CANADIAN RAILWAY OFFICE OF ARBITRATION

& DISPUTE RESOLUTION

CASE NO. 5200

Heard in Edmonton, July 10, 2025 Concerning CANADIAN PACIFIC KANSAS CITY RAILWAY And TEAMSTERS CANADA RAIL CONFERENCE

DISPUTE: Appeal of the August 4, 2024, Employment File closure of Locomotive Engineer Don Tays of Red Deer, AB. JOINT STATEMENT OF ISSUE: On July 4, 2024, by means of a letter the Company notified Mr. Tays of the intent to close his employment file effective August 4, 2024. Mr. Tays had been absent from work as a result of a reported medical condition since July 11, 2021. Mr. Tays was advised that if any of his current work restrictions had changed, or if there were any specific temporary accommodations that he felt he would qualify for, to forward that information to the Company by August 4, 2024. On August 4, 2024, Mr. Tays received a letter which stated the following: “In the letter sent to you July 4, 2024, you were advised of the Company’s intent to close your employment record. You were invited to provide any new information which may cause us to reconsider our decision, by August 4, 2024. As of this letter, we have not received any new information from you” Please be advised that your employment record will be closed effective August 5, 2024. Union’s Position: The Union asserts that the Company has failed to meet their duty to accommodate Mr. Tays and has violated the Canadian Human Rights Act – Discriminatory Practices – 15(2). Mr. Tays has been diagnosed with a bona fide on-duty injury therefore as per the Canadian Human Rights Act, the Company must accommodate the individual affected to the point it would impose undue hardship on the Company, considering health, safety, and cost. The Union further contends the Company has violated Article 36, the Company under the Return-to-Work policy has a duty to accommodate individuals who, due to a bona fide medical condition, cannot perform their regular duties. Mr. Tays’ last stage of his TPI program, the on-thejob portion, was to operate a locomotive under the direct supervision of another qualified Locomotive Engineer. In part the CMO states in his disability pension application denial letter that with further treatment it may be possible that Mr. Tays may be provided with a workplace accommodation, yet the Company would not allow him to complete the required treatment. The Company has failed to accommodate Mr. Tays to the point of undue hardship. A single option offered by the Company, without producing other options or proving that undue hardship would exist, is unreasonable and unacceptable. Regarding the Company’s Step-2 response none of the accommodation options listed from 2022, were presented to Mr. Tays or

the Union. Furthermore, the Company’s assertion that Mr. Tays is unwilling to relocate is not entirely accurate. Mr. Tays communicated clearly that the compensation that the Company offered in their lone accommodation offer was insufficient and would place undue financial burden on Mr. Tays by moving to a city with a higher cost of living, in addition to the burden of moving away from his support network of medical professionals, family, and friends. The Union submits that this is a more significant factor that must be considered when attempting to accommodate a mental injury as compared to a physical injury. The Union submits that the Company’s duty to accommodate is not limited to filling an existing position but must examine whether duties exist that may be bundled to create a new position. The Union submits that Mr. Tays has incurred a life altering condition directly from his service to the Company and was injured while on duty. The Company’s CMO stated in his letter to Mr. Tays that his disability pension application was denied because: “With further medical assessments and treatment it may be possible that we will be able to provide you with a workplace accommodation to give you an opportunity to return to gainful employment, to deny this to you on a permanent basis, based on a medical condition that may be expected to improve, would not seem reasonable at this time.” The Union submits that it is not reasonable for the Company to have the position that Mr. Tays can be accommodated and simultaneously that there is no suitable accommodation for him. The Company is in violation of Canada Labour Code Part-III Division-XIII 239(6) which states that “an employer cannot dismiss, suspend, lay off, demote, or discipline an employee for being off for medical reasons.” To close Mr. Tays file for an injury suffered while working for the Company would be in violation of the Code. The Company has violated the Canadian Human Rights Act – Discriminatory Practices – 7: “It is a discriminatory practice, directly or indirectly, to refuse to employ or continue to employ any individual on a prohibited ground of discrimination. “ Mr. Tays’ diagnosed mental condition is a recognized disability as such the Company’s passive effort to accommodate Mr. Tays is a Prima Facie case of discrimination. The Union relies on past jurisprudence in CROA 4286, 4505 4514 and 4648. In this case the Company has provided no evidence of undue hardship in accommodating Mr. Tays. Further, Mr. Tays has expressed his eagerness to return to work in some capacity and the Company employs people in many capacities beyond the operation of freight trains, his only restriction is the operation of freight trains. Mr. Tays has participated in all the treatment and return to work programs provided by WCB and has demonstrated his willingness to return to work. Mr. Tays has further demonstrated his willingness and ability to be retrained; the Union submits that the Company’s unwillingness to offer any type of accommodation is discriminatory. For the foregoing reasons we respectfully request that the Arbitrator reinstate Locomotive Engineer Tays without the loss of seniority and that he be compensated for lost wages with interest, and benefits for his time withheld from service. The Union further request that the Company be directed to pursue a suitable accommodation until such time that he can return to his regular position as Locomotive Engineer. Furthermore, the Union is seeking damages be paid to Mr. Tays for the undue suffering he sustained while the Company unnecessarily drew out this process and failed to provide any attempt at a suitable accommodation. Instead, the Company callously terminated his employment while he was attempting to recover from his mental injuries and return to active employment. In the alternative, in the event that a suitable accommodation cannot be found for Mr. Tays, the Union request that his Disability Pension be approved. Company Position: For all the reasons and submissions set forth in the Company’s grievance replies, which are herein adopted, the following outlines our position. The Company disagrees and denies the Union’s request.

The Company maintains given the fact of Mr. Tays case, it is not in violation of article 36 of the collective agreement, the Canadian Human Rights Act (CHRA), the Canada Labour Code (CLC), nor the RTW policy. The Grievor has been on prolonged restrictions, with no anticipated date of improved prognosis from his Safety Critical duties. CPKC health services confirmed that the Grievor has permanent restrictions with no foreseeable prognosis of improving. The Grievor’s restrictions ultimately deemed him restricted from performing the duties of any Safety Critical Work. This has unfortunately left the Company at a point of undue hardship in its duty to accommodate. Company records include the following facts and efforts to accommodate the Grievor:

• March 02, 2022 – Opportunity to work in the mail room cataloguing boxes in Calgary. He was not suitable candidate as he did not reside in Calgary and was unwilling to relocate.

• March 15, 2022 – Talent Acquisition position in Calgary. He was not a suitable candidate as he did not reside in Calgary and was unwilling to relocate.

• May 05, 2022 – Reservations coordinator in Calgary. He was not a suitable candidate as he did not reside in Calgary and was unwilling to relocate.

• January 19, 2024 – Offered a permanent position as a crew dispatcher and employee advised he was willing to relocate.

• Following the offer, Mr. Tays declined as he was unwilling to relocate again. Regarding the Union’s position on damages. The Union provides no rationale in support of its claims for damages. Damages are reserved for conduct, which is found to be harsh, vindictive, reprehensible and malicious, as well as extreme in its nature such that by any reasonable standard it is deserving of full condemnation and punishment, as established in the notable Honda Canada Inc V. Keays Supreme Court of Canada decision. For these reasons, the Company maintains that it reached the point of undue hardship and that the Grievor’s employment record was appropriately closed. The Company request that the Arbitrator be drawn to the same conclusion and dismiss the Unions grievance in its entirety.

For the Union: For the Company: (SGD.) G. Lawrenson (SGD.) F. Billings General Chairperson Director Labour Relations

There appeared on behalf of the Company: S. Scott – Manager Labour Relations, Calgary S. Oliver – Manager Labour Relations, Calgary B. Salter – Specialist WCB Claims, Portquitlam

And on behalf of the Union: R. Church – Counsel, Caley Wray, Toronto G. Lawrenson – General Chairperson, LE-W, Calgary B. Myre – Vice General Chairperson, LE-W, Red Deer M. Bessette – Local Chairperson, Red Deer D. Tays – Grievor, Red Deer

AWARD OF THE ARBITRATOR

[1] This Grievance involves the Company’s decision to close the Grievor’s employment file.

[2] As noted in this Arbitrator’s very recent Award in CROA 5166 – and by other Arbitrators in this industry file closure cases do not sit comfortably in the CROA expedited process, as they are evidence “heavy”.

[3] In this expedited process time to both argue cases – and time to review material and issue Awards – are both short. Given that reality, not every authority or fact will be referenced in this Award, although all material filed was carefully reviewed in reaching the conclusions in this Award.

Background, Issue & Summary

[4] The Grievor was employed as a Locomotive Engineer. He was hired on January 4, 2004.

[5] The Grievor worked out of the Red Deer, Alberta, terminal, which is a smaller terminal in the context of the Company’s operations. A larger terminal in Calgary is located 150 km south of Red Deer.

[6] Through no fault of his own, the Grievor was tragically involved in a fatal accident where a train struck a car in a crossing, killing a mother and injuring her child.

[7] Unfortunately, this was the third time a train being operated by the Grievor struck an individual on the track, as explained below.

[8] The Grievor has been left with significant mental health issues as a result of this involvement in this accident, which have left him unable to hold either a safetysensitive or a safety-critical designation. I am satisfied from my review of the evidence the Grievor can only hold a non safety-sensitive/non-safety critical position with the Company (also referred to as “NSSP’s”).

[9] All people present in the hearing room expressed their sympathy to the Grievor for the tragic events which he experienced. The question at issue in this Grievance, however, is whether the Company failed to accommodate the Grievor in returning to productive work, before it moved to close his file.

[10] For the following reasons, I am satisfied it has not.

[11] The Company has met its accommodation obligations toward the Grievor.

[12] The Grievance is dismissed.

Legal Principles

[13] Arguments of the parties are incorporated in the body of this Award.

[14] In a lengthy and recent Award, this Arbitrator has recently considered the law of accommodation when a Grievor chooses not to relocate: CROA 5166. The bulk of the authorities filed into this process were in fact recently canvassed in that Award, which was issued in July of 2025.

[15] Given the expedited nature of this process, it is unnecessary to duplicate that analysis in this Award. The analysis in CROA 5166 is adopted, although will not be repeated, here. A direction will also issue that this decision is to be read in conjunction with CROA 5166 , for any precedential value.

[16] As noted in CROA 5166 , accommodation is a tripartite process, imposing obligations on the Company, the Grievor and the Union to make the process effective. Assuming a prima facie case of discrimination has been established by the Union, the Company’s duty to accommodate arises. That duty is to provide accommodation to the injured employee, to the point of “ undue hardship ”.

[17] The goal of accommodation is to return the employee to productive work. All parties in this tripartite process must cooperate in the accommodation process – which can involve compromise and flexibility on all sides.

[18] It is well-accepted that an employee is not entitled to “ perfect ’ accommodation. The standard is “ reasonable ” accommodation. What is “ reasonable ” in any case is fact dependent, so precedents are of limited value, beyond setting out the principles to be applied.

[19] Whether the point of “ undue hardship” has been reached is a fact dependent question, based on a number of factors. The industry in which the Grievor works is a relevant factor when assessing what is reasonable accommodation, and when the point of undue hardship has been reached. While it is true the Company is a “large” Company – a point made by both the Grievor and by his doctor in the evidence filed the nature of the industry in which the Company operates is relevant.

[20] It is well-established the Company must bring evidence of its attempts to accommodate the employee, to meet its obligations. It cannot simply say there are no positions.

[21] As discussed, and recognized in CROA 5166 , it may well be that all parties to the accommodation process satisfy their obligations to the best of their respective abilities, but there is still no position found for the employee. This may result, as there is no “ absolute ” obligation to accommodate an injured employee, as noted in the jurisprudence.

[22] The Company can meet its accommodation obligation by offering to the employee reasonable accommodation. If the employee chooses to decline that accommodation, the jurisprudence has accepted that this brings the Company’s obligation to an end, because the Company’s obligations under the process have been satisfied with that reasonable offer. An employee can also bring the accommodation process to an end when they impose limitations on where they are willing to work and the type of work they are willing to do, as noted in the jurisprudence discussed in CROA 5166.

[23] Those limitations can serve to frustrate the accommodation process.

[24] The Company is not required to eject incumbents from positions to create space for an injured employee. It is also entitled to expect productive work from an individual in an accommodated position.

[25] As noted in CROA 4503 , the Supreme Court of Canada requires that a “ wholistic ” view be taken of the accommodation process.

[26] In this case, that viewpoint requires review of the involvement, efforts and recommendations of the WCB.

Application to the Facts

[27] The Grievor was involved in three fatal accidents involving people on the track during the course of his career.

[28] It must be emphasized the Grievor was not at fault for any of these accidents.

[29] The first fatality involved a trespasser on the track. That individual emerged from the ditch after the engine had passed. While the Grievor heard an unusual noise, he did not witness the collision between that individual and his train but was told about that event from a following crew.

[30] He was off work for a few days after that incident.

[31] In October, 2019, a second incident occurred, when a man stepped in front of the locomotive the Grievor was operating, committing suicide.

[32] The Grievor was off work for nine months after that accident. As it was a workrelated injury, he received the assistance of the Workers’ Compensation Board of Alberta (the “WCB”) and participated in the Traumatic Psychological Injury (“TPI”) program of that organization.

[33] He made a gradual return to work in July 2020.

[34] On July 11, 2021, one year after returning to work, the Grievor was involved in another fatal collision, when the engine operated by the Grievor collided with a car traversing the crossing. This accident resulted in the death of a woman and in injury to her child (the “Accident”). It is this third Accident which is at the heart of this Grievance.

[35] As this was again a work-related accident, the Grievor has again received the assistance of the WCB and he again went through its TPI Program to aid his return to work. That program included psychological counselling. The Grievor began the TPI program in August of 2021, and it was anticipated he would need 15-20 weeks of counselling at that point.

[36] He was diagnosed with several severe mental health conditions. He ultimately received significantly more treatment than was first anticipated and was advanced to Level 2 of that Program, as noted below.

[37] It should be noted that the WCB file of the Company was not filed into these proceedings, however, multiple counselling reports from the Grievor’s participation in the TPI Program of the WCB were filed by the Union as evidence and have been carefully reviewed.

[38] It was noted in the report dated September 27, 2021 that the Grievor had not found exposure therapy helpful after the previous (second) incident, and was apprehensive about that form of treatment, however it was also noted that exposure therapy would be “ needed to help lower his anxiety levels around work and his workplace injury ”. That recommendation continued throughout the Grievor’s time in the TPI Program.

[39] The Grievor decided to pursue that therapy in October of 2021 and began working with an Occupational Therapist. However, in February of 2022, it was noted the Grievor was “ stuck in his thinking pattern around his workplace injury ”. In April of 2022, it was recommended the Grievor receive “Comprehensive Psychological Assessment and Neuropsychological Assessment, and an expectation of 16-25 further bi-weekly sessions was noted. It was noted the Grievor was still “ stuck in

his thinking patterns around his workplace injury ” and that he had been diagnosed with PTSD by a psychiatrist in February of 2022.

[40] In July of 2022, a “Further Independent Assessment” was “ required to support further treatment planning (lack of progress) ”. It was noted the Grievor had “ actively participated ” his counselling, but was “ stuck in his thinking patterns around his workplace injury ”.

[41] A “ level 2 ” TPI program was recommended, but the waitlist was approximately four months, so counselling sessions continued.

[42] In October of 2022, a Level 2/3 Initial Report for the TPI Program was completed. This was a comprehensive Report and contained important evidence. It was noted the Grievor was “ stuck in ruminative thinking and suppressed sadness/guilt ” and that he would benefit from psychoeducation around emotional suppression/avoidance and emotional processing.

[43] The Grievor ultimately declined that education.

[44] It was also noted that the Grievor would “ benefit from processing and practice sessions using the Rail Simulator, whereby he could challenge some of his cognitions, face his fears in a safe context, and rebuild some confidence ”. There is no direct evidence the Company was ever made aware of – or approached to accommodate – that opportunity, however there is a reference in a December 2022 report to the Grievor “ working on conditioning himself to his work environment, in simulation manner…”. , so it appears from this indirect evidence that this occurred.

[45] It was noted that during the reporting period leading to that Report, the Grievor “ endorsed higher levels of traumatic distress than prior to the program … Don does not indicate symptom improvement on the measures above, which is congruent with his narrative description and suggestive of his concerns that previous treatment was ineffective ”.

[46] In discussion around barriers, that Report noted the Grievor was “ not ready to give up on his work as a locomotive engineer ” although he was also noted to be “ unsure if he can go back, or if he wants to ”.

[47] It was also stated that the Grievor was “ not able to conceptualize alternative roles within the company at this time ”.

[48] It was also stated that “ [h]e [the Grievor] noted that while some modified duties are available (e.g. crew truck) he described that as being a “glorified taxi driver” that would require him to relocate to Calgary, which he was not interested in doing”.

[49] This evidence established that as early as October 3, 2022, the Grievor was not interested in a role which would require him to move to Calgary or to modified work as a “ glorified taxi driver ”. That Report also noted the Grievor was not fit to return to modified duties and was not yet able to “ progress with worksite reintegration”.

[50] At the end of that month another Report was created. The Grievor was likewise noted to not be ready to return to any modified duties and was “ extremely cautious around return-to-work discussions ”.

[51] A return-to-work plan was noted to be “ not applicable ”.

[52] It was noted he was in agreement “ with the ideal of shadowing his peers at work to monitor his readiness to work ” (which occurred, as noted below).

[53] It was also noted that a case conference was scheduled for November of 2022 to address a gradual return to work plan, to “serve as gradual exposure scenario ”.

[54] On December 12, 2022, a further Report was filed. It stated:

From a psychological perspective, Don appears fit to begin modified duties at the train station…he is temporarily restricted – from a psychological health manner – from independent performing safety critical work at this time…Don has been working on conditioning himself to his work environment, in simulation manner, and reports some progress in decreasing his reactivity. In order to promote his habituation Don will have to participate in some form of work engagement in his work environment, which was agreed upon as a next step in his treatment.

[55] That Report also noted that a case conference was held on December 6, 2022 “ with client, his WCB case manager, Chelsea Moore, his employer WCB liaison, Melanie Brace ”. It was noted that his progress was discussed and that “[ a]ll parties agreed to a gradual plan of RTW/exposure”. The Report noted that: He is recommended to progress towards full hours and duties through a gradual return to work plan but will have temporary restrictions to independently performing safety critical work until work tolerances can be built up.

[56] It was also noted that he had:

…reached the point at which he is comfortable visiting the station and exposing himself to his work environment. He is not; however, ready to be

present around locomotives and other machinery at this time. Slow progression in his work environment will serve as a conditioning mechanism to slowly progress Don to locomotive operation. Negotiations with Don’s employer are ongoing in an attempt to create most feasible plan to assist Don with gradual return to work. Presently, Don is set to return to limited duties in a form of site visitations and assisting some of his colleagues with shift preparation. Once implemented, this plan will be reviewed to tailor to Don’s comfort level and preparedness to undertake more duties, with an intent to return to full duties. [57] His treatment was also extended for an additional 8 weeks of counselling. At that point, he had engaged in 23 counselling sessions with the Level 2 Program.

[58] This shadowing did take place with the Company. The Grievor participated in several ride alongs on trains, and also undertook other Company work, such as preparing paperwork for shifts, as part of his exposure therapy treatment, while he was undergoing the TPI Program. Reference was also made to “ work hardening ” in a “ simulated manner ”.

[59] In January of 2023, a further 8 week extension for the Grievor’s counselling was requested. This Report also refers to the Grievor’s work conditioning through simulation. He was “ psychologically cleared to progress with worksite reintegration ” but it was noted that while the Grievor was “ fit to begin modified duties at the train station ”, he was still restricted from “ independently performing safety critical work at this time”.

[60] I am satisfied from a careful review of the evidence that January of 2023 was the first time that the Grievor was noted to be fit, even for modified duties.

[61] It was also noted:

Although delays to starting the gradual return to work plan may be expected, due to coordination of communication between stakeholders, Don is ready and waiting to start the process as soon as able. Unexpected or lengthy delays may expectably produce increased psychological distress.

[62] The next report is dated March 1, 2023. It is at this point that the Grievor’s treatment and the Company’s ability to accommodate that treatment part ways.

[63] In this Report, the following statement is made:

Don is strongly recommended to complete progressive in vivo exposure therapy (i.e. moving from observation to operation) of the work vehicle (i.e. train), which may be implemented as training, modified duties or treatment. Permanent work restrictions are anticipated in the absence of provisions for this progressive exposure therapy.

[64] The Report also noted that the Company was “ unable to provide progressive accommodations (i.e. operating a train with the supervision of another colleague, for a temporary time), that will allow Don to move from shadowing a train towards operating it independently ”.

[65] The Report went on to repeat that permanent restrictions would be anticipated in the absence of such therapy.

[66] The Report in fact noted that the Company has “ not been able to provide the necessary accommodations to allow Don to meaningfully progress with his functional recovery”. The fact that the Grievor had visited the train station and had ride alongs with his colleagues within the yard was again noted. That Report also noted the Grievor had “ flagging motivation ” and “ worsening symptoms” with “ return-to-work delays which Don believes are adversely affecting his psychological coping ”.

[67] As the Company was unable to allow the Grievor to operate its trains until he was able to achieve safety-critical qualification, the Grievor was then left with the permanent restrictions anticipated.

[68] On March 27, 2023, the Company moved to close the Grievor’s file, and sent a letter of c losure, as it was stated that the Company was “ unable to perform any job with CP for the foreseeable future ”.

[69] The Grievor sent an email on April 4, 2023 questioning this decision, given there were no other attempts made to accommodate him.

[70] The Grievor then determined he would apply for a CP disability pension, and the file closure process was put on hold while that application took place.

[71] Meanwhile, the Grievor continued his counselling in the TPI Program. A further Report was issued from that Program on April 10, 2023.

[72] It is evident in that report that both the WCB and the Grievor were still intent on trying to facilitate the Grievor’s return to being a locomotive engineer. It was noted that “[t]he involvement of an industry specialist was discussed with the WCB claim owner, to explore any options for facilitating some progress between shadowing in a train and independently operating such a vehicle ” and that “ permanent restrictions are recommended in the absence of provisions for progressive exposure therapy ”.

[73] At that point, however, it was also noted in the Report that given there was no return to being a locomotive engineer the WCB recommended the Grievor be referred to “ Re-Employment (RES) ”.

[74] The Report noted the Grievor was “ permanently restricted from independently operating a train ”.

[75] The Grievor indicated to the Company in an email in April of 2023 that he “ may ” relocate if a suitable accommodation were found outside of Sylvan Lake, Alberta, but that it would “ depend on the offer ”.

[76] The Grievor at that time also felt he could be accommodated with an Assistant Trainmaster (“ATM”) or Trainmaster position in Red Deer.

[77] The Grievor then chose to apply for a disability pension. That pension was ultimately denied in August of 2023 as it was felt the Grievor had not reached permanent recovery and could possibly be accommodated by the Company.

[78] On January 4, 2024, the Company offered the Grievor a permanent accommodation as a Crew Dispatcher in Calgary. It was noted his representation would be the United Steelworkers Union, but that his vacation would continue to be based on his company service, scheduled under the USW agreement.

[79] On January 31, 2024, the Grievor declined this position. The Grievor took the position this position did not “adequately accommodate my current requirements ”. The Grievor noted in his emailed reply that there would be a financial loss to him in moving to Calgary given that the rate of pay was “ effectively half of my previous position ” and the cost of living in Calgary was “ double that which I currently have ”.

[80] As the Grievor was subject to WCB involvement, this did not necessarily follow.

[81] He also stated his mental burden “ would also be unreasonable ” as he would be required to leave his support network and health network of his physician. He stated: I want to continue my career with CPKC; I am willing to retrain. A Company as large and diverse as this must have a position that can accommodate me without tearing me away from my support. As we have seen recently, people have successfully been able to work from home and digitally commute. I am hopeful that the Company will take this into consideration and find a position that better suits my restrictions.

[82] The Grievor was ultimately retrained by the WCB and has found employment outside of the railway industry.

[83] The evidence of the Grievor’s own family doctor will be referred to in the Analysis portion of these reasons.

Analysis and Decision

[84] The Company took the position it had met its burden to establish reasonable accommodation. It argued the role it offered the Grievor in January of 2024 satisfied its accommodation obligations. It noted it did not have NSSP options in Red Deer, which was a small terminal and that it had met its obligations when it accommodated the Grievor with a crew dispatch role in Calgary in 2024. As the Grievor declined that position, its accommodation obligations had been satisfied. It pointed out the Grievor was retrained by the WCB and had accepted other employment, which demonstrated he had no intention to return to work for the Company, and that it was justified in closing his employment file.

[85] The Union maintained the Company’s obligation to accommodate the Grievor was triggered and that the Company has not met its burden of proof to establish it appropriately accommodated the Grievor. It took the position the Company failed to accommodate the Grievor for a considerable time period once he was able to begin modified duties, before the crew dispatch offer. It also argued the accommodation offer of a crew dispatcher in January of 2024 was not reasonable accommodation, and that Grievor’s choice not to move to Calgary was reasonable, given his particular mental health issues and his need to be close to his base of support. It argued the WCB also accepted the Grievor’s decline of that offer as reasonable, as his WCB payments continued. It argued the Company had failed to meet its burden to establish reasonable accommodation.

[86] The Grievor has – not unexpectedly been left with significant and permanent mental health conditions as a result of the tragic circumstances he experienced.

[87] The Union has established the Grievor required accommodation under the first branch of the test as outlined in CROA 5661. The burden of proof then shifted to the Company to establish it took all reasonable steps to accommodate the Grievor in its operations.

[88] File closure grievances are “ evidence dependent”. It is not just the evidence of the medical issues that is relevant, but also the evidence of the Company’s efforts to accommodate the Grievor.

[89] Bald statements – whether in a grievance response or in a JSI of accommodation efforts – are not evidence.

[90] As a preliminary point of evidence, the Company has not filed any material from its Disability Management files; its WCB files; or its Occupational Health files, for its efforts. This is unusual, because there are references in the WCB TPI Reports filed by the Union of various meetings between the stakeholders regarding this Grievor, indicating such evidence does exist.

[91] The inference is that this evidence in the Company’s own files would not support is position and that is why it was not produced. That inference is appropriately drawn in this case.

[92] From a wholistic review of the evidence, I am satisfied the Grievor had not recovered to the point he could work even modified duties until January of 2023.

[93] The Company’s obligations to accommodate him arose at that point in time.

[94] I am also satisfied from a careful review of the extensive evidence filed that the Grievor has never been able to meet qualifications for either safety-sensitive or safety-critical work since the Accident. While the Union focused on the evidence of the Grievor’s physician, I am satisfied on a careful review of the totality of the evidence that there is inconsistency in the Grievor’s medical evidence on his limitations. I am further satisfied that the Company was entitled to rely on the specialist care the Grievor was receiving from the WCB TPI Program, when it conflicted with that from the Grievor’s general physician.

[95] For example, in the FAF completed by the Grievor’s general physician in November of 2021, his position was the Grievor could not operate a locomotive, but he included the notation “ alternative available ?” He also stated the effects of the Grievor’s condition were only when he was driving a locomotive.

[96] This was during the same period of time that the WCB had concluded the Grievor was not yet fit for any modified duties, given his significant and persistent psychological injuries.

[97] A further example is seen in the last report completed by the Grievor’s general physician, when the file closure was imminent. In January of 2023, the Grievor’s physician indicated the Grievor was no longer totally unfit, but was capable of “ nonsafety-sensitive work ”. His last FAF in November of 2023 stated the Grievor could work in all positions except for driving a “ locomotive”.

[98] This conclusion was inconsistent with the medical evidence of the specialist who had treated the Grievor in the WCB TPI Program, as detailed above.

[99] It was also clear in several pieces of evidence that the Grievor’s general physician believed the Company should be able to accommodate the Grievor in its organization, and acted as advocate for the Grievor.

[100] Given that the Grievor’s medical limitations were related to his mental health, I prefer the specialist evidence arising from the TPI Program over that of the Grievor’s general physician, where the evidence conflicts.

[101] Operating trains is a highly safety sensitive business. As noted by Arbitrator Picher, the railway is one of the most safety-sensitive industries in this country. It is a reality

• and a relevant factor - that in this industry much of the work available is either designated as safety-sensitive or safety-critical. In this industry, the Company bears significant obligations to ensure that its multi-ton equipment is operated by employees who can maintain the safety qualifications that such operation requires.

[102] It is a well-established principle that an employer is entitled to receive productive work from all of its employees, including those who are accommodated. It is not required to “ make work ” to satisfy its obligations.

[103] It is also relevant that in this particular industry employees are based at many smaller terminals throughout the country, as well as in the larger terminals at the bigger centres.

[104] The Company argued that positions which are not safety-critical or safety-sensitive are largely sedentary and administrative and are not available at all of its smaller centres. When an injury occurs which requires an NSSP in a smaller centre, it maintained, there are limitations in accommodating employees, due to the nature of this industry and relocation may be required to be accommodated: AH697.

[105] I accept that in this industry being a large Company does not necessarily equate to having sufficient sedentary and administrative type positions in smaller centres for injured employees to step into when they can no longer perform safety sensitive or safety-critical work. However, that reality does not absolve the Company to establish it made all reasonable efforts to accommodate an employee, given that such determinations must depend on ‘evidence’ and not on assumption.

[106] That said, in some cases, the evidence given by the Grievor himself can assist the Company in meeting its burden. That was the case in CROA 5166 and is also the case in this dispute.

[107] I am satisfied the Grievor’s significant injuries have left him with permanent restrictions, requiring he be accommodated with an NSSP.

[108] Turning to the various arguments, while the Union argued it is inconsistent that the Grievor was denied a disability pension yet not accommodated before 2024, the two situations do not equate. The fact that the Grievor may not have qualified for a disability pension meant the Grievor was not totally disabled, while the fact he could not be reasonably accommodated only looks at the Company’s ability to accommodate him – and the Grievor’s willingness to accept that accommodation

• in the railway industry. The Grievor has in fact retrained and found other employment, which supports the Company’s decision regarding his pension.

[109] The Union maintained the Grievor did not “ refuse ” other offers in Calgary, but may have been prepared to move for the “ right ” offer. If the Grievor decides to “ wait ” for the “ right ” offer, or places limitations on the type of work that he was unwilling to accept – such as not being a “ glorified taxi driver” – he or she bears considerable risk that those preferences will negatively impact his or her accommodation obligations to cooperate in being accommodated.

[110] In April of 2023, WCB determined the Grievor’s health recovery had reached a plateau and that to progress the Grievor was required to physically operate a locomotive, with supervision, as part of his exposure therapy.

[111] The Company felt it could not allow the Grievor to operate a locomotive unless he had a safety critical designation. I am satisfied that determination by the Company was reasonable. A safety critical designation is required to safely operate a train.

[112] The Grievor was unable to receive that designation without driving a train. While this situation put the Grievor in a “ catch 22 ” situation for returning to work as an LE , the Company is not required to relax its safety standards to ensure the Grievor can return to work as an LE.

[113] The Grievor’s treatment needs must reasonably give way to the Company’s important safety obligations for qualifications required for the safe operation of its multi-ton equipment.

[114] I also cannot agree that the WCB considered the Grievor’s decline of the January 2024 crew dispatch role to be “ reasonable ” as argued by the Union, given his “top up” payments continued. That is an assumption that is not supported by any evidence, as there was no evidence from the WCB of what the WCB thought of the accommodation offer, or of why it acted as it did.

[115] Neither can I agree that even if that determination was made, it is relevant for determining that issue in this separate legal process. A wholistic review of the evidence demonstrates that both the Grievor and the WCB treating professional were focused on returning the Grievor to his pre-accident role of a locomotive engineer. When it became clear that was not possible in early 2023 as the exposure therapy for operating a locomotive could not be advanced beyond shadowing the WCB quickly moved to enroll the Grievor in its retraining program, for a different occupation.

[116] It was at this point that the Company acted to close the Grievor’s file, given the Grievor was proceeding with retraining.

[117] The Grievor in fact has now found alternative work outside of the railway industry.

[118] A close review of the Grievor’s own evidence in this accommodation process is required. I am satisfied the Grievor placed his own limitations for the type of work he would accept and where he would be willing to work, which restricted the ability of the Company to appropriately accommodate him, which also occurred in CROA 5166. From a wholistic review of the accommodation process, I am satisfied that the Grievor never intended to move from Red Deer to be accommodated, and neither was he interested in being a “ glorified taxi driver ” as he described it, in a modified position in the Company, such as a crew dispatch role.

[119] The Grievor’s desire to remain in Red Deer was first demonstrated in the evidence as early as October of 2022 and continued to when he declined the role of crew dispatcher in January of 2024.

[120] Whether or not the Company could have found work for the Grievor between January 2023 and January 2024, I am satisfied the Grievor had no intention of leaving Red Deer for modified work, in any event.

[121] I am satisfied that the evidence demonstrates that the Grievor was in fact not interested in being accommodated outside of Red Deer, despite what the Company might have offered.

[122] I find as a fact the Grievor struggled with the idea of a role that was not closely associated with his former role as an LE and did not allow him to remain in Red Deer. The Grievor in fact felt he should be accommodated as an Assistant Trainmaster (“ATM”) or as a Trainmaster (“TM”) in Red Deer as noted in his email correspondence with the Company and maintained in argument. I am satisfied that neither of those positions would provide suitable accommodation for the Grievor.

[123] First, both of those positions require safety critical level of qualification, which the Grievor did not possess after his Accident, nor was he able to achieve that qualification given his significant injuries. Second, both positions also had incumbents. The Company would not have been required to remove an incumbent from a position to accommodate the Grievor in Red Deer. However, those were the only two positions either he – or the Union – ever noted as being reasonable accommodations for him in Red Deer.

[124] This evidentiary fact makes the Company’s lack of reasonable effort between January 2023 and January 2024 – which would have otherwise been found at least for that time period – to be moot.

[125] Turning to the January 2024 offer, while the facts bear some distinctions from CROA 5166 , I am satisfied that in this dispute – as in that dispute – the Company has made to the Grievor what was a reasonable accommodation offer. The offer of a crew dispatcher role was for an NSSP, which was 150 km away, in Calgary.

[126] It is not unreasonable for employees in smaller centres in this industry to be required to accept accommodations in larger centres or risk the accommodation process being brought to an end when those offers are declined: AH697 , CROA 5166.

[127] While the Union focused on the loss of the Grievor’s base of support which it argued was reasonable given his psychological injuries – and which it argued distinguished this case from CROA 5166 that was not the only basis on which the Grievor struggled with this offer.

[128] I have carefully reviewed all of the evidence filed. The evidence – as a whole demonstrated the Grievor had significant difficulties accepting he would not return to work as an LE, or that he should leave Red Deer for an accommodation which was not an LE position or required him to take on what he viewed as a “ lesser ” role in the Company.

[129] For example, the Grievor expressed different reasons for turning down this accommodation in his counselling sessions, than that he later expressed to the Company. In the counselling notations, the Grievor expressed to his counsellor his dissatisfaction with positions where he would be a “ glorified taxi driver ” or where he would earn considerably less pay.

[130] The Company is not required to find an accommodated position where the individual is able to earn the same pay. It should be noted that the Grievor’s wage

recovery would have been governed by the WCB and may have been subject to a “ top up” in any event, which the Grievor would have been familiar with given his previous involvement with the WCB. That reason of the Grievor appears contrived.

[131] I further disagree with the Grievor’s assessment that the January 2024 offer did not meet his “ requirements”. While the Grievor may have declined the position because it was not ‘”reasonable ” from his own perspective i.e. he felt it was reasonable to him to stay with support and not move from where he is established for that accommodated position that does not mean that the Company’s offer of accommodation failed to meet his objective requirements as a result of his injury was therefore rendered “ unreasonable” , or that the Company must “ make work ” for the Grievor, so he can remain in Red Deer.

[132] That the Company was not able to accommodate the Grievor in Red Deer did not mean the Company was being unreasonable or failed to accommodate the Grievor.

[133] An employee can of course always make a choice to decline a reasonable accommodation, as the Grievor did in this case.

[134] However, the result of doing so is to bring the accommodation obligations of the Company to an end, as those obligations have been satisfied.

[135] I am satisfied that is what has occurred in this case.

Conclusion

[136] Direction is hereby provided that CROA 5166 is to be read with this Award, for any precedential use.

[137] As the Grievor declined the Company’s reasonable accommodation offer – and as the Grievor retrained with the WCB and has now accepted alternative employment

• I am satisfied the Company has met the two tests discussed in CROA 5166 to close the Grievor’s employment file.

[138] The Company is entitled to close the Grievor’s employment file.

[139] The Grievance is therefore dismissed.

I retain jurisdiction for any issues relating to the implementation and application of this

Award. I further retain jurisdiction to correct any errors; and to address any omissions, to

give it the intended effect.

August 15, 2025

CHERYL YINGST BARTEL ARBITRATOR