 .02 does not limit Essar' s evidence to a period of 2 1 days

preceding the date of dismissal as the union submits. Where 'Essar relies on some discreet act

or acts to discipline, for example theft or asss.ult, it is required to act within 2 1 days of those

act(s) coming to its attention. Even then time would begin to run, not when EssaJ begins to be

suspicious, but only when it has gathered enough evidence to be able to reasonably conclude

that the grievor engaged in the culpable activity. In situations such as here, where the allegation

of culpability is based on a pattern of conduct over a period of time, time would begin to run

only at that point of time that Essar reaches the conclusion that the pattern of conduct

establishes dishonesty. If discipline is imposed within 21 days of Essar concluding or having

sufficient information to be able to reasonably conclude, that the grievor had been dishonest,

article 9 .02 would be satisfied. The parties, in negotiating miicle 9 .02, could not have intended

to force Essar to take disciplinary action as soon as it becomes aware of some suspicious

conduct. That would be detrimenral to the interests of boui parties, and does not promote good

labour relations. That simply makes no sense. Once Essar reasonably concludes that there was

dishonesty and takes action to discipline within 2 1 days, it may lead otherwise relevant and

admissible evidence to support its conclusion, and article 9.02 does not limit the evidence. This

in essence was Essar counsel's alternate: subr:::�.ssion in relation to the union's motion, 'Nhich I

have briefly referred to earlier. I agree ·with Es:mr counsel ' s interpretation of article 9 .02. The

evidence is that Essar had sooe suspicion as early as 2008 that the grievor was dishonestly

claiming to be totally disabled and attempting to obtain WSIB benefits. It continued to monitor

and document the griever' s "aecid.eats", hi;3 absen�e.s and his refusal of modified work. When

the griever refused to cut plastic b:cgs its su:::picions increased. It sought to further satisf-y itself

that the grievor was in fact cap3.ble of G.o�ng more than he was presenting and ordered

surveillance. It was only after revievv'ing the surv·eillance evidence that it came to .1 final

conclusion. It was entitled to do that.

[ 1 72] The union submitted that any evidence Ess�r had acquired through disclosure following the

filing of the grievartce, including corresponcl.ence and medic?..1 e·vidence covering the periods of

absence at issue, are not admissible:. Tb&t is a novel, but absurd argmr; .. �:nt. As l have noted,

article 9.02 �1as nothing to do witb disclosure. Over many decades, a substantive body of

jurisprudence has developed aoout disclosure oblig:atio:1S . lt is ne>t at ail uncommon for parties

to voluntari:y disclose docurn.ents i�� its po �.��s.:: im; in aC: ,.,�.:.�ce c.1f arbitrE!�ion. If ihat d::.'eS not

happen, arbitro.tors have the aut�cdty tc C·r::le.r p:e-h::ar�ng disclos:.:.re . Brown & Beatty,

Canadian Labour Arbitration, s.t 3 : 1 420 sbtes that L"!-J.e purpc,se of production is that it "assists a

67 party in actually preparing its case". The union has not pointed to anything in the collective

agreement which limits or amends the arbitral principles relating to disclosure. One has to ask why anyone, in this or other proceeding, would expend the time and effort of making

disclosure, and why any arbitrator would order disclosure, if nothing obtained as a result is -admissible at arbitration.

[ 173] Based on all of the evidence, I conclude that the grievor refused modified work which was

within his medical restrictions, and which he was capable of performing. That, however, is not enough. Essar must also establish on a balance of probabilities that the grievor's refusal of

work within his ability was a result of dishonesty, and not explained by some sincere, albeit erroneous, belief. It is only then that dishoncsi:y would be establi�hed.

[1 74] I have set out the evidence and the parties' submissions in some detail. . Based on all of the

evidence I conclude that Essar has established dishonesty ar1d fraud. Despite the union's .

contr�ry view, there is no evidence that at the October 20 1 0 return to work meeting Essar

concluded or agreed that the driving modified duties exceede� the restrictions in place at the

time. The union stated that this is confirmed by a. letter l•,-1r. McNichol wrote to Dr. Gieni the '

same day. A review of that letter shov1s that it does :1ot do that at all. To the contrary in the

letter Mr. McNichol describes the driving duties a.11d accon:m1odations offered to the grievor to

address the concerns he raised. Then he writes "however Mr. Barill felt that he could not

continually perform this job with the requirement of having his hands continuously at shoulder height on the steering wf_eel", and that as a result a second job offer at the crib was -offered and

accepted by the grievor. (Emphasis added)

[1 75] Mr. Roussain submitted that at the retum to work meeting in October 201 0 the grievor was entitled to refuse the driving job becau.se he had a ';no driving" restriction. He relied on exhibits 6 1 , 66, and 95 as containing that restriction. I reject that position for numerous reasons, but will refer to only some. First, dl of those medical forms ,were obtained by the

grievor subsequent to that meeting. More-over, Dr. Gieni testified that even those restrictions

were intended to cover heavy equipment only. Most significantly, I �m cqnvinced that the

grievor and the union cm1ld not have been of the beli:;f at the time that such a restriction existed. If they did, they ���u:.:.ld no� have �xasi:ed tim:; discussing concerr�s aboLt the driving

duties and the accommodations required. Inst<.:ac� they \MOt�ld have simply taken the positi ::m at

the outset that a driving j ob is out of the question because there was a "no driving" restnction

in place.

68

[ 1 76] A large part of the union' s case was thm: all of the griever's absences were "medically

authorized". When Mr. Roussain asked whether he should remain off or accept modified work

when Dr. Gieni had issued a medical note putting him off work, the grievor replied that he had

to stay off work as per his doctor's orders. The union submitted that there was no dishonesty

when a worker who is medically authorized to be off, stays off and claims sick pay or WSIB

benefits. It is a worker's right to claim those payments. The union suggested that Essar

engaged in discrimination by repeatedly attempting to get t.�e grievor to return to work when

his doctor had ordered him to be off.

[ 1 77] The union' s position· appears to be that the existence of a medical note to be off work is a

complete answer to any allegation of dishonesty. This position is clearly inconsistent with the

case law. This is particularly so where the medical approval consists of nothing more than a

"prescription pad medical note" as was the case with many of the medical notes the griever

presented. In Re S .E.I.U . and U.S.W., (2008) 1 74 L.A.C. (41h) 2 1 0 (Surdikowski) at para. 29

the arbitrator wrote:

[29] The onus is on the employee to estEtblish cn.title::Dcr..'L to conLnue in employment or to collective agreement paid sick lez.ve benefit�. The onus is on the employee to establish that an absence is legitimate ifi the sense ti:-_at she is genuinely unable to report or vwrk due to iE:1ess or injury. AJ1 emp!.oyer is entitled to suft"lci.ent "proof" of tb.e employee' s assertion that she is unable to attend ·vvork due to illness or injury and entitled to benefits. Even if tl1ere are no paid benefits available, or the employee elects to forgo them, the employer is entitlea to notice cf -che faci and expected duration cf an absence for the l.egitim2te busiEes�> p1..trpo�es of work fo:;-ce man<;�.gement, and absenteeism control purposes. Eriiployees, unions and employers all have a legitimate interest in and an obligation to facilitate as early a return to work as possible, with accommodation as appropnate ·where reasonably <:<vailable. An employer also has a legitimate interes� in investigat�ng s·J.;;pic;ious abs.::nces and information provided by an employee in that respect. Of CO'lrse .O:tli uf this b�gs i.he question: what is sufticient "proof' in that respect? Vii.1at info;:mation is tile er11ployer er1titled to and what infcnn1ation must the el'Y1ployee provilie'? (orig:;na1 emphasis)

( 1 78] In Re Hamilton li�lllth_Sc��l)_Q��' (20C·7), 1 67 (L.A.C . (4t.1) 1. 22 (Surdikowski) at para. 40, the

arbitrator wrc te :

69 40. I recognize that the real world is not an ideal one. In the ideal world doctors wouid have perfect l(_nowledge of the relevant medical matters, their patients and their patients' workplaces, and would be completely objective. If that were so, a doctor's simple statement certifying that aTJ. employee was ill and unable to work for some specified period of time, and specifying restrictions for return to work and accommodation purposes \Nhen and as appropriate, would be good enough for all purposes and nothing further, including any diagnosis or even a statement of the nature of illness or injury would be required. But that is not the real world, or at least not the one I am familiar with. Medical health professionals are also human beings. The fact is that ' they are not always entirely objective. It is quite appropriate for medical heaith professionais to act as advocates for their pm:ients in medical matters within their competence, but not ·when 't:he advocacy extends beyond th.eir medical expe1iise o:r to �:na·cters of ·which they have no direct 1-.... nowledge, such as when they have little or no kno wledge of the iVorkplace or their patient' s job or employment situation other than what their patient decides to tell them.

[ 1 79] In Re St. Jofl_�Qh's hosRit.?-1 ( 1 987), 28 L..A..C. (3ni) 1 85 (Ponak) at p. 1 95, it is written:

Arbi tration boards have not been reluctant to carefully �erutinize medical certificates, especially in circumstances :'l:.: which legitimate suspicions 2.rise. Suspicions hz,ve been aroused in a numbei: c;·; ways, includ.in g .where the �nedical ;;e:rtific&.te is bs.ckdat��d •) .e., thf: cbctor sees the: pzrjent s.:frer f::;e �Ji ::�1cSS i:;- over), ��ihere a cefiiccate is give:n on the ba.sis of a telepho:n.::: conversc:tion c.nd no visual or phy�:ica1 examination takes pJace, or 'V\-'b:xe other .::mploy·-"-·�2: :<.l:t�st t.:; the fact tha.t the EJlege:dJy m employee was no� ill. But absc;1rt such 3Uspici.on, arbitration bc.ards have not usually devalued medical certificates simply because the in:tormation contained there is sketchy . . If that were the case, few medical certificates ·;,vo1...1ld be dee::-!lc:d !o have: any \i'alue . Physicians are notorious for their brevity on notes of this kind. ..

[ 1 80] In Re TB......W_,_L_ink�_g�n�LSuf�en.�on __ R:;cYL�i.9JJ: (2005) .. 1 44 LA .. C (4'h ) 2 1 5 (Hinnegan) at p .. 2 1 8, it is cb�nred:

Also, in the S.:r;.;.it A...rf...:.'i Hospital.:; c2sc, m·bit:c-.::tt0r Whitaker observed tlw.L the typical "nGl;:,pad" notes c_Yi: .. :1 far::.1ily pb.Js�c: .. a:G 2.re genc:r,:Jly deelTd-d by arbitrators to be inildequ.ate as a :.:-;1-.::G.i�s.l d.iagnos1.::: of mental impairment due to stress to the point . of total disability prcverf�ing c.r1 employee from v;crkir;.g at his job for a period of time. Stc: ds.J re s·.:. Jean rJ:; Br.:;:Jeuf .EC·3pital aad Canadiall. Union Df Public Employees, Local 1 1 0 1 ( 1 977) 1. 6 L.A. C. (2d) 1 99 (Swan). In the latter case, the arbitrator notes that the obligation of establishing total disabiii.ty from working due to stress entitling an

. erc1plo:ree to sicl� p<-:y ·1�·e.;::H·:fits uncl,�·r t':1·:: collective 1greernent is on tne employr:e-. He also noted that cursory medical Dotes are of negligible probative value in meeting that onus, particularly in the case of a claimed serious illn.ess.

[ 1 8 1 ] In Re Town of Caledon (2008), 94 C.L.A.S. 94 (McDowell) at para. 1 1 7- 1 1 8 the arbitrator

wrote:

70

Moreover., in today ' s world, the practics.i reality is that the documents obtained from the employee' s family doctor may not be sufficient gi.ven the potential weaknesses of information from that E:ource -pa.c"'ily br; .. �ause the family doctor may not have L'-le whole picture, and partly because s/he is likely to be ve.ry busy with other things, and partly because s/he may not be inclined to resist the wishes of the patient or the role of advocate . . . .

Obv1ou.s�y, the:e is nc hard m:td fa3t "mk" ir.. this. re;arc . However, the papenvork prepared by the employee' s family doctor may no1: be an unimpeachable source of obj ective evidence about the employee' s condition and how that impacts on work place possibilities; and if the doctors who c1 t:ate these doc.:uments are not prepared to explain arlii support what they have written. the utili·Ly of suet · 'reports'·· is correspondingly di:..11 i.uished.

At para. 1 27- 1 3 0, arbitrator McDowell went on:

No doubt the Grievor was unhappy at work. The Grievor was also annoyed when the Eln-1 "�/P� a"lD""a1 ec4 wJ- c "�1 7 (' I D ' c:: . ..., ._ l ; n (Y T�1e J. '" � 1 " � � nnO' 't'r' h)' th·� Emn1 o,·e,.' s l-· ' J .. .•. 1 .!- .: .... .... _ • . . t t:J \..· tt . L.> • . . . L> • • ., L U.l l � · r � , ..... n.� .. , .. ) c ..r " �-� L- -�� . .. .r-'L' .; ,�.

insistence t.�at he pro�ie that he is disal:;ec'., r::ach time that h� m�kes that c:li:iim; and he is ve;{ec� that when h�: h3.s some injt:.ry and cmnot I:-.erfo�m his regular duties . s.e is SOElC [imes ash:( i\) �:o:1sider altec ·:�t·, ·'=- ·;vor:�

Th�:r;:: is no reliable medical evide!lct to suppo1·t the Grievor· s claim ti1at he was disabled and unable to do his regular j ob for tl:Jiee weeks in June-July 2007 . . . The far:�.ily physician ' s note� . . . are rathe.r cryptic and call for more explanation . . . . Nor was the G1ievor a particularly credible witness with respect to the dimensions of his alleged disability, or how it migi:rc prevent hirn from doing his JOb.

( 1 82] In Re B.A. lntemation�J, (2.01 0) 1 93 L.A.C. (4'11) 3 0 1 (R. Brown), the arbitrator. following a

The foregoing review of sick pc.y cases leads m.� to conclude that the difrering ou::.:.cmes in these casc.s is :.:-norc a. v-odu.:::t of factlial differences L.1an of arbit:rators c..pplying differen"L legal principies. Whenever sick pa.y 1s claimed, the union berus f,:1e o;:-r..:..::. of prov!ng, (.1r. ;:: ·,�:;.bnce Df urebablities, tilat t;:-,e ciaimant was �nable to work due - . . �

to ilh">ess or ir�j·u.ry. \T/hether a brief rnedicc.�l note � s sufficient pwof depends upon hc.w 1 t vvas obtained an.:t -�.e eircurnstan.:.es cfthe abse:::1ct to which it relates. For example, a cursory doctor's note is likely t0 be discom1ted if obtained by an employee who en,ga,?;ed in doctcr sh: p,c•ing cr wr:t1en by a pny�ic.ia1-; v:�o did not see the patient at the relevant time. A sketchy medir;al 1lOte may also be discounted if there is evidence that the absence was caused by something other than disability -e.g. c. workplace dispute or

71 a simple desire for time off. Whether a cursory note is sufficient proof of disability may also depend upon the nature of the alleged malady - i.e. stress versus a physical ailm�nt.

[ 1 83] I recognize that in some of the cases above; cited, the ailment the griever daimed was of some form of stress or mental disabiiity . In some oth�rs, the doctor who issued the medical notes did not testify. In contrast, here the griever' s ailment was physical and Dr. Gieni did testify. However, that distinction does not help the union's case. Arbitrators are less inclined to accept medical notb at face value a9 proof of "stress" and mental dis::1.bi1ity becz.use of the recognition

1

that medical notes in those ::ircu.msta:nces are based, not on the basis · of objective medical assessment, but on "self-reporting" by the grievor. (See, Re Town of Caledon (supra). There is a recognition that medical professionals are less able to investigate and confirm mental ·

I

conditions through .objective assessment and procedures such as x-ray, MRJ and scanning.

[ 1 84] While the grievor's problems were physical, it is clear from the evidence that the pain and the numbness etc. the grievor reported to Dr. Gieni were also not confirmed by any obj ective assessment. Dr. Gieni, the author of the medical notes, did not make her conclusion that the grievor was unable to perform any kind of work and should stay off, based on any obiective - . \ -assessment or testing she perfom1ed. Under cross-e?�amination, she conceded that it was the

\

grievor who told her that he \vas unable to do any work, and that she believed the grievor and put him off work. This is particularly the cf'!se \�'ith the driving modified duties. It was apparent that the grievor had not informed Dl·. Gi.eni about the accommodations agm�d to by Essar - that the grievor was not requir-::d to clo any lifting, he \Vas to drive only on paved roads, he would be driving at very �:low speeds, the tru�k would be eq11ipped ·with co!lvex milTors (which was :rwt the case v;.ri:h the griev·:>r' s :)'llf.t Luck) that •11·c-uld minimize the m:-.=.d to t um ll.is neck. She made a mm1ber of ass umptions \1iithout any inquiry, whish were baseless and unreasonable. For example:, tha:t Essar i.vodd !:10i: i'illCYw the. grievor to stop driving if he 1vas in pain and feeling unwelL Dr. Gieni did make: referrals to several specialists . However, all of their testing and assessments came out negative in that they found that the grievor did not suffer from any medical condition that sho L1ld cause him to experience the symptoms he had repOiied. They were at a loss as to why he was having those symptoms. It is fair to sw1:1 up that the specialists ' acivice to the g:;,·iev.:Jr was to the effect, ''·V·./e carm)tfind anything wrong v.'itb )'()U to be off wor�<:. Be more c.ctive, get back to work, and. work \VitlJin your restrictions".

72 [ 1 85] Dr. Gieni did testify, but did not provide a::1y objective medical evidence to support her

conclusion that the grievor was totally disabled during his absences, or that he was unable to

perform the modified work offered by Ess.ar. She relied, almost exclusively, on self-reporting

by the grievor as to his syrnp':c�ms and as to what he could and could not do. In Re Town of

Caledon, ( SUJ2@) arbitrator McDO\vell listed as "wealmesses" of medical notes, the fact that the

doctor "may not have the whole picture" &1d "may not be inclined to resist the wishes of the

patient or the role of advocate . . . ". I condude that Dr. Gieni 's medical notes were tainted by

both of those weaknesses. As I have revie,;ved, the grievor fed Dr. Gieni only the information

that tends to support his claim for total disability. For example, he did not inform her that Essar

was constantly telling him that- modified >Nork (apart from driving) was available for him, if

only he was vvilling to e):plore and discuss a return to work. He kept that information from

Dr. Gieni .::l_espite explicit directions from Essar to inform �he doctor, and despite the decision

by the WSIB to cut-off benefits on the grounds that he was choosing to stay off when Essar was

offering suitable modified work. He misrepresented to her that his benefits were cut off on the

ground that his injury vvas a recurrence of an existing injury. That was clearly untrue. Nor did

he inform Dr. Gieni that Essar had addressed <'ill but one oLl-.:e concerns he had raised abo ut the

driving duties. Thus, she did not have the V1'�10le picture, but only pic:ture the grievor wanted

her to see. He lied to her thm !he oniy drivlng he did Ln hi s truck was f:Jr short duratic·r.:s and

only within :.he city.

[ 1 86] Dr. Gieni' s desire to not resist the grievor' .3, wishe.s is also evident. She accepted anything the

· grievor told her without question or verificstion. ?or example, the grievor told her that Essar

had assigned his crib work 'Nhen as per his restrictions he was '·'supposed to be doing office

work". She accepted that an.::l put the griever off wo�·k, !vh=:n a re-view of the grievor' s medical

file would have disclosec� that rhe:·e was no re::;triction =:miting the grievor t·::;. office \vork. Dr.

Gieni ' s teEdency to supp::Jr: 2r1d 2.dvocate on be.La.lf of tb:; grievor was also eviden! during her

testimony. She 'Has a:..vare .:bat the driving job was a matter of disagreement between Essar and

grievor. If she was of the opinion 1:t1at the g::-ievor ta.d a E1cdical restriction that prevente:i him

from driving, it is to be reasonably expeeted that she ·;Nouid simply impose a "no driving"

restriction. She did not do so. Yet durin,5 l:.,:.r testimony, she went to great lengths to interpret a

"no jarring'" restriction a�; ieclud2ng g, pro�:it i·jon on �.ltiv:�1g. She did this wit.1J. nlll k.nO\:I.Iledge that the gl'l· =·· iOf ' "'"'S rea• ; lrr"1'1 dr·l-Vl'nn hi ;; 0 .. . .. , tL-uC:1·" �= .. ,, ; · ar·hr ·,: · ·11erl E�rcp· .�0Ui0 ''·"'11 '' ' '-'c'es·:"-d _ C \ , (..&. - .::, L .. (� .., ) ...... --b -- · ' - - .!'_ • . ..; _,�.. _ _ J. _ - J " \o l � .:.>r....w.. ....., _,�...� ....., w -lt'C: _c;.

that the grie'i·Jr ·::onld dri-�·e wi�hin the restriction "n:.• work ctbove shoulder level'' by p!ac :�1g his

hands lov-' o .. ·c the steering \Yl:_eel. she disagreed. She test�fied that legally a driver is required to

73 keep hands on the wheel at 10 and 2 O'clock. I ·find no basis for this assertion. Dr. Gieni

nor the union cited any such law. Nor am I aware of any. This is an example of a doctor engaging in advocacy that extends beyond her medical expertise as discussed in Re Hamilton

Health Sciences (supra) .

[ 1 87] There is ample evidence that the medical notes presented by the grievor were, for most part, based on self-repmting by the grievor. Some were issued simply in response to a request over the telephone. The evidence is that when the grievor told her that he could not work, she put

him off work. When the g1ievor told her that certain work activity caused him .Pain, she imposed restrictions that prohibited that activity. When he told her that he could retm-n to

work, she authorized that. All of this was clor1e vvithout any objective assessment or e·vidence supporting the grievor' s claims. I do not intend to be critical of the doctor because I do not know whether she could have done anything differently. It is not reasonable to expect medical professionals to investigate, other than through medical procedures where that is possible,

whether or not symptoms described by a patient is or is not an honest claim. It is understandable that a doctor would trust patients '::,e honest and truthful. Nevertheless, :�vh:;re medical notes are issued based on. misr�_p;:esentations made to a doctor, they are \VOiihless. I am satisfied that in the circmnst:mces Essar has es·�a.blislTe:d that the medical notes are invalid. I further find that the grievor has not . met the primary onus of · proving on a balance of probabilities that he was totally disabled during his absences from work or that he had medical

restrictions �hat prevented hi:-n t'i·om �Jtrfc·rmir:g the modified wo:·k offered.

[ 1 88] I also have no hesitation concluding that t!�e gri:vor has been dishonest and fraudulent. The detailed evidence I have revi,�wed esta'Jiisi1e:s that the grievor misrepresented infor:Ilation to his doctor, the specialists, the WSIB a.nd Essa:r. The:.-e i�: very rdiable evidence that he was prepared to make 1:epresentation.s which he nmst clearly h.s.Ye known to be 1.:mtrue, if he felt that it would bolster his position. \Vhil·.: there are numerous examples of this, I refer to only 3ome. Following 1::1e YMCA i:::J.cid�·!T! he wrote to th�: WSIB that his law suit against the YMCA' \vas filed seeking compensatior" for the fe'Yi' days v-.1ages he lost du� to the accident. This 'Nas not truthful and be had to have knc·wn it \vas untmthfu!. First, under cross-examination the gri evor admitted that during that 2bse:1ce ht: sL;ff;:::e•.:': nc los�: of \.\ ages because he received sick pay. Secondly, in the statemen� cf claim he fil�.:::l a.�a:�:�st tho: Yl\1CA he >.vas seekii�g m'..:.Gh mere thE[n compensation for loss of a .t;r:;•N , diiys \N&ge� . E� was claiming several heads of damages

totalling ,._,dl over $ 2 millicn. The evidenc·= is t�at the grievor ev�n misled his union. For

74 example, Mr. Ladeceur testified that the grievor had told him that he always placed his hands

at 1 0 and 2 o'clock on the steering wheel, and that he \Vas unable to break that habit. This

contrasts with what the grievor told a specialist, as documented in clinical notes. He made no

mention of any habit. Rather, he informed the specialist thg_t he was able to drive his truck by

placing his hands low on the steering wheel.

[ 1 89] I fmd that the gnevor was fraudulent in claiming sick pay and WSIB benefits, as well as

receiving wage advances from Essar, by deliberately exaggerating the extent of his disability.

He made representations which were not true, and intentior.;_a.lly omitted to present relevant and

true infonnz,tion. In the famous dictum in Jam� v. Lee, ( 1 803), 127 E.R. 200, which is still

cited with approval by Canadian Courts and arbitrators, (See, Re Toronto Police Services

Board (20 1 1 ) 2 1 0 L.A. C. (4·1h) 95 (Shime) at 127) at p. 203 , the cvurt vvrote:

"Fraud may consist as well in the suppression of \:vhat is true, as in the representation of what is false. If a man, professing to answer a question, selects those facts only which are likely to give a credit to �he perso!� of whom he speaks, at!d �<_eeps back the ,:-est, he is a more c.rtful lc..nave than he who tells direct falsehood".

The grievor ' s conduct fa!.is clearly '\Vtthin this detl.nitior of frcJJd . I :tl.nd that Essar has

established. that the grievor was dishonest aD.d fraudulent . I :-ead1 the sam� conclu�.ion reached

by arbitrator Starkman in R� City c-f .Kipr;::;ton (20 1 0) 1 93 L.A. C . (4111) 420 at p. 4t:-O, 'Nhieh is

as follows:

The parties to this collective agreement, like many coilective agreements, rely on medical certificates obtained by employees from their health care providers, in order to gain entitlement to sick leave and disability plans, and also rely on medical certificates to determme what restrictions might apply to safely retur:J. to work. In this case I am satisfied that the gri·=·:or misreprese:n!ed the nature and ex!ent ofl.-.tis back probl.em to his fam.1ly physician and thougb. his fa:cnily physician to ·'.he Employer.

[ 1 90] Turning tc. the penalty, ·me union mnc1.:.· llG s:Jbrn.is3ions fo;:- substilutio,:} of a ptni.ilty . ln any

event, I find no mitigating circumstances that would warrant interference with the grievor' s

dismissal.

[ 1 9 1 ] In Re City_rl.D!�t::�:Y"a (Umt::ported decision dc::::�ed Januar:r· F, 2 0 1 0 - Dissanayake> at par2.. 39 I

wrote: ,

One 0f the mosl reliable indi�uto:rs oh: .r• employee' s ;:>::>te.nLai to1· rehabilitation through corrective discipline is a genuine ;;md early admissiOn of wrong-doing. Where an

75 employee acknowledges wrong-doing at the earliest opportunity, there can be some optimism that the employment relationship may be re-established. Howeve( where there is no such acknowledgement, .the reverse is true. In the latter circumstances, arbitrators are reluctant to force cnrp.loyers to take the risk of a recurrence of the dishonesty. Thus for example in Re Leisur� \Vorld (supra), at p. 345, the arbitrator noted that the grievor "has declined to acknmvledge wrong-doing and tried to mislead this Board with a false account". Primarily for tl�at reason, the discharge of the grievor was upheld despite her long service and discipline f}:ee record. See also Re Int ' l Nickel Co. of Canada Ltd., ( 1 977) 1 5 LA.C . (2d) 224 (Weatherill) .

[ 1 92] The grievor had relatively short service. He admitted no 1vrong-doing on his part. He did not

acknowledge the: efforts: Es��ar made to s.ccom.modate his restrictions and return him to 1v\;ork. Instead, h.e \iv'as critical e;f Essar for ques·tioning his claim that he was wtally disabled. He made

unreasonabi.e :o.egative comments to his doctuis about Essar ' s attempts to return him to work..

The union, f.::n· it�: part, w·:::.s defiant It wa.:o stated that �:!.1e grievor did I.:.ot come trj l:!.rbitration

with any irr�·=:r�tion of apDlogizing for a.!lyth.iDg. It ·vv·culd not concede ths.t the gnevcr did

anything culpable.

[ 1 92] Arbitrators s.re generally reluctant to state that anyone '·'lied". However, in this case there is no

other way to describe other than to state that the grievor was prepared to lie under oath, if he '

felt that the truth would not assist hi2. case . The detailed evidenc;:; I h<we reviewed about the

grievor' s tc::.timony, p.?.rcicu.lar1y a·3out l:is September 1 , 20 1 0 trip to Dubreuil ville clearly

demonstrates this. He started with a lie that he did not go to Di1breuilville. Once he realized

that Essar had undisputable evidence that he did drive to Dubreuilville, he tried to extricate

himself by fabricating more untruths . In doing so he� changed his testimony and . made

contradictory and inconsistent statements. Hi�; string of lie;:; snovv--ball,:!d until he was buried in

an avalanche of lies.

[ 193] In all of ·.�he circumst�litCes, I ha"\:e no r�s.son to interfere v1ith the pena�ty imposed.

A d. l 1 . . . t.. , . • . ' ccor mg )' , t 1e gne 'v anc�: lS here�_;y msmrs:;eG.

Dated this 28th day of March 2 0 1 4 at Hamilton, Ontario