By Don Butler
Deputy Chief Bruce Montone informed a department employee injured in a work-related vehicle accident could not be accommodated without undue hardship to the department. A human rights tribunal disagreed and has awarded the worker, now retired, what could amount to more than $100,000.
Ottawa taxpayers are on the hook for what should be a six-figure settlement after a tribunal found that the city’s fire department unreasonably failed to accommodate a former employee hurt in a workplace accident in 2003.
In a recent decision, the Human Rights Tribunal of Ontario ordered the City of Ottawa to pay Marcel Backs nearly $85,000 in back pay, sick leave, pension premium payments and compensation for “injury to dignity, feelings and self-respect.”
However, the final settlement will almost certainly exceed $100,000, because back pay has yet to be calculated for two of the years covered by the decision.
Backs, a longtime fire department employee, was injured in a workplace motor vehicle accident on July 23, 2003. According to his doctor, he suffered a severe cervical and left shoulder girdle strain that has since developed into chronic pain syndrome. Even household chores can cause his pain to flare up to unbearable levels.
Following the accident, Backs made a couple of attempts to return to work, but has been off the job since February 2005, collecting Workplace Safety Insurance Act (WSIA) benefits. He retired on Nov. 30, 2010 and has not sought reinstatement in his job.
Backs, a fire prevention officer who also worked as a dispatcher, filed a human rights complaint in February 2008, alleging that his employer had discriminated against him on the basis of a disability.
Following an evaluation at the Montfort Hospital in January 2007 that concluded Backs could perform some of his job duties with some modifications, he and his employer reached a mediated agreement to ease him back to work.
The job of fire prevention officer involves three distinct functions: investigations, inspections and public education. Backs told his employer he could not perform investigations for health reasons, but could do the other two parts of the job with minor modifications. Failing that, he said, he could work as a dispatcher, a job he was doing at the time of his accident.
But in May 2007, Bruce Montone, then the fire department’s deputy chief, informed Backs he could not be accommodated without undue hardship to the department. Montone took the position that Backs would be unable to perform two-thirds of his job — none of the investigative function and only half of the inspection and public education roles.
In testimony before the tribunal, Montone — now fire chief in Windsor, Ont. — said the department had 110,000 buildings to inspect and only 26 or 27 staff to perform the inspections. It also conducts more than 500 public education events a year, he said.
Accommodating Backs, he said, would force the remaining staff to pick up the work he couldn’t perform, impose risks to their safety and damage morale.
In an interim decision last May, tribunal chair David Muir rejected the fire department’s arguments. While accommodating Backs might impose “administrative challenges,” Muir found, “there is no real evidence that this would be an insurmountable challenge.”
Having Backs perform only the public education and inspection functions of his job, or employing him as a dispatcher, would not impose an undue hardship on the department, he concluded.
While last May’s decision settled the question of liability, the remedy wasn’t decided until last week.
Backs had been seeking more than four years back pay, but Muir said that seemed “excessive in the circumstances.” Instead, he awarded about three years back pay minus the WSIA benefits Backs had received. That amounted to $29,500 for the first 15 months, with the remainder still to be calculated.
Backs had also been seeking $50,000 in compensation for “intangible losses,” including damage to his feelings, dignity and self-respect. But the fire department said $15,000 would be more appropriate, and Muir concurred.
The two sides agreed that Backs should receive $11,732 as compensation for lost sick leave benefits. And the department agreed to contribute $28,700 to Backs’s pension plan.
Neither Backs not the city’s legal department could not be reached Wednesday for comment.
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