Telecommunications Workers Union v Telus Communications Inc., 2013 ABQB 298

Court of Queen ’ s Bench of Alberta Citation: Telecommunications Workers Union v Telus Communications Inc., 2013 ABQB 298 Date: 20130516 Docket: 1201 08013 Registry: Calgary Between: Telecommunications Workers Union Applicant - and - Telus Communications Inc. Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice R.E. Nation _______________________________________________________ I. Introduction [ 1 ] This is a judicial review of the June 11, 2012 decision of an arbitrator, P.A.

Smith, who determined that there was no breach of a collective agreement by the respondent (Telus) when it terminated a probationary employee, A.J. Whitford. Her decision deals with whether the employee suffered from a disability, whether his termination was discriminatory and whether there was a duty to accommodate. II. Issues [ 2 ] The applicant Union raised five grounds for judicial review: 1. The arbitrator erred in law in her statement and application of the legal test for prima facie discrimination.

2. The arbitrator’s conclusion that Telus did not have knowledge or imputed knowledge of the grievor’s disability was unreasonable. 3. The arbitrator’s conclusion that the duty to accommodate did not require Telus to follow up on the information they had about Mr. Whitford’s disability was unreasonable. 4. The arbitrator erred in law by placing the burden of proof on the Union to demonstrate that Mr. Whitford could have been accommodated without undue hardship. 5.

The arbitrator erred in law in concluding that the duty to accommodate could never require an employer to look outside the position for which a probationary employee was hired in the search for accommodation. III. Facts and Arbitrator ’s Decision [ 3 ] Mr. Whitford was hired by Telus as a call center agent in June of 2010. The position involved a training period and a 90-day period of probation. Near the end of the latter period, it was determined by Telus that Mr. Whitford was unsuitable for the position. His employment was terminated on October 27, 2010, before the end of his probationary period. [ 4 ] Mr.

Whitford grieved his termination, alleging that he had a known disability. [ 5 ] The arbitrator heard evidence and argument on March 1, 2 and 22, 2012 and on May 30, 2012 and delivered a written decision on June 11, 2012. She found on disputed evidence that Mr. Whitford had a condition, Asperger’s Syndrome, which fell within the definition of disability under s. 3(1) of the Canadian Human Rights Act , RSC 1985, c. H-6.

She found that the disability was a contributing factor in his failure to meet the performance standard required of him, which resulted in his termination. [ 6 ] After hearing conflicting evidence, the arbitrator found as a fact that the disability was disclosed on two occasions. Firstly, Mr. Whitford had ticked a box with the answer “yes” in response to the question “Do you have a disability?” on the on-line diversity form that he filled out when he applied for the job. Secondly, he raised his disability at a meeting on October 20, 2012, a week before his termination.

The arbitrator found that nothing more was said about his disability nor was any information provided to any of the staff supervising or rating Mr. Whitford between those two occasions. [ 7 ] The arbitrator also found that Telus, in the circumstances and given what was known to it, did not have a duty to inquire. She found that Mr. Whitford’s answer on the diversity form did not put Telus on notice sufficient to require further inquiry. Further, she found that the information given at the meeting of October 20, 2012 was too late and insufficiently detailed to meet the obligation on Mr.

Whitford to provide the information necessary for Telus to consider the issue of accommodation. [ 8 ] The arbitrator accepted the evidence of the expert Dr. Brodie that Mr. Whitford, as a result of his condition, was unable to meet the performance standards for the call center position and that there was no accommodation that could be made to that position which would allow him to meet those standards. [ 9 ] The arbitrator found that the duty to accommodate was not triggered. In the alternative, she found that if it was triggered, Telus, in the circumstances, did not breach it.

She held that, in these circumstances where Mr. Whitford was a probationary employee, there was no requirement that Telus find another position for him, whether existing or created, outside of the call centre. Therefore, there was no breach of the collective agreement in failing to initiate an accommodation process, the only goal of which could be to find a different position for him in a place other than the call center.

IV. Standard of Review [ 10 ] The parties agree that the standard of review on issues 2 and 3 is reasonableness, as they are questions of mixed fact and law. The standard of review is in dispute between the parties on issues 1, 4 and 5. The Union takes the position that the standard of review on those issues is correctness, while Telus takes the position that the standard of review should be reasonableness. A. Relevant Statutory Background [ 11 ] The grievance was conducted under the terms of a collective agreement between the Union and Telus, which provided in

Article 4.01: The Company and the Union shall not discriminate on the basis of race, nationality or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and a conviction for which a pardon has been granted and as otherwise provided by the Canadian Human Rights Act , unless proper and just cause exists. [ 12 ] The Canada Labour Code , R.S.C., 1985, c. L-2, which applies to this arbitration, includes a privative clause: 58.

(1) Every order or decision of an arbitrator or arbitration board is final and shall not be questioned or reviewed in any court.

(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari , prohibition, quo warranto or otherwise, to question, review, prohibit, or restrain an arbitrator or arbitration board in any of their proceedings under this Act. [ 13 ] The application for judicial review was brought for an order in the nature of certiorari to quash the decision and an order in the nature of mandamus to remit the matter to a differently constituted board of arbitration for a hearing and adjudication de novo , pursuant to the Alberta Rules of Court , Rules 3.15-3.24. [ 14 ] The Canadian Human Rights Act provides as follows in s. 7 : 7 It is a discriminatory practice, directly or directly: (

a) to refuse to employ or continue to employ an individual, or (

b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. B. The Law [ 15 ] In Dunsmuir v New Brunswick , 2008 SCC 9 , 1 SCR 190, the Supreme Court of Canada attempted to clarify what it referred to at para. 1 as “the troubling question of the approach to be taken in judicial review of decisions of administrative tribunals”. The Supreme Court held in that case that there are two standards of review: reasonableness and the less deferential standard of correctness.

[ 16 ] The Court in Dunsmuir at paras. 54 to 58 set out guidance relating to questions that, under existing law, will be reviewed on a reasonableness standard. A reasonableness standard (or deference) is usually the case where a tribunal is interpreting its own statute or statutes closely connected to its function. This standard may also be warranted where an administrative tribunal has developed particular expertise in the application of the law to a statutory context. Adjudication in labour law was identified as an example of this.

The Court also identified the following factors as leading to deference: (1) a privative clause, which indicates a statutory direction from Parliament or the Legislature for deference; (2) a discrete and special administrative regime in which the decision maker has special expertise (labour relations was specifically identified); and (3) the nature of the question of law. A question of law that is of central importance to the legal system and is outside the specialized area of expertise of the tribunal will attract a correctness standard.

A question of law that does not rise to that level may be compatible with a reasonableness standard. [ 17 ] To further streamline or simplify the process of judicial review, the Court in Dunsmuir at para. 62 prescribed a two-step process. First, the reviewing court should ascertain whether the standard of review appropriate to the case before it has been satisfactorily determined in the existing jurisprudence. If not, the court should analyze the relevant factors to identify the proper standard of review.

Those factors are: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation of its enabling legislation; (3) the nature of the question at issue; and (4) the expertise of the tribunal. (See, for example, P.A. L. v Alberta (Criminal Injuries Review Board) , 2012 ABCA 177 at para. 17 .) [ 18 ] Reasonableness has been defined as the existence of justification, transparency and intelligibility within the decision-making process, and a concern that the decision fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law ( Dunsmuir at para. 47 ).

By contrast, in applying the correctness standard, a reviewing court will show no deference, but will instead undertake its own analysis of the question. The court will then decide if it agrees with the determination of the decision maker; if not, it will substitute its own view and provide the correct answer. (See Dunsmuir at para. 50 .) [ 19 ] The Alberta Court of Appeal addressed the issue of the standard of review for human rights decisions generally in the case of Walsh v. Mobil Oil Canada , 2008 ABCA 268 , 440 AR 199.

In that case, the Court looked specifically at the level of deference to accord to a human rights tribunal and pointed out that deference is appropriate for questions of fact, but not for questions of law. The Court went through an analysis of the standard of review at paras. 52 through 55 and, at para. 54, pointed out that, in recent decisions of the courts addressing the standard of review applicable to human right tribunals, limited deference had been afforded to findings of fact, but none to questions of law.

The Court made these comments at para. 55: In our view, in light of Alberta’s human rights legislation, the existing case law answers the question of standard of review, at least in a general sense. It indicates that human rights tribunals, such as the panel in this case, may be afforded some deference with respect to findings of fact and credibility, given their role in hearing viva voce evidence.

However, reviewing courts will be unconstrained in their assessment of the evidence as it relates to the applicable law, particularly where an error is found in respect of the tribunal’s articulation of the law. [ 20 ] The correctness standard was used in the case which was the focus of much of the argument before me on issue 1. In Burgess v Stephen W. Huk Professional Corp. , 2010 ABQB 424 , 30 Alta. LR (5 th ) 262, Justice Moreau concurred with counsel that correctness was the standard of review under the Alberta Human Rights Act , R.S.A. 2000, c.

A-25.5 for considering whether the tribunal applied the proper legal test in determining whether the appellants had established a prima facie case of discrimination. [ 21 ] I recognize, however, that these Alberta cases refer to Alberta’s human rights legislation, which allows an appeal process, whereas the Canada Labour Code has a much more restrictive privative clause. C. Applying the Principles to Decide the Appropriate Standard for Each Question 1. Issue 1 [ 22 ] The Union argues that this is a question of law: is knowledge part of a finding of discrimination and, if so, who has the onus to prove knowledge?

The Union argues this is not a question arising from interpreting the home statute per se , but rather a question of law in the human rights area. Also, the Union asserts that this is a question of law that is of interest and relevance not only to labour arbitrators, but also to courts and other tribunals, all of which deal with the issue of proof of discriminatory practices. It argues that the

standard of review discussion in Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada , 2012 SCC 35 , 2 SCR 283 is relevant, as the Supreme Court of Canada held in that case that if a court and a tribunal could have concurrent jurisdiction, consideration must be given to the correctness standard for reviewing an issue of law. [ 23 ] Telus argues that this is not a question of law that is of general importance to the legal system or that is outside the expertise of a labour arbitrator (in this case, a lawyer chosen by the parties).

It argues that this is not a question of general law, of jurisdiction, or of such importance that it should be an exception to the usual deference; rather, it is the type of issue that labour arbitrators have to deal with regularly.

It cites United Nurses Association, Local 301 v Capital Health Authority (University of Alberta) , 2009 ABCA 202 , 457 AR 61 for the caution that the decision being reviewed should be taken as a whole, rather than dissected into separate analyses, and that the outcome should be assessed as a whole on the reasonableness standard. [ 24 ] In addition, Telus points out that there is a strong privative clause in the Canada Labour Code , and case law has supported the idea that human rights matters are to be resolved by arbitration.

Thus, labour arbitrators can and must interpret human rights legislation when dealing with grievances under a collective agreement. (See Parry Sound (District) Social Services Administration Board v Ontario Public Service Employees Union, Local 324 , 2003 SCC 42 , 2 SCR 157.) [ 25 ] The Union asserts that the arbitrator erred in her statement of the test to determine prima facie discrimination and, specifically, who has the onus to show knowledge of the disability. Its position is that this is a legal issue.

The question is whether knowledge is required for a finding of discrimination, such that the onus of proof lies on the employee; or whether it is only a part of the decision about the duty to accommodate, in which case the onus lies on the employer. [ 26 ] Ordinarily, in a case dealing with labour arbitration under a statute with a strong privative clause, one would start with a deferential standard of reasonableness. However, in my view, what is at issue here is a question of law in an area that is relevant to general human rights issues, which may be decided by a number of different tribunals or courts.

All of this suggests a correctness standard of review. [ 27 ] Further, it seems that the appropriate standard of review for questions of this kind has been established in the existing jurisprudence, as contemplated by the Supreme Court of Canada in Dunsmuir . In Lethbridge Regional Police Service v Lethbridge Police Association , 2013 ABCA 47 , our Court of Appeal held as follows at para. 28: Labour arbitrators are sometimes required to consider human rights and discrimination issues, and in this case the human rights issues were specifically referred to the arbitrator.

Human rights issues are unusual in that they may be decided by a number of tribunals: human rights commissions, labour arbitrators, professional disciplinary bodies, and the ordinary courts ... Where a number of tribunals have concurrent jurisdiction over an issue, consistency requires that review be for correctness ... Likewise, the nature of human rights issues are that they are questions of law of general importance to the legal system. In the circumstances, the appropriate standard of review is correctness (even when such issues are decided by human rights panels)...

However, the underlying factual findings of the arbitrator are still entitled to deference. [ 28 ] In light of all of the foregoing, I find that the standard of review on issue 1 is correctness. 2. Issue 4 [ 29 ] The Union asserts that issue 4 is a question of law, namely whether the arbitrator erred by placing the burden of proof on the Union to demonstrate that Mr. Whitford could have been accommodated without undue hardship. For reasons that will be discussed in more detail in paras. 50 ff. below, I find this is an improper characterization of the issue.

I find that the arbitrator neither stated that in law the burden of proof is on the Union, nor, in fact, placed the burden of proof on the Union. [ 30 ] The application of the burden of proof to a set of facts is a question of mixed law and fact and the standard of review for this question is reasonableness. 3. Issue 5

[31] The Union also frames this issue as a legal question, namely whether the arbitrator erred in concluding that the duty toaccommodate could never require an employer to look outside the position for which a probationary employee was hired. [32] Again, I do not agree with that characterization of this issue.

The arbitrator found that in this case: (1) where the employee wason probation; (2) the Union’s own evidence was that the employee was unable to do the job for which he was hired; and (3) there wereno possible modifications to that position which would enable him to meet the required standards; Telus was not obliged to look for otherjobs in the organization as a form of required accommodation. This is a question of the application of the law on accommodation to thefacts of this case. It is a question of mixed fact and law and the standard of review is reasonableness. D.

Conclusion on the Standard of Review [33] As a result, correctness is the standard of review for issue 1 and reasonableness is the standard of review for issues 2 through5. V. Analysis A. The arbitrator erred in law in her statement and application of the legal test for prima facie discrimination [34] The arbitrator held that, as a crucial ingredient in establishing a prima facie case of discrimination, the complainant must showthat the respondent was aware or ought reasonably to have been aware of the applicant’s disability and his need for accommodation.

Thearbitrator held that the onus does not shift to the respondent to prove that it met its duty to accommodate until that is established. Thearbitrator accepted and stated the law as it was determined in Burgess, in which this Court specifically dealt with the question of onuswhere knowledge of the disability is an issue. [35] The Union argues that this is an error of law.

It points out that the Supreme Court of Canada has been clear that the onus is onthe applicant to show three things to establish a prima facie case of discrimination: (1) that the grievor has a characteristic protected fromdiscrimination under the Code; (2) that the grievor experienced an adverse impact with respect to the service; and (3) that the protectedcharacteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent tojustify the conduct or practice within the framework of the exemption available under human rights legislation.

If it cannot be justified, discrimination will be found. The Union correctly cites Moore v British Columbia (Education), 2012 SCC 61, 351 DLR (4th) 451 asreiterating the three part test for a prima facie case. This was also discussed at the appellate level in Armstrong v British Columbia (Ministry of Health), 2010 BCCA 56, 2 BCLR (5th) 290. The Union argues that Burgess was decided without the benefit of the Court ofAppeal’s decision in Armstrong, and that the Supreme Court of Canada definitively set out the test in Moore. [36] Telus responds by arguing that Burgess is correctly decided.

It points out that neither Moore nor Armstrong dealt with thesituation where the employer did not have knowledge of the characteristic prohibited from discrimination. Thus, although the appealcourts have set forth a three-part test with a clear onus on the grievor to establish a prima facie case of discrimination, and made it clearthat there is a shift in the onus when the question comes to justification, Telus maintains that the analysis set out in Burgess is correct inthe unusual situation where there is a question of the employer’s knowledge.

Telus argues that the burden of establishing that theemployer knew or ought to have known of the circumstances giving rise to the claim of discrimination lies on the complainant, who isbest situated to adduce evidence of the nexus between the adverse treatment and the protected ground or evidence of the particulardiscriminatory impact of the rule, decision or conduct.

It is also the complainant who is best situated to point out the notice of disabilityprovided to his employer. [37] Telus argues that the requirement that an employee prove the employer had actual or imputed knowledge of his disabilityarises from the decision in Central Okanagan School District No. 23 v Renaud, (SCC), [1992] 2 SCR 970, in which theSupreme Court of Canada held at paras. 43 and 44 that an employee must bring his disability to his employer’s attention before any dutyto accommodate is triggered.

[ 38 ] The arbitrator addressed this at p. 13 of her decision under the heading “Was the duty to accommodate triggered and was it breached?”. She stated that applying the three-part test for a prima facie case of discrimination was not sufficient to warrant a conclusion that the grievor had a disability that played a role in his termination. She relied on Burgess and found that conduct would not be discriminatory if the employer had no knowledge that there was a disabling condition as defined by the Code which required accommodation.

She examined whether the grievor could show that Telus was aware or ought reasonably to have been aware of his disability and the need for accommodation, before she shifted the onus to Telus to prove it had met its duty to accommodate. [ 39 ] Applying the correctness standard of review, I find that the arbitrator made no error of law on this issue. She followed the decision of Justice Moreau in Burgess , which I find is a correct statement of the law.

While subsequent cases at the appellate and Supreme Court of Canada level have reiterated the three-part test for prima facie discrimination, they all deal with the usual case where it was clear that the employer knew of the condition. Justice Moreau undertook a detailed consideration of the issue that arises when the employer says it did not know of the condition. I find it appropriate that this is raised before the duty to accommodate is examined. [ 40 ] Therefore, I find that the arbitrator made no error in her statement of the legal test. B.

The arbitrator ’s conclusion that Telus did not have knowledge or imputed knowledge of the grievor ’s disability was unreasonable [ 41 ] The Union argues that the arbitrator’s finding that Telus did not have knowledge or imputed knowledge of Mr. Whitford’s disability was unreasonable. Its argument is that the arbitrator did not consider whether the placement of a tick on the diversity form was sufficient in itself to fix Telus with imputed or actual knowledge, regardless of further inquiries; rather, she considered this fact only in conjunction with Mr. Whitford’s evidence of what he thought he had said.

The Union also argues that the arbitrator did not consider the diversity form in combination with the meeting on October 20, 2012. The Union’s position is that, as this is a human rights review, the onus on the grievor is not high and must be looked at objectively, generously and purposively. [ 42 ] Telus argues that for Mr. Whitford to remain silent through all the coaching sessions and reviews during his probationary period and to raise his disability only at the very end when it was obvious he was going to be terminated, was not sufficient to make Telus aware of his disability.

It asserts that any disclosure had too little detail and came too late in his probationary period. Telus also argues that, reading the reasons of the arbitrator as a whole and without “nitpicking”, it is clear that Mr.

Whitford’s ticking the box indicating that he had a disability, together with the limited information given, was not sufficient disclosure of his disability in the circumstances of this case. [ 43 ] In her reasons at p. 15, the arbitrator found the facts on disputed evidence and then held that she was not satisfied that the grievor provided Telus with the information necessary for it to assess the issue of accommodation. She considered whether merely ticking a box on the diversity form should have put Telus on notice in conjunction with other evidence.

She did not specifically look at whether the ticked box, in itself, was sufficient notice of the disability, but obviously she did not think so, as it was less than the information given at the meeting of October 20, 2012. [ 44 ] Although the arbitrator did not expressly review and articulate reasons for each scenario separately, when one looks at her reasons and decision, her application of the law to the facts is not unreasonable. To the contrary, it is clear and thoughtful and, as required by the reasonableness standard, is one of the possible outcomes in this case. C.

The arbitrator ’s conclusion that the duty to accommodate did not require Telus to follow up on the information they had about Mr. Whitford ’s disability was unreasonable [ 45 ] The Union argues that Mr. Whitford communicated sufficient information to Telus that it should have been aware that he had a disability.

Further, the Union argues that while Telus was not aware of the exact nature of this disability, it had sufficient information to raise the duty to accommodate, which involves an inquiry into the nature of the disability and the accommodation required. [ 46 ] The duty to accommodate places a burden on the employer. The Union argues that Telus had sufficient knowledge to trigger the duty to accommodate and it did nothing. Therefore, it could not possibly have met its burden.

[ 47 ] Telus responds that the decision made by the arbitrator was one of the reasonable options open to her. It argues that a high degree of suspicion, almost rising to the level of willful blindness, is necessary to establish a duty to inquire. Telus argues that the arbitrator determined this level was not reached as the symptoms exhibited by the grievor would not trigger suspicion in a reasonable observer and the grievor did not raise his disability in any substantive way during his employment. [ 48 ] The arbitrator dealt with this issue at p. 15 of her decision. She held that, other than Mr.

Whitford’s vague reference to his condition at the meeting on October 20, 2012, there was nothing that would have alerted Telus to the disability that caused or contributed to his performance difficulties. She found that the message given to Telus by the grievor was that he understood his performance deficiencies and was working to improve them. The deficiencies were not ones that an employer would have reason to suspect were related to a disability.

In the alternative, the arbitrator also looked at whether the ticked box on the diversity form would put Telus on notice sufficient to inquire further, but she determined it did not. [ 49 ] I find that the arbitrator went through a careful and detailed reasoning process and that, on a reasonableness standard of review, these findings are among the conclusions to which an arbitrator reasonably could come, looking at the law and the facts as she found them. D. The arbitrator erred in law by placing the burden of proof on the Union to demonstrate that Mr.

Whitford could have been accommodated without undue hardship [ 50 ] The Union correctly states that, once discrimination has been proved, the burden of proof is on the employer to make out this defence by showing that steps were taken to accommodate the complainant or that alternatives were considered and rejected and it was concluded that the complainant could not be accommodated without undue hardship. The Union argued that the arbitrator erred by placing the burden of proof on the Union to demonstrate that Mr.

Whitford could have been accommodated short of undue hardship. [ 51 ] In support of this proposition, the Union pointed to the following statement in the decision at p. 16: “The Union strongly argued that Telus breached its obligation because it did not put in place a process to consider accommodation.

That however, presumes that there is a potential accommodation that Telus would be obligated to consider.” [ 52 ] In advancing this argument, the Union appears to ignore the fact that the arbitrator was addressing the issue of accommodation in the alternative, having already found that discrimination had not occurred. Moreover, the Union had called evidence about other available jobs to accommodate the grievor.

It was clear that Telus had never contemplated other positions, as it did not have knowledge of the disability early enough for it to consider accommodation. [ 53 ] I do not interpret the arbitrator’s statement as a misplacement of the onus. She was responding to the Union’s argument by indicating that the fact that Telus had done nothing did not mean that it had failed to accommodate, though that would ordinarily be the case.

In this unique case, given the facts that the disability that could not be accommodated in the call center and that the grievor was a probationary employee in that department, the arbitrator’s conclusion was that Telus had not failed in its duty to accommodate. Reading the lines of the decision pointed to by the Union in the context of the facts and the rest of the reasoning, I find that the arbitrator did not put the burden of proof on the Union to demonstrate that Mr. Whitford could have been accommodated short of undue hardship. E.

The arbitrator erred in law in concluding that the duty to accommodate could never require an employer to look outside the position for which the probationary employee was hired in the search for accommodation [ 54 ] The Union argues that it is incorrect to say that an employer would never be required to seek accommodation by looking outside the employee’s position. Its argument is that this is an error as the duty to accommodate is contextual and the exact content of the duty will vary depending on the circumstances. The Union argues that the arbitrator held that as Mr.

Whitford was a probationary employee, Telus had no duty to consider accommodation outside his current position. [ 55 ] Telus’

interpretation of the decision is that Telus, on the unique facts of this case, was not required to consider an alternative position for the grievor outside the call center, as that would amount to undue hardship in the circumstances. Like the Union, Telus argues that the duty to accommodate is contextual, and the exact duty on any employer is driven by the circumstances of each case.

Telus argues that the whole decision has to be considered and that the arbitrator found that requiring Telus to look outside the call centerwould be undue hardship in the circumstances of this case. [56] I have decided that the standard of review of this issue is reasonableness, and as I stated in para. 32 above, this question needsto be re-framed, as the actual issue is whether the arbitrator erred in applying the law on accommodation to the facts of this case. [57] It must be remembered that the arbitrator’s statement at p. 16 is obiter and is in the alternative.

She had already found thatthere was no discrimination in this case, given her finding that Telus had no knowledge of the disability, and that the duty toaccommodate did not arise if there was no knowledge. [58] The arbitrator began by saying that, given the factual circumstances, the type of disability, and the facts that the grievor wasunable to meet the performance standards of the position and no accommodation could be made to allow him to meet these standards inthe call center, the weight of the case law was that Telus was not in violation of any of its obligations under the collective agreement. [59] The arbitrator then went on to examine three cases: Bonner v Ontario (Ministry of Health) (1992) (ONHRT), 16 CHRR 485, Re Dominium Castings Ltd. v USWA, Local 9393, [1996] OLAA No. 958 and Worobetz v Canada Post, [1995]CHRD No. 1.

She noted that in those cases, the tribunals in question had decided that the duty to accommodate had to be addressed interms of the particular work for which a new employee was hired. She agreed with that “analysis” for this case also. She also noted thatin Worobetz there had been some training and testing, which could be considered an accommodation.

Nevertheless, the tribunal in thatcase found that it would be an undue hardship to relocate a short-term, on-call casual employee to another job he might be able toperform. [60] Thus, the arbitrator here was alive to the issues that arose on accommodation, and was performing an undue hardshipassessment, on the unique facts of this case, a probationary employee, where no accommodation could be made to accommodate him forthe job for which he applied. [61] I find that the arbitrator did not decide this matter on a misapprehension of the law and did not state that accommodation to adifferent position would never be required in respect of a probationary employee.

Rather, she determined that, on the facts of this case,where the evidence was that no accommodation could be made for the probationary employee in the position for which he was hired,Telus was not required to accommodate the employee in a different position. [62] I find support for this conclusion in the comments made by our Court of Appeal in the recent Lethbridge Police case, citedabove.

In that case, the Court of Appeal reviewed in detail the status of probationary employees and, at paras. 30 and 31, made thesecomments about the limited scope for review of an employer’s decision not to continue a probationary employee: ...a decision not to continue a probationary employee can generally only be reviewed for bad faith. ...

It is important that the limited basis for reviewing decisions following probationary status be respected. [63] The Court of Appeal also commented at para. 34 that “Drawing distinctions based on actual inability to do the work is notdiscrimination” and at para. 40 that “human rights legislation is not designed to insulate those actually unable to perform a job.” [64] In my view, these comments support the arbitrator’s conclusion that, in these circumstances, Telus had no duty toaccommodate Mr. Whitford by finding a position for him outside the call centre.

Therefore, reviewed on a standard of reasonableness,no error was made by the arbitrator in relation to this issue. VI. Conclusion

[ 65 ] The application for judicial review of this decision is dismissed. [ 66 ] If the parties cannot agree on costs, either party may apply to the Court for the appropriate cost award. Heard on the 19 th day of March, 2013. Dated at the City of Calgary, Alberta this 16 th day of May, 2013. R.E. Nation J.C.Q.B.A. Appearances: William J. Johnson, Q.C. and Kathleen T. Ganley McGown Johnson for the Applicant John Gilmore and Stephen Beernaert Bennett Jones LLP for the Respondent