Reasons for Judgment of the Honourable Madam Justice Southin:

[1]         The issue which this appeal requires us to decide is whether the judgment of this Court in Westmin Resources Ltd. v. C.A.W.-Canada, Local 3019 (1999), 70 B.C.L.R. (3d) 74, 1999 BCCA 534, rev'g. (1998), 62 B.C.L.R. (3d) 160 (Henderson J.), commonly known as Fording Coal, correctly interpreted ss. 99(1) and 100 of the Labour Relations Code, R.S.B.C. 1996, c. 244 (the “Code”):

99   (1)  On application by a party affected by the decision or award of an arbitration board, the board may set aside the award, remit the matters referred to it back to the arbitration board, stay the proceedings before the arbitration board or substitute the decision or award of the board for the decision or award of the arbitration board, on the ground that

(a)  a party to the arbitration has been or is likely to be denied a fair hearing, or

(b)  the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations.

* * *

100  On application by a party affected by a decision or award of an arbitration board, the Court of Appeal may review the decision or award if the basis of the decision or award is a matter or issue of the general law not included in section 99(1).

[2]         When I say "requires", I appreciate that my colleagues do not agree.  But as I am of the opinion that the issue properly arises and that it is in the interests of the orderly administration of justice that Fording Coal be overruled, at least in cases of appeals from arbitral awards in matters of discharge or suspension, I have so formulated it. 

[3]         There should in such cases be only one appellate tribunal – the Labour Relations Board.  With all respect to my colleague, Huddart J.A., who wrote the judgment in Fording Coal, a dual system of appeals in such cases creates for those who must choose the route of appeal a brain teaser of the highest order.  In my opinion, the Legislature, when, in 1975, it enacted what are now sections 99 and 100 of the Code, did not intend to create a system which demands of those who are governed by it, the skills in reasoning and capacity for subtlety of judges of this Court.  This was legislation which was supposed to be within the intellectual grasp not only of the legal profession, but also, and more importantly, of Union officials and their counterparts in management.

[4]         Lying beneath the surface of this appeal and its companion appeal, Canpar Industries v. International Union of Operating Engineers, Local 115, CA029791, but never directly broached by the appellants, is their, if not outrage, at least, disapproval of the new "principles" of arbitral jurisprudence of "culpable" and "non-culpable" breaches of duty, and now the "hybrid" breach described by Mackenzie J.A. with their remedy of "last chance agreements".  I, myself, educated in the common law of wrongful dismissal, find these new ideas somewhat surprising.

[5]         But whether they are a good thing or a bad thing is no business of this Court.  If the economic health of the body politic requires a different approach to management rights and arbitral jurisdiction in matters of suspension and dismissal, the Legislature must attend to such changes to the statute law of this Province as it thinks appropriate.

[6]         From, if not time immemorial, then at least since 1584, it has been correct in law to interpret legislation thus:

And it was resolved by them [Sir Roger Manwood, Chief Baron, and the other Barons of the Exchequer], that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:-

     1st.  What was the common law before the making of the Act.

     2nd.  What was the mischief and defect for which the common law did not provide.

     3rd.  What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.

     And, 4th.  The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.

                 [emphasis mine; footnotes omitted]

[Heydon’s Case (1584), 3 Co. Rep. 7a, 76 E.R. 637 at 638.]

[7]         I shall first state the facts of this case, next set out the present statutory provisions essentially enacted in 1975 by the Labour Code of British Columbia Amendment Act, 1975, S.B.C. 1975, c. 33, so that the reader may compare them with the statutory provisions in pari materia enacted in 1973, S.B.C. 1973, (2d Sess.), c. 122, a statute itself meant to effect a very substantial change in the law of this Province, and next give a brief account of the less than happy relation­ship between the judges and organized labour which led first to the Act of 1973 and then to the Act of 1975.  I shall follow that account with an account of the various judgments of this Court on ss. 99 and 100 and then give an account of the decisions of the Labour Relations Board which led up to Fording Coal, followed by my understanding of Fording Coal, and, finally, my opinion as to why it did not accord with the statute.

[8]         I approach this appeal thus because, in my opinion, it is neither necessary, that is to say, compelled by the words of the Act, nor useful in cases of discharge or suspension for appeals to come to this Court.

The Facts

[9]         The appeal is from the award of an arbitrator, Mr. Dalton Larson, Q.C., delivered the 10th January, 2000, in which he upheld a grievance brought by the respondent on behalf of an employee, Ronald Bergen, who was dismissed from his employment as a head nurse on 30th September, 1998, by a letter in these terms:

     In our meeting of Sept. 29th, 1998, you admitted that you have not remained abstinent from drugs since early September 1998, that you forged Hospital documents and that you misappropriated narcotics from the Hospital for your own use.  These actions are a breach of the conditions stated in Dalton Larson's Award of May 26, 1997 and the Last Chance Agreement of June 24, 1997.

     For these reasons, you are terminated from your full time position at Castlegar & District Hospital, effective immediately.

The Collective Agreement

[10]    By the Collective Agreement in force between the parties:

3.01  General Rights

     The management of the Employer's operations and the direction of the working forces, including the hiring, firing, promotion and demotion of employees, is vested exclusively in the Employer except as may be otherwise specifically provided in this Agreement.

* * *

9.01  Discussion of Differences

     If a difference arises between the Employer and an employee(s) or between the Employer and the Union concerning the interpretation, application, operation or any alleged violation of the Agreement, the employee(s) shall continue to work in accordance with the Agreement until the difference is settled.

* * *

9.04  Resolution of Employee Dismissal or Suspension Disputes

     The following procedure shall be used for the resolution of disputes relating to the dismissal or suspension of an employee(s):

Step 1

     Within ten (10) calendar days of notice of the dismissal or suspension, the Employer shall notify the head office of the Union of such termination.

Step 2

     Within a further fourteen (14) calendar days of receipt of notice in Step 1 of this Article, the Union may institute the grievance procedure at Step 3 of Article 9.02.

     If this time limit is not complied with, then the grievance shall be considered as being abandoned, unless the parties have mutually agreed, in writing, to extend the time limits.

* * *

10.01  Authority of the Arbitration Board

(A)  Either party may refer any grievance, dispute or difference unresolved through the procedures in Article 9 to a Board of Arbitration which shall have the power to determine whether any matter is arbitrable within the terms of the Agreement and to settle the question to be arbitrated.

(B)  The Arbitration Board shall issue a decision and the decision of the majority of such Board shall be final and binding upon the parties.

* * *

ARTICLE 31 – NON-DISCRIMINATION

(A)  The Employer and the Union subscribe to the principles of the Human Rights Code of British Columbia.

(B)  The Employer and the Union agree that there shall be no discrimination, interference, restriction or coercion exercised or practiced with respect to any employee for reason of membership or activity in the Union.

(C)  The Employer and the Union agree that there shall be no discrimination, interference, restriction or coercion exercised or practised with respect to any employee on the basis of sexual orientation.

(D)  The Union and the Employer recognize the right of employees to work in an environment free from sexual harassment, and the Employer shall take such actions as are necessary with respect to any person engaging in sexual harassment at the work place.

[11]    Mr. Larson did not uphold the grievance on the footing that the grievor was innocent of forgery and misappropriation.  Both were conceded.  He upheld it on the footing that the grievor, who had been dismissed for similar offences in 1996 or 1997 and given, by an award of 26th May, 1997, the opportunity to regain his employment (a so-called "last chance" agreement), should be given a further opportunity to recover from his addiction to Demerol which, in the arbitrator's opinion, is a "disability".

[12]    In the words of counsel for the appellant in her factum:

13.  The Hospital was successful on its appeal to the Labour Relations Board on one of the grounds advanced relating to internal inconsistency in the Second Arbitration Award.  The Labour Relations Board set aside two terms of the Second Arbitration Award and remitted those matters to the Arbitrator for clarification.

14.  The Labour Relations Board determined that the question of whether the Arbitrator erred in his analysis concerning the issue of undue hardship was one of general law that fell within the jurisdiction of the British Columbia Court of Appeal:

The Employer's remaining arguments assert an analytical error in the Arbitrator's determination of undue hardship.  It is debatable whether the Arbitrator analyzed undue hardship in the manner suggested by the Employer.  However, we believe the relationship between the culpability and undue hardship is a question of general law.  The answer to that question should not turn on whether the employee is represented by a trade union.  The Court of Appeal has jurisdiction to ensure that the principles of the Human Rights Code are uniformly applied to union and non-union workplaces: see Fording Coal Ltd., supra.

[13]    The appellant subscribes to the Board's conclusion.  The respondent does not.

[14]    Although, to my mind, the facts as I have stated them are all that are relevant for the disposition of this appeal, I do not disagree with Mackenzie J.A.'s detailed analysis of the proceedings before the arbitrator.

Relevant Statutory Provisions

[15]    In the Act of 1973, supra, arbitration was governed by a fasciculus of sections in Part VI, Arbitration Procedures, ss. 92-112, and, in the Act of 1975, supra, by Part VIII, Arbitration Procedures, ss. 81-114, now R.S.B.C. 1996, Part 8.  Relevant to the question of interpretation are these provisions:

Reasons for Judgment of the Honourable Madam Justice Newbury:

[84]    When this appeal was originally brought to this court, the issues as stated in the appellant's factum were fairly narrow — had the arbitrator failed to consider the "effect of non-culpable conduct [of the grievor] in determining whether the [employer's] duty to accommodate to the point of undue hardship had been satisfied", and had he failed to determine "whether the risk of relapse posed a real risk to the employer's operations, patients and employees."  However, when this court questioned whether it had jurisdiction to review the arbitration award and specifically requested argument, both in this appeal and the appeal heard with it, Canpar Industries v. International Union of Operating Engineers, Local 115, CA029791, concerning the correctness of this court's decision in United Steelworkers of America, Local 7884 v. Fording Coal Ltd. (1999) 179 D.L.R. (4th) 284, 70 B.C.L.R. (3d) 74, the issues took on more general significance.

[85]    My colleague Madam Justice Southin, whose reasons I have had the opportunity to read, has concluded that Fording Coal was incorrectly decided.  In her view, whenever the question before an arbitrator is whether an employer had just and reasonable cause for dismissal, "the power to adjudicate upon an appeal relating thereto belongs not to this Court but to the Labour Relations Board. . . .  The main ingredient is always s. 84 [of the Labour Relations Code]."  I respectfully disagree with this conclusion, which in my view conflates the basis of the grievance in a dismissal case, with the basis of the award.  Where the award depends upon the statutory defence of "bona fide occupational requirement" (from which springs the principle of accommodation to the point of undue hardship) or on the employer's duty to accommodate, the terms of the collective agreement in particular, and labour relations principles (such as, for example, strict seniority rights) in general, are subordinated to this 'quasi-constitutional' law.  In my view, the basis of such an award is likely to be "a matter or issue of the general law" as referred to in s. 100 of the Code, and that "matter" is clearly distinguishable from the "principles expressed or implied in [the] Code" or in any other statute "dealing with labour relations", as referred to in s. 99. 

[86]    Before addressing the question of jurisdiction in more detail, however, I will review the facts giving rise to the arbitrator's decision in this case, and the result of the appeal taken by the employer to the Labour Relations Board prior to the appeal to this court.

Factual Background

[87]    The grievor, Mr. Bergen, is addicted to narcotic analgesic drugs.  He was dismissed in 1999 from his employment as a nurse by the Castlegar and District Hospital as a result of his theft of such drugs from his employer.  This had happened before, in November 1996.  Mr. Bergen mounted a grievance at that time and the arbitrator, Mr. Larson, had determined that:

. . . to terminate him in the circumstances would have been tantamount to a finding that his addiction was not a disease.  More specifically, on the issue of his conduct in obtaining the drugs I found that although he knew that what he was doing was wrong, he was not able to control his behaviour, without help.  I found that both the theft of the drugs and the falsification of the records were typical compulsive actions and were inextricably linked to the addiction.  Accordingly, I held that what he did to get the drugs was an integral part of his addiction and that those things must be seen to be essentially a manifestation of the illness. (at 2-3)

As a condition of his reinstatement and in accordance with the arbitrator's direction, Mr. Bergen and the Hospital signed a "Last Chance Agreement". The document incorporated various requirements for his gradual return to work as a head nurse, including his working one year as a general duty nurse.  Clause 13 stated that "In the event that the Employee shall not remain abstinent or shall not comply with these conditions, he may be forthwith terminated from his employment."  The agreement was to remain in force for a period of two years following Mr. Bergen's return to active employment.

[88]    The gradual resumption of the grievor's duties appeared to work well and he was reinstated to his head nurse position in July 1998.  However, in September of that year, after the discovery of discrepancies in the Hospital's narcotics records, it became apparent he had lapsed by taking prohibited drugs, which he had stolen from medication intended for patients.  He was again dismissed by the Hospital and again grieved the dismissal.

[89]    In the course of its argument before Mr. Larson, who was again the arbitrator, the Hospital naturally relied on the Last Chance Agreement.  As noted by the arbitrator in his award:

[Counsel for the Hospital] argued that the agreement was designed to do precisely what the title suggests, which was to give the grievor one final opportunity to demonstrate that he could be rehabilitated.  Having regard to the context in which the agreement was originally made, she expressed the view that such an approach was reasonable since it was seen to be inappropriate to expose patients to an ongoing risk that their care might be further compromised in the future.  In more technical terms, she argued that the use of the word 'may' instead of 'shall' in section 13 should be taken to reflect that the parties were content to leave it to the discretion of the Employer to decide whether to terminate him in the event that he were to fail to remain abstinent and that, once made, the jurisdiction of the arbitrator was intended to be limited, not to a review of the propriety of the decision, but to a determination of fact, whether a condition of the agreement was breached.  [at 7-8]

[90]    However, Mr. Larson noted that the grievor's medical expert, Dr. Baker, had expressed the view that:

. . . last chance agreements are not normally appropriate as part of an initial program of rehabilitation because with drug abuse, at least, relapse is the norm and not the exception.  He said that, in those circumstances, it would mean that the employee would almost invariably end up being dismissed if only one chance were made available to him.  . . . according to Dr. Baker, the more effective approach, which he says is becoming more common, is to require the employee to enter into a 'behavioral contract' which typically will provide a more deliberative or measured response to a relapse.  [at 8-9]

[91]    The arbitrator rejected the Hospital's contention that as a matter of law, the use of the word "may" in clause 13 of the Last Chance Agreement had left a discretion in the employer whether to discharge the grievor in the event of a relapse, and that therefore the issue of his dismissal was res judicata.  The arbitrator reviewed various cases dealing with 'last chance' and similar agreements, including Heather Steele and Summit Logistics Inc. and Retail Wholesale Union, Local 580 [1998] B.C.L.R.B.D. No. 546 (Q.L.), Re Cominco Ltd. and United Steelworkers of America, Local 651 (1993) 35 L.A.C. (4th) 430, and Re MacMillan Bloedel Ltd. and Industrial, Wood & Allied Workers Union, Local 1-217 (Regan) (1996) 61 L.A.C. (4th) 38.  With respect to the agreement entered into by the grievor, he noted there was no substantive difference between its terms and the terms set out in his earlier award.  In a passage which I confess I find puzzling, he said:

In particular, paras. 13-14 in the agreement, which are critical to my jurisdiction, are identical to the conditions set out in my award.  Could it be said that those conditions reflect that a decision was made prospectively that if the grievor were to relapse that he would be terminated?  Clearly not.  It is true, as Ms. Sartison argued that a discretion was left with the Employer whether to terminate in those circumstances.  The word 'may' in section 13 was purposefully selected instead of 'shall' to permit the Hospital to decide whether to dismiss the grievor in the event of a relapse.  But could it then be said that in the event that the Employer were to dismiss the grievor the decision would not be subject to arbitral review?  Once again, the answer is, no.  [at 16-17]

[92]    Thus Mr. Larson found that his jurisdiction was not limited to a determination of whether the grievor had breached the conditions of the first award, but that he had "full authority to decide whether [the grievor] was discharged for just and proper cause including the issue whether discharge was excessive in the circumstances."  Considering all the medical evidence, including Dr. Baker's opinion that a relapse in the grievor's initial program of treatment was "almost inevitable", the arbitrator stated that the strict terms of the Last Chance Agreement had in fact  become a partial cause of the grievor's difficulties:

     The point of that evidence is not to demonstrate that he indulged in a further act of deceit but rather to illustrate a point made by Dr. Baker that the requirement to report actually became an impediment to more appropriate and timely treatment because it gave rise to a fear in the grievor at the initial stage of relapse, when it would have been preferable to intervene, that he would be summarily terminated if the Employer were to find out.  In the result, once the relapse occurred, instead of immediately seeking help, which would have avoided the chicanery involved in his subsequent attempts to cover it up, he persisted in taking the drug under the delusion that he would be able to stop on his own.  Instead, he got caught and was terminated, which, in the view of Dr. Baker, was the reason why he failed to self-report in the first place.  [at 20]

[93]    The arbitrator referred to the evidence of Dr. Dickson, who testified on behalf of the Hospital that the grievor must be considered to be at "high risk of relapsing again" and that although some 80 percent of health care professionals recover from drug dependency, there is no test that can be given to determine whether a person will relapse.  Dr. Dickson's "personal bias" was said to be in favour of Last Chance Agreements right at the outset of discovery of the addiction, because in his opinion "to give the person several chances constitutes enabling activity which sustains the addiction rather than deters it."  (at 29-30.)

[94]    The arbitrator then turned to the legal issues, which he formulated as follows:

     The legal issues that arise on that evidence, whether the Employer ought to be exposed to the risk of another relapse, must turn on the principles that govern discharge for any chronic illness or, even more to the point, whether the Employer has discharged its duty to accommodate under the Human Rights Code.  The premise of the latter approach is that it is an offence to discriminate against an employee because of a disability which, in the case of adverse effect discrimination, gives rise to an obligation to accommodate the employee to the point of undue hardship.  [at 30]

In this regard, he reviewed the decision of the British Columbia Council of Human Rights in Handfield v. North Thompson School District No. 26 [1995] B.C.C.H.R.D. No. 4, where in a case of alcoholism, the Council held "there can be no blanket rule which justifies the termination of an alcoholic employee who relapses after receiving treatment previously considered adequate to sustain recovery and that it will always be necessary to consider all of the factors that lead to the relapse."  (at 32.)  A similar conclusion was reached in Re Norbord Industries and International Woodworkers of America-Canada, Local 1-2995 (Gravel) (1997) 67 L.A.C. (4th) 205 (Carrier), which had involved a last chance agreement similar to that in the case at bar.  There, the arbitrator had ruled that "While the parties may themselves have agreed that termination would follow, upon the employee's failure, that agreement cannot supersede the requirements of the [Human Rights Code]."  Turning then to this case, Mr. Larson continued:

     The main issue that arises on that analysis is whether the Employer has already suffered undue hardship in this case due to the manner in which the grievor's disease has manifested itself through what would ordinarily be considered serious workplace misconduct, which is to say, the misappropriation of drugs and falsifying records to cover up the resultant defalcation.  It is not to be forgotten, however, that drug addiction is to be treated as a disease no different from diabetes or arthritis, both of which are chronic illnesses capable of disablement but that can be effectively managed through proper medical therapies.  Any actions by the employee that are direct outcomes of the compulsive nature of the disease, meaning that the employee is unable to control his behaviour cannot, therefore, be counted as misconduct in any culpable sense although the amount of hardship that an employer must accommodate is less in positions that are safety sensitive: Re Toronto Transit Commission and Amalgamated Transit Union (Goebey) (1997) 72 LAC (4th) 109 (Shime); or involve a significant element of public interest: Re Canada Post Corp. and Canadian Union of Postal Workers (Sedorf) (1992) 25 LAC (4th) 104 (Joliffe).  [at 35; emphasis added.]

[95]    In the final analysis, Mr. Larson wrote, last chance agreements represent attempts to "secure the productivity and security interests of the employer while recognizing the entitlement of the employee who is suffering from a chronic illness not to be discharged except where it results in undue hardship."  (at 37-8.)  In the case at bar, he found "no evidence" to indicate that the Hospital would suffer undue hardship if Mr. Bergen were reinstated to his employment "following a single relapse in his addiction treatment program." He continued:

Apart from the obvious problems caused by the loss of drugs and the manner they were taken, the only evidence of hardship was that certain nurses were upset when they discovered that they might be displaced because he was going to be returned to his previous job.  Once that situation was worked out, they accepted his condition and supported his treatment program.  Moreover, I accept the evidence of Dr. Baker that the relapse suffered by the grievor was a powerful negative reinforcement, making it less likely that it will happen again.

     I do not consider this case to be in any way analogous to Canadian Airlines International Ltd. v. C.A.L.P.A. (1997) 39 B.C.L.R. (3d) 131) (B.C.C.A.), where the evidence was that a pilot had been in possession and use of marijuana while on layovers and had transported the drug on the airplane.  In that case the arbitrator determined that dismissal was an excessive penalty for his misconduct and ordered that he be admitted to a rehabilitation program as a condition of his reinstatement; but the court held that there was no basis to conclude that the relationship was reparable in the circumstances where the pilot had committed a serious breach of company policy while occupying a position that carried a high degree of trust.

     While I accept the evidence of Dr. Dickson that any action that may enable an addiction should not be undertaken, I do not accept that to reinstate the grievor in the face of the existing agreement would constitute enablement, precisely because I think he can be accommodated by making the conditions of the agreement tighter and more compelling, just as, in cases of misconduct, one might prescribe a program of progressive discipline with escalating penalties.  In the result, I find that on the evidence available to me in this case, the grievance should be sustained.  [at 38-9]

Accordingly, the arbitrator set out several conditions to be incorporated in a new agreement between the parties, including conditions that the grievor be credited with full seniority "as if there has never been any interruption in his employment status"; that he return to a general duty nurse position gradually; and (the "third term") that the agreement make it clear "that a decision has been made in advance by this arbitration board that in the event that the grievor should experience a further relapse that he may be summarily terminated, without recourse."  At the same time the arbitrator retained jurisdiction (in the "sixth term") to deal with any disputes that might arise under the agreement, "including any question whether the grievor . . . may be properly terminated from his employment for failing to comply" with the new agreement. (at 41-2.)

The LRB Appeal

[96]    On appeal to the Labour Relations Board, the Hospital advanced three grounds of appeal, two alleging that the award was inconsistent with principles expressed or implied in the Labour Relations Code, and the third alleging that the award was inconsistent with the principles of the Human Rights Code.  Evidently, it was agreed by both parties at this stage that the Board was the appropriate forum for review.

[97]    Since we need not concern ourselves with the first two grounds advanced before the Board, I will only summarize them.  First, the Hospital argued that the arbitrator had failed to find "strong and compelling reasons" to support his decision to vary the (first) Last Chance Agreement.  Instead, he had equated the agreement with a "step in the process of progressive discipline."  (para. 26.)  On this point, although the Board commented that the arbitrator's failure to find "compelling reasons" for departing from the first agreement was initially troublesome, it found the arbitrator had not committed a reviewable error.  At para. 37, the arbitrator was said to have effectively held that the Last Chance Agreement was "not valid" because it had not met the requirements of the Human Rights Code.  Therefore, the Board said, it had not been necessary for him to consider whether there were other "compelling reasons" for departing from the agreement.

[98]    The second ground was based on inconsistencies in the award and in particular, between two terms ordered to be included in the new agreement.  The Board sustained this objection, setting aside the third and sixth terms of the award and remitting them to the arbitrator for clarification.  Another deficiency alleged by the Hospital was resolved by the Board's inferring a finding by the arbitrator that requiring the Hospital to accommodate a second relapse would amount to undue hardship.

[99]    The third ground of appeal was that the arbitrator had failed to "make a determination regarding its duty to accommodate the Grievor to the point of undue hardship based on all of the evidence before him."  Specifically, it was said he had assessed undue hardship "in relation to the blameworthiness of the Grievor's conduct", whereas in the Hospital's submission, culpability or wilfulness was irrelevant to the question of undue hardship.  (para. 47.)  The Board characterized most of the employer's arguments under this rubric as essentially taking issue with "findings of fact and/or the conclusions reached by the Arbitrator based on his findings" and noted that it was not the Board's role to second-guess those judgments.  However, the Board noted that there were "remaining arguments" asserting an analytical error in the arbitrator's determination of undue hardship.  On this point, the Board said:

It is debatable whether the Arbitrator analyzed undue hardship in the manner suggested by the Employer.  However, we believe the relationship between culpability and undue hardship is a question of general law.  The answer to that question should not turn on whether the employee is represented by a trade union.  The Court of Appeal has jurisdiction to ensure that the principles of the Human Rights Code are uniformly applied to union and non-union workplaces: see Fording Coal Ltd., supra.  [para. 51; emphasis added.]

[100]       In the result, the Board dismissed "the employer's grounds for review" of the award, with the exception of the inconsistency regarding the terms in the (second) last chance agreement.  Those terms were set aside and the matter was remitted to the arbitrator for clarification.  The question of law incorporated in the third ground of appeal — "the relationship between culpability and undue hardship" — was not dealt with on the merits but was dismissed on the ground that it lay outside the jurisdiction of the Board and within the jurisdiction of the Court of Appeal. 

[101]       In accordance with the Board's ruling on jurisdiction, the Hospital next appealed to this court on the bases that  (1) the arbitrator had failed to consider the effects of the grievor's conduct, albeit (the Hospital said) "non-culpable", on the employer; and (2) the arbitrator had failed to apply the "proper test" to determine whether the Hospital had met its duty to accommodate the grievor to the point of undue hardship by "failing to decide whether there was a real risk of relapse and how that risk impacted the Hospital's operations, employees and patients."  On this occasion, the Hospital was obliged to take the position that the basis of the award was a question of general law not "included in" s. 99(1).  It submitted that the "main ingredient" of the arbitrator's award was "whether the duty to accommodate an employee to the point of undue hardship includes a consideration of the impact of the employee's non-culpable conduct in the workplace and the risk of another incident of such conduct" and further, that:

The main ingredient, or "basis" of the Award was a matter of general law.  The Arbitrator passed judgement on the interrelationship between the duty to accommodate under the Human Rights Code and the negative effects of ongoing, non-culpable behaviour.  [para. 27]

(I note parenthetically here that as Mr. Justice Mackenzie has pointed out in his Reasons, the Hospital characterized the grievor's conduct in this case as "non-culpable".  At other places in its factum, the Hospital used the phrase "arguably non-culpable".  I do not regard this assumption or concession (if such it was) as conclusive of the point, or as determinative of the question of "consequences" on the employer.)

[102]       The Hospital's  argument, of course, was contrary to the employer's previous position before the Board.  There, it had said the Board had jurisdiction to consider all three grounds of appeal, including those pertaining to human rights principles.  Counsel for the Hospital had written:

The "basis" of the Arbitrator's decision is his interpretation of an earlier award and consequent last chance agreement between the parties and the measure of the impact of the grievor's conduct in light of the same.  The "basis" of the award is not the interpretation of human rights law such that the appropriate forum for review is the B.C. Court of Appeal.  If the Board considers that there is an issue as to the appropriate forum for this review, the Applicant respectfully requests that that be addressed in a timely fashion to permit appropriate applications to the Court of Appeal.

[103]       Perhaps not surprisingly, the Union objected to this inconsistency.  It contended that the Hospital was seeking to ignore the adverse conclusions reached by the Board and was really seeking a retrial of the issues that had been before the arbitrator.  In its submission, the "question of culpability" was not the "focus" of the arbitrator's decision once he reached the stage of determining undue hardship.  Rather, culpability and "impact" or "consequences" were two different steps in a chain of reasoning.  The Union had adduced medical evidence to show that the grievor's conduct was the result of an addiction and therefore non-culpable.  It was then up to the Hospital to establish through evidence that the impact of the conduct resulted in undue hardship to it — an onus the Hospital had failed to discharge.

[104]       As I understand the Union's position, then, it would characterize "the basis of the award" as essentially a factual conclusion that the Hospital had failed to establish undue hardship on the evidence.  Critically, Mr. Larson had said there was "no evidence" the Hospital would suffer undue hardship if Mr. Bergen were reinstated, and that apart from the "obvious problems" cased by the loss of drugs and the manner in which they were taken, the only evidence of hardship was a trivial effect on certain nurses.  There was no evidence from any particular patient who had suffered unnecessary pain or inconvenience due to the theft of drugs, although the Hospital's Director of Patient Care Services had provided testimony to the effect that Mr. Bergen's conduct "presented an issue of patient safety and also raised a potential issue concerning the Hospital's responsibility and potential liability for failing to provide safe patient care." 

[105]       I agree with the Union that a high degree of deference must be accorded to the findings of an arbitrator.  It appears that the Board accorded such deference in its consideration of the Hospital's grounds of appeal.  However, the fact remains that the Board separated the "analytical error in the arbitrator's determination of undue hardship" alleged by the Hospital, from the other arguments subsumed in the third ground, which were characterized essentially as a challenge to factual findings.  As earlier noted, the remaining issue — "the relationship between culpability and undue hardship" — was not addressed by the Board because in its view this was a question of general law that fell outside its jurisdiction.  That is the question of law which the Hospital has pursued on appeal to this court.  Since no determination on the merits of that question was made, and since the Board declined jurisdiction on it, the Hospital is not precluded from doing so by its previous position or by res judicata.

[106]       Having determined that the employer is not precluded from pursuing its appeal, I turn next to the question of whether Fording Coal, which was relied on by the Board in declining jurisdiction to review the arbitrator's conclusion on this aspect, was correctly decided.

Sections 99 and 100

[107]       I begin by noting some features of the Labour Relations Code, R.S.B.C. 1996, c. 244 (the "Code"), the relevant sections of which I have attached in their entirety as an appendix to these Reasons.  One begins with the principle, expressed at s. 82, that the labour arbitration system is intended to determine grievances and resolve disputes under collective agreements without resort to work stoppages.  For this purpose, arbitration boards are to "have regard to the real substance of the matters in dispute" and are not bound by a "strict legal interpretation of the issue in dispute."  An arbitration board may exercise a wide variety of remedies (listed in s. 89) and may "interpret and apply any Act intended to regulate the employment relationship" of parties to a collective agreement, "even though the Act's provisions conflict with the terms of the collective agreement." (s. 89(g).)

[108]       Also by way of general provisions, s. 84(1) requires that every collective agreement contain a provision to the effect that the employer must have "just and reasonable cause" for the dismissal or discipline of an employee.  This is a variation of the common law rule that where cause is shown, the employer is entitled to terminate the contract of employment without giving reasonable notice or damages in lieu.  The special feature added by the Code is to make reinstatement available as a remedy to an employee who has been dismissed "in contravention of a collective agreement."  (s. 89(b).)

[109]       The Code provides in ss. 99 and 100 for two mutually exclusive avenues of appeal from decisions of labour arbitrators — one to the Board and the other to the Court of Appeal.  Read together, the two provisions provide an appeal to this court where: (i) the basis of the decision or award is a matter or issue of the general law; and (ii) the matter or issue is "not included" in s. 99(1) of the Code.  The wording of s. 100 (especially the "not included") is very awkward, but it appears that, leaving aside s. 99(1)(a), in order for this court to have jurisdiction, the matter of the general law must be one other than an inconsistency with the principles expressed or implied in the Code or an inconsistency with "another Act dealing with labour relations".  On these matters, the Board has exclusive jurisdiction to review the arbitrator's award.  On all other matters, the arbitrator's decision is "final and conclusive" and not open to question or review "on any grounds whatsoever". (s. 101.) Thus as noted in Kinsmen Retirement Centre Assn. v. Hospital Employees' Union, Local 180 (1985) 63 B.C.L.R. 292 (B.C.C.A.), a decision or award which does not fall into either s. 99 or s. 100 may not be appealed, although judicial review by the Supreme Court of British Columbia may be available under the Judicial Review Procedure Act.

[110]       In dealing with appeals purportedly brought pursuant to s. 100, this court has followed the general policy, laid down in cases such as Weber v. Ontario Hydro [1995] 2 S.C.R. 929, of deferring to labour arbitrators and recognizing both the broad scope of their functions and their specialized expertise in dealing with workplace disputes.  As Madam Justice Southin has noted in her reasons, the Court has held that its jurisdiction does not extend to the question of whether a position had to be posted under the terms of a collective agreement (A.I.M. Steel Ltd. v. United Steelworkers of America, Local 3495 [1976] B.C.J. No. 6); nor to a dispute concerning the authority of a union representative to reach a settlement with an employer (Western Mines Ltd. v. United Steelworkers of America, Local 954 [1978] B.C.J. No. 432); nor to an employer's refusal to permit an employee to withdraw her election to have her maximum retirement age remain at 60 rather than 65 (Quesnel School District No. 28 School Trustees v. United Brotherhood and Joiners of America, Local Union 2545 (1983) 42 B.C.L.R. 295).  The majority in the latter case characterized the Board's decision to extend the retirement date as essentially a matter of interpretation of the collective agreement, which therefore lay within the Board's exclusive jurisdiction on appeal.

[111]       In Government Employee Relations Bureau v. British Columbia Government Employees Union (1984) 58 B.C.L.R. 1, this court also declined jurisdiction in a case involving the interpretation of a collective agreement together with two statutes which excluded certain matters from the collective bargaining process.  Taggart J.A. for the Court noted that those statutes expressed "principles of labour relations albeit within a narrower field than the field covered by the Labour Code."  The fact that the arbitrator had to consider and interpret the two statutes did not make the question into a matter or issue of general law not included in what is now s. 100 of the Code.

[112]       In Kinsmen, supra, the Union asserted an obligation on the part of an employer to compel its employees to join the pension scheme established under the Pension (Municipal) Act and its predecessors.  The Court carried out an extensive analysis of (then) ss. 108 and 109, which is set out at para. 49 of Southin J.A.'s reasons and which I will not repeat here.  At the conclusion of his analysis, however, Lambert J.A. summarized the operation of the two sections, and touched specifically on the meaning of "another Act dealing with labour relations" in the following passage:

     In this case, I am satisfied that the real substance of the dispute is the interpretation of the Pension (Municipal) Act.  Once it is interpreted, there is a subsidiary question relating to its application to the employees covered by the collective agreement under the interpretation of s. 11 of art. XI of the collective agreement.  But, in my opinion, if this court can deal with the real substance of the dispute, then this court can also deal with the subsidiary question, in deciding whether to grant any remedy.  To decide otherwise would stultify the rights of appeal given by both ss. 108(1) and 109(1).

     The interpretation of the Pension (Municipal) Act affects not only this employer, this union, and these employees, but also other employers, other unions, and other employees, union or non-union.  This court cannot reach a different interpretation in this dispute than it could reach in any other litigation involving the Act.  The Pension (Municipal) Act is no more a labour relations statute than the Landlord and Tenant Act would be if that Act was referred to in a collective agreement.  The Pension (Municipal) Act deals with employment relations in a general sense.  But it does not deal with labour relations, which are the relations between employers, on the one hand, and unions and the employees collectively represented by unions, on the other hand.  In this respect the Pension (Municipal) Act is not like the Public Service Labour Relations Act which was considered to be an Act dealing with labour relations in the Govt. Employee Relations Bureau case.  [at 299-300; emphasis added.]

(I note parenthetically that the Court equated the term "basis" with "main constituent" or "real substance and determinative constituent", and that it used the phrase "real substance of the dispute" interchangeably with "real substance of the decision or award", the latter being the wording of the statute.  Whether anything turns on the latter equation, I do not know; but with respect, I prefer to use the statutory language of "the basis of the decision or award" rather than to employ synonyms that may not be completely accurate or reflective of the Legislature's intention.  There may well be cases in which the basis of the award is quite different from the basis of the dispute.)

[113]       The final pre-Fording Coal decision of this court to which I will refer is Martin-Brower of Canada Ltd. v. General Truck Drivers' and Helpers' Union, Local 31 (1994) 87 B.C.L.R. (2d) 292.  There the issue was whether the employer was bound to calculate overtime in accordance with its long-standing practice, or could employ a different method.  Again, I will not quote at length from the judgment, since Madam Justice Southin has done so at para. 59 of her Reasons; but I note the following salient comments of Finch J.A. (as he then was) for the Court:

     Although the law of estoppel as a collection of legal principles may be said to be an area of "the general law" in a broad sense, I do not think one can say it is the basis of the award in this case.  While the appellant argued that the employer's conduct would have no consequences, and no legal remedy, but for application of the law of estoppel, it can equally be said that the law of estoppel would afford no remedy without the facts that were found by the arbitrator to be relevant.  One might say that the law of estoppel was a base of the decision or award but s-s.109(1) requires that it be "the basis of the decision".

     There will be many circumstances in which labour arbitrators are called upon to hear and to weigh legal arguments, and to reach conclusions as to what common-law principles, or statutory provisions, apply to the facts giving rise to the arbitration procedure.  It is clear from the legislative scheme for review of arbitration awards that not every "... issue of the general law ..." falls outside the ambit of review by the Industrial Relations Council under s.108.  Nor will every error of law by an arbitrator found an appeal to this Court, even if the error in law is the basis of the award.  To found jurisdiction in this Court, to paraphrase s-s.109(1), it must be shown that the basis of the award is an issue of the general law, and that that issue is one beyond the scope of review by the Industrial Relations Council, having due regard for its broad mandate under s-s.108(1)(b) to provide remedies where "... the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this Act..."

* * *

It was not the intention of the legislature that every time an arbitrator applies principles or concepts deriving from law of general application that an appeal should lie to this Court.  Such an interpretation overlooks entirely the closing words of s-s. 109(1) as well as s.108 of the Act, and the important supervisory role conferred by the legislature upon the Industrial Relations Council.

     With these considerations in mind, it cannot be said that the arbitrator's reference to estoppel, as a matter of the general law, constitutes "the basis of the ... award..." as those words are used in s-s.109(1) of the Act.  Nor can it be said that the basis of the award is a matter of the general law "... not included in section 108(1)."   [paras. 31-2, 35-36; emphasis added.]

Accordingly, the Court again declined jurisdiction.

[114]       From these and other judgments of this court, it is clear that the fact an award entails the application or interpretation of a statute of general application or a common law rule of general application will not in and of itself attract the jurisdiction of this court on review.  The question in every case is the "basis" of the award.  Once the basis is found to be a matter of the general law, the fact that the award may involve other subsidiary matters which are not matters of general law does not mean that this court thereby loses jurisdiction.  On the other hand, if the basis of the award is an inconsistency with principles expressed or implied in the Code or in another "labour relations" statute, the fact that a matter of general law is somehow involved will not remove jurisdiction from the Board.

[115]       None of the foregoing cases, of course, dealt with the Human Rights Code or human rights principles.  As I mentioned in Canpar Industries, however, labour arbitrators have regularly applied such principles.  A good example relevant to this case is Re AirBC Ltd. and C.A.L.D.A. (1995) 50 L.A.C. (4th) 93, a decision of Mr. McPhillips, which provides a thoughtful analysis of the relationship between "reasonable cause" and non-culpable absenteeism.  He listed various factors relevant to whether the employer in that case had taken reasonable measures to accommodate the employee:

(1)  interchangeability of the workforce and facility;

(2)  whether the employee's job itself exacerbates the disability;

(3)  the extent of the disruption of a collective agreement;

(4)  the effect on the rights of other employees;

(5)  the effect on the morale of other employees;

(6)  costs to the employer of the proposed accommodation, including the impact on efficiency, wage increases, and other direct financial costs to be incurred (e.g., renovations), and

(7)  the impact on the safety of the individual, other employees or the general public. [at 117]

Neither party appealed the arbitrator's decision.

[116]       The issue of this court's jurisdiction on an appeal involving the Human Rights Code arose in 1998 in Fording Coal, which in fact dealt with two appeals from judgments of Mr. Justice Henderson — "Fording" and "Westmin", both reported at (1998) 62 B.C.L.R. (3d) 160, and "PSERC", a third appeal from an arbitrator's decision reported at (1998) 72 L.A.C. (4th) 309.  These came to the Supreme Court of British Columbia on applications for judicial review.  In Fording and Westmin, the Board had declined jurisdiction based largely on the fact that this court (and later, the Supreme Court of Canada) had heard the appeal in British Columbia (Public Service Relations Commission) v. British Columbia Government and Service Employees' Union [1997] 9 W.W.R. 759, rev'd at [1999] 3 S.C.R. 3 ("Meiorin"), without making any reference to the question of jurisdiction.  As stated by the Board in Re Westmin Resources Ltd. [1997] B.C.L.R.B.D. No. 343 (Q.L.):

     While these issues raise questions as to whether the Board or the Court of Appeal has the jurisdiction to review an award which emanates from a case in which an employee is terminated and claims that the employer has failed in its duty to accommodate him or her, the Court of Appeal has recently assumed jurisdiction to review such awards.  In Government of the Province of British Columbia, supra, the Court of Appeal allowed an appeal of a decision of an arbitrator which dealt with an employer's duty under the Human Rights Act to accommodate an employee.  The grievor in that case has been employed for a number of years by the Minister of Forests as a member of a forest fire fighting crew.  Her employment was terminated after she failed to pass a standardized aerobic fitness test which had been instituted by the employer.  The arbitrator determined that the standardized test was discriminatory as it had an adverse effect upon women because of the physiological differences in aerobic capacity between men and women.  The arbitrator went on to conclude that the employer had failed to accommodate the grievor to the point of undue hardship and therefore allowed the grievance and reinstated the grievor.  The Court of Appeal allowed the appeal, finding that individual testing of employees is inherently non-discriminatory.  The Court rejected the union's position that a lesser standard could be set for women as this "could be labelled 'reverse/adverse effect discrimination.'"  Although the Court did not directly advert to the question of the Court's jurisdiction, it did assume jurisdiction to review the award.

     The respective jurisdiction of the Board and the Court under Sections 99 and 100 of the Code is exclusive.  There is no concurrent jurisdiction to review the award of an arbitrator.  Where the Court has jurisdiction, the Board does not....  Therefore, given the Court's assumption of jurisdiction in a case which dealt with the termination of an employee who claimed to be entitled to be accommodated, we conclude that the Board does not have jurisdiction.  The decision of the Original Panel is set aside.  [paras. 17-8]

My colleague has quoted at length from the dissenting opinion of Mr. Pylypchuk in Re Fording Coal [1997] B.C.L.R.B.D. No. 451 on the same point. 

[117]       On review, Henderson J. ruled that the Board should have taken jurisdiction in the Fording and Westmin appeals.  The gist of his reasoning appears in this passage:

     In my view, when an arbitrator is considering whether just and reasonable cause has been proven and the path of inquiry leads to a consideration of whether the employer's duty to accommodate has been discharged, the arbitrator is considering and applying principles implied in the [Labour Relations] Code.  The principle expressed in s. 84(1) that an employer must have just and reasonable cause for dismissal contains, by necessary implication, those subsidiary principles which are its constituent components.  The nature and extent of the duty to accommodate is one such subsidiary principle.  Where a duty to accommodate exists and has not been discharged, there is no just and reasonable cause.  That is so because the duty to accommodate is a component of the law of "just and reasonable cause" and a principle implied within s. 84(1) of the Code.  [para. 30; emphasis added.]

[118]       On appeal, this court held that Henderson J. had erred.  In Huddart, J.A.'s analysis, it was wrong to say that:

. . . the construction and application of human rights legislation is necessarily subsidiary to the determination of whether an employer has established "just and reasonable cause" for dismissal of an employee within the meaning of s. 84(1) of the Labour Relations Code, and thus a part of the general law that is appropriate for decision under s. 99 by the Labour Relations Board.

     An arbitrator's consideration of matters of general law arises almost invariably within the context of issues presumptively within the arbitrator's jurisdiction - disputes respecting dismissal or discipline, or the interpretation, application, operation, or alleged violation of the collective agreement.  An arbitrator's consideration of a matter of general law in the context of the jurisdiction granted under the Labour Relations Code, in my opinion, does not render the matter of general law so considered a subsidiary component of the Code's requirement of just and reasonable cause for dismissal or its principles governing the interpretation of collective agreements.  If this were the case, there would be no principles of general law not included in s. 99. [paras. 47-8. emphasis added.]

Similarly, in the Fording appeal, Huddart J.A. wrote:

     The over-arching issue before the arbitrator was whether Fording had just and reasonable cause to terminate Mr. Wilcox's employment.  As a necessary part of his resolution of the dispute, the arbitrator was required to address the nature and scope of the duty to accommodate.

     As the original panel of the Labour Relations Board noted, had the main ingredient or substance of the arbitrator's decision been one of fact, whether the employer had accommodated his disability to the point of undue hardship, no appeal could have been brought to the Board.  Nor could one have been brought to this Court.  However, the main ingredient or substance of the decision was not one of fact. Rather, it was the arbitrator's opinion as to the nature and scope of the duty to accommodate, regardless of the factual circumstances. Fundamental to his decision was his view the duty to accommodate did not encompass irregular attendance.

     Thus, as in the Westmin decision, the main ingredient of the Fording decision was a principle of general law.  It was not the usual discipline case requiring decisions about general law incidental to a factual decision as to whether an employer had reasonable cause to dismiss an employee because he committed a crime, a tort, or a breach of fiduciary duty.  Nor was the decision, as the USW also submits, a consideration of the factual issue of whether Mr. Wilcox could return to work in any capacity in that workplace, under that collective agreement, without undue hardship for the employer and other employees.  The original panel of the Labour Relations Board remitted the grievance to the arbitrator so he could consider that issue; it was not the main ingredient or real substance of his award.  [paras. 56-8; emphasis added.]

[119]       On whether the duty to accommodate a disabled person to the point of undue hardship was a principle implied in the Labour Relations Code, Huddart J.A. quoted first from Henderson J.'s reasoning in the PSERC case as follows:

     To determine whether an employer had just and reasonable cause to dismiss an employee, an arbitrator must first determine the true reason for the dismissal.  One ground which can amount to just and reasonable cause is excessive absenteeism.  Where that is alleged, the arbitrator must determine how often the employee was absent from work and then decide whether such absences were excessive.   That will require a consideration of the circumstances in which the absences occurred, including the various reasons for them.

     In some cases, the absences will have been caused by a health problem which may amount to a disability.  In these instances, the arbitrator will have to go on to consider whether the evidence proves a "physical or mental disability" within the meaning of s. 8(1) of the Human Rights Act, S.B.C. 1984, c. 185.5.  If it does, the arbitrator must proceed to determine whether, in all of the circumstances, the employer has fulfilled its duty to accommodate to the point of undue hardship.  If so, then just and reasonable cause will have been established; if not, the dismissal is unwarranted.

     Each of these issues flows naturally from the identification and resolution of the issue before it.  Cumulatively, they amount to a chain of reasoning commencing with the question "is there just and reasonable cause for dismissal?" and ending with a conclusion as to whether any duty to accommodate has been discharged.  The issues are interdependent - questions decided at one step in the process will have relevance at another.  For example, the Supreme Court of Canada has pointed out in Renaud v. Central Okanagan School District No. 23, [1992] 6 W.W.R. 193, at p. 204, that an assessment of the degree of hardship caused by a particular accommodation may require a consideration of the provisions of the collective agreement.  The degree to which the accommodation departs from the normal terms of employment can provide insight into whether the hardship caused by the accommodation is "undue".  The question of whether the duty to accommodate has been discharged cannot be considered in isolation from the surrounding circumstances.  Such factors as the type of work the employee could perform and the ability of the employer to provide alternate work, which the employee is capable of performing, must be taken into account.  [at paras. 26-8 of the PSERC appeal, quoted by Huddart J.A. at para. 77; emphasis added.]

[120]       Again this court disagreed, ruling that although disputes about absenteeism and disability "will usually give rise to awards the real substance of which is not a question of general law", on occasions when "such interdependence is not present, when the essential ingredient of the award is a principle of general law", this court's jurisdiction is invoked.  (para. 78.)  Further:

     I can see no justification for inferring from such interdependence that the duty to accommodate is a component of s. 84(1), any more than the principles of the Charter, Criminal Code or Motor Vehicle Act are implied in that section, because in some cases the interpretation of their provisions may form a necessary part of an inquiry into whether there is just and reasonable cause.  Like those principles, the duty to accommodate is a principle of general law which the arbitrator must respect in arriving at his or her decision.  There is no need to imply a principle of human rights legislation into the Labour Relations Code for it to regulate the workplace.  Neither union nor employer may act unlawfully.

     And there is good reason for not doing so in the absence of such need, including the desirability of a correctness standard for the review of the principles of human rights legislation.  If human rights principles are seen as an integral part of the Labour Relations Code rather than flowing from an external statute, they would be subject to review only for patent unreasonableness.  Moreover, there is merit in a direct appeal to determine the correct­ness of a decision based on a principle of general law applicable to unionized and non-unionized employees alike, when the factual circumstances are not dominant.  As the reasons of Mr. McPhillips in AirBC, supra, demonstrate, the principles of just and reasonable cause and the duty to accommodate can be analyzed most effectively by being kept separate conceptually.  A separate consideration of the two concepts permits a focus on the decision, rule, or conduct alleged to be discriminatory and the response of the employer, union, or complainant to that conduct.  It is to be recalled that the duty to accommodate arises only where there has been discrimination.  [paras. 79-80; emphasis added.]

[121]       With respect to the argument advanced by Mr. Pylypchuk of the Labour Relations Board in his dissenting opinion in Fording that the duty to accommodate was a principle implied in the Code, the Court stated:

     This argument suffers from the same weakness as that based on the interdependence of the issues concerning the duty to accommodate and just and reasonable cause for dismissal.  It would deprive s. 100 of what I consider to be its significant purpose.  It would render all provisions of statutes regulating employment relationships a principle of the Labour Relations Code.  It would also render meaningless the inclusion of the words "another Act dealing with labour relations" in s. 99.  [para. 82]

Accordingly, the Court held that Henderson J. had erred in finding the "duty to accommodate" to be a principle implied in s. 84(1) of the Code.

[122]       Finally, the Court addressed the question of whether the Human Rights Code was "another Act dealing with labour relations" within the meaning of the second branch of s. 99(1)(b) of the Labour Relations Code.  Huddart J.A. referred to Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, which had made it clear that the Canadian Charter of Rights and Freedoms was an "Act intended to regulate the employment relationship" within the meaning of s. 89(g) of the Code.  She noted that like the Charter, the Human Rights Code must be considered by labour arbitrators in resolving labour disputes because it regulates and controls all workplaces and employee/employer and union/member relationships.  In her words:

It cannot be overridden by private agreement.  It is just as much a component of a labour dispute as is the Charter, and it is of fundamental importance to a worker's dignity and well-being.  The arbitrator has the power (from s. 89 of the Labour Relations Code) not only to interpret and apply the Human Rights Code, but also to fashion an appropriate remedy for its violation as part of the resolution of the labour dispute, as all parties agreed.  [para. 86]

[123]       This did not resolve the question of whether the Human Rights Code was "another Act dealing with labour relations" [emphasis added], however.  In Kinsmen, the Court had found the Pension (Municipal) Act not to be such a statute; Lambert J.A. had noted it did not deal with "labour relations, which are the relations between employers, on the one hand, and unions and the employees collectively represented by unions on the other hand."  Building on this definition of the phrase, Huddart J.A. found in Fording Coal that the difference in wording between s. 89(g) and s. 99 of the Code was significant, and that the review authority conferred by s. 99 was narrower than the interpretive authority of arbitrators under s. 89(g).  She suggested this approach was consistent with a "divided review jurisdiction designed to ensure that the Labour Relations Board has all the authority it requires to accomplish the purposes of the Labour Relations Code while ensuring equal application of general legal principles not essential to the integrity of the collective bargaining system."  (para. 88.)  It followed that the Human Rights Code was not "another Act dealing with labour relations."

[124]       I should note that the Court in Fording Coal appears not to have dealt with the decision of the Supreme Court of Canada in Meiorin, supra, which was released shortly before Fording Coal was released.  As Southin J.A. observes, the Supreme Court (like the Court of Appeal) did not raise or address the question of jurisdiction on that occasion.  Meiorin and its companion case, "Grismer" (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) [1999] 3 S.C.R. 868), are important for many reasons, especially the introduction of a new "unified approach" to the defence of bona fide occupational requirement referred to in the Human Rights Code.  The new approach made obsolete the distinction between "direct" and "adverse effect" discrimination.  More importantly for the purposes of this case, the Court confirmed the quasi-constitutional nature of human rights legislation and stated that such legislation must be interpreted liberally: see para. 44 of Meiorin; see also Insurance Corp. of British Columbia v. Heerspink [1982] 2 S.C.R. 145, at 157-8; Winnipeg School Board v. Craton [1985] 2 S.C.R. 150; and Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (2001) 209 D.L.R (4th) 465 (Ont. C.A.) and the cases cited at para. 47 thereof.

Was Fording Coal Incorrectly Decided?

[125]       In its written submissions filed on the question of the correctness of Fording Coal, the Union submitted that this court had erred in concluding "that the issue of whether an employee was discharged for just and reasonable cause for excessive absenteeism, was a separate and discrete issue from whether an employer had failed to follow the provisions of the Human Rights Code and accommodate an employee whose absences were caused by disability."  In the Union's analysis, that separation is not realistically possible or desirable, given the superior ability of the Board (as opposed to the Court of Appeal) to consider the myriad of factors affecting the balance of interests in industrial relations in order to "determine, in an integrated fashion, whether, in all the circumstances, just cause and the duty to accommodate have been met."

[126]       The Union cited the decision of the Supreme Court of Canada in Toronto Board of Education v. Ontario Secondary School Teachers' Federation, District 15 [1997] 1 S.C.R. 487, where it was said that "A decision as to whether there is 'just cause' for discipline of an employee comes within the jurisdiction of an arbitration board, and therefore can only be set aside if it is patently unreasonable."  (para. 38.)  This proposition was not contested by counsel in the Toronto Board case and the Court emphasized that no new principle of law had arisen on the appeal. (para. 34.)  The only unique aspect of the case was that the grievor was a teacher, so that the arbitrator had been required to interpret a provision of the Education Act of Ontario, which sets out standards of conduct for teachers.  (Parenthetically, I also note that the Court stated:

It has been held on several occasions that the expert skill and knowledge which an arbitration board exercises in interpreting a collective agreement does not usually extend to the interpretation of "outside" legislation.  The findings of a board pertaining to the interpretation of a statute or the common law are generally reviewable on a correctness standard.  ...  An exception to this rule may occur where the external statute is intimately connected with the mandate of the tribunal and is encountered frequently as a result.  [para. 39])

[127]       The Union's submission seems to be that similarly in this case, the fact that the arbitrator was required to interpret and apply a provision of the Human Rights Code should not change the essential character of the award and is certainly not remarkable.  As stated by Vice-Chair Pylypchuk in his dissenting reasons in Fording Coal:

Just because part of the necessary analysis in an issue of dismissal for just cause engages the application of the Human Rights Act does not diminish the central issue before the arbitrator — namely, whether there was just cause for dismissal — and thus makes it no less reviewable under s. 99 of the Code.  It is implicit in s. 89(g) of the Code, and indeed trite, that an arbitrator must apply the Human Rights Act correctly.  It follows that a failure to do so will render an arbitrator's decision inconsistent with the express just cause principle in s. 84(1) of the Code and the direction in s. 89(g) of the Code.  Indeed, if anything, s. 89(g) adds an additional Code dimension which makes it all the more reviewable under s. 99.  [para. 19]

On a policy level, the Union also contends that this approach would lend greater certainty to labour relations and is consistent with the approach of "deference and restraint" taken by this court in considering its jurisdiction under s. 100: see Martin-Brower, supra, at para. 35. 

[128]       I appreciate that certainty of jurisdiction is a desirable goal of any labour legislation.  I also acknowledge that Fording Coal has been criticized as resting on an overly subtle distinction between awards "based on" human rights law and those based on findings of fact. (See in particular Phillip Bryden, "Principles for Allocating Jurisdiction over Human Rights Claims between Labour Arbitrators and Human Rights Agencies" in Human Rights: Disability Issues, Continuing Legal Education Society of British Columbia (November 1999), at 3.2.21).  With respect, I share Professor Bryden's scepticism as to whether the basis of most disputes will be 'factual' where the grievance concerns "non-culpable dismissal resulting from excessive absenteeism caused by disability".  (Fording Coal, para. 78.)  It may be that the Supreme Court of Canada's recent judgment in Housen v. Nikolaisen [2002] 2 S.C.R. 235 will provide more guidance on the question of the characterization of issues of this kind: see paras. 26-36.  Ultimately, however, the Court is required by the Labour Relations Code to take jurisdiction on an appeal where the "basis" of the award is a matter of the "general law" other than one "included" in s. 99(1).  The difficulty of making this determination, especially where issues of law and fact are "intertwined", does not obviate the obligation to do so.  If the approach taken by the courts does not accord with what was intended, it is obviously open to the Legislature to make the necessary amendments.

[129]       With respect to the Union's argument concerning the expertise of the Court of Appeal as compared to that of the Board in considering the many factors relevant to "workplace justice", I am not persuaded that that argument allows adequately for the unique and generalized nature of human rights legislation, or the differences between the purposes of such legislation and the purposes of the Code.  I have already referred to the comments of the Supreme Court of Canada in Meiorin to the effect that human rights legislation has the "status of fundamental law" similar to that of the Charter, at least where allegations of discrimination are involved.  Consistent with this quasi-constitutional aspect, s. 4 of the Human Rights Code expressly states that it prevails over other legislation.  In Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554 (in a passage quoted by this court in Fording Coal), La Forest J. made the following observations about the supervisory role of courts of law over human rights tribunals:

The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context.  It does not extend to general questions of law such as the one at issue in this case.  These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform.  The courts cannot abdicate this duty to the tribunal.  They must, therefore, review the tribunal's decisions on questions of this kind on the basis of correctness, not on a standard of reasonability.  [at 585]

[130]       In my view, the nature of human rights legislation in comparison to that of the Code supports the Hospital's argument in this case that "It is this court that properly has jurisdiction to review an arbitrator's decision which has, as its main ingredient, the interpretation of human rights principles (e.g., the scope of the duty to accommodate) that are not unique to the unionized workplace."  This appellate jurisdiction permits the Court to supervise the development of human rights jurisprudence in a manner that is consistent between unionized and non-unionized workplaces, and that does not vary according to the provisions of particular collective agreements.

[131]       As for the argument that wherever a grievance arises concerning the dismissal of an employee, the first branch of s. 99(1)(b) is engaged by reason of the provision that every collective agreement require "just and reasonable cause" for dismissal, I cannot agree.  Section 100 requires that the "basis of the decision or award" be determined in each instance – yet the approach suggested by the Union would pre-determine that question by reason of the occurrence of a dismissal.  On a more substantive level, the matters or issues referred to in subpara.(b) of s. 99(1) "carve out" of matters of general law, matters specifically concerned with "labour relations".  As I have already noted, "labour relations" were described by the Court in Kinsmen as "the relations between employers, on the one hand, and unions and employees collectively represented by unions, on the other hand."  No submission has been made calling these remarks into question, and if they are correct, the Human Rights Code does not come within the 'carved out' portion of general law issues.  Further, the dismissal of an employee from his or her employment is obviously not a phenomenon unique to the labour relations setting and indeed as earlier suggested, ss. 84(1) and (3)(a) are really a variation of the common law rule.  I am not persuaded that ss. 84(1) and (3)(a) are "principles" expressed in the Code.  Rather, they establish requirements applicable to collective agreements.

[132]       I remain of the view that Fording Coal was properly decided and that in order to determine whether this court has jurisdiction, it is not the factual background of the dispute or the remedy sought by the grievor, but the "basis" of the "decision or award" that must be determined.  I am not as confident as Huddart J.A. (Fording Coal, para. 78) that most grievances about dismissals resulting from absenteeism caused by disability are unlikely to give rise to awards "the real substance of which is . . . a question of general law"; but at the end of the day, that consideration cannot detract from the statutory mandate imposed by s. 100. 

The Basis of the Award in this Case

[133]       Having determined that Fording Coal was correctly decided, I return to the question of the characterization of the arbitrator's award in this case, with particular reference to the remaining question of law — which the Board characterized as "the relationship between culpability and undue hardship" — on which it declined jurisdiction.

[134]       The Union's argument was that the basis of the arbitrator's award was a factual determination that the risk of relapse posed by the grievor's conduct to the Hospital's operations was not shown to be serious — a conclusion not open to review by this court.  I might have agreed with this position but for the fact that the arbitrator also stated that "Any actions by the employee that are direct outcomes of the compulsive nature of the disease, meaning that the employee is unable to control his behaviour cannot, therefore, be counted as misconduct in any culpable sense although the amount of hardship that an employer must accommodate is less in positions that are safety sensitive . . . or involve a significant element of public interest . . . ."  (at 34-5; my emphasis.)  This suggests that the arbitrator was proceeding on the assumptions  that (i) the "outcomes" of behaviour must be considered differently according to whether the behaviour was culpable or not; and (ii) what would ordinarily be considered serious workplace misconduct could not be considered as such where the employee is unable to control his behaviour.  On this basis, he proceeded to find that there was "no evidence available" indicting undue hardship for the employer if the grievor were reinstated. 

[135]       It is not completely clear whether the latter conclusion was an independent one or was affected by a misapprehension that the duty to accommodate (which arises from a finding of non-culpability) effectively immunizes an employee from dismissal.  That it does not has been recognized in the arbitral jurisprudence: see Re Toronto Transit Commission and Amalgamated Transit Union (1998) 72 L.A.C. (4th) 109, cited in Canada Post Corp. and Canadian Union of Postal Workers (Zachar Grievance) [1998] C.L.A.D. No. 811, at para. 90, and more recently in British Columbia, Re Fraser Lake Sawmills Ltd. [2002] B.C.L.R.B.D. No. 390.  On balance, however, I am of the view that the "basis" of the arbitrator's decision in this case was that (what he regarded as) the non-culpability of the grievor's affliction removed the "outcomes" of his condition from the analysis of accommodation.  This was, as I read the award, a conclusion of (general) law about human rights principles, a matter "not included" in s. 99(1) of the Code.

The Merits of the Appeal

[136]       As far as the merits of the appeal are concerned, I also find that given the arbitrator's almost casual dismissal of the evidence before him, his misapprehension as to the significance of (what he regarded as) non-culpability as a matter of law affected his view of the "risk" posed to the employer (and its patients) by the grievor's conduct.  Applying a standard of correctness ─ which is indicated both by a consideration of the four factors comprising the "pragmatic and functional" approach to the review of decisions of administrative tribunals (see Pushpanathan v. Canada [1998] 1 S.C.R. 982 and the cases following it) and by cases (such as Mossop, supra) in the specific area of human rights ─ I find that he erred in this regard and that the appeal must be allowed.  It cannot be that in order to show undue hardship, the Hospital must show that the health of a patient has been seriously jeopardized, or even that a patient has died, before the point of undue hardship is reached in the case of a hospital employee who steals medicine and forges medication records.  The Supreme Court of Canada has stated that "where safety is at issue, both the magnitude of the risk and the identity of those who bear it are relevant considerations."  (Central Alberta Dairy Pool v. Alberta (Human Rights Comm.) [1990] 2 S.C.R. 489, at 520-1.) 

[137]       Further, McLachlin C.J.C. made it clear in Meiorin that accommodation to the point of undue hardship is to be approached in accordance with basic notions of balance, common sense and reasonableness.  (para. 63.) Recent arbitral decisions such as AirBC and Fraser Lake Sawmills, supra, confirm this important principle.  In the latter case, the Board recognized so-called "hybrid" cases — instances in which addiction has influenced the conduct of the employee but "has not dominated it to the extent that the employee's actions have been found to be totally non-voluntary" — and noted the "conceptual blurring between the traditional culpable and non-culpable approaches" in arbitral decisions.  The Board stated:

     This ordering of interests in the essential services designation provisions in the Code is also reflected in Section 2 of the Code, which requires that the public interest be properly considered.  In particular, Section 2 requires that the Board and arbitrators

(f)  . . . [minimize] the effects of labour disputes on persons who are not involved in those disputes;

     . . .; [and]

(g)  . . . [ensure] that the public interest is protected during labour disputes; . . . .

Patients in hospitals who require drugs, and the proper recording of the administration of those drugs, would be captured by both provisions.  In the essential services designation provisions of the Code, significant weight is placed on patient health, safety, and the public interest in the context of lawful conduct under the Code.  Taking drugs from patients and marking their charts as if they had received those drugs is seriously improper conduct, which inherently raises significant health, safety, and public interest concerns.  The seriousness of such concerns must be properly considered when an arbitrator weighs and balances the relevant factors in any arbitral review of an employer's decision to dismiss an employee in such circumstances.  Failure to do so where there is a reasonable possibility of recurrence, would not likely be consistent with the Code principles we have noted.  [para. 51]

[138]       Although the Hospital sought to have us determine the grievance if the appeal was successful, I would remit the case back to the arbitrator.  Having seen all the witnesses, he is in a better position to give appropriate consideration, notwithstanding the non-culpable element, to all factors relevant to the grievor's reinstatement, including risk to the Hospital and its patients.  I would also dismiss the Union's application to introduce new evidence in this court, as information regarding the grievor's present condition could make no difference to the questions of law raised by this appeal.

[139]       We are indebted to all counsel for their helpful submissions, both on the main appeal and on the correctness of Fording Coal.

“The Honourable Madam Justice Newbury”

Appendix

Purpose of Part

82   (1)  It is the purpose of this Part to constitute methods and procedures for determining grievances and resolving disputes under the provisions of a collective agreement without resort to stoppages of work.

(2)  An arbitration board, to further the purpose expressed in subsection (1), must have regard to the real substance of the matters in dispute and the respective merit of the positions of the parties to it under the terms of the collective agreement, and must apply principles consistent with the industrial relations policy of this Code, and is not bound by a strict legal interpretation of the issue in dispute.

* * *

Dismissal or arbitration provision

84   (1)  Every collective agreement must contain a provision governing dismissal or discipline of an employee bound by the agreement, and that or another provision must require that the employer have a just and reasonable cause for dismissal or discipline of an employee, but this section does not prohibit the parties to a collective agreement from including in it a different provision for employment of certain employees on a probationary basis.

(2)  Every collective agreement must contain a provision for final and conclusive settlement without stoppage of work, by arbitration or another method agreed to by the parties, of all disputes between the persons bound by the agreement respecting its interpretation, application, operation or alleged violation, including a question as to whether a matter is arbitrable.

(3)  If a collective agreement does not contain a provision referred to in subsections (1) and (2), the collective agreement is deemed to contain those of the following provisions it does not contain:

(a)  the employer must not dismiss or discipline an employee bound by this agreement except for just and reasonable cause;

(b)  if a difference arises between the parties relating to the dismissal or discipline of an employee, or to the interpretation, application, operation or alleged violation of this agreement, including a question as to whether a matter is arbitrable, either of the parties, without stoppage of work, may, after exhausting any grievance procedure established by this agreement, notify the other party in writing of its desire to submit the difference to arbitration, and the parties must agree on a single arbitrator, the arbitrator must hear and determine the difference and issue a decision, which is final and binding on the parties and any person affected by it.

* * *

Authority of arbitration board

89   For the purposes set out in section 82, an arbitration board has the authority necessary to provide a final and conclusive settlement of a dispute arising under a collective agreement, and without limitation, may

(a)  make an order setting the monetary value of an injury or loss suffered by an employer, trade union or other person as a result of a contravention of a collective agreement, and directing a person to pay a person all or part of the amount of that monetary value,

(b)  order an employer to reinstate an employee dismissed in contravention of a collective agreement,

(c)  order an employer or trade union to rescind and rectify a disciplinary action that was taken in respect of an employee and that was imposed in contravention of a collective agreement,

(d)  determine that a dismissal or discipline is excessive in all circumstances of the case and substitute other measures that appear just and equitable,

(e)  relieve, on just and reasonable terms, against breaches of time limits or other procedural requirements set out in the collective agreement,

(f)  dismiss or reject an application or grievance or refuse to settle a difference, if in the arbitration board's opinion, there has been unreasonable delay by the person bringing the application or grievance or requesting the settlement, and the delay has operated to the prejudice or detriment of the other party to the difference,

(g)  interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement, even though the Act's provisions conflict with the terms of the collective agreement, and

(h)  encourage settlement of the dispute and, with the agreement of the parties, the arbitration board may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement.

* * *

Appeal jurisdiction of Labour Relations Board

99   (1)  On application by a party affected by the decision or award of an arbitration board, the board may set aside the award, remit the matters referred to it back to the arbitration board, stay the proceedings before the arbitration board or substitute the decision or award of the board for the decision or award of the arbitration board, on the ground that

(a)  a party to the arbitration has been or is likely to be denied a fair hearing, or

(b)  the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations.

(2)  An application to the board under subsection (1) must be made in accordance with the regulations.

Appeal jurisdiction of Court of Appeal

100  On application by a party affected by a decision or award of an arbitration board, the Court of Appeal may review the decision or award if the basis of the decision or award is a matter or issue of the general law not included in section 99 (1).

Decision final

101  Except as provided in this Part, the decision or award of an arbitration board under Code is final and conclusive and is not open to question or review in a court on any grounds whatsoever, and proceedings by or before an arbitration board must not be restrained by injunction, prohibition or other process or proceeding in a court and are not removable by certiorari or otherwise into a court.

Reasons for Judgment of the Honourable Mr. Justice Mackenzie:

[140]       I have had the opportunity to read in draft the reasons of Madam Justice Southin and Madam Justice Newbury.  I agree with Southin J.A. that this appeal should be quashed for lack of jurisdiction, but the reasons for my conclusion do not require us to overrule the decision of this Court in United Steelworkers of America, Local 7884 v. Fording Coal Ltd. (1999), 70 B.C.L.R. (3d) 74, 179 D.L.R. (4th) 284, 1999 BCCA 534.

[141]       The facts are set out extensively in the reasons of my colleagues and I propose to summarize them only to the extent necessary to frame the issues as I see them.  The grievor was initially dismissed from his employment as head nurse at the Castlegar District Hospital (the "Hospital") in 1996.  The grievor was addicted to narcotic analgesic drugs.  He had taken Hospital narcotics to support his addiction and falsified patient records to cover the thefts. 

[142]       The union grieved the dismissal and the matter went to arbitration.  The arbitrator's award reinstated the grievor on conditions contained in a "last chance agreement" that provided for his gradual return to work, initially as a general duty nurse under supervision, and leading to eventual resumption of his position as head nurse.  The essential terms of the last chance agreement are referred to in paragraph 87 of the reasons of Newbury J.A. 

[143]       No appeal was taken from this award ("the first award") and the grievor was reinstated under the conditions of the last chance agreement.  Shortly after he resumed his position as head nurse, he relapsed and once more misappropriated narcotics and forged Hospital records.  He was again dismissed.

[144]       A second grievance was filed and the matter was returned to the arbitrator.  The appellant contended that the terms of the last chance agreement were conclusive in support of the termination following the relapse.  The arbitrator disagreed and ordered the grievor's second reinstatement on the terms of a revised or second last chance agreement ("the second award").

[145]       The Hospital appealed the second award to the Labour Relations Board on three grounds.  The Board addressed the first two grounds, which are not germane to the issues here, but it concluded that it did not have jurisdiction to deal with the third ground.  The Board stated the jurisdictional issue as: "the relationship between culpability and undue hardship is a question of general law [not within the jurisdiction of the Board under s. 99 of the Labour Relations Code, R.S.B.C. 1996, c. 244 (the "Code")].”  The appellant then launched the appeal to this Court under s. 100 of the Code.  All the statutory provisions relevant to this appeal are set out in the reasons of Southin J.A. and I need not reproduce them.

[146]       The appellant stated the issue of general law differently from the Board.  Its factum formulated the issue as:

The effect of non-culpable conduct [of the grievor] in determining whether the [employer’s] duty to accommodate to the point of undue hardship had been satisfied.

The Board refers to the relationship between culpability and undue hardship.  The appellant frames the issue as the relationship between non-culpable conduct and undue hardship. The two formulations are basically inconsistent. 

[147]       The explanation for the inconsistency lies in the procedural history of the proceedings outlined above.  The arbitrator found the grievor's conduct to be non-culpable in his first award.  The appellant did not appeal that award and consequently it has conceded that it is bound by that non-culpable finding on its appeal from the second award.  The statement of the issue by the appellant conforms to the record.  The issue as stated by the Board, the relationship between culpability and undue hardship, is precluded by the record.

[148]       The question then is whether the basis of the second award "is a matter or issue of the general law not included in s. 99(1)” [Code, s. 100] and within this Court's appellate jurisdiction on the appellant's formulation of the issue.  In exploring this question it is helpful to return to the finding of the arbitrator in the first award.  The arbitrator found the grievor's conduct to be non-culpable because the conduct was caused by the disease of drug addiction which rendered the grievor unable to control his behaviour.  He decided that the conduct "cannot, therefore, be counted as misconduct in any culpable sense although the amount of hardship that an employer must accommodate is less in positions that are safety sensitive."  This conclusion was reached against the background of the Human Rights Code, R.S.B.C. 1996, c. 210 which requires an employer to accommodate an employee's disability to the point of undue hardship.

[149]       The arbitrator appears to have regarded culpable and non-culpable conduct as mutually exclusive categories.  He may have had in mind arbitral decisions which held that conduct should be categorized as exclusively non-culpable where addiction "significantly impairs" the ability of the employee to engage in misconduct.

[150]       I pause here to note the Labour Relations Board’s recent decision in Fraser Lake Sawmills (2002), BCLRB No. B390/2002, decided after the decision of the Board before us.  In that case, the Board observed at paragraph 80 that “[t]here appears to be a growing arbitral consensus in which cases involving addiction and poor work performance are distinguished from cases involving dishonesty.”  The Board also noted, at paragraph 81:

[T]here is now a recognition that addiction differs from other diseases in some important respects.  Accordingly, it is necessary under Section 89(d) for arbitrators to take into consideration those special characteristics in approaching their task in reviewing discipline under a collective agreement, particularly in respect to the exercise of an arbitrator's remedial discretion.

This observation led the Board to reject the significant impairment test of exclusive non-culpability.  The Board noted that, while an addiction impairs the ability to choose, some element of choice remains, and the failure to exercise it appropriately is culpable.  The Board identified this combination of culpable and non-culpable elements as a hybrid category.

[151]       The failure of the arbitrator to recognize and weigh an element of culpability in the grievor's conduct is the appellant's real complaint, but the appellant is precluded by its concession from bringing that complaint through the front door of this appeal.  Its submission is essentially an attempt to insinuate the culpable element through the back door on the question of undue hardship rather than conduct.

[152]        In my view, this submission creates at least two problems.  First, it would contort the main meaning of "non-culpable".  Second, it risks confusing the clarity of the hybrid approach adopted in Fraser Lake Sawmills.  That decision correctly focuses the issue on culpability, to the extent that some element of volition remains in the grievor's conduct, and weighs that element in the assessment of just cause.  I think if we were to accede to the appellant's line of argument and address culpability indirectly as part of undue hardship we would add more doctrinal confusion to an area already overburdened with difficulty.

[153]       I agree with Newbury J.A. that the just and reasonable cause requirement, imported into all collective agreements by s. 84(1) and (3) of the Code, does not bring all appeals from grievance arbitrations involving just cause for dismissal within the s. 99(1) jurisdiction of the Board.  If an issue involving the nature and scope of a duty under the Human Rights Code is the basis or real substance of the award, that is an issue of general law not included in s. 99(1).  In my view, we are driven to this result by the express words of s. 99 and s. 100 and the line of authority including Kinsmen Retirement Centre Association v. Hospital Employees Union Local 180 (1985), 63 B.C.L.R. 292, [1985] B.C.J. No. 2299 (C.A.), which has not been questioned in this appeal.  While the line between the mutually exclusive jurisdictions conferred on the Labour Relations Board by s. 99 and the Court of Appeal by s. 100 may be “a brain teaser of the highest order”, in the words of Southin J.A., it is an unavoidable brain teaser imposed by the statute.  It follows that I am not persuaded that Fording Coal was wrongly decided.

[154]       In the result, however, I do not think that the award at issue on this appeal is based on an issue of general law outside s. 99(1).  One must be careful not to bring “every link in the chain of reasoning leading to the decision or award within the description ‘a matter or issue of the general law’.”: Kinsmen, para. 16.  The basis of an award does not mean “every constituent”: A.I.M. Steel Ltd. v. United Steelworkers of America, Local 3495 (1975), 111 L.A.C. (2d) 116 (B.C.C.A.).  Once the arbitrator found that the grievor’s conduct was exclusively non-culpable, I am satisfied that his articulation of the duty to accommodate was consistent with authority and did not raise any issue of general law.  The arbitrator then considered whether the employer fulfilled its duty to accommodate, an inquiry that Huddart J.A. in my respectful view correctly characterized as a factual issue in Fording Coal. 

[155]       As discussed above, I think that the gravamen of the appellant’s complaint is that the arbitrator failed to recognize a culpable dimension of the grievor's conduct and relate it to just cause.  That issue is foreclosed by the appellant's concession that the arbitrator's finding of non-culpability is not open to review.  If that issue were not foreclosed, in my view culpability would have been an issue of just cause not engaging the duty to accommodate under the Human Rights Code.  The balance between the culpable and non-culpable elements in any particular circumstance is primarily a question of fact for the arbitrator and, assuming no principled error in articulating the duty to accommodate under the Human Rights Code which is the basis or real substance of the award, the overall review of the award is not within s. 100.  Any appeal on that aspect, to the extent that it is reviewable at all, should go to the Board under s. 99(1), a jurisdiction recognized by the Board in Fraser Lake Sawmills.

[156]       It follows that I would quash this appeal on the ground that this Court is without jurisdiction.

“The Honourable Mr. Justice Mackenzie”

I agree:

“The Honourable Madam Justice Prowse”

I agree:

“The Honourable Mr. Justice Thackray”