Harassment Claim Partially Successful: Accommodation Request Denied

Date: 2026 0210 File s: 566- 02- 45284 to 45288 Citation: 2026 FPSLREB 14 Federal [NAME] and Employment Board Act and Federal [NAME] Act Before a panel of the Federal [NAME] and Employment Board [NAME] and [NAME] ( Department of National Defence) Employer Indexed as [NAME] v. [NAME] (Department of National Defence) In the matter of individual grievances referred to adjudication Before: [NAME], a panel of the Federal [NAME] and Employment Board For [NAME]: [NAME], Public Service [NAME] of Canada For the Employer: [NAME], counsel ADVANCE \y 657 Heard at Edmonton, Alberta, May 6 to 9, 2025 .

REASONS FOR

DECISION I. Overview [ 1 ] At all material times, [NAME] (“[NAME]”) worked with the Department of National Defence ([NAME]) as a family peer support coordinator in its Operational Stress Injury Social Support (OSISS) program. Between 2019 and 2022, she filed four grievances, all of which were ultimately referred to adjudication. [ 2 ] The first grievance relates to an allegation of harassment by reason of sex or gender in breach of article 19 (no discrimination), and the failure to provide a safe workplace contrary to article 22 (health and safety), of the applicable collective agreement. The three other grievances are about the refusal of the [NAME] (“the employer”) to exempt [NAME] from its mandatory COVID-19 vaccination [NAME] ( [NAME] on COVID-19 Vaccination for the Core Public Administration, including the Royal Canadian Mounted Police ; “the [NAME]”) on medical grounds, which led to her being placed on leave without pay (LWOP). Specifically, she argues that the employer discriminated against her, in breach of article 19, by failing to accommodate her disability. [ 3 ] At the commencement of the hearing, [NAME] withdrew the grievance numbered 5240. It was one of the three grievances against the employer’s alleged refusal to accommodate her by granting her a medical exemption from the [NAME]. It had been referred to adjudication under ss. 209(1)(a) and (b) of the Federal [NAME] Act (S.C. 2003, c. 22, s. 2; “the Act ”).

Accordingly, Board file nos. 566-02-45286 and 45287, relating to that grievance, are closed. [ 4 ] At the hearing, the employer raised two preliminary objections to the jurisdiction of the Federal [NAME] and Employment Board (“the Board”, which in this decision also refers to any of the current Board’s predecessors) to hear the first grievance, which alleges breaches of articles 19 and 22. The first objection is grounded in s. 208(2) of the Act , which provides that an employee may not present an individual grievance in respect of which another administrative procedure for redress is provided under other federal legislation. To support the second objection, the employer argues that the Board has no jurisdiction to hear an individual grievance alleging a breach of a health-and-safety provision, such as the one in article 22, because it is a consultative provision and does not provide a basis for an individual grievance. [ 5 ] With respect to the first objection, I have determined that the other administrative procedure for redress was incapable of providing a real redress that could be of personal benefit to [NAME] in relation to the essential elements of her grievance. Consequently, I dismiss it. However, I agree with the employer that the Board has no jurisdiction to hear an individual grievance alleging a breach of a health-and-safety provision. [ 6 ] For the reasons that follow, as far as the first grievance is concerned, I have determined that the employer breached article 19 of the applicable collective agreement. However, I have denied the two remaining grievances that challenge the employer’s refusal to exempt [NAME] from the [NAME].

II. Summary of the evidence [ 7 ] [NAME] testified on her own behalf. She did not call any witnesses. The employer called two witnesses, [NAME], now retired, and [NAME]. [NAME] was the commanding officer of the [NAME]’s Transition Unit for Alberta and Northern Canada (CAF TU AB/North) starting in July 2019 until his retirement in May 2022. At all relevant times, [NAME] was the regional coordinator for the [NAME]. [ 8 ] [NAME] joined [NAME] in July 2015. However, on her first day of employment, she was seconded to [NAME], where she worked as a family peer support coordinator in the [NAME]. Her position was classified at the PM-03 group and level. She was represented by the Public Service [NAME] of Canada and was subjected to the [COMPANY]) collective agreement between the employer and her bargaining agent. [ 9 ] The [NAME] aims to provide peer support to the families of and serving or retired members of the Canadian Armed Forces (CAF) who suffer an operational stress injury. A. Discriminatory harassment, and the failure to provide a safe workplace - articles 19 and 22 of the collective agreement (Board file no. 566-02-45284) [ 10 ] [NAME] reported directly to [NAME] upon her arrival at [NAME] in July 2015. [NAME] was the regional coordinator of the [NAME] in [NAME]’s Alberta North region. At first, their interpersonal relationship was positive. She was what is colloquially termed his right hand and would do extra work to assist him. She worked on several national projects and received the Commander’s Commendation for her work on one of the national projects. [NAME] testified that [NAME] had high expectations of her. [ 11 ] In 2017, [NAME] went on special leave, to work on a [NAME]. He returned to his substantive position on April 1, 2019. He did not supervise [NAME] while he was on leave. During his absence, [NAME] removed herself from one of the national projects — the database [NAME] — due to her heavy workload. [ 12 ] Upon his return, things went well between them, at first. According to [NAME], their relationship began to deteriorate when [NAME] began to assert professional boundaries. Specifically, she began to feel harassed by [NAME] when she refused his offer to engage in a [NAME] and informed him that she no longer wished to participate in the database [NAME], due to her heavy workload. Of note, the [NAME] is not mandatory; it is considered a reward for good performance. [ 13 ] Several times, [NAME] explained to [NAME] that she had no time to take on any additional work and respectfully declined his offer to engage in the [NAME], orally and by email. However, according to her, he refused to accept her decision. She testified that a male employee told her that he had had to decline only once the offer to participate in the plan. [ 14 ] After she refused to engage in the [NAME] and informed [NAME] that she no longer wished to be part of the database [NAME], she started to feel that she was being treated as an enemy. Weird things began to happen. For example, she was removed from a national [NAME] ([NAME]) with no notice. When she inquired as to why she was removed, she learned that he had told the [NAME] manager that she was no longer interested in it, which was not true. After she reiterated her desire to remain on the [NAME], and given that there was no one else who could do the work that she was doing at that time on that [NAME], she was put back on it. [ 15 ] Around the same time, she noted that [NAME]’s behaviour toward her became hostile. For example, he would hold her in the office for lengthy meetings, would twist her words, would yell across the office to her instead of calling her, emailing her, or simply going to her office. She felt that he was manipulating her during meetings. He would approach her with an angry demeanour. Often, she would leave his office without knowing what had happened. According to [NAME], he openly belittled her position in front of her colleagues. [ 16 ] [NAME] testified that the more she tried to assert boundaries, the worse his behaviour became. Toward the end of May 2019, [NAME] began to feel physically intimidated by [NAME]. For example, one time, after she emailed him, requesting permission to work remotely for two days on a [NAME], he stormed into her office, blocked the door, made aggressive gestures, and used inappropriate and offensive language. He asked her if she “seriously thought he was just trying to be a dick”. [ 17 ] [NAME] left her office, she burst into tears and then left work for the day. She found him aggressive, and she felt scared. He was in a position of power. She felt dismissed and isolated. [ 18 ] Although mediation through Integrated Conflict and Complaint Management Services was proposed, in an attempt to resolve the situation between [NAME] and [NAME], it did not take place. According to her, his behaviour toward her did not improve and continued to escalate. From July 2 to 12, 2019, she decided to take vacation leave (67.5 hours), to distance herself some from the situation. She used vacation leave, instead of sick leave, because it does not require a medical note and because there were some issues with [NAME] taking sick leave. [ 19 ] Around that same time (i.e., July 2019), the new commanding officer, [NAME] , arrived. In late July or the beginning of August 2019, [NAME] approached him directly, to inform him of the situation between her and [NAME]. [ 20 ] [NAME] appeared to be supportive at first. In an attempt to repair the relationship, he suggested an informal mediation session between her and [NAME]. [NAME] agreed. In preparation for the session, which took place on August 9, 2019, [NAME] met with her and [NAME] individually. [ 21 ] During the informal mediation, [NAME] hoped to obtain a general acknowledgement of the issues, to broker a plan to address them, and to secure a commitment from the participants to move forward with that plan. But things did not go as he had hoped. The session, in his words, “felt more like a rebuttal and justifying actions” rather than an open dialogue. He did not obtain an acknowledgement from [NAME] of the impact on [NAME]. He felt that more work would be required than what he had initially thought. But he did not give up hope. He still felt that it was possible to repair the relationship and work toward a common goal. [ 22 ] [NAME] testified that she did not feel that her concerns were addressed during the informal mediation. Her evidence was not discussed, and [NAME] could not recall a single thing she spoke of, despite her submitted evidence. The meeting lasted over two hours. She felt dismissed, unheard, and not taken seriously. They did not resolve any issues during the informal session. [ 23 ] Although several times, [NAME] asked to be separated from her supervisor, [NAME]’s view was that her situation with [NAME] did not meet the exceptional criteria for separation set out in the Harassment Prevention and Resolution Instructions (“the Instructions”). He was of the opinion that it would be best to keep the parties together, to address the issues that they faced. He wanted to focus on the relationship; he did not believe that moving them to a different building would solve any problems. Also, he did not have an appropriate alternative location in which to separate them. [ 24 ] According to [NAME], after the informal mediation session, [NAME]’s behaviour toward [NAME] became emboldened. None of the professional boundaries that she requested were implemented. He left her out of meetings. He either gave her attention that she did not want or ignored her. As a result, a few weeks later, on August 30, 2019, she made a formal harassment complaint against him. [ 25 ] She made two allegations. The first allegation reads, “Intimidation; unsafe workplace”. It is about [NAME] entering her office multiple times and behaving inappropriately toward her. The second allegation reads, “Improper use of authority”. In connection with it, she alleged that [NAME] made inappropriate and judgmental comments about her personal circumstances, was aggressive when approaching her office, belittled her position in front of her colleagues, reassigned her work without cause, and unjustifiably criticized her work. To support each allegation, she provided specific incidents and backed them up with evidence. [ 26 ] [NAME] reviewed the complaint and sought advice from [NAME]. To allow him to complete the situational assessment and determine whether the allegations met the definition of harassment, he asked [NAME] for additional information. He testified that to meet the definition of harassment, an allegation must meet all of the six essential criteria set out in the Instructions at section 4.6, entitled “Criteria of the Definition”. [ 27 ] [NAME] provided him with a revised version of the harassment complaint on September 23, 2019. In it, she did not indicate that she was being treated differently because of her sex or gender. [ 28 ] In consultation with [NAME] determined that the first allegation met the definition of harassment and that it would be retained for investigation. However, for the second allegation (i.e., the improper use of authority), he concluded that [NAME] did not inappropriately exercise his authority over [NAME] and that he “… would not have reasonably known that his actions caused offense or harm.” Therefore, in his view, this allegation did not meet the definition of harassment and was not to be investigated further. [ 29 ] During the investigation, [NAME] interviewed [NAME] and only one of the three witnesses who she indicated could corroborate her allegations, [NAME]. He did not interview [NAME] or [NAME], as [NAME] had suggested. [ 30 ] [NAME] testified that although he spoke informally with [NAME] and [NAME], he did not tell them that he was talking to them in relation to [NAME]’s harassment complaint and did not specifically discuss with them [NAME]’s allegations. He testified that he simply tried to obtain from them the “feel” of how things were going in the office. In a nutshell, the discussion revolved around the office dynamics and how things were with [NAME] but did not specifically address [NAME]’s allegations. [ 31 ] Based on the information that he gathered, he was unable to conclude that [NAME] had a malicious intent to harm [NAME] or that he deliberately meant to intimidate her. Consequently, he dismissed her harassment complaint. He communicated his decision to her on November 27, 2019. [ 32 ] However, in cross-examination, when [NAME]’s representative directed him to section 4.6.2 of the Instructions, he agreed that intention is not required to conclude that harassment occurred. [ 33 ] Pending the investigation’s completion, and before he informed [NAME] that her complaint had been dismissed, by email dated October 28, 2019, [NAME] asked the parties whether they would be interested in participating in mediation to resolve, if not all, at least some “friction points”. He did this because in his view, the decision on the harassment complaint — whether or not it was found substantiated — would not repair their relationship. [ 34 ] [NAME] agreed. [NAME] did not. In her lengthy email to [NAME], dated October 28, 2019 , she explained that given the circumstances, and considering [NAME]’s continual manipulative and bullying behaviour toward her, she was of the view that mediation was no longer appropriate. In other words, she did not feel that the mutual respect necessary for conflict resolution was present. [ 35 ] In cross-examination, [NAME] acknowledged that she did not indicate in her email to [NAME] that she was being treated differently because of sex or gender. The reason was that she did not think that it would be helpful to mention it in the email, and she felt that she was already in a very precarious situation. [ 36 ] A few weeks later, [NAME] provided the employer with a medical note dated November 13, 2019, recommending that she work in an alternate location, to avoid contact with [NAME]. [ 37 ] On November 14, 2019, [NAME] filed a grievance (numbered 2040, and in Board file no. 566-02-45284). It reads as follows: “I grieve the Employer is in violation of Article 19 and Article 22 and any other applicable articles with the [NAME] and any other acts, legislations and policies/directives.” [ 38 ] In terms of corrective actions, in summary, [NAME] requested to be compensated for all losses and for any additional expenses that might result from the situation, that the employer cease the discriminatory practice and take measures to redress and prevent the practice from occurring in the future, that it provide alternate work arrangements during the investigation, and that it compensate her for pain and suffering and for its wilful and reckless engagement in the discrimination. The collective agreement articles referenced in the grievance read as follows: … [ … ] **Article 19: no discrimination **Article 19 : élimination de la discrimination ** ** 19.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practised with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, gender identity and expression, family status, marital status, mental or physical disability, membership or activity in the [NAME] or a conviction for which a pardon has been granted. 19.01 Il n’y aura aucune discrimination, ingérence, restriction, coercition, harcèlement, intimidation, ni aucune mesure disciplinaire exercée ou appliquée à l’égard d’un employé-e du fait de son âge, sa race, ses croyances, sa couleur, son origine nationale ou ethnique, sa confession religieuse, son sexe, son orientation sexuelle, son identité ou expression de genre, sa situation familiale, son état matrimonial, ses caractéristiques génétiques, son incapacité, son adhésion à l’[NAME] ou son activité dans celle-ci ou une condamnation pour laquelle l’employé-e a été gracié. … […] Article 22: health and safety Article 22 : santé et sécurité 22.01 The Employer shall make reasonable provisions for the occupational safety and health of employees. The Employer will welcome suggestions on the subject from the [NAME], and the parties undertake to consult with a view to adopting and expeditiously carrying out reasonable procedures and techniques designed or intended to prevent or reduce the risk of employment injury. 22.01 L’employeur prend toute mesure raisonnable concernant la santé et la sécurité au travail des employé-e-s. Il fera bon accueil aux suggestions de l’[NAME] à cet égard, et les parties s’engagent à se consulter en vue d’adopter et de mettre rapidement en œuvre toutes les procédures et techniques raisonnables destinées à prévenir ou à réduire les risques d’accidents de travail. … [ … ] [ 39 ] [NAME] explained that she filed the grievance because she felt that [NAME] harassed, disrespected, and ignored her because she is a woman. She felt that he treated her differently than he did other employees and CAF members in the building. She witnessed him react differently to men; he would treat them with respect. For example, he would quickly obtain office supplies for her male colleagues, while she would have to wait for them. She described one instance when both she and a male colleague requested a stapler. [NAME] gave the stapler to her colleague but not to her and told her that he had ordered only one. She further testified that [NAME] made gender remarks, dismissing her as being just a spouse of a former CAF member. She also filed the grievance because she felt that her harassment complaint was not being taken seriously and that the employer did not provide her with a safe workplace, free of harassment. [ 40 ] In cross-examination, [NAME] acknowledged that although she referred to article 19 in her grievance because she felt that she had been treated differently based on gender and sex, she did not specifically mention it in the grievance. However, the gender-discrimination issue was raised during the grievance hearing. She also acknowledged that she did not refer to what she termed the “stapler” incident in her harassment complaint. However, she added that many times, her experience was dismissed because she was just a spouse of a former CAF member. She further testified that there was not a single day on which she did not receive an inappropriate comment. [ 41 ] By email dated November 15, 2019, [NAME] acknowledge receiving the November 13, 2019, medical note and the grievance. He recognized that the situation was negatively affecting the [NAME] team’s work environment. [ 42 ] Upon his receipt of the medical note, he considered some options. He testified that the biggest considerations were team performance, overall team cohesion, and working together, to build team culture. Given that [NAME], in his regional coordinator role, had the responsibility of managing and leading his team, [NAME] felt that it was necessary that [NAME] remain in the office and continue to work. Consequently, he explored and proposed alternative working and reporting arrangements for [NAME]. [ 43 ] As such, he connected with his counterpart at [NAME], to arrange a workspace for [NAME] in a different location, in the downtown office in Edmonton, Alberta. In addition, he changed the reporting structure. He asked his counterpart in [NAME] whether [NAME] could be [NAME]’s supervisor for the time being. The request was granted. [ 44 ] Under the new reporting structure, [NAME] would not have to report to [NAME]. [NAME] had to release all [NAME]’s evaluation materials to [NAME], who became responsible for her (i.e., he was to carry out her annual performance appraisals, approve her leave requests, etc.). She would send him her monthly stats, and he would forward them to [NAME]. [ 45 ] By email dated November 18, 2019, [NAME] informed [NAME] that [NAME] had expressed some concerns about the proposed alternate work location (i.e., the Edmonton downtown office). Specifically, it would add one hour to her commute and result in parking fees. She viewed it as punitive. According to [NAME], she was unable to use public transport because she had to attend outside meetings. Moreover, being able to use her private vehicle was a work requirement. [ 46 ] [NAME] also testified that the proposed alternate work location was not suitable, considering that the person responsible for the office space and [NAME] had an extensive relationship inside and outside the office. [ 47 ] In response to [NAME]’s concerns, [NAME] started to look for an alternate work location closer to the base where she worked, with less commuting time and no parking fees. He found a new location. However, [NAME] expressed similar concerns about the second proposed location. Considering that [NAME] had to be in the office (as a regional coordinator, he had to supervise and lead the team), it was determined that she would continue working from home. [ 48 ] [NAME] had no problems with reporting to and working with [NAME]. However, she testified that [NAME] maintained influence over her career. She felt that beginning on the day on which she provided the November 13, 2019, medical note, she was ostracized. [ 49 ] Specifically, [NAME] testified that she was “excommunicated” from her team. Considering that her physician recommended that she have no ongoing workplace interactions with [NAME], she was no longer able to attend any briefings and meetings that he attended. And, according to her, since she had presented the employer with the medical note in question, [NAME] started attending every meeting. As a result, she went from being able to attend all meetings to attending none. She was no longer updated about what was happening in Alberta and felt like she was no longer part of the Alberta team. She was no longer included in team meetings, did not receive referrals, could not attend stakeholder updates, and stopped attending briefings. She stated that she felt like “a leper”. [ 50 ] As already briefly mentioned, by email dated November 27, 2019 , [NAME] informed [NAME] that her harassment complaint had been dismissed. [NAME] wished to meet with her in person, to discuss his decision. However, according to him, they were unable to meet due to scheduling issues. [ 51 ] [NAME] was not provided with any additional information as to why the harassment complaint was not founded. She felt deflated, disappointed, crushed, dismissed, and confused. In her response to [NAME]’s November 27, 2019, email, she provided a summary of her concerns. One was that although she had asked many times to be put in a different office, to protect her from [NAME], her requests remained ignored until she provided the November 13, 2019, medical note. In addition, she had witnessed two other female employees go through something similar, neither of whom is still in the [NAME]. [ 52 ] In cross-examination, she acknowledged that she did not indicate in that email to [NAME] that she was treated differently because of sex or gender. She explained that she did not think that it would have been appropriate to put it in that email and that she did not feel that it would help her deal with individuals in positions of power. She thought that it would put her into an even more precarious position if she accused him of how she felt. [ 53 ] According to [NAME], despite the fact that [NAME] states in his letter that the parties were heard, he interviewed only [NAME]. He did not interview [NAME] or [NAME]. [ 54 ] As a result, a few months later, on February 26, 2020, [NAME] decided to make a workplace-violence complaint under Part XX “Violence Prevention in the [ADDRESS]” of the Canada Occupational Health and Safety Regulations (SOR/86-304; “the OHS Regulations ”), as then in force. She named [NAME] as the respondent. [ 55 ] In cross-examination, [NAME] acknowledged that the subject matter of the workplace-violence complaint was the same as that of the harassment complaint and that the evidence was the same. She further confirmed that she did not allege in that complaint that she had been treated differently because of her sex or gender. [ 56 ] She further clarified that she felt more discriminated against in how the employer handled her case. According to [NAME], it dismissed the concerns that she raised in both her harassment and workplace-violence complaints because she believes that she is a woman in a male-dominated environment. [ 57 ] The workplace-violence complaint investigation was finalized on February 3, 2021, by Bob Stenhouse (“[NAME]”), who was the designated competent person under the OHS Regulations . He concluded that [NAME] had engaged in workplace violence against [NAME] and issued eight recommendations, to prevent its recurrence. [ 58 ] By email dated March 31, 2021, [NAME], Director, [NAME], informed [NAME] that the workplace-violence complaint investigation concluded that the allegations were founded. [ 59 ] Approximately a month later, in a letter dated April 28, 2021, [NAME], Deputy Commander, informed [NAME] that the employer endorsed [NAME]’s findings. As far as [NAME]’s recommendations were concerned, [NAME] indicated that they were not meant to provide a personal remedy. The relevant excerpt of that letter reads as follows: … 3. [NAME] was tasked with making recommendations to implement systemic controls to eliminate or minimize workplace violence to the extent reasonably practicable. The recommended preventative controls or measures are intended to prevent a reoccurrence of workplace violence when it is founded. It is not a personal remedy, nor is the investigation intended to find fault or lay blame, but to find facts that can lead to actions. … [ 60 ] Consequently, he indicated that [NAME]’s recommendation to recognize the mismanagement of the concerns over the years and to make a personal apology to [NAME] for the harm that she might have incurred were not supported, “… as it is beyond the purpose of the investigation which is not intended as a personal remedy”. [ 61 ] As for the recommendation that [NAME] take full responsibility for his behaviour, [NAME] indicated as follows: … … recommendations should not include disciplinary action for the respondent or any personal remedy to the complainant. Instead, recommendations should focus on control measures to be adapted or implemented by the employer to prevent similar situations from reoccurring in the workplace. However, due to concerns about the respondent’s conduct, further action will be taken on this matter.… … [ 62 ] He indicated that the recommendation “[t]hat other processes currently underway, take into consideration the outcome of this investigation” was “… beyond [his] scope of authority for implementation.” He further cautioned [NAME] that “[i]f [she] choose[s] to communicate the outcome of this investigation for other processes this is to be done in accordance with the provisions of the Privacy Act. ” [ 63 ] Finally, he informed [NAME] that the recommendation that [NAME] receive further training or other considered remedial and corrective action, to assist in his self-awareness and regulation related to normal workplace conflict, anger management, self-awareness, and personal accountability, was not supported, because of the following: “… it is not associated with the required findings and lays blame on the respondent [[NAME]], which was not the intent of the investigation. However, … this matter is being addressed through separate action, the nature of which cannot be disclosed to you.” [ 64 ] However, [NAME] was of the view that some of the already implemented recommendations, as indicated by [NAME], were not related to her case and that other recommendations were not implemented because of their personal nature, or they were only partially implemented. She did not feel that the recommendations would deal with her situation. According to her, nothing in them would address the workplace violence and resolve her situation. She testified that the group needs assessment, which was among [NAME]’s recommendations, was not completed. [ 65 ] Despite that, [NAME] testified that the workplace-violence complaint investigation’s findings validated her. She felt that finally, she was being taken seriously. However, the investigation did not provide the final resolution that she had hoped for. [NAME] remained in the regional coordinator position, and she continued to feel ostracized. [ 66 ] In cross-examination, [NAME] confirmed that the group needs assessment was still ongoing. Its completion had been delayed by the COVID-19 pandemic, as not all personnel were based in Edmonton, making in-person sessions more challenging to organize. Some discussions took place virtually, while others occurred in person. [ 67 ] [NAME] testified that as a result of the harassment and bullying that she experienced, she had a full mental-system breakdown. She felt devastated and still does not understand why she was treated that way. She has permanent consequences from it and will never get her six years back. The situation impacted her family significantly, specifically her husband’s recovery and her children. She sought support from a [NAME]; she never anticipated that she would end up where her clients are. [ 68 ] [NAME] testified that the work situation had adverse effects on her health. She had to undergo cardiac testing because of it. In addition, [NAME]’s test results rated her at a high likelihood of post-traumatic stress disorder. She felt depressed and had suicidal thoughts . [ 69 ] At the final level of the grievance process, the employer allowed the grievance in part and reimbursed [NAME] the sick leave credits that she used between May 1, 2019, and June 30, 2020, totalling 263.75 hours. B. Refusal to [NAME] an exemption from the [NAME] (Board file nos. 566-02-45285 and 45288) [ 70 ] The World Health Organization officially declared COVID-19 a pandemic on March 11, 2020. Its repercussions were felt worldwide, as governments across the globe implemented many restrictions and initiatives, to contain and eradicate the virus. [ 71 ] In that context, the Government of Canada required federal public service employees to be vaccinated. Employees of the core public administration, such as [NAME], and members of the Royal Canadian Mounted Police were subjected to the [NAME], under which they were required to become fully vaccinated. [ 72 ] By email dated October 6, 2021, [NAME] and her co-workers were informed that they had until November 15, 2021, to comply with the [NAME], which outlined the consequences of non-compliance, one of which was to place non-compliant employees on administrative LWOP. It also provided for accommodation measures for employees who were unable to be vaccinated based on a certified medical contraindication, religion, or another prohibited ground of discrimination defined under the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA ). [ 73 ] That email caused [NAME] some concern, considering that according to her, she has a history of allergies to medication and was hospitalized twice for a severe reaction to medication. She testified that she carries an EpiPen with her everywhere. She discussed her concerns with [NAME], her supervisor at that time. [ 74 ] As required by the [NAME] informed [NAME] that to be accommodated — that is, to be exempted from the vaccination requirement — she had to provide a medical note that certified that she was unable to be vaccinated. She informed him that in that case, she would speak with her doctor, to determine the vaccine’s safety. [ 75 ] [NAME] provided [NAME] with a medical note dated October 24, 2021. It stated that she had been referred to an allergist for PEG (polyethylene glycol) allergy testing and the COVID-19 vaccine. The wait to see the allergist was approximately one to two months. The physician further indicated that [NAME] planned to delay her vaccination until the tests were completed. Later, she informed [NAME] that she had an appointment with [NAME], the allergist, on December 9, 2021. [ 76 ] Given that information, on November 10, 2021, [NAME] informed [NAME] that she would be accommodated until December 16, 2021. He further informed her that she had to provide new medical documentation before December 16, 2021, to support her continued accommodation. Otherwise, she would be required to become vaccinated, or, if she refused, she would be placed on LWOP until she became compliant with the [NAME]. [ 77 ] On December 14, 2021, [NAME] informed [NAME] that she had seen [NAME], to determine her ability to become vaccinated, given her history of anaphylaxis. She further told him that she left the appointment with an unconfirmed diagnosis of an autoimmune condition (i.e., systemic mastocytosis), which poses significant concerns with respect to spontaneous anaphylactoid reactions. This condition was to be confirmed in the new year through a bone-marrow biopsy. She explained to [NAME] that she was not prepared to take the risks, namely, the possibility of a severe reaction associated with taking the vaccine, or it would not be feasible for her to undergo the suggested heavy antihistamine dosage treatment, without significant life impacts. She did not submit any note from [NAME] to corroborate this information. [ 78 ] In cross-examination, the employer presented to [NAME] a note from [NAME] dated January 25, 2022. It appears that the allergist prepared the letter approximately one-and-a-half months after he saw in [NAME] in consultation. In that note, he stated that he did not believe he would have told her that “… mastocytosis is the diagnosis or even likely”. He further indicated, “Of note, mastocytosis is NOT a contraindication for COVID vaccination (or any other vaccination) and not a valid reason for vaccine exemption”. In response, [NAME] testified that many things that were said during the appointment were not included in that letter. [ 79 ] Ultimately, [NAME] was unable to present a certified medical contraindication that she was unable to become vaccinated, as the [NAME] required. She understood that her refusal to become vaccinated would put her into non-compliance status with the [NAME]. However, she did not want to put her life at risk. She did not seek an additional extension of her temporary accommodation, which ended on December 16, 2021, because, according to her, she would have been told that she would not be given more time. [ 80 ] Consequently, considering that [NAME] refused to become vaccinated, she was placed on LWOP, effective December 17, 2021. [ 81 ] On December 23, 2021, [NAME] filed two grievances (one numbered 5239, in Board file no. 566-02-45285, and the other numbered 5240, in Board file nos. 566-02-45286 and 45287). In essence, she alleged that the employer discriminated against her, in breach of article 19 of the collective agreement, by failing to accommodate her disability . [ 82 ] In terms of corrective actions, at the hearing, [NAME] requested that the Board order the employer to pay her the salary and benefits that she lost as a result of being placed on LWOP between December 17, 2021, and June 20, 2022 . As already mentioned at the beginning of this decision, considering that [NAME] withdrew the grievance numbered 5240, the associated Board file nos. 566-02-45286 and 45287 have been closed. [ 83 ] A few months later, on or about March 24, 2022, [NAME] provided [NAME] with another medical note, this time from a new doctor, [NAME], recommending that “… due to medical reasonings [[NAME]] should not take COVID 19 MRNA and DNA vaccinations”. However, [NAME] supported a live COVID-19 vaccine. [ 84 ] This medical note was forwarded to the employer’s National Headquarters, in Ottawa, Ontario, for review and recommendation. On April 6, 2022, [NAME]’s [NAME] branch informed [NAME] of its recommendation to deny [NAME]’s medical exemption request. [NAME] supported the recommendation because it was not his area of expertise. He relied on the branch’s expertise. As such, [NAME] remained on LWOP until June 20, 2022, when the [NAME] was suspended. [ 85 ] In cross-examination, [NAME] confirmed that he never put to [NAME] the questions that [NAME] raised in its email dated April 5, 2022, which related to medical contraindications to full vaccination against COVID-19. He did not seek additional information. He further confirmed that to his knowledge, he did not provide her with the “Medical Statement Form” found in the Managers’ Toolkit for the Implementation of the [NAME] on COVID-19 Vaccination for the Core Public Administration including the Royal Canadian Mounted Police (“the Toolkit”). That form contains similar questions to those that [NAME] raised in its email. [ 86 ] On April 13, 2022, [NAME] grieved the employer’s decision to refuse her medical accommodation request for COVID-19 vaccine exemption, in violation of the CHRA and article 19 (no discrimination) of the collective agreement (the grievance numbered 5919, in Board file no. 566-02-45288). As for corrective actions, at the hearing, she requested that the Board order the employer to pay her the salary and benefits that she lost due to being placed on LWOP between December 17, 2021, and June 20, 2022. [ 87 ] After the [NAME] was suspended in June 2022, [NAME] was asked to return to the office. According to her, this caused her to suffer a complete breakdown because the workplace issues remained unresolved. The employer suggested that she speak with the [NAME]. She was advised that she could access workers’ compensation, to seek benefits and [NAME] support. [ 88 ] Upon her return to work in June 2022, she noticed that [NAME] still worked in the same building. [NAME] provided the employer with a medical note from [NAME] dated June 29, 2022, advising that although she was fit to return to work, she should work in an alternate location, away from [NAME], and that she should not have ongoing workplace interactions with him. [ 89 ] As a result, the employer allowed [NAME] to work from home until it could accommodate her. Ultimately, she continued to work from home. [NAME] was moved to a different role, he remained in the same building. [NAME] was able to return to the office in November 2023.

III. Analysis and reasons [ 90 ] Although the grievance alleging harassment by reason of [NAME]’s sex or gender and the failure to provide a safe workplace raises issues distinct from those raised in the two grievances concerning the employer’s refusal to exempt her from the [NAME], all three grievances were heard together. [ 91 ] In my analysis, as in my summary of the evidence, I will address these grievances separately, to clearly distinguish the issues that they raise and the remedies, if any, which may be warranted. I will begin with the grievance against the alleged harassment by reason of sex or gender and the failure to provide a safe workplace. I will then analyze the merits of the grievances against the employer’s refusal to exempt [NAME] from the [NAME]. A. Discriminatory harassment and failure to provide a safe workplace - articles 19 and 22 of the collective agreement (Board file no. 566-02-45284)

1. The other administrative procedure for redress does not meaningfully or effectively address the essence of the grievance [ 92 ] At the hearing before the Board, the employer argued that the Board lacks jurisdiction to hear the grievance numbered 2420 (in Board file no. 566-02-45284), given the limitation set out in s. 208(2) of the Act that reads as follows: Limitation Réserve 208(2) An employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act . 208(2) Le fonctionnaire ne peut présenter de grief individuel si un recours administratif de réparation lui est ouvert sous le régime d’une autre loi fédérale, à l’exception de la Loi canadienne sur les droits de la personne . [ 93 ] To support its objection, the employer argued that the essential character of the grievance is workplace harassment, which is addressed under the Canada Labour Code (R.S.C., 1985, c. L-2; “the CLC ”). It submitted that both the grievance and the workplace-violence complaint relate to the same events and go to the same subject matter and that the corrective actions sought through the grievance — the majority of which were systemic and aimed at preventing workplace harassment or violence, rather than individually focused — and the workplace-violence complaint are substantially the same. [ 94 ] According to the employer, the workplace-violence complaint has already meaningfully and effectively dealt with the essence of the grievance, which is workplace harassment. Therefore, the Board’s jurisdiction is ousted under s. 208(2) of the Act . I disagree. [ 95 ] On the other hand, [NAME] argued that the process under the OHS Regulations was not capable of providing “real redress” that could be of “personal benefit” to her. Therefore, the Board should dismiss the employer’s preliminary objection. I agree. [ 96 ] It is noteworthy that during the internal grievance process, the employer did not deny the grievance based on the limitation set out in s. 208(2) of the Act . In fact, it did not raise that limitation at all during the internal grievance process. [ 97 ] Determining whether s. 208(2) of the Act ousts the Board’s jurisdiction to hear the grievance depends on whether the other administrative procedure for redress can meaningfully and effectively deal with the essential elements of the grievance. If it is incapable of providing a “real redress” that could be of “personal benefit” to [NAME], with respect to the essential elements of her grievance, it cannot be considered capable of meaningfully or effectively dealing with the grievance, and the limitation in s. 208(2) does not apply (see Byers Transport Ltd. v. Kosanovich , [1995] F.C.J. No. 1066 (QL) at para. 39; [NAME] v. Canada ( Attorney General ) , 2017 FC 772 at paras. 74 and following paragraphs; Canada (Attorney General) v. Boutilier , [2000] 3 F.C. 27 at para. 4; and [NAME] v. [NAME] (Correctional Service of Canada) , 2009 PSLRB 70 at para. 42). [ 98 ] I am aware that the redress available under the other “administrative procedure for redress” set out in s. 208(2) need not yield exactly the same remedies; nor must they be as good or better than the one available under a grievance process for the limitation in s. 208(2) of the Act to apply. A difference in an administrative remedy, even if it is a “lesser remedy”, does not change it into a non-remedy (see [NAME] , at para. 76 and 81; [COMPANY]. , at para. 39; Boutillier , at paras. 4, 12, and 23; and [NAME] v. Canada Revenue Agency , 2009 FCA 276 at para. 35). [ 99 ] [NAME] filed the grievance because she felt that [NAME] had harassed her by reason of sex or gender. That is why in her grievance, she alleged that the employer breached, among other things, article 19 (no discrimination) of the collective agreement. She also argued before the Board that the employer did not take her harassment complaint seriously and that it failed to properly investigate it. [ 100 ] In her grievance, [NAME] requested the following remedies: · “That I be compensated for all losses, including pay and benefits, as well as any lost wages, sick leave credits and any additional expenses that may result from this situation; · That the Employer cease the discriminatory practice and take measures to redress the practice and/or to prevent the same or similar practice from occurring in the future; · Immediate change in reporting relationship; · Alternate work arrangement during the time the investigation is in process; · That I be compensated $20 000 for pain and suffering experienced as a result of the discriminatory practice; · That I be compensated $20 000 for my Employer’s wilful and reckless engagement in the discriminatory practice; · That the filing of this grievance will not prejudice me in any future dealings with my employer; · That I be made whole.” [ Sic throughout] [ 101 ] At the hearing, [NAME] limited her remedies to the following financial compensation: 1) the reimbursement of the 67.5 hours of vacation leave that she took from July 2 to 12, 2019, and 2) the maximum compensation available under s. 53(2)(e) of the CHRA for pain and suffering and s. 53(3) of that Act due to the employer’s wilful and reckless engagement in the discriminatory practice, for a total of $40 000. As far as non-monetary remedies are concerned, she asked that the Board declare that the employer breached the collective agreement and order it to cease any further discriminatory practices in relation to this matter (i.e., harassment). [ 102 ] Contrary to the employer’s argument before the Board, it seems to me that the specific remedies that [NAME] seeks are personal in nature, rather than systemic. Moreover, they form essential elements of the grievance. [ 103 ] Although the recommendations made by [NAME] appointed under the OHS Regulations could, if the employer accepted and implemented them, address the workplace-harassment allegation at a systemic level, compensation and damages do not form part of the range of available remedies under that procedure. [ 104 ] Although a “lesser remedy” does not change a remedy into a non-remedy, the incapability of the alternative administrative procedure for redress to provide any form of requested personal financial compensation — when such compensation constitutes a key element of the grievance — does, in my view, have that effect. Allowing the employer’s preliminary objection based on s. 208(2) of the Act would effectively deprive [NAME] of her right to claim compensation and damages, should she be able to establish that it breached the collective agreement. [ 105 ] I am not persuaded that Parliament intended such an outcome when it enacted s. 208(2). In my view, the purpose of s. 208(2) is to prevent the duplication of proceedings and double compensation and not to deprive grievors of “real redress” that could be of “personal benefit” to them, if they establish that the employer’s conduct infringed their rights. [ 106 ] Moreover, the employer acknowledged that the workplace-violence complaint under the OHS Regulations was not meant to provide any personal remedies, such as those requested in the grievance. Specifically, in his letter dated April 28, 2021, [NAME] explained to [NAME] that the complaint was not intended to provide a personal remedy. The relevant excerpt from his letter reads as follows: … 3. [NAME] was tasked with making recommendations to implement systemic controls to eliminate or minimize workplace violence to the extent reasonably practicable. The recommended preventative controls or measures are intended to prevent a reoccurrence of workplace violence when it is founded. It is not a personal remedy , nor is the investigation intended to find fault or lay blame, but to find facts that can lead to actions. … [Emphasis added] [ 107 ] The employer even refused to personally apologize to [NAME] for the harm that she might have suffered, as recommended by [NAME], because it was of the view that “[t]his recommendation … is beyond the purpose of the investigation which is not intended as a personal remedy.” Yet, this small and costless personal gesture could have had a significant positive impact on [NAME] and would have been a first step toward rebuilding her relationship with the employer. [ 108 ] In essence, it seems that the employer refused to implement remedies that could have been of personal benefit to [NAME]. It agreed only to implement [NAME]’s recommendations that were systemic in nature and that were not geared specifically to her. Yet, before the Board, the employer argued that the process under the OHS Regulations meaningfully and effectively dealt with the substance of her grievance. [ 109 ] Public Service [NAME] of Canada v. [NAME] (Department of Human Resources and Skills Development) , 2012 PSLRB 84 , which the employer cited to support its objection, is of limited assistance. [ 110 ] In that decision, the employer objected to the adjudicator’s jurisdiction to hear the group grievances at issue because another administrative procedure for redress was provided under the CLC to deal with them. The adjudicator allowed the employer’s objection. He determined that “the essence of the grievance” related to occupancy rate, a matter that could be “meaningfully and effectively” addressed under the CLC , rather than the reimbursement of sick leave, which was one of the corrective actions that the grievors sought (see paragraphs 49 to 50). [ 111 ] Unlike in that decision, I have determined that the compensation and damages requested by [NAME] are essential elements of the grievance. They cannot be meaningfully and effectively dealt with in the course of the process initiated under the OHS Regulations . [ 112 ] For these reasons, I find that the procedure under the OHS Regulations is not capable of meaningfully and effectively dealing with the essential elements of [NAME]’s grievance. Specifically, it cannot provide her with “real redress” that could be of “personal benefit” to her. The employer does not dispute that financial redress — one of the key components of the grievance — was not available to her at the outcome of the workplace-violence complaint that was initiated under the OHS Regulations . [ 113 ] Accordingly, I dismiss the employer’s objection to the Board’s jurisdiction to hear the grievance numbered 2420 (in Board file number 566-02-45284) based on s. 208(2) of the Act . 2. [NAME] established a prima facie case of discrimination on the ground of her sex or gender [ 114 ] Before the Board, [NAME] testified that [NAME] harassed her because, among other things, she is a woman. As a result, she filed a grievance, alleging that the employer breached article 19 of the collective agreement and that it failed to provide her with a safe workplace, in breach of article 22. She requested compensation under the CHRA , as detailed earlier. Discrimination was also brought to the employer’s attention during the internal grievance process, as evidence by the second- and final-level grievance responses. [ 115 ] I will first deal with the alleged breach of article 19 of the collective agreement. Second, I will address the employer’s objection to the Board’s jurisdiction to hear the grievance relating to article 22. [ 116 ] Article 19 prohibits, among other things, harassment by reason of sex or gender identity. It reads as follows: **Article 19: no discrimination **Article 19: élimination de la discrimination ** ** 19.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practised with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, gender identity and expression, family status, marital status, mental or physical disability, membership or activity in the [NAME] or a conviction for which a pardon has been granted. 19.01 Il n’y aura aucune discrimination, ingérence, restriction, coercition, harcèlement, intimidation, ni aucune mesure disciplinaire exercée ou appliquée à l’égard d’un employé-e du fait de son âge, sa race, ses croyances, sa couleur, son origine nationale ou ethnique, sa confession religieuse, son sexe, son orientation sexuelle, son identité ou expression de genre, sa situation familiale, son état matrimonial, ses caractéristiques génétiques, son incapacité, son adhésion à l’[NAME] ou son activité dans celle-ci ou une condamnation pour laquelle l’employé-e a été gracié. … […] [ 117 ] It is not in dispute that the Board can interpret and apply the CHRA (see s. 226(2)(a) of the Act ). [ 118 ] Sections 53(2)(e) and (3) of the CHRA read as follows: Complaint substantiated Plainte jugée fondée … […] 53(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate: 53(2) À l’issue de l’instruction, le membre instructeur qui juge la plainte fondée, peut, sous réserve de l’article 54, ordonner, selon les circonstances, à la personne trouvée coupable d’un acte discriminatoire: … […] (e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice. e) d’indemniser jusqu’à concurrence de 20 000 $ la victime qui a souffert un préjudice moral. Special compensation Indemnité spéciale (3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly. (3) Outre les pouvoirs que lui confère le paragraphe (2), le membre instructeur peut ordonner à l’auteur d’un acte discriminatoire de payer à la victime une indemnité maximale de 20 000 $, s’il en vient à la conclusion que l’acte a été délibéré ou inconsidéré. [ 119 ] For the Board to find that the employer breached article 19 of the collective agreement, [NAME] must establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and that if they are believed, is complete and sufficient to justify a verdict in [NAME]’s favour in the absence of an answer from the respondent-employer (see Ont. Human Rights Comm. v. Simpsons-Sears, [1985] 2 S.C.R. 536 at para. 28) (“ [NAME] ”). [ 120 ] Specifically, [NAME] or complainant must demonstrate that they have a characteristic protected from discrimination under the relevant legislation, that they experienced an adverse impact in the workplace, and that the protected characteristic was a factor in the adverse treatment. Once they make out a prima facie case of discrimination, the burden then shifts to the employer, to justify the conduct or practice. If it cannot be justified, discrimination will be found to have occurred (see Moore v. British Columbia (Education) , [2012] 3 S.C.R. 360 at para. 33; and Quebec (Commission des droits de la personne et des droits de la jeunesse) v. [COMPANY]. ([COMPANY]) , 2015 SCC 39 at paras. 63 and 64 (“ [NAME] ”). [ 121 ] If the responding party (the employer) succeeds in rebutting the prima facie case, then the evidential burden shifts back to [NAME], to prove that the employer’s non-discriminatory explanation was pretextual (see [NAME] v. Canada (Attorney General) , 2025 FCA 109 at paras. 14 and 15; and [COMPANY] v. [NAME] , 2023 ONCA 364 at paras. 53 and 54). [ 122 ] In its final submissions, the employer conceded that [NAME] established the two first criteria of a prima facie case of discrimination. I agree. [ 123 ] Sex or gender are characteristics protected from discrimination under the collective agreement. [NAME] also experienced an adverse impact in the workplace (i.e., harassment). On that point, she presented evidence of [NAME]’s behaviours toward her after he returned to his position in April 2019. [ 124 ] Specifically, she testified that his conduct toward her was hostile, aggressive, threatening, and inappropriate. As a result, she felt threatened, dismissed, isolated, and angry. She no longer felt safe at work. Her sense of insecurity was compounded by the fact that [NAME] was in a position of power. He was her supervisor. The employer acknowledged before the Board that [NAME] was able to establish that she suffered a negative impact with respect to her employment. [ 125 ] However, the employer argues that [NAME] did not establish the third element of the prima facie case of discrimination. Specifically, it argues that she did not establish that her sex or gender was a factor in the adverse treatment that she experienced. I disagree for the following reasons. [ 126 ] To support her allegation that [NAME] harassed her, in part because she is a woman, [NAME] testified as follows: · He made gender remarks that dismissed her as just a spouse of a former CAF member, and he dismissed her work experience for the same reason. · She witnessed him react differently toward men, specifically that he would treat men with respect. · She witnessed him quickly secure office supplies for her male colleagues, while she would have to wait for them. · He repeatedly insisted that she participate in the [NAME], even though she told him several times that she did not wish to. By contrast, her male colleague had to decline only once for [NAME] to stop insisting that he do the same thing. [ 127 ] It is well established in Canadian jurisprudence that direct and clear evidence of discrimination is rarely available. Discrimination is often subtle, covert, or systemic rather than overtly expressed. It is not usually conducted openly, and therefore, direct evidence is uncommon. Discrimination is often established through circumstantial evidence and reasonable inferences drawn from the surrounding facts and patterns of conduct (see Mills v. [COMPANY] ., 2009 CHRT 17 at para. 25; and [NAME] v. [NAME] , 1988 CanLII 108 (CHRT), at paras. 43 to 54). [ 128 ] [NAME] established that [NAME] made toward her inappropriate gender remarks and that in general, he treated her with less respect and attention than he did with her male colleagues. This evidence is sufficient to conclude that her sex or gender was at least a factor in the way he treated her. [ 129 ] Therefore, I conclude that on a preponderance of probabilities, [NAME] has established a prima facie case of discrimination on the ground of her sex and gender. [ 130 ] [NAME] established a prima facie case of discrimination, it was up to the employer to justify [NAME]’s conduct and to rebut the allegation that her sex or gender was a factor in the adverse treatment that she experienced. [ 131 ] However, the employer did not call [NAME] to rebut [NAME]’s evidence or to explain his behaviour toward her. In other words, it did not offer any alternative explanation that would have rebutted [NAME]’s allegation that her sex or gender was a factor in the adverse treatment (i.e., the harassment). The Board is left with [NAME]’s version of what happened and why it happened. The employer made a tactical choice not call [NAME]. That was its decision. [NAME] nor [NAME] was able — and understandably so — to speak to [NAME]’s conduct toward [NAME]. [ 132 ] It appears to me that the employer attempted to rebut [NAME]’s prima facie case of discrimination by relying on her evidence. [ 133 ] First, in its argument, it emphasized that [NAME] acknowledged that her relationship with [NAME] deteriorated after she declined to engage in the [NAME] and asserted professional boundaries, particularly with respect to the [NAME]. According to the employer, this, rather than her sex or gender, explains his behaviour toward her. [ 134 ] Second, the employer noted that [NAME] did not indicate in her correspondence to [NAME] dated October 28, 2019, in her harassment complaint, or in the workplace-violence complaint that she was treated differently because of her sex or gender . [ 135 ] The fact that [NAME]’s sex or gender might not have been the sole reason for the adverse treatment that she experienced is inconsequential. The connection between the adverse treatment and the prohibited ground can co-exist with other non-discriminatory factors. The prohibited ground need not be the only reason for the adverse treatment or even the predominant reason (see [NAME] , at paras. 43 to 52; and [NAME] v. Canada Revenue Agency , 2024 CHRT 100 at para. 37). In other words, it might be that [NAME]’s behaviour toward [NAME] noticeably changed when she asserted professional boundaries, but that does not mean that her sex or gender was not a factor in the adverse treatment (the workplace harassment) that she experienced. [ 136 ] Although she did not specifically mention in her email to [NAME] dated October 28, 2019, in the harassment complaint, or in the workplace-violence complaint that she was treated differently because of her sex or gender, in her grievance filed on or about November 14, 2019, she did allege a violation of the no-discrimination provision, article 19 of the collective agreement. [ 137 ] As for the corrective actions sought in the grievance, [NAME] specifically asked that among other things, the employer cease the discriminatory practice and that it take measures to redress it. She asked for compensation as a result of the discriminatory practice. Moreover, she testified that the issue of discrimination by reason of sex or gender was raised with the employer during the internal grievance hearings. This is evidenced by the second and final level grievance responses. [ 138 ] That evidence demonstrates that the discrimination issue was raised early in the process. It does not support the employer’s argument that the alleged nexus to [NAME]’s sex or gender was an afterthought that was added to shoehorn the matter before the Board. [ 139 ] The Board’s task is to determine, based on the evidence before it, whether [NAME] established that the employer breached article 19, as alleged in the grievance. The fact that she did not specifically mention in some correspondence that sex or gender was a factor in the adverse treatment that she experienced must be assessed in its context and while considering the overall evidence presented before the Board. [ 140 ] For the reasons as set out, I have determined that on the balance of probabilities, [NAME] established that her sex or gender was a factor in the adverse treatment (i.e., the harassment) that she experienced in the workplace. In other words, she made out a prima facie case of discrimination, and the employer did not rebut it. Therefore, I conclude that the employer breached article 19 of the collective agreement.

3. The Board has no jurisdiction to hear an individual grievance alleging breach of a health-and-safety provision under the collective agreement [ 141 ] In the same grievance, [NAME] further alleges that in addition to having breached article 19 (no discrimination) of the collective agreement, the employer also breached article 22 (health and safety) by failing to make adequate provisions for her occupational health and safety and by not adopting measures to prevent a reoccurrence of the impugned behaviour. According to her, article 22 outlines the employer’s responsibility to ensure workplace health and safety. Thus, the Board has the jurisdiction to hear her grievance pertaining to the alleged breach of article 22. [ 142 ] To support her argument, [NAME] relies on the Board’s decision in [NAME] v. [NAME] (Correctional Service of Canada) , 2024 FPSLREB 110. In that case, the Board allowed an individual grievance that alleged a breach of a health-and-safety provision, identical to the one at issue, to proceed to adjudication. [ 143 ] Article 22 reads as follows: Article 22: health and safety Article 22: santé et sécurité 22.01 The Employer shall make reasonable provisions for the occupational safety and health of employees. The Employer will welcome suggestions on the subject from the [NAME], and the parties undertake to consult with a view to adopting and expeditiously carrying out reasonable procedures and techniques designed or intended to prevent or reduce the risk of employment injury. 22.01 L’employeur prend toute mesure raisonnable concernant la santé et la sécurité au travail des employé-e-s. Il fera bon accueil aux suggestions de l’[NAME] à cet égard, et les parties s’engagent à se consulter en vue d’adopter et de mettre rapidement en œuvre toutes les procédures et techniques raisonnables destinées à prévenir ou à réduire les risques d’accidents de travail. [ 144 ] The employer objects to the Board’s jurisdiction to hear the alleged breach of article 22. It argues that that article is a consultative provision and that it does not [NAME] individual employees a substantive right that may be adjudicated. It only creates a duty to consult between the bargaining agent and the employer. The employer further argues that the [NAME] decision is an outlier. I agree. [ 145 ] According to the Board’s long-standing body of jurisprudence, collective agreement provisions such as article 22 are consultative in nature. They do not create individual rights and do not provide individual employees with access to adjudication. The health-and-safety provision requires the employer to consult the bargaining agent on health-and-safety matters. The employer’s obligation is to the bargaining agent and not to an individual [NAME]. In other words, the health-and-safety provision gives rights to the bargaining agent, rather than individual employees (see [NAME] v. [NAME] (Department of National Defence) , 2021 FPSLREB 67 at paras. 93 to 100 and 145; [NAME] v. Canada Revenue Agency , 2020 FPSLREB 79 at paras. 242 to 244; and [NAME] v. Canada Revenue Agency , 2006 PSLRB 104 at paras. 31 to 40). [ 146 ] In [NAME] , the Board did not follow its own well-established and well-reasoned jurisprudence, according to which it lacks jurisdiction to hear an individual grievance alleging a breach of a health-and-safety provision, like the one at issue in this case. It is not entirely clear to me why that was done. [ 147 ] Although the Board acknowledged in [NAME] that in [NAME] , a relatively recent decision, it “… confirmed previous case law that the health-and-safety provision … is a consultative right, not an individual … right …”, it then concluded that the “… jurisprudence is unclear as to whether this article … confers individual remedial rights or is rather a consultative obligation between the employer and the bargaining agent”, because of [NAME] v. Canada (Attorney General) , 2003 CanLII 40299 (ON CA). In that case, the [ADDRESS] of Appeal seems to suggest that an individual grievance alleging a breach of a health-and-safety provision can proceed to adjudication. In the Board’s view, [NAME] “seem[s] to contradict [NAME] ”. I disagree with the Board’s approach. [ 148 ] It is not entirely clear to me, and the Board does not explain, why it preferred to rely on one older non-binding decision from another jurisdiction, albeit from an appeal court, rather than its own well-reasoned body of case law. [NAME] is not binding on the Board. The Board does not explain why [NAME] , rendered in 2003, should have any bearing on, or call into question, the Board’s long-standing jurisprudence that it lacks jurisdiction to hear an individual grievance alleging a breach of a health-and-safety provision, such as article 22. [ 149 ] Moreover, apart from referring to [NAME] , the Board did not offer any explanation as to why it departed from its established internal authority on that subject matter. [ 150 ] Consistency is important, and not only in [NAME]. On that point, I fully endorse the adjudicator’s comments in the [NAME] decision, which read as follows: … [38] Decisions rendered under the former Act are published for the benefit of the federal public service community at large. In my view, there ought to be consistent application of the law, as consistency from the Board and adjudicators helps employers and bargaining agents in the administration of collective agreements and in their bargaining-table relationships. It also helps employees better understand the scope of their terms and conditions of employment. Consistent interpretations provide for harmonious [NAME], or at least point out flaws in the collective agreements, which could be addressed through the collective bargaining process. The interpretation of wording similar to clause 24.01 of the collective agreement before me is a well-settled point in decisions rendered under the former Act . Further, that wording is clear and, when clause 24.01 is read as a whole, it is capable of only one meaning. The clause is not capable of the meaning suggested by [NAME]. … [ 151 ] I see no reason that I should not follow the Board’s well-established and well-reasoned case law, according to which a health-and-safety provision such as article 22 is consultative in nature and does not create individual rights, and therefore, an employee cannot refer an individual grievance alleging a breach of it to adjudication. [ 152 ] For these reasons, I agree with the employer that the Board has no jurisdiction to hear the part of the grievance that alleges a breach of the health-and-safety provision, article 22.

4. Remedies [ 153 ] As already indicated, with respect to this grievance, [NAME] requests that the Board order the employer to return the 67.5 hours of vacation leave that she took from July 2 to 12, 2019. Moreover, she asks for $20 000 in compensation for pain and suffering under s. 53(2)(e) of the CHRA as a result of the discriminatory practice and $20 000 in special compensation under s. 53(3) for the employer’s wilful and reckless behaviour . [ 154 ] In addition, she requests that the Board declare that the employer breached the collective agreement and order it to cease any further discriminatory practices in relation to this matter (i.e., the harassment complaint). a. [NAME] is not entitled to the return of 67.5 hours of vacation leave [ 155 ] [NAME] testified that she took 67.5 hours of vacation leave from July 2 to 12, 2019, to distance herself “a little bit” from the situation at work. She testified that she used vacation leave, instead of sick leave, because it does not require a medical note and because there were allegedly some issues with [NAME] taking sick leave. Contrary to what she argued before the Board, there is no evidence to suggest that she was “forced”, in her words, to take vacation leave, instead of sick leave, due to harassment. [ 156 ] [NAME] acknowledged that the employer reimbursed her 263.75 hours of sick leave as a result of her grievance. That equalled the total approved sick leave that she took between May 1, 2019, and June 30, 2020. The issue of the vacation leave in question was not specifically addressed in the final-level grievance response. [ 157 ] Vacation leave, unlike sick leave, is voluntary. Employees are free to decide when they will go on vacation, subject to the terms of the applicable collective agreement. Vacation leave, unlike sick leave, is meant to provide them with time off from work, to relax. It is not meant to be a substitute for sick leave. [ 158 ] When an employee is unable to report to work because of an illness or injury, they must request sick leave. Therefore, if [NAME] was unable to work by reason of illness or injury — whether physical or psychological — which resulted from harassment, she should have requested sick leave. [ 159 ] The fact that vacation leave — unlike sick leave — does not require a medical note is not, in my opinion, an acceptable reason for an employee to avoid requesting sick leave. [ 160 ] Moreover, [NAME]’s suggestion that there were allegedly issues with her taking sick leave, whether certified or not, is not supported by the evidence. Her leave transaction history sets out that she submitted a medical note to support a sick leave request from September 30 to October 18, 2019, and that it was approved. Furthermore, during the relevant period, the leave history also reveals that she took a number of short, uncertified sick leaves (between 3 and 15 hours). Her supervisor approved them all. I have no evidence that suggests that the employer denied any of [NAME]’s sick leave requests, certified or uncertified, or that it was reluctant to approve them. [ 161 ] Considering all that, if in fact [NAME] was unable to work between July 2 and July 12, 2019, because of an illness or injury related to harassment, I do not understand why she would not have requested sick leave. She did not convince me that her decision to take vacation leave was involuntary and directly linked to workplace harassment. Put simply, she did not convince me that she was “forced”, using her word, to take vacation leave because of workplace harassment, as she argued before the Board. [ 162 ] Rather, by [NAME]’s own account, she decided to take the vacation leave in question because she wanted to have “a little bit of distance” from the circumstances at work. This does not suggest that she was forced to take vacation leave due to harassment. It is not uncommon for an employee to take vacation leave to distance themselves from work and its environment, for different reasons. That is what vacation is for. However, doing so does not automatically entitle them to have their vacation leave credits restored. [ 163 ] In the circumstances, I see no reason that the employer should be held liable for [NAME]’s decision to use her vacation credits. She was fully entitled to take vacation leave, as she did. There is no question about it. However, I find no basis on which the Board should order the employer to return to her the 67.5 hours of vacation leave that she took voluntarily. b. Damages under the CHRA [ 164 ] [NAME] asked for the maximum compensation for pain and suffering ($20 000) under s. 53(2)(e) of the CHRA and for special compensation ($20 000) under s. 53(3) because of the employer’s reckless behaviour in connection with the discriminatory practice. First, I will deal with the compensation for pain and suffering. Second, I will discuss [NAME]’s entitlement to special compensation under s. 53(3). i. Compensation for pain and suffering [ 165 ] Under s. 53(2)(e) of the CHRA , the Board may award the victim of a discriminatory practice compensation for pain and suffering. It cannot exceed $20 000. However, the maximum amount of $20 000 is limited to the most egregious cases (see [NAME] v. [NAME] , 2022 CHRT 18 at para. 99). [ 166 ] Determining the amount of compensation for pain and suffering is a fact-specific exercise. It depends on a variety of factors, such as the severity, scope, and duration of the discrimination. The victim’s experience is also considered when determining the appropriate amount of compensation. [ 167 ] Pain and suffering is not a medical condition. As such, generally speaking, medical evidence is not required to establish it (see [NAME] v. [COMPANY] ., 2019 CHRT 43 at para. 15). The testimony of the victim, and potentially other people within the victim’s entourage, may suffice to provide information of the extent, degree, intensity, and duration of the pain and suffering that the victim experienced. [ 168 ] That said, medical evidence can be particularly helpful, to set out the intensity and severity of the alleged medical symptoms (i.e., physical or psychological) that result from a discriminatory practice. The availability of such medical evidence may impact the assessment of compensation under s. 53(2)(e) of the CHRA (see [NAME] v. Canada (Attorney General) , 2015 FC 133 at paras. 28 to 32; [NAME] v. [NAME] , 2024 CHRT 22 at para. 193; and [NAME] v. [COMPANY]. , 2019 CHRT 16 at paras. 191 to 193). [ 169 ] [NAME] testified that as a result of the discriminatory harassment and bullying, she felt devastated and had a full mental-system breakdown. It had adverse effects on her health. She had to undergo cardiac testing because of the work situation. In addition, [NAME]’s test results rated her at a high likelihood of post-traumatic stress disorder. She felt depressed and had suicidal thoughts. The situation significantly impacted her family, specifically her husband’s recovery and her children. [ 170 ] The employer continued to expose [NAME] to further risk by retaining [NAME] as her supervisor, despite the fact that she asked many times to be put in another office, for protection from him. She stopped reporting to him shortly after November 13, 2019, only because she provided the employer with a medical note confirming that she should not have any interactions with him. Despite the fact that she reported the situation to [NAME] toward the end of July or in early August 2019, she had to wait until after November 13, 2019, for the employer to separate her from [NAME]. [ 171 ] Even after she ceased reporting to [NAME] testified that she continued to experience an adverse impact in the workplace because of his presence in the office. Specifically, considering that her physician recommended that she not have any ongoing workplace interactions with him, she was no longer able to attend any briefings and meetings that he attended. [ 172 ] Beginning once she presented to the employer the medical note in November 2019, [NAME] went to every single meeting, which effectively precluded her from attending them. She went from being able to attend all meetings to attending none. She was no longer updated about events in Alberta and felt like she was no longer part of the Alberta team. She did not receive referrals, could not attend stakeholder updates, and stopped attending briefings. She stated that she felt like a leper “excommunicated” from her team. [ 173 ] Based on [NAME]’s testimony, I have no doubt that she experienced pain and suffering as a result of the discriminatory harassment in the workplace. The effects of that workplace harassment continued even after she ceased reporting to [NAME]. As such, I am of the view that [NAME] is entitled to compensation under s. 53(2)(e) of the CHRA . [ 174 ] However, in determining the appropriate compensation (and not the entitlement), I note that [NAME] did not provide any medical evidence regarding the intensity and severity of the medical problems she claims to have experienced. [ 175 ] Specifically, [NAME] testified that she experienced a full mental-system breakdown, felt depressed, and had suicidal thoughts. However, she did not file any medical evidence addressing her symptoms and their intensity. She further testified that she sought support from a [NAME]. Once again, she did not present any note from the [NAME] discussing her condition, the frequency of consultations, or her symptoms. [ 176 ] I also note that although [NAME] testified that the discriminatory practice impacted her husband’s recovery and her children, she did not provide any details or documentation. I do not know how it affected them or when it did so. [ 177 ] Therefore, having considered the totality of the evidence presented, I conclude that [NAME] experienced pain and suffering as a result of the discriminatory harassment and that she is entitled to compensation. After balancing the seriousness of the employer’s conduct and effect on [NAME], I am of the view that an award of $10 000 constitutes appropriate compensation for pain and suffering under s. 53(2)(e) of the CHRA . This reflects the lack of evidence I have concerning the intensity and severity of the psychological or medical impact that this had on [NAME]. ii. Special compensation under s. 53(3) of the CHRA [ 178 ] [NAME] also requested the maximum special compensation under s. 53(3) of the CHRA . It provides that in addition to compensation for pain and suffering under s. 53(2)(e), the Board may order compensation not exceeding $20 000 if the person engaged in the discriminatory practice wilfully or recklessly. [ 179 ] As it is with compensation under s. 53(2)(e), an award of $20 000 for wilful and reckless discrimination should also be reserved for the worst cases (see First Nations Child & Family Caring Society of Canada v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2019 CHRT 39 at para. 230). [ 180 ] Canada (Attorney General) v. [NAME] , 2013 FC 113 at para. 155, quoted by Canada (Attorney General) v. [NAME] , 2021 FCA 89 at para. 8, states the following about s. 53(3) of the CHRA : … This is a punitive provision intended to provide a deterrent and discourage those who deliberately discriminate. A finding of wilfulness requires the discriminatory act and the infringement of the person’s rights under the Act is [ sic ] intentional. Recklessness usually denotes acts that disregard or show indifference for the consequences such that the conduct is done wantonly or heedlessly. [ 181 ] [NAME] argues that the employer’s behaviour in connection with the discriminatory practice in question was reckless because of how it investigated her complaint. Specifically, she alleges that the [NAME]’s investigation was inadequate and that it was conducted recklessly. He applied the wrong standard (which was that intention was necessary to establish harassment), despite the fact that he was receiving advice from the employer’s [NAME]. Furthermore, he interviewed only one of the three key witnesses whom she proposed in her complaint. [ 182 ] I have already determined that the employer engaged in a discriminatory practice against [NAME], in breach of article 19 of the collective agreement. [ 183 ] A reckless investigation into a complaint involving a discriminatory practice, or a reckless response to it, may give rise to special compensation under s. 53(3) of the CHRA (see R.L. v. [NAME] Company , 2021 CHRT 33 at paras. 216 to 224; [NAME] v. Deputy Head (Department of National Defence) , 2019 FPSLREB 61 at para. 198; and [NAME] v. Canada Revenue Agency , 2019 FPSLREB 6 at para. 158). [ 184 ] For the reasons that follow, I am of the view that the employer’s investigation of [NAME]’s harassment complaint was reckless. [ 185 ] First, the employer did not follow its own Instructions. Specifically, it disregarded section 4.6.2, which reads as follows: 4.6.2 Intention In order to conclude that harassment occurred, the intent of the Respondent to cause offence or harm by his/her acts, comments or displays does not need to be demonstrated ; it is the impact on the other person that is taken into account. However, if this intent was present and can be demonstrated, it will be a factor in the determination of the corrective and/or disciplinary measures. [Emphasis added] [ 186 ] That section cannot be any clearer. Intention is not required to conclude that harassment occurred. However, [NAME] testified that the harassment was unfounded because he was unable to conclude that [NAME] had a malicious intent to harm [NAME]. According to [NAME], since there was no intention, which was an element required to conclude that harassment occurred, he concluded that [NAME]’s complaint was unfounded. He was of the view that [NAME]’s behaviour did not deliberately mean to intimidate her . [ 187 ] [NAME]’s letter, dated May 19, 2020, to the ombudsman, [NAME], further demonstrates that he was of the view that intention was required to conclude that harassment occurred. The relevant excerpt of the letter, found in paragraph 4(b), reads as follows: … … When I consider the incidents within the element of [NAME] knowing or ought reasonably to have known his conduct would cause offence or harm, I don’t believe his intentions were malicious … I don’t think that his [[NAME]’s] behaviour deliberately meant to intimidate , nor do I think his communication to [NAME] was any different than he addresses anyone in the office while attempting to collectively accomplish OSISS objectives.… [Emphasis added] [ Sic throughout] [ 188 ] It was reckless for the employer not to follow its Instructions. That failure may have impacted the investigation’s outcome. I note that the employer was unable to provide a reasonable explanation as to why it did not follow the directions provided in the Instructions. [ 189 ] Second, [NAME] did not interview two of the three key witnesses whom [NAME] had proposed. Although he met with [NAME] and [NAME], to try to obtain from them, using his word, a “feel” of how things were going in the office, he never discussed with them the specific allegations raised in her complaint. He did not inform them that the discussion was in any way related to her complaint. [ 190 ] I fail to see how such an informal discussion could have been of any use in investigating the allegations. Had the proposed witnesses been properly interviewed, they could have provided some valuable information about the harassment and bullying that [NAME] experienced, which might also have changed the investigation’s outcome. [ 191 ] [NAME] justified his decision not to interview [NAME] and [NAME] as maintaining confidentiality. I find that explanation difficult to accept. Confidentiality considerations should not operate as a barrier to conducting a thorough investigation. I also question why there were no confidentiality concerns expressed when [NAME] was interviewed, yet such concerns were raised with respect to the other two witnesses. [NAME]’s reason to justify his decision not to interview [NAME]’s two key witnesses was invalid and unconvincing. It was reckless for the employer not to interview them in the course of its investigation. [ 192 ] Based on all that, I conclude that the manner in which the employer investigated [NAME]’s complaint displayed disregard for or indifference to the consequences. That warrants an award of special compensation under s. 53(3) of the CHRA . It should serve as a deterrent and ensure that future investigations are carried out with due diligence. [ 193 ] I consider that although the employer’s conduct was not so egregious as to [NAME] the maximum compensation under this heading, nevertheless, it was serious. In my view, an award of $10 000 is appropriate in the circumstances. c. No evidence of any further discriminatory practices [ 194 ] In her final submissions, [NAME] briefly asks the Board to order the employer to cease “… any further discriminatory practices in relation to this matter” because she has a very demanding job that is important to her. She is good at her job and wants to continue to do it, without any continued impact. [ 195 ] But [NAME] does not explain what “… further discriminatory practices in relation to this matter” she refers to, in addition to the discriminatory harassment. No other discriminatory practices, aside from the discriminatory harassment, have been alleged before the Board or proven to have taken place. It is not for the Board to guess or speculate what discriminatory practices [NAME] refers to exactly. Without knowing specifically what practices it is being asked to order the employer to cease, the Board cannot issue the requested relief, assuming that it even has the authority to issue relief of that nature. B. Refusal to [NAME] an exemption from the [NAME] (Board file nos. 566-02-45285 and 45288) [ 196 ] In essence, [NAME] alleges that the employer discriminated against her on the basis of disability by failing to accommodate her. In the grievance numbered 5239 (in Board file no. 566-02-45285), she also alleges that it breached article 6 (managerial responsibilities) of the collective agreement by refusing to exempt her from the [NAME]. However, at the hearing, she did not pursue that allegation. [ 197 ] For the reasons that follow, I have concluded that [NAME] did not establish a prima facie case of discrimination by reason of disability. Specifically, she did not establish that she has a disability that prevented her from being vaccinated.

1. Legal framework [ 198 ] The duty to accommodate flows from the duty not to discriminate. When an employee has a disability that prevents them from performing their employment-related duties, the employer has a positive obligation to accommodate them, so that they can continue to work, unless doing so would cause the employer undue hardship. [ 199 ] However, I would like to stress that the duty to accommodate is not a standalone obligation; it arises only once the employee has established a prima facie case of discrimination. A failure to accommodate is not a prohibited ground of discrimination or a discriminatory practice (see [NAME] ([COMPANY]) v. B.C. Nurses’ Union , 2006 BCCA 57 at para. 37; [NAME] v. [COMPANY] , 2021 CHRT 14 at para. 84; [NAME] v. [NAME] , 2007 CHRT 31 at para. 86; and [NAME] v. [NAME] , 2021 CHRT 38 at para. 92). [ 200 ] The duty to accommodate comes into play once the complainant or [NAME] has made out a prima facie case of discrimination. Only then an employer or a respondent may raise a bona fide justification by way of a defence to a discrimination allegation as provided in s. 15(2) of the CHRA (see [NAME] v. [NAME] , at para. 87). Put simply, if the complainant or [NAME] fails to meet that threshold, the employer has nothing to justify. [ 201 ] In the earlier section that dealt with the first grievance, I explained what a [NAME] or complainant must do to establish a prima facie case of discrimination. There is no need to repeat it. It suffices to say that in cases in which an employee alleges that the employer discriminated against them by reason of disability, they must demonstrate that on a balance of probabilities, they have a disability (i.e., a medical condition that creates a functional restriction), that they suffered an adverse impact, and that their disability was a factor in that adverse treatment (see [NAME] v. [NAME] (Education) , at para. 33; and [NAME] , at paras. 63 and 64). [ 202 ] Specifically, in a case dealing with a discrimination allegation related to a request for a medical exemption from the [NAME] must first establish, on the balance of probabilities, that they have a medical condition that prevented them from being vaccinated (i.e., a disability). To do so, generally, they must provide sufficient medical information, prepared by a certified health professional, which clearly explains their disability and how it prevented them from becoming vaccinated (see [NAME] v. [COMPANY] , 2025 [NAME] 534 at paras. 21 and 22; and [NAME] v. [COMPANY]. , 2025 [NAME] 615 at paras. 21 and 22). [ 203 ] A bare assertion by a [NAME] that they have a disability that prevented them from becoming vaccinated or vague medical evidence offered to support the alleged disability will generally fall short (see [NAME] v. [COMPANY] ., 2025 [NAME] 622 at paras. 14 and 15; [NAME] , at paras. 90 and 91; [NAME] v. Canada (Attorney General) , 2014 FC 360 at paras. 37 and 38 upheld in 2015 FCA 98; and [NAME] v. [NAME] (Department of Health) , 2008 PSLRB 68 at paras. 30 and 31). [ 204 ] In [NAME] v. [NAME] , 2024 [NAME] 854 at paras. 20 and 21, the Human Rights Tribunal of Ontario found that a generic medical note, stating that “COVID vaccination is not recommended due to medical condition”, was insufficient to establish disability (see also D’[NAME] v. [NAME] , 2023 [NAME] 1053 at para. 2; and [NAME] v. [COMPANY] , 2024 AHRC 146 at paras. 49 and 50). [ 205 ] Once the employee has established that they have a disability, they must further demonstrate that they suffered an adverse treatment and that their disability was a factor in that treatment. As already explained, these elements must be established on the preponderance of probabilities (see [NAME] , at para. 64).

2. The [NAME] [ 206 ] The [NAME] provides that all core public administration employees must be fully vaccinated unless they are accommodated based on a certified medical contraindication, religion, or other prohibited ground of discrimination defined in the CHRA . It has been suspended in June 2022. [ 207 ] Under the [NAME], managers were responsible for reviewing accommodation requests on a case-by-case basis. The employees were responsible for informing their managers of their accommodation needs based on a certified medical contraindication or another prohibited ground of discrimination defined in the CHRA . [ 208 ] The Toolkit lists the acceptable medical contraindications, based on the recommendations of the National Advisory Committee on Immunization as of September 10, 2021. They are as follows: ◦ A history of anaphylaxis after previous administration of an mRNA COVID-19 vaccine ◦ A confirmed allergy to polyethylene glycol (PEG) which is found in the Pfizer-BioNTech and Moderna COVID-19 vaccines (Note that if a person is allergic to tromethamine which is found in Moderna, they can receive the Pfizer-BioNTech product) · Medical reasons for delay of full vaccination against COVID-19 as described by the National Advisory Committee on Immunization as of September 10, 2021 include: ◦ A history of myocarditis/pericarditis following the first dose of an mRNA vaccine ◦ An immunocompromising condition or medication, waiting to vaccinate when immune response can be maximized (i.e., waiting to vaccinate when immunocompromised state / medication is lower) · A medical reason precluding full vaccination against COVID-19 (not covered above) as described. For privacy reasons, the physician or nurse practitioner should only include information related to why the medical reason precludes full vaccination. … [ 209 ] An employee’s treating physician or nurse practitioner could sign the medical form on the grounds for not receiving or delaying the COVID-19 vaccine. The note had to specify whether the reason was permanent or time-limited. [ 210 ] Finally, the [NAME] provides that employees whose accommodation requests were denied and who refused either to become fully vaccinated or to disclose their vaccination status are to be placed on LWOP. 3. [NAME] did not establish that she has a disability [ 211 ] [NAME] did not provide the employer with sufficiently detailed medical evidence substantiating that she has a disability and explaining how that disability prevented her from receiving an mRNA COVID-19 vaccine. [ 212 ] Before the Board, [NAME] testified that she has a history of allergies to medication and that she had to be hospitalized twice for a severe reaction to it. However, no medical evidence was provided at the relevant time (i.e., when the request was made for an exemption from the [NAME]) to substantiate those assertions. [ 213 ] After October 6, 2021, when [NAME] was informed that core public administration employees had to be fully vaccinated by November 15, 2021, she approached her direct supervisor, [NAME], to raise her concerns about receiving an mRNA COVID-19 vaccine. In response, he informed her that to be exempted from vaccination, as the [NAME] mandated, she had to provide a medical note explaining why she could not become vaccinated. In essence, he asked her to provide a medical contraindication to being vaccinated. She accepted his explanation and told him that she would speak with her doctor, to determine the vaccine’s safety. That was in early October 2021. [ 214 ] On or about October 24, 2021, [NAME] provided [NAME] with a medical note, indicating that she had been referred to an allergist for PEG allergy testing and the COVID-19 vaccine. The physician further indicated that [NAME] planned to delay the vaccination until the tests were done. However, this note did not indicate that she had any disability. Later, she informed [NAME] that she had an appointment with [NAME], an allergist, on December 9, 2021. [ 215 ] As a result, on November 10, 2021, the employer informed [NAME] that in light of that information, it would accommodate her temporarily, until December 16, 2021. Consequently, she did not have to become vaccinated, pending that temporary accommodation. However, the employer explained to her that to continue to be accommodated after that date, she would have to provide medical documentation supporting her request. If she failed to, she would be required to become vaccinated or would be placed on LWOP until she became “compliant”. [ 216 ] On December 14, 2021, [NAME] informed [NAME] that she had seen [NAME]. She told him that she left the appointment with an unconfirmed diagnosis of an autoimmune condition (i.e., systemic mastocytosis), which poses significant concerns with respect to spontaneous anaphylactoid reactions. She further indicated that the condition was to be confirmed in the new year through a bone-marrow biopsy. However, she did not provide [NAME] with any note from [NAME] to support this. [ 217 ] Of note, in a medical note dated January 25, 2022, [NAME] expressed views that were inconsistent with [NAME]’s statements to [NAME]. Specifically, he wrote that he did not believe that he “… would have told [her] that mastocytosis is the diagnosis or even likely.” He further indicated, “Of note, mastocytosis is NOT a contraindication for COVID vaccination (or any other vaccination) and not a valid reason for vaccine exemption.” In summary, [NAME]’s note does not support that [NAME] has a disability that prevented her from becoming vaccinated. While it is not entirely clear how or when the employer obtained the note, this issue need not be resolved for the purposes of this decision. It formed part of the parties’ joint book of documents and was admitted into evidence. [ 218 ] Based on the evidence presented before me, as of the day on which [NAME] was placed on LWOP, December 17, 2021, she did not provide the employer with any evidence from a certified health professional that confirmed that she has a disability that prevented her from being vaccinated. [NAME], the allergist, did not recommend that she be exempted from vaccination. In fact, based on his January 25, 2022, note, he saw no reason that she could not be vaccinated. [ 219 ] [NAME] did not provide the employer with any medical note establishing that she has a disability that prevented her from being vaccinated, there was no basis for it to [NAME] her request for an exemption from the [NAME] for medical reasons. [ 220 ] A few months later, [NAME] provided the employer with a medical note dated March 24, 2022, and signed by [NAME], her new physician. It supported her request to be exempted from the [NAME]. The relevant excerpt reads as follows: … …it is recommended ON A PERMANENT BASIS, due to medical reasonings [sic] that [[NAME]] should not take COVID 19 MNRA and DNA vaccinations. As a physician I would support a live Covid 19 vaccine. [[NAME]] understands the risks of contracting the Covid virus. She will endeavour to put her best effort forward by maintaining her own personal hygiene regimen, sanitizing and social distancing.… … [ 221 ] I find this note of very limited probative value. It does not establish that [NAME] has a disability that prevented her from being vaccinated. It does not indicate that she had any medical limitations or restrictions that contraindicated vaccination. A physician’s recommendation that a patient should not be vaccinated “due to medical reasonings [ sic ]”, without further explanation, is unhelpful. It is inherently vague and overly broad, as it may encompass a wide range of non-medical considerations unrelated to any medical inability to be vaccinated. From whatever angle [NAME]’s note is considered, it does not establish that [NAME] had any medical limitations or contraindications that prevented her from becoming vaccinated. I adopt the Human Rights Tribunal of Ontario’s conclusion in [NAME] that a generic medical note, such as the one before me, is insufficient to establish a disability. [ 222 ] I would like to reiterate that an employee seeking accommodation for a medical reason must first establish that they have a disability. Generally speaking, this must be supported by a note from a certified health professional that provides credible and sufficient medical information about the employee’s limitations and restrictions. A medical recommendation should generally be accompanied by an explanation. The medical note dated March 24, 2022, falls short of that requirement. In the absence of sufficient evidence that [NAME] has a disability that prevented her from being vaccinated, the employer’s duty to accommodate was not engaged. [ 223 ] As previously explained, the duty to accommodate is not a standalone requirement; nor is a failure to accommodate a prohibited ground of discrimination (see [NAME] v. [NAME] , at para. 86). It arises once the employee has established a prima facie case of discrimination by reason of disability, religion, or another prohibited ground. [ 224 ] I disagree with [NAME]’s argument that the employer ought to have followed up on [NAME]’s note or asked her additional questions, such as those in the Medical Statement Form, found in the Toolkit. Allow me to explain. [ 225 ] [NAME] informed her supervisor, [NAME], of her concerns about becoming vaccinated, he advised her that to be exempted from the [NAME], she had to submit a medical note explaining why she could not be vaccinated. She knew the information that she was required to submit. There is no evidence to the contrary. She did not require any further clarification. She booked an appointment with the allergist, [NAME], to determine whether she could become vaccinated. [ 226 ] After the employer explained to [NAME] the information that she had to submit to support her exemption request, it was incumbent on her to provide it. The employer’s role is not to undertake an open-ended search for information to establish [NAME]’s disability and the need for accommodation. That responsibility rests with the employee. [ 227 ] I am not suggesting that an employer may reject a medical note outlining an employee’s limitation without seeking further clarification merely because, in its view, the limitation is imprecise or lacks sufficient detail to understand the nature and scope of the employee’s disability. After all, the search for accommodation is a multiparty inquiry (see Central Okanagan School District No. 23 v. Renaud , [1992] 2 S.C.R. 970). [ 228 ] However, as already discussed, the March 24, 2022, medical note does not outline any medical limitation or contraindication that would have prevented [NAME] from becoming vaccinated. It does not provide any information to support that she has a disability. In that context, I am of the view that there was nothing to clarify or that warranted further inquiries by the employer. She was aware that to be exempted from the [NAME], she had to provide a note explaining why she could not become vaccinated. Unfortunately, she did not provide the requested information. [ 229 ] The Board’s decisions in [NAME] v. [NAME] (Canada Border Services Agency) , 2021 FPSLREB 7, and [NAME] v. National Research Council of Canada , 2005 PSLRB 150, which [NAME] relied on to support her argument that the employer ought to have inquired further after it received the March 24, 2022, medical note, can be distinguished. [ 230 ] In [NAME] , the Board found that the employer failed to meaningfully deal with the limitations that [NAME]’s physician had identified (see paragraphs 320 to 327). That is not so in this case. As already explained, [NAME] did not identify in the note any limitations, restrictions, or, generally speaking, a disability that prevented [NAME] from receiving a vaccine. Therefore, there was nothing further for the employer to inquire about. [ 231 ] In [NAME] , the Board dealt with an entirely different issue than the one in this case. Specifically, it was asked to determine whether the employer’s actions against [NAME] were disciplinary in nature, rather than administrative, and if so, whether they were warranted. [ 232 ] In that case, among other things, the employer questioned, for several reasons, the validity of one of [NAME]’s medical certificates, which recommended that he take stress leave. In that context, the Board was of the view that the employer “… had many other options and ignored the usual process for the questioning of a tendered medical certificate.” The Board was further of the view that [NAME] never had the opportunity to provide more information from his physician because it was not clear what the employer was looking for (see paragraph 141). [ 233 ] That is not what occurred in this case. As already mentioned, the March 24, 2022, medical note was silent as to whether [NAME] had any limitation that prevented her from being vaccinated. Based on that, the employer concluded that vaccination was not medically contraindicated for [NAME], and therefore, it did not [NAME] an exemption from the [NAME]. I agree with the employer’s conclusion, for the reasons already expressed. In addition, unlike in [NAME] knew exactly what information was required to be exempted from the [NAME] and was given the opportunity to provide it. [ 234 ] Finally, the fact that the employer did not refer [NAME] to the Medical Statement Form, found in the Toolkit, is inconsequential. In essence, the form simply asks for a reason that precludes an employee from becoming fully vaccinated. [NAME] clearly explained to [NAME] that to be exempted from the [NAME], she had to provide a medical note, explaining why she could not become vaccinated. This is exactly what that form is all about. There is no indication that [NAME] did not know the information that she was required to provide, to be exempted from the [NAME]. [ 235 ] For all of the above reasons, the Board makes the following order: (The Order appears on the next page)

IV. Order [ 236 ] The grievance in Board file no. 566-02-45284 is allowed in part. [ 237 ] I declare that the employer breached article 19 of the collective agreement. [ 238 ] The employer shall pay [NAME] $10 000 in compensation for pain and suffering under s. 53(2)(e) of the CHRA within 30 days of the date of this decision. [ 239 ] The employer shall pay [NAME] $10 000 in special compensation under s. 53(3) of the CHRA within 30 days of the date of this decision. [ 240 ] The grievance in Board file no. 566-02-45285 is denied. [ 241 ] The grievance in Board file no. 566-02-45288 is denied. [ 242 ] The Board remains seized of this matter for 60 days, to deal with any issues arising from the issuance of this order. February 10, 2026. [NAME], a panel of the Federal [NAME] and Employment Board