COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
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2008 BCCA 357 |
Date: 20080918
Docket: CA034905
Between:
The
Government of
(represented by the B.C. Public Service Agency)
Appellant
And
Service
Employees’
Respondent
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Before: |
The Honourable Madam Justice Huddart |
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The Honourable Madam Justice Kirkpatrick |
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The Honourable Mr. Justice Tysoe |
| P.A. Gall, Q.C. and N. Iyer |
Counsel for the Appellant |
| K. Curry and C. Sullivan |
Counsel for the Respondent |
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Place and Date of Hearing: |
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30 April 2008 |
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Place and Date of Judgment: |
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18 September 2008 |
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Written Reasons by: |
| The Honourable Madam Justice Huddart |
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Concurred in by: |
| The Honourable Mr. Justice Tysoe |
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Dissenting Reasons by: |
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The Honourable Madam Justice Kirkpatrick (pg. 11, para. 19) |
Reasons for Judgment of the Honourable Madam Justice Huddart:
[1] This appeal raises one question: whether section 13 of the Human Rights Code, R.S.B.C. 1996, c. 210, requires an employer to accommodate an employee who is guilty of theft because he suffers from an alcohol dependency. That section provides in its relevant parts:
13 (1) A person must not
(a) refuse to employ or refuse to continue to employ a person, or
(b) discriminate against a person regarding employment or any term or condition of employment
because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
…
(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.
[2] In this case, the employer confronted a supervisory employee with allegations of his workplace conduct that could result in a conviction of theft. After being assured no criminal charges would be laid, the employee admitted those facts, advised his employer for the first time that he was an alcoholic, then attended a rehabilitation programme at his own expense, and has abstained from alcohol since. Had the employee been charged and convicted of theft, section 13(1) of the Human Rights Code would have precluded a finding that the employer discriminated when it terminated him because of that theft. The arbitrator acknowledged the seriousness of the employee’s misconduct when he found at paragraph 74 that “[t]he frequency of the Grievor’s thefts over an extended period of time, all of it premeditated, absent a human rights analysis, clearly warrants discharge.”
[3] When he turned to that human rights analysis, the arbitrator concluded at paragraph 91 that the employee’s termination for theft was prima facie discriminatory because a disability (alcohol dependency) was a factor in that theft.
[4] A causal link between a disability (a workplace injury) and the decision to terminate (for poor workplace performance) was found to permit a finding of prima facie discrimination in Wu v. Ellery Manufacturing, 2000 BCHRT 53, where the tribunal member wrote:
24 In order to establish a prima facie case of discrimination, Mr. Wu must persuade me, on a balance of probabilities, that: he had a disability, he was treated adversely by Ellery Manufacturing, and there is evidence from which it is reasonable to infer that his disability was a factor in the adverse treatment. The burden then shifts to Ellery Manufacturing, which, in order to avoid a finding of discrimination, must show that its conduct was justified because it was based on a bona fide occupational requirement and, in particular, that it reasonably accommodated Mr. Wu’s disability to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, [1999] 3 S.C.R. 3 (“Meiorin”).
[Emphasis added.]
[5] Applying that understanding of the law, the tribunal member concluded:
27 I am able to conclude, based on the evidence of both Mr. Ellery and Mr. Galvins, that there were performance issues with respect to Mr. Wu. However, Mr. Ellery testified that it was Mr. Wu’s attitude on his return to work, and Mr. Ellery’s perception that he was not trying hard enough to do his job that triggered the termination at that time. That decision was, in part, connected to Mr. Wu’s injury and Mr. Ellery’s assessment of the extent of Mr. Wu’s disability. I therefore find that Mr. Wu’s termination was, in part, based on his injury or disability and that Mr. Wu has established a prima facie case of discrimination.
[Emphasis added.]
[6] That analysis was accepted in Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37, 2002 C.L.L.C. 230-020, where the tribunal member refined the third stage of the test for prima facie discrimination, writing:
20 Under the Code, there is no positive duty to accommodate people with disabilities. That is, proof that a respondent failed to accommodate a person with a disability is not sufficient to establish a contravention of the Code. Rather, the duty to accommodate arises as part of a defence to a prima facie case of discrimination. In British Columbia (Public Service Comm.) v. B.C.G.E.U. (1999), 35 C.H.R.R. D/257 (“Meiorin”), the Supreme Court of Canada developed a three-step approach to determine whether a prima facie discriminatory standard is justified.
21 To succeed, a complainant need only show that the ground alleged was one factor in the respondent’s conduct; it does not need to be the sole or overriding factor. Relying on Newman v. Norwood Project Management Ltd., [1995] B.C.C.H.R.D. No. 6, an oral decision of the B.C. Council of Human Rights, Carter Chev Olds submits that, to be discriminatory, the alleged ground must be a significant or important factor in the conduct. Neither of the cases cited in Newman (Holden v. Canadian National Railway (1990), 14 C.H.R.R. D/12 (F.C.A) and Holloway v. MacDonald (1983), 4 C.H.R.R. D/1454 (B.C. Bd. Inq.)) stands for the proposition that the alleged ground must be a significant or important factor. In Holden, the Federal Court of Appeal stated: “As the case law establishes, it is sufficient that the discrimination be a basis for the employer’s decision” (emphasis in original). In my opinion, the weight of authority requires only that the alleged ground be a factor: in addition to Holloway and Holden, see Cooke v. Vancouver Island Aids Society (1999), 35 C.H.R.R. D/56 at para. 52 (B.C.H.R.T.) and O’Connor v. Town Taxi, 2000 BCHRT 9 at paras. 54-58.
22 To establish a prima facie case, therefore, Ms. Martin must establish that: she had a disability, Carter Chev Olds refused to continue her employment, and it is reasonable to infer from the evidence that her disability was a factor in that refusal.
[Emphasis added.]
[7] The early decision of Professor William Black in Holloway v. MacDonald and Clairco Foods Ltd. (1983), 4 C.H.R.R. D/1454, 83 C.L.L.C. 17,019, assists in understanding the importance of the link between the employee’s disability and the employer’s conduct. At paragraphs 12479 to 12486, he explained that the critical question was whether the employer’s decision was influenced by the employee’s protected characteristic (in that case, pregnancy). After citing (at paragraph 12484) Bremer v. Board of School Trustees, School District No. 62, unreported, June 10, 1977 (B.C. Bd.), and MacBean v. Village of Plaster Rock, unreported, November 17, 1975 (N.B. Bd.), Professor Black summed up his view:
12486 While the verbal formulations in the Bremer and MacBean cases vary somewhat, I understand both cases to hold that the question is whether a prohibited ground of discrimination was one of the factors taken into account and contributed to the decision. I have concluded that this is the proper test to apply in evaluating the evidence.
[8] Importantly, he noted:
12493 As the opening words of section 8 make clear, the primary objective of the Human Rights Code is to provide equality of opportunity. The objective is to ensure that people are judged as individuals rather than on the basis of preconceptions about groups to which they belong.
[9] This approach to discrimination is consistent with that enunciated by the Supreme Court of Canada, beginning with its decision in Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321. Its core reasoning is found at 547:
The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. It is the result or the effect of the action complained of which is significant. If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory.
[10] This brief review of the development of the test for prima facie discrimination, which this Court adopted in Health Employers Assn. of B.C. (Kootenay Boundary Regional Hospital) v. B.C. Nurses' Union, 2006 BCCA 57, 54 B.C.L.R. (4th) 113, leads me to conclude the arbitrator erred in its application to the evidence before him. In my view, the test must be applied as it was explained in the decisions in which it was developed by human rights tribunals.
[11] I can find no suggestion that Mr. Gooding’s alcohol dependency played any role in the employer’s decision to terminate him or in its refusal to accede to his subsequent request for the imposition of a lesser penalty. He was terminated, like any other employee would have been on the same facts, for theft. The fact that alcohol dependent persons may demonstrate “deterioration in ethical or moral behaviour”, and may have a greater temptation to steal alcohol from their workplace if exposed to it, does not permit an inference that the employer’s conduct in terminating the employee was based on or influenced by his alcohol dependency.
[12] I am reinforced in my view by three recent decisions of the Supreme Court of Canada, where allegedly discriminatory conduct by employers was considered. In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, Abella J., in concurring reasons with which the Chief Justice and Bastarache J. agreed, addressed the need for a finding of prima facie discrimination. After noting the central importance of that finding and referencing the definitions of “discrimination” in the Charter of human rights and freedoms, R.S.Q., c. C-12, and Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1, she wrote:
48 At the heart of these definitions is the understanding that a workplace practice, standard, or requirement cannot disadvantage an individual by attributing stereotypical or arbitrary characteristics. The goal of preventing discriminatory barriers is inclusion. It is achieved by preventing the exclusion of individuals from opportunities and amenities that are based not on their actual abilities, but on attributed ones. The essence of discrimination is in the arbitrariness of its negative impact, that is, the arbitrariness of the barriers imposed, whether intentionally or unwittingly.
49 What flows from this is that there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer’s conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.
50 If such a link is made, a prima facie case of discrimination has been shown. It is at this stage that the Meiorin test is engaged and the onus shifts to the employer to justify the prima facie discriminatory conduct. If the conduct is justified, there is no discrimination.
…
53 There is no need to justify what is not, prima facie, discriminatory. Unlike Deschamps J., then, the issue for me is not whether the employer has made out the justification defence of having reasonably accommodated the claimant, but whether the claimant has satisfied the threshold onus of demonstrating that there is prima facie discrimination, namely, that she has been disadvantaged by the employer’s conduct based on stereotypical or arbitrary assumptions about persons with disabilities, thereby shifting the onus to the employer to justify the conduct.
[13] Thus did three members of the Supreme Court draw attention to what it had said constituted discriminatory conduct in Simpsons-Sears, supra. Conduct is discriminatory if its effect is to impose on a person or group of persons, penalties obligations, or restrictive conditions not imposed on other members of the community. The essence of discrimination is in the arbitrariness of its negative impact.
[14] This year, the majority of the Supreme Court of Canada reiterated the importance of proof of discriminatory conduct (in the sense of stereotyping or arbitrariness) by the employer in Honda Canada Inc. v. Keays, 2008 SCC 39 at para. 71, and in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 at para. 13.
[15] I can find no suggestion in the evidence that Mr. Gooding’s termination was arbitrary and based on preconceived ideas concerning his alcohol dependency. It was based on misconduct that rose to the level of crime. That his conduct may have been influenced by his alcohol dependency is irrelevant if that admitted dependency played no part in the employer’s decision to terminate his employment and he suffered no impact for his misconduct greater than that another employee would have suffered for the same misconduct.
[16] The Human Rights Code was not designed to prevent employers from dismissing an employee who has committed a crime related to his or her employment. This is evident in the careful wording of s.13 which prohibits employers from refusing to employ or continue to employ persons convicted of offences “unrelated” to that employment or intended employment. As stated by the chambers judge in B.C. Human Rights Commission v. B.C. Human Rights Tribunal, (1999), 178 D.L.R. (4th) 546 at para. 31, 35 C.H.R.R. 333 and adopted by this Court in 2000 BCCA 584 at para. 24, 38 C.H.R.R. 390, 81 B.C.L.R. (3d) 195:
The policy grounding protection of individuals convicted of criminal offences is not protection against the penalty flowing from their conduct. It is protection “... from being stigmatized indefinitely by the fact of their convictions”...
Although charges were never pursued against Mr. Gooding, Mr. Gooding admitted the facts that would have been necessary to obtain a criminal conviction against him.
[17] Moreover, to find such a decision to terminate to constitute prima facie discrimination would not benefit addicted employees. In my view, it would but encourage employers to lay criminal charges against employees who commit criminal offences to which drug dependency is no defence.
[18] Thus, I conclude that this appeal should be allowed and the matter be remitted to the arbitrator so that he can complete his determination under section 89 of the Labour Relations Code of whether Mr. Gooding’s dismissal was excessive in all of the circumstances .
“The Honourable Madam Justice Huddart”
I agree:
“The Honourable Mr. Justice Tysoe”
Reasons for Judgment of the Honourable Madam Justice Kirkpatrick:
[19] I have had the privilege of reading the opinion of my colleague, Madam Justice Huddart, with which I am unable to agree.
[20] In my opinion, the central issue in this appeal concerns the correct legal test for determining prima facie discrimination in cases of addiction-related employee misconduct.
PROCEDURAL HISTORY
[21] This case has a long and somewhat convoluted history. Brian Gooding was a long-time employee of the Liquor Distribution Branch ("LDB") and a member of the respondent union, British Columbia Government and Service Employees' Union (the "Union"). From 1984 to 1998, Mr. Gooding was the manager of a liquor store on Salt Spring Island.
[22] Sometime between 1996 and 1998, Mr. Gooding, unbeknownst to his employer, began to drink alcohol heavily. He also began to steal alcohol from the store he managed. His pattern of theft, which occurred several times per week for approximately one year, was to put the alcohol in the staff closet on the pretence of having paid for it and take the product at the end of the day. He sometimes paid for the alcohol the following day, but often did not pay at all.
[23] Other employees at the store complained about Mr. Gooding's conduct. An investigation followed. On 18 June 1998, Mr. Gooding was confronted about the thefts. Mr. Gooding admitted to the thefts and told his employer about his drinking problem. The employer gave Mr. Gooding a pamphlet that described the employee assistance program.
[24] On 20 June 1998, Mr. Gooding entered into an alcohol rehabilitation program. He had not previously sought treatment for his condition. Mr. Gooding has remained sober since confessing to the thefts.
[25] Mr. Gooding was suspended without pay on 24 June 1998. The suspension letter stated, in part:
A preliminary investigation has revealed that you have engaged in extremely serious workplace misconduct. Specifically, you have admitted to removing LDB product from the Ganges store on numerous occasions without paying for and/or properly accounting for these items. Such misconduct is not only a gross violation of Branch policy, but constitutes theft. As the Manager of the Ganges liquor store and as a long term LDB employee, you ought reasonably to have known that this behaviour cannot be tolerated.
[26] Mr. Gooding's employment was terminated on 21 August 1998. The termination letter notified him as follows:
The investigation has now been completed and, on the basis of the information made available to me, I am satisfied that you wilfully committed the theft of product belonging to the Liquor Distribution Branch.
Honesty is vital to maintaining a viable employer-employee relationship. The form of misconduct to which you have admitted strikes at the fundamental trust placed in you by not only your employer, but also the public.
[27] The Union grieved Mr. Gooding's termination. The arbitration was heard over six days. Both the Union and the employer adduced expert medical evidence concerning Mr. Gooding's alcohol use: Dr. Baker on behalf of the Union, and Dr. Lilley on behalf of the employer.
[28] In his decision delivered on 14 March 2000, the arbitrator analyzed the grievor's dismissal in a culpable versus non-culpable framework. He accepted Dr. Baker's evidence that an addict acts involuntarily in the theft of his or her drug of choice and that alcoholism is a disease of addiction. He also accepted the common opinion of Dr. Baker and Dr. Lilley that Mr. Gooding "understood the nature and quality of his acts and knew that it was wrong to steal the store's alcohol products" (at para. 54).
[29] The arbitrator concluded, at para. 65, that Mr. Gooding's alcoholism was a mitigating factor to be considered in meting out discipline:
He was a manager of a store that operated independently day-to-day. The closest supervision to Salt Spring Island is Victoria. The thefts occurred several times per week for one year. I have considered his alcoholism as a mitigating factor. However in these circumstances the mitigating factor of his alcoholism does not overcome the seriousness of the offence. If discharge is not appropriate in this case it is difficult to see in what circumstances it would be. I therefore uphold the discharge.
[30] The Union appealed the original decision to the Labour Relations Board under s. 99 of the Labour Relations Code, R.S.B.C. 1996, c. 244 (the "Labour Code"). The Union argued in part that, based on the arbitrator's acceptance of Mr. Gooding's alcohol addiction, the termination should have been assessed under a non-culpable framework.
[31] The Board, in a 13 December 2000 decision indexed as BCLRB No. B479/2000, dismissed the appeal, stating at para. 20:
In short, the Arbitrator accepted the Grievor had acted in a "non-voluntary manner" but also found the Grievor "knew that the thefts were wrong". He relied on the expert evidence to conclude that the thefts – although the compulsive acts of an alcoholic – were culpatory in nature. We find no palpable or overriding error which would allow the Board to interfere with the Arbitrator's assessment of the evidence. His factual findings are fatal to the foundation underlying both of the Union's grounds for review.
[32] The Union then applied under s. 141 of the Labour Code for reconsideration by the Board. The application was heard at the same time as Fraser Lake Sawmills Ltd., BCLRB No. B213/2002, [2002] B.C.L.R.B.D. No. 390 (QL). On 18 June 2002, the Board concluded that the original panel erred in upholding the first decision. The Board stated at paras. 64 and 70 (BCLRB No. B210/2002):
64 When an arbitrator determines that a grievor's addiction significantly impaired his or her ability to [choose] whether to engage in misconduct, the arbitrator, in determining whether the employer has just cause to discharge the grievor for the misconduct, should use a non-culpable analysis. However, use of such an analysis does not preclude a determination that the employer had just cause to discharge the employee. In other words, use of a non-culpable analysis does not immunize an employee from discharge.
[…]
70 Finally, because such cases involve a disability, human rights principles apply, including the employer's duty to accommodate.
[33] The grievance was remitted to the arbitrator to be decided in accordance with the principles discussed in the Board's decision, most notably Fraser Lake Sawmills. That decision cast aside the "significant impairment" test in favour of the newly coined "hybrid" test to be used in cases in which arbitrators must grapple with issues of addiction and workplace misconduct. The Board in Fraser Lake Sawmills identified the problem at para. 86:
There needs to be a fair and just way to properly consider an employee’s addiction in reviewing an employer’s decision to impose disciplinary sanctions on the employee. The presence of an addiction or dependency does not necessarily immunize an employee from disciplinary or corrective action. The extent to which an individual should be held responsible for workplace misconduct needs to be reached having regard to all the circumstances of the case. Approaching the hybrid fact context in that way will result in all of the relevant facts, factors, and circumstances being considered. The remedial decision by an arbitrator in such circumstances will often involve a complex judgement in respect to the overall labour relations and workplace context. The arbitrator will not only need to consider all the relevant facts, he or she will likely also need to have available remedial orders which would traditionally be seen as being either non-culpable or culpable in nature.
[34] The Board summarized the proper approach at para. 94:
In summary, there is a consistent, hybrid nature to three of the key elements in these cases:
1. The combination of addiction and misconduct in the workplace often presents itself in a mix of culpable and non-culpable elements;
2. the nature of an addiction, such as alcoholism (for example), is properly understood as a treatable illness. As an illness, it is non-culpable in nature. But as a treatable illness, there is an incorporation of the individual’s responsibility and accountability, ultimately not just in respect to the treatment of the addiction, but also in respect to the workplace misconduct; and
3. lastly, in relation to this hybrid nature of the facts and the addiction as a treatable illness, it will often be the case that the remedy ordered will also be hybrid in nature, incorporating elements which are in nature either non-culpable (such as rehabilitative treatment) or culpable (such as strict, non-enabling requirements of compliance with treatment and other consequence driven orders, such as no back pay).
[35] In his remittal decision, the arbitrator examined the procedural history, his earlier decision, and the directions given to him by the Board in remitting the decision. The arbitrator's threshold conclusion was:
[46] I conclude that the Fraser Lake Sawmills Ltd. hybrid policy does in fact broaden the applicability of the non-culpable approach to an addicted employee in the workplace including, most importantly, the application of the human rights analysis. Although there is recognition of addiction in other areas of the law, it is the inclusion of a physical or mental disability under the Human Rights Act that compels a different policy framework in the employment setting. As stated by the British Columbia Human Rights Tribunal in Hanfield vs. North Thompson School District No. 26 [1995] B.C.C.H.R.D. No.4 (Mahil):
I conclude that the disease of alcoholism falls within the ambit of physical or mental disability Section 8 of the Act.
(para 140)
[36] The arbitrator then considered the Human Rights Code, R.S.B.C. 1996, c. 210, and considered two key decisions of this Court: Kemess Mines Ltd. v. International Union of Operating Engineers, Local 115, 2006 BCCA 58, 54 B.C.L.R. (4th) 252, leave to appeal to S.C.C. refused, [2006] 2 S.C.R. ix; and Health Employers Assn. of B.C. (Kootenay Boundary Regional Hospital) v. B.C. Nurses' Union, 2006 BCCA 57, 54 B.C.L.R. (4th) 113, leave to appeal to S.C.C. refused, [2006] 2 S.C.R. vi.
[37] It is evident from reading the arbitrator's remittal decision that he struggled to determine the point at which the human rights analysis is engaged in the hybrid test formulated in Fraser Lake Sawmills. The Board gave no guidance on the point, and the arbitrator assumed that this was a deliberate decision that would preserve a flexible, case by case approach.
[38] The arbitrator applied the traditional just cause analysis as set out in Wm. Scott & Company Ltd. and Canadian Food and Allied Workers Union, Local P-162, [1977] 1 Can. L.R.B.R. 1, [1976] B.C.L.R.B.D. No. 98 (QL), at paras. 74-75:
[74] The frequency of the Grievor’s thefts over an extended period of time, all of it premeditated, absent a human rights analysis, clearly warrants discharge. Therefore in answer to the second question under Wm. Scott, supra I conclude that the Employer’s discharge of the grievor was not excessive and I would uphold his discharge. There would therefore be no need to proceed to the third question of Wm. Scott - what disciplinary measures would be substituted in place of discharge.
[75] However, at this point, in compliance with the hybrid analytical model, I must now undertake a human rights analysis.
[39] The arbitrator then considered the human rights analysis described in Kemess and Health Employers. The arbitrator applied the analysis to the circumstances of Mr. Gooding and concluded:
[88] The first two steps in determining prima facie discrimination are easily resolved in this matter. First, there is no question that the Grievor is addicted to alcohol; that is common ground. Second, it is not in dispute that alcoholism falls within the category of “physical or mental disability” under Section 13 of the Human Rights Code. Third, the Grievor has been the subject of adverse treatment. He has been terminated from his employment. The final step, is as the Court of Appeal stated in Health Employers Association of British Columbia, supra to determine if the employee’s misconduct was “caused by symptoms related to” the disability. Dr. Baker in his written report, in answer to whether alcoholism provided an explanation for the Grievor’s thefts, agreed that it did so:
Yes, typically employees with substance dependence will, at some point in the progressive condition, demonstrate deterioration in ethical or moral behaviour. Health professionals will steal drugs from their place of work to feed their addictions. Alcoholics will, if exposed, often steal alcohol from their workplace if exposed.
With good treatment and recovery, their ability to safely work in the environment exposed to their “drug of choice” will usually return provided an active relapse prevention program is pursued.
[40] The arbitrator continued his analysis:
[89] I also accepted, as set out earlier in this award, the following medical conclusions drawn by Dr. Baker in regard to the Grievor’s alcoholism and his theft of alcohol:
In part I prefer the evidence of Dr. Baker in regard to his explanation of alcoholism. Dr. Baker is one of the leading addiction specialists in Canada. From his opinion I draw the following conclusions: first, that alcoholism is a disease; second, that the grievor was an alcoholic (these first two conclusions were shared by Dr. Lilley); third, an addict acts out of compulsion in regard to the drug of their choice and that the compulsion operates notwithstanding that an addict is experiencing neither withdrawal nor intoxication.
(pg. 15)
[90] The Grievor at the time he confessed to the thefts (June 18, 1998), made it clear to the Employer that he had “a severe drinking problem for which he required help.” The post-discharge evidence, which was correctly admitted by consent (rehabilitation attempts are crucial to the issue of the duty to accommodate), saw the Grievor enter rehabilitation, and by the time of the hearing in January 2000, the Grievor had remained abstinent. As I concluded in the award, “Dr. Baker is optimistic about his [Grievor’s] recovery.” (pg. 21)
[91] The medical conclusions of Dr. Baker combined with the Grievor’s acknowledgement of his serious problems with alcohol provide sufficient evidence to establish that the Grievor’s thefts of alcohol were caused by “symptoms related to alcoholism.”
[92] As set out earlier, once prima facie discrimination is established the onus shifts to the employer to demonstrate (as set out in Meiron, supra) that it had a bona fide and reasonable justification for its treatment of the Grievor.
[41] The arbitrator did not make an explicit finding of prima facie discrimination. However, it must be inferred that he made such a finding by the opening words of para. 92 "… once prima facie discrimination is established the onus shifts to the employer …".
[42] Having implicitly found prima facie discrimination by the employer, the arbitrator turned his attention to the three-step test in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 (Meiorin).
[43] The first two of the Meiorin steps were not disputed. The third step, undue hardship, was the focus of the dispute – whether the employer could continue to employ Mr. Gooding without incurring undue hardship.
[44] The arbitrator concluded:
[98] Was dismissal the Employer’s only recourse in preventing further thefts by the Grievor or was his dismissal primarily an expression of deterrence? Could the Employer have accommodated this Grievor short of terminating his employment? I have concluded that it could have. All the Employer did was to refer information to
him concerning the Employee Assistance Program. It did not canvass what other positions may have been available for the Grievor or under what conditions the Grievor could have returned to work regardless of what position he was reassigned to.
[45] The arbitrator reinstated Mr. Gooding to a non-supervisory position and ordered that he recover approximately seven years' back pay.
GROUNDS OF APPEAL
[46] The employer alleges several errors in judgment. However, in their essence, the errors relate first, to the arbitrator's finding that Mr. Gooding's dismissal was prima facie discriminatory, and second (and in the alternative), to the arbitrator's assessment of the employer's duty to accommodate, which, the appellant says, gave no weight to the irreparable breach of the employment relationship constituted by Mr. Gooding's theft.
PRIMA FACIE DISCRIMINATION
Positions of the Parties
[47] The employer submits that the arbitrator’s interpretation and application of the test for prima facie discrimination in a hybrid case illustrates the “mistake in the development of our human rights law”, which has made the threshold for classification as a hybrid case the same as that for finding prima facie discrimination – namely, the question whether the addiction played any role in the misconduct. The effect of this, according to the employer, is that in every case of addiction-related misconduct there will be a finding of prima facie discrimination and the duty to accommodate will be triggered. The employer takes issue with such automatic and presumptive reasoning.
[48] The employer says that human rights law should not allow an employee to rely on his addiction as a legal defence to termination and as a shield to any form of discipline, simply because there is some connection between the misconduct and the disability. The employer would limit the protection offered by discrimination laws to addicted employees who engage in misconduct to cases where the discipline imposed was based on stereotypical or prejudicial beliefs, or cases where the addiction rendered the employee entirely unable to control his or her own behaviour.
[49] The respondent says that the employer’s restrictive definition of prima facie discrimination does not account for cases of indirect or “adverse effects” discrimination. Further, the respondent says that the appellant’s claim that every case of addiction-related misconduct will yield a finding of prima facie discrimination ignores this Court’s caution in para. 41 of Health Employers “not to assume that addiction is always a causal factor in an addicted employee’s misconduct …. To find prima facie discrimination, there must be evidence that the employee’s misconduct was ‘caused by symptoms related to’ the disability ….”
[50] Whether alcoholism is a “disability” within the meaning of s. 13(1) of the Human Rights Code and whether Mr. Gooding was an alcoholic were not disputed issues on this appeal. The former is settled law (Handfield v. North Thompson School District No. 26, [1995] B.C.C.H.R.D. No. 4 (QL)); the latter is an accepted fact. There also is no dispute that Mr. Gooding received adverse treatment – his employment was terminated. The contentious issue is as it was in Health Employers: “whether [the employee’s] addiction was a factor in the termination or whether there was an explanation for his termination unrelated to his disability” (para. 39).
Discussion
The Test
[51] In Simpsons-Sears at p. 558, the Supreme Court of Canada described a prima facie case in the context of adverse effects discrimination as “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer” (emphasis added). A finding of prima facie discrimination is therefore a rebuttable presumption of discrimination.
[52] In Kemess and Health Employers, this Court cited Martin v. 3501736 Inc. (c.o.b. Carter Chevrolet Oldsmobile), 2001 BCHRT 37, [2001] B.C.H.R.T.D. No. 39 (QL) at para. 22, for the test to be applied under s. 13(1)(a) of the Human Rights Code to establish a case of prima facie discrimination: an employee must establish that he or she had (or was perceived to have) a physical or mental disability; he or she received adverse treatment; and his or her disability was a factor in the adverse treatment. These analytical steps are required to give s. 13(1) a broad purposive and liberal meaning.
[53] On its face, the language of s. 13(1) appears to address only direct discrimination:
13 (1) A person must not
(a) refuse to employ or refuse to continue to employ a person, or
(b) discriminate against a person regarding employment or any term or condition of employment
because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
[Emphasis added.]
However, the test formulated in Martin (summarized above) assists in addressing cases in which adverse effects (or indirect) discrimination is alleged.
[54] The arbitrator correctly stated the test at para. 77 of his award by quoting from Health Employers. However, on application to the facts at hand, the arbitrator set out the analysis as follows at para. 88:
The first two steps in determining prima facie discrimination are easily resolved in this matter. First, there is no question that the Grievor is addicted to alcohol; that is common ground. Second, it is not in dispute that alcoholism falls within the category of “physical or mental disability” under Section 13 of the Human Rights Code. Third, the Grievor has been the subject of adverse treatment. He has been terminated from his employment. The final step, is as the Court of Appeal stated in Health Employers Association of British Columbia […] to determine if the employee’s misconduct was “caused by symptoms related to” the disability.
[Emphasis added.]
The "final step" as described by the arbitrator is not in fact the final step of the test as stated by this Court in Health Employers and Kemess. The final step is to determine whether the addiction was a factor in the termination. By pre-empting this step, the arbitrator, and the parties on this appeal have mistakenly conflated evidentiary and analytical requirements of the prima facie discrimination analysis.
[55] It is important to recognize that the grieving employee bears the onus of establishing prima facie discrimination. In a situation of adverse effects discrimination, the employee must adduce evidence establishing a nexus between the addiction and the misconduct – the stated reason for termination. This evidentiary burden is significant, for it cannot be assumed that addiction is always a causal factor in an addicted employee’s misconduct. In its factum, the employer submitted, “[g]iven the prevailing view of addiction experts that addiction can result in a lowering of moral and ethical conduct on the part of the addicted person, it will be a rare case where some connection between the addiction and the misconduct cannot be established” (emphasis of the appellant). This view undervalues the importance of evidence in cases of this kind, and the necessity for a contextual inquiry that considers the nature of the disability and the misconduct, and the connection between the two.
[56] The importance of establishing a nexus between the misconduct and the disability was recently demonstrated in Ryan v. Canada Safeway Ltd., 2008 BCHRT 12, [2008] B.C.H.R.T.D. No. 12 (QL) at para. 27:
In the present case, Ms. Ryan would have to establish that her misconduct, in taking the money from the till and not returning it for some days, was related to her alcoholism. If it was not, then, regardless of the state of the Employer's knowledge with respect to her alcoholism, it was not prima facie discriminatory for the Employer to terminate her employment for engaging in that conduct, and she could not succeed in her complaint.
The tribunal member in Ryan concluded at para. 45:
On the information before me, it is possible that Ms. Ryan's misconduct was related to her alcoholism. Any poor decision by a person suffering from a substance abuse problem could, in some sense, be said to be potentially related to that problem. This is what Dr. Hedges' opinion that "it is indeed possible that Ms. Ryan's apparent alcohol dependence contributed to her poor decision-making" amounts to. When considered in light of all the information before me, however, I find that it is not reasonably possible that Ms. Ryan would be able to establish that her misconduct was sufficiently related to her alcoholism to establish the necessary nexus between her misconduct and her disability. There is no question that Ms. Ryan knew that her Employer had a strict no-tolerance policy when it came to theft, especially the theft of cash. Nor is there any question that she knew that in "borrowing" the money from the till she was in violation of that policy. On her own account, she also knew that she was an alcoholic. Despite ample opportunity to do so, and despite what she says was her own willingness to discuss her drinking problem with members of management in the past, she chose not to raise it as a mitigating or explanatory factor during the Employer's investigation. The necessary nexus between her alcoholism and the misconduct for which she was terminated is absent.
[57] In the course of discussing the evidence necessary to establish prima facie discrimination in a case of addiction-related misconduct, I pause to note that I cannot accept the appellant’s limiting suggestion that an employee will only benefit from discrimination laws if he can show that his disability rendered him wholly incapable of controlling his own behaviour. In submitting to a human rights analysis, a non-culpable component to the behaviour is acknowledged. It is inconsistent to then impose a threshold of “uncontrollable behaviour” to establish prima facie discrimination. Moreover, the appellant does not appear to dispute the characterization of the fact situation at bar as a “hybrid case” in accordance with Fraser Lake Sawmills.
[58] In a case of adverse effects discrimination, due to the very nature of the claim, evidence establishing a causal connection between the disability and the misconduct is a crucial component of the employee’s case. As explained in Martin, “indirect … discrimination occurs when a respondent engages in conduct, or applies a rule or standard, that is neutral on its face but which has an adverse effect on an individual or group because of a proscribed ground of discrimination” (para. 24). An appreciation of indirect or adverse effects discrimination is rooted in s. 2 of the Human Rights Code, which provides: "[d]iscrimination in contravention of this Code does not require an intention to contravene this Code". Thus “adverse effects” discrimination is simply another way of expressing the concept of unintentional discrimination.
[59]
However, fulfilling the evidentiary
requirement and establishing a connection between the disability and the misconduct
does not end the analysis. On the evidence adduced by the employee,
it must be reasonable for the arbitrator, or decision-maker, to infer that
the disability was therefore a factor in the adverse treatment. Thus,
the employee can advance his case only so far; it is for the arbitrator to
take the final, necessary analytical step and factor in the stated reason
for termination. As in Health Employers, the contentious
issue in the case at bar is whether Mr. Gooding’s alcoholism was a factor
in the termination or whether there was an explanation for his termination
unrelated to his disability. To stop short of this final analytical
step is to pay insufficient attention to the language in s. 13(1) of
the Human Rights Code: “a person must not … refuse to continue
to employ a person … because of the … disability … of that person” (emphasis
added).
While the language of the statute makes it preferable to take this final step,
it will, in most cases, be clear from the facts that the termination was related
to the disability.
Application
[60] In this case, the arbitrator did not explicitly state that the alcoholism was a factor in, and indirectly related to, the termination. It would have been preferable if the arbitrator had made an explicit statement. However, his finding on this point is implicit in his conclusion that prima facie discrimination was established in para. 92: “ … once prima facie discrimination is established the onus shifts to the employer …”.
[61] The arbitrator did, however, undertake a contextual inquiry into the causal connection between the misconduct and the disability:
[89] I also accepted … the following medical conclusions drawn by Dr. Baker in regard to the Grievor’s alcoholism and his theft of alcohol:
In part I prefer the evidence of Dr. Baker in regard to his explanation of alcoholism. Dr. Baker is one of the leading addiction specialists in Canada. From his opinion I draw the following conclusions: first, that alcoholism is a disease; second, that the grievor was an alcoholic …; third, an addict acts out of compulsion in regard to the drug of their choice and that the compulsion operates notwithstanding that an addict is experiencing neither withdrawal nor intoxication.
[Emphasis added.]
It is significant to note that the appellant does not challenge on this appeal the arbitrator’s key finding that alcoholism was a contributing factor in the grievor’s theft of alcohol. This finding of causation is “essentially a finding of fact” (Kemess at para. 33). On the evidence establishing the causal connection between the alcoholism and the theft of alcohol, it is reasonable to infer that Mr. Gooding’s alcoholism was related to his termination for theft. Theft was the reason given for Mr. Gooding’s termination; there was not a reason for termination unrelated to his alcoholism. The employee therefore established prima facie discrimination.
DUTY TO ACCOMMODATE
[62] At this point in the analysis, the onus shifts to the employer to show that the impugned standard or policy is a bona fide occupation requirement ("BFOR") (s‑s. 13(4) of the Human Rights Code). In Meiorin, the Supreme Court of Canada set the test for the BFOR defence:
[54] …. An employer may justify the impugned standard by establishing on the balance of probabilities:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
With respect to the employer’s policy against stealing, the first two stages are not challenged. The third stage, the question of undue hardship, is at issue on this appeal. The arbitrator found that at the time Mr. Gooding confessed to the thefts on 18 June 1998, he made it clear to the employer that he had "a severe drinking problem for which he required help". Thus, when the employer terminated Mr. Gooding, it knew of his alcohol dependency and of the alleged and possible relationship between his addiction and his misconduct.
[63] The appellant takes the same position on the issue of undue hardship as it did before the arbitrator. The appellant now contends the arbitrator’s assessment of the employer’s duty to accommodate gave no weight to the irreparable breach of the employment relationship caused by Mr. Gooding’s theft. The appellant says that requiring the employer to maintain the relationship constitutes undue hardship.
[64] In making this argument, the employer stresses the dishonest nature of the misconduct in the case at bar and distinguishes it from absenteeism or poor performance. The employer’s position is that dishonesty of this magnitude cannot be tolerated by any employer. To be sure, the nature of the misconduct, theft, is relevant in the assessment of undue hardship. The employer’s concern for financial costs arising out of repeated thefts and deterrence of other employees are relevant factors to consider (Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489). But the dishonest nature of the act does not neutralize the duty to accommodate altogether.
[65] In my view, the arbitrator did not err in finding that the employer had not fulfilled its duty to accommodate. The appellant submits that the premeditated nature of the employee’s acts and his knowledge that stealing was wrong were relevant to the duty to accommodate. They were not. In Kemess, at para. 45, Chief Justice Finch made clear that to the extent that an employee knows he has a “problem” and to the extent there is an element of choice in his failure to seek help, those are factors to be addressed in the culpable just cause analysis. The issue of accommodation is part of the human rights analysis of the non-culpable aspect of the employee’s theft. Culpable components do not factor in here. This separation duly follows, in the context of a hybrid case, the direction of Madam Justice Huddart in Fording Coal, at para. 80, to “[keep] separate conceptually” the principles of just and reasonable cause and the duty to accommodate.
[66] The appellant also submits in its factum:
… while rehabilitation is a laudable consideration within the accommodation analysis, an employee with an addiction disability must bear primary responsibility for that rehabilitation and cannot invoke his/her right to treatment only after a workplace incident so as to excuse that incident.
With respect, such an onerous position discounts an experience such as that of Mr. Gooding, whose employment discipline compelled him to confront his addiction. He made significant rehabilitative efforts and progress. Where possible, human rights law should play an enabling role in people’s struggles with illness and disability in the workplace. The appellant’s stance does not leave much room for the duty of accommodation to carry much meaning in this case. Further, it does not embrace two of the stated purposes of the Human Rights Code (s. 3): "(b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights; (c) to prevent discrimination prohibited by this Code …".
[67] In para. 96 of his award, the arbitrator concluded the following factors were significant:
First, the Grievor confessed to the Employer his alcoholism when confronted with his misconduct on June 18, 1998. Two days later he admitted himself into a detoxification centre …. Several days later, on June 24, 1998, the Employer suspended him without pay. On his return from Pemberton House the Grievor attended weekly sessions of counselling, attended AA twice a week and acquired a sponsor. Several months later the Employer dismissed the Grievor on August 21, 1998. … Up to that point [the Employer] had simply informed the Grievor of the Employee Assistance Program.
I agree that these factors are significant in assessing whether the employer had accommodated Mr. Gooding to the point of undue hardship. It cannot be said that the arbitrator erred in concluding that the employer did not accommodate Mr. Gooding.
[68] For all of the above reasons, I would dismiss the appeal.
“The Honourable Madam Justice Kirkpatrick”
CORRECTION – 19 SEPTEMBER 2008
On the cover page:
Counsel for the Appellant should be P.A. Gall, Q.C. and N. Iyer
Counsel for the Respondent should be K. Curry and C. Sullivan