Ontario police officer not accommodated enough

The Ontario Human Rights Tribunal has awarded $10,000 to a police officer for the Ontario Provincial Police’s failure to accommodate her properly when it denied her the clearance to use equipment she needed for certain advancement opportunities, after she returned to work following a cancer diagnosis.

Lisa Kurpel was a constable for the Ontario Provincial Police (OPP), joining the police force in 1995.

In March 2003, Kurpel injured her ankle in a workplace accident and had to stay off work for six weeks. The injury led to her having a limited range of motion that prevented her from performing the full range of duties of a uniformed police constable, so when she returned to work, the OPP put her in an accommodated position. However, she was given back her use-of-force equipment (UOF) — a baton, pepper spray, handcuffs, Taser and a service pistol.

In November 2006, the Ontario Workplace Safety and Insurance Board (WSIB) determined that her ankle injury had reached maximum medical recovery and a functional abilities evaluation concluded that the job was “heavy level work” and Kurpel had “the strength to perform a predominantly medium job on an occasional basis.” The evaluation determined that she was unable to perform certain actions that were essential to the job of police officer.

Kurpel performed various duties over the next few years, including that of a court officer, and was seconded to positions outside of her division — some involving background investigative work. She retained her UOF equipment at all times. Every year, she took annual block training — training that covered legislation, policies and procedures, first aid and CPR, the use of UOF equipment and the proper procedure for using appropriate levels of force. She passed block training each year from 2004 to 2012 and retained her UOF equipment, which allowed her to continue to be seconded to investigative positions.

In August 2013, Kurpel was diagnosed with cancer and went on a medical leave of absence for almost two years. When she went on leave, she handed in her UOF equipment, as was required for any OPP officer going on leave for more than 30 days.

During Kurpel’s medical leave, the OPP changed its policy on the reinstatement of UOF equipment as the result of a report on job-related stress for officers stemming from the suicide of two officers with their service revolvers. The new policy dictated that when an officer returned from a leave of more than 30 days, the officer’s need for UOF equipment would be examined.

No more use-of-force equipment

Kurpel returned to work in July 2015. At this point in time, the temporary assignment on which she had been working was over and another officer was doing the job. She was put on a graduated program of modified work, mostly working on a provincial offences e-disclosure project. However, under the new UOF policy, the OPP determined that, since she wasn’t performing front-line duties and was limited due to her ankle disability, she didn’t need her UOF equipment back.

The OPP also noted that had the new policy been in effect when Kurpel returned from her ankle injury in 2003, she likely would not have had her UOF equipment returned then.

Follow-up medical reports over the next few months confirmed that Kurpel wasn’t ready to deal with the public and should continue to perform accommodated tasks as she had been doing. As a result, the OPP denied her the court officer position, which was a uniformed role requiring UOF equipment, and postponed her next block training.

In December 2015, Kurpel sought the reinstatement of her UOF equipment as she wanted to take the annual block training. The OPP requested medical information supporting her ability to perform “full-front-line duties” of a police officer — a requirement for the block training — noting that it could continue to assign her administrative duties if she was unable to do so. Kurpel’s doctor replied that Kurpel could “resume all the duties she performed until the diagnosis of cancer.” Her psychologist also indicated that she was “psychologically able to attend block training and complete the requirements for requalification” and perform the duties of a police officer.

However, the OPP refused to re-issue the UOF equipment to Kurpel as the WSIB functional abilities examination from 2006 indicated that her ankle injury prevented her from performing the duties of a front-line police officer.

In April 2017, Kurpel’s doctor provided a medical report stating that Kurpel was “fit to do front-line policing duties and patrolling without physical or mental restrictions.” Kurpel also completed a functional abilities examination that showed that she didn’t demonstrate “any limitations nor were there any limitations identified by the assessors that would interfere with her abilities to perform the duties of a law enforcement officer.”

Kurpel successfully completed block training in June 2017. The OPP returned her UOF equipment to her on July 1 and she began working as a uniformed patrol officer.

Kurpel filed a human rights complaint alleging that the OPP’s refusal to permit her to carry her UOF equipment after her cancer diagnosis was discrimination on the basis of the perception of a physical disability and a failure to meet its duty to accommodate. She noted that she was allowed to carry UOF when she returned from medical leave after her ankle injury in 2003 and her capabilities in that regard hadn’t changed. The OPP’s denial of her UOF equipment when she returned to work in 2015 made her ineligible for career advancement, caused her unnecessary stress that affected her family life, was degrading and humiliating and was inconsistent with her return from her medical leave in 2003, when her UOF equipment was returned to her. Kurpel claimed damages of $25,000 for injury to dignity, feelings and self-respect plus placement in a developmental opportunity with the OPP.

Disability-related disadvantage

The tribunal noted that there was no doubt that Kurpel had a disability-related restriction that was identified by her medical practitioners and she suffered a disadvantage in not having her UOF equipment re-issued when she returned to work in 2015 — a disadvantage that was related to her disability and made Kurpel ineligible for assignments and secondments that she performed prior to her medical leave for cancer.

The tribunal also noted that, in late 2015, her doctors cleared Kurpel for the duties she did before her leave of absence for cancer treatment. The OPP was accommodating her at that time based on her previous accommodation for her ankle disability, with the added restriction of no UOF equipment.

The tribunal accepted that the OPP changed the way it made decisions about UOF equipment reinstatement and that was in good faith, but the OPP didn’t seek clarification of Kurpel’s medical information when it wasn’t certain about the extent of accommodation she needed. This was a failure to accommodate, said the tribunal.

The tribunal found $10,000 was a more appropriate award for the injury to Kurpel’s dignity, feelings and self-respect, particularly since there was no bad faith on the OPP’s part. It also declined to order the OPP to place her in a developmental opportunity as there was no evidence that she would have been successful in any of the secondments that she wanted between 2015 and 2017 and, now that she had her UOF, she was eligible to apply for any that she desired.

For more information, see:

• Kurpel v. Ontario (Ministry of Community Safety and Correctional Services), 2021 HRTO 83 (Ont. Human Rights Trib.).