IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Canadian Union of Postal Workers v. Canada Post Corporation, |
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2008 BCSC 338 |
Date: 20080325
Docket: S073921
Registry: Vancouver
Between:
Canadian Union of Postal Workers
Petitioner
And
Canada Post Corporation
Respondent
Before: The Honourable Madam Justice Lynn Smith
Reasons for Judgment
| Counsel for Petitioner |
D.G. Crane |
| Counsel for Respondent |
E.B. Wredenhagen |
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Date and Place of Hearing: |
November 13, 2007 |
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Vancouver, B.C. |
I. INTRODUCTION
[1] The petitioner seeks an order that the award of Arbitrator Robert B. Blasina made on April 5, 2007 in the matter of Canada Post Corporation (“Canada Post”) and Canadian Union of Postal Workers (“CUPW”) (Gerry Black grievance) be set aside, and Grievance No. 850-03-00467 be remitted for a new hearing before a different arbitrator; or, alternatively, that the award be remitted to Arbitrator Blasina with the direction to reconsider and determine the matter in accordance with the court’s directions. The petitioner attacks the award both on its merits and on procedural grounds. The parties disagree on the applicable standard of review.
II. FACTUAL CONTEXT
[2] The grievance in question concerns the termination of Gerry Black, a Victoria letter carrier (the “Grievor”). The Grievor has been addicted to alcohol and cocaine, and those dependencies adversely affected his attendance at work.
[3] In 2001, the Grievor’s attendance problems came under scrutiny by Canada Post. In June of that year he was released for incapacity, and an ensuing grievance was resolved by a Memorandum of Settlement [the “2001 MOS”].
[4] Under the 2001 MOS, the Grievor was required to complete a drug dependency and rehabilitation program, refrain from using drugs and alcohol, and maintain prescribed standards of attendance at work. During the 18 months in which the 2001 MOS was in effect, Canada Post had discretion to terminate him for any breach of its terms. He completed a four-week long “Day Intensive Program” provided by Victoria Alcohol and Drug Services Clinic, and for the duration of the 2001 MOS he met all conditions and maintained a satisfactory attendance record at work.
[5] Shortly after the expiration of the 2001 MOS in 2003, the Grievor’s attendance at work again began to deteriorate.
[6] By the fall of 2005 Canada Post took further steps. An interview was conducted with the Grievor on September 29, 2005 and a post-interview warning letter was placed in his file. He was given time to complete a 30-day residential treatment program in Kelowna.
[7] Despite completing the residential treatment program, the Grievor continued to have attendance problems at work, and on July 13, 2006 Canada Post conducted another interview with him. The arbitrator found as a fact that during the interview the Grievor said that when he was subject to terms and conditions he was motivated to maintain regular attendance at work, and that he in effect invited the employer to re-impose terms and conditions. The letter put on his file after this interview stated in part:
… The purpose of the interview was to discuss your attendance record for the period July 7, 2005 to July 6, 2006 inclusive. …
… A review of your personal file reveals two letters as follows:
1. A letter dated July 25, 2006 in which you were interviewed for the period from July 28, 2004 to July 19, 2005. In the above time frame, you were absent on 11 occasions. This letter also refers to another letter dated September 16, 2004 where you were interviewed for unacceptable attendance.
2. A letter dated September 29, 2005 in which you were interviewed for the period September 27, 2004 to September 27, 2005. In this time frame you were absent for 11 days, 4 hours on 10 occasions.
Gerry, this is your third formal interview in the last 12 months and I must impress upon you the urgency to vastly improve your attendance. Your attendance record will be monitored and you will be given six months to improve. If your attendance record does not improve, you will be recommended for release under Article 10.10 of the CUPW collective agreement.
[8] The Grievor’s attendance problems continued after the July 13, 2006 interview and on October 20, 2006 a further interview was held. The post-interview letter stated in part:
… The purpose of this interview was to discuss your attendance record for the period of October 11, 2005 to October 10, 2006 inclusive.
…
When asked there were any specific reasons for your inability to attend work on a regular and consistent basis, you said “yes I have ongoing problem with alcohol and cocaine”. (sic)
You were asked if Canada Post Corporation could assist you in any way you stated “not at this time”. (sic)
…
I will be recommending to Cheryl Aitchison your release under article 10.10 the CUPW collective agreement. You will be notified in writing as to her decision.
[9] Following the October 20, 2006 interview, the Grievor’s employment was terminated. He was given notice of his release for incapacity under Article 10.10 of the Collective Agreement on October 24, 2006. Article 10.10 states:
ARTICLE 10
DISCIPLINE, SUSPENSION AND DISCHARGE
10.10 Release for Incapacity
(a) Where the Corporation intends to release an employee for incapacity, it shall notify the employee in writing at least thirty (30) calendar days in advance and transmit a copy of this notice to the local and regional offices of the Union within the same time limit.
(b) If a grievance is submitted prior to the end of the thirty (30) calendar day period mentioned hereinabove, the employee shall not be released until the grievance has been settled or disposed of by the arbitrator.
(c) The arbitrator seized of a grievance in relation to a release for incapacity may substitute his or her own opinion to the opinion of the Corporation on any issue raised by the grievance. He or she may, furthermore, render any decision that he or she considers just and equitable according to the circumstances.
[10] CUPW filed a grievance on behalf of Mr. Black.
[11] An arbitration hearing of the grievance took place on April 3, 2007 under the Canada Labour Code, R.S.C. 1985, c. L-2 (“the Code”), before Robert B. Blasina. A number of documentary exhibits were entered by consent and no other evidence was taken at the hearing. The parties agreed to a mediation/arbitration procedure. It was common ground between the parties that the Grievor was addicted to alcohol and cocaine, that this condition caused his attendance problems and that he should return to work upon his agreement to certain terms and conditions [the “2006 Reinstatement Terms”] although the parties could not agree on the duration of the conditions. The arbitrator noted in his award dated April 5, 2007, that the “Union submitted that the case called for an accommodation; and, the Corporation was amenable to considering an accommodation – even though it had already accommodated Mr. Black in the past.”
[12] The arbitrator upheld the grievance, stating his conclusions, and the terms and conditions, as follows:
1. The release for incapacity, as per the October 24, 2006 letter from Cheryl Aitchison, Manager, Victoria Operations, will be stayed, and held in abeyance pending compliance by Mr. Black with the terms and conditions set out in this award.
2. Mr. Black will enter into and complete a structured substance addiction rehabilitation program which is satisfactory to the Corporation’s Occupational Health Consultant. In addition, Mr. Black will attend both Alcoholics Anonymous and Narcotics Anonymous meetings if, and as frequently, as may be required from time to time, by his physician or the Corporation’s Occupational Health Consultant.
3. Mr. Black will sign a consent form authorizing substance addiction rehabilitation program personnel to provide the Corporation’s Occupational Health Consultant or his designate with any required reports confirming his attendance at all sessions, that he is taking all medication, if prescribed, and that he is complying with all other forms of attendance, reporting and treatment required by the program.
4. Mr. Black shall absolutely refrain from the use of drugs/alcohol excluding those prescribed, if any, by the substance addiction rehabilitation program personnel in the administration of the program, or by his physician as dictated by health care needs.
5. Mr. Black shall maintain attendance at work such that his total rate of absenteeism shall not exceed eight (8) days of absence during any twelve month period. The total rate of absenteeism shall include late arrivals, early departures, absences attributable to sickness, and absences without leave. The total rate of absenteeism shall not include absences of a lengthy duration due to major unforeseen events, such as heart attack or major surgery.
6. Mr. Black will provide a medical certificate for each and every occasion of absence which make up his total rate of absenteeism and for which illness is claimed as the cause, at the earliest possible opportunity.
7. The medical certificate referred to in point 6 above must include the following information;
a) Physician’s name and address
b) Date of visit
c) Start date and date of return to work
d) Declaration by the physician that there is no relationship of drugs/alcohol use/substance abuse to the absence
e) Doctor’s signature.
8. In every instance where Mr. Black will be late, or is unable to attend, for his regularly scheduled shift, he will ensure the Corporation is notified by him prior to, or as soon as possible after, the commencement of his shift. Mr. Black will advise his Supervisor at whatever location he may be working or other designated individual of the reasons for his absence and his probable date of return to work.
9. Should Mr. Black breach any of these terms and conditions, the Corporation may at its discretion reactivate the October 24, 2006 notice of release for incapacity, and, release Mr. Black immediately. Should the Corporation refrain from releasing Mr. Black, although it could have so, it will nevertheless retain discretion with respect to any future breach.
10. Should the Corporation release Mr. Black for incapacity as a result of his non-compliance with any of the foregoing terms and conditions it will at the same time advise the Regional and Local Union in writing. The Union, should it wish to challenge the release for incapacity will within one week of receipt of such notice, so notify the Corporation in writing; and, the matter will forthwith be referred to Arbitrator Robert Blasina for final and binding arbitration.
11. These terms and conditions shall remain in full force and effect for the remainder of Mr. Black’s employment with the Corporation.
[13] Canada Post’s position at the arbitration was that the terms and conditions should be in effect for more than 18 months. The Union’s position was that they should be in effect for less than 24 months. The arbitrator advised the parties that he was considering conditions for the rest of the Grievor’s term of employment, although neither party had argued for conditions of that duration. The Grievor was then 45 years of age.
[14] Before setting out the reasons for his conclusion that the 2006 Reinstatement Terms should apply for the remainder of the Grievor’s employment with Canada Post, the arbitrator wrote “[i]n considering this question [of duration], I have been mindful of the expert evidence I have heard previously in cases of this sort”. The arbitrator then proceeded to set out four reasons that, in his view, made a permanent application of the 2006 Reinstatement Terms appropriate. First, the arbitrator found that the Grievor would “continue to be molested by his addictions to alcohol and cocaine for the rest of his life” but that he had shown himself able to overcome them in the past. Second, the arbitrator stated that the 2006 Reinstatement Terms were intended to assist the Grievor, and that Mr. Black has recognized that. Third, the arbitrator noted that the Grievor needed ten more years of service with Canada Post to age 55, in order to retire with a full pension, and stated that the 2006 Reinstatement Terms should reinforce his achieving that goal or working longer if he wished. Finally, the Arbitrator acknowledged Canada Post’s interest in having regular attendance by employees who are not intoxicated or hungover and found that “it would be an undue hardship to [Post] to deny it finality at some point should Mr. Black continue to impose the nuisance of his addictions upon it”.
III. ISSUES
[15] The petitioner attacks both the substance of the arbitrator’s order, and the process that led to it. The petitioner submits that the order imposing permanent conditions on Mr. Black’s employment should be quashed because it contravenes the provisions of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, and that the arbitrator deprived the petitioner of a fair hearing by relying on evidence not presented at the hearing and to which the petitioner had no opportunity to respond.
[16] The issues I must determine are:
(1) What is the applicable standard of review with respect to each of the grounds?
(2) Has the petitioner established, to the applicable standard, that the decision should be quashed because of the arbitrator’s failure to apply the Canadian Human Rights Act?
(3) Has the petitioner established, to the applicable standard, that the decision should be quashed because of the arbitrator’s reference to expert evidence he had heard in previous cases?
IV. ANALYSIS
A. THE STANDARD OF REVIEW
[17] The case was argued prior to the release of Dunsmuir v. New Brunswick, 2008 SCC 9, which I will refer to later, although the parties were given the opportunity to make brief supplementary submissions as to the effect of Dunsmuir, which I have reviewed.
[18] The petitioner concedes that since an arbitration panel under the Code is a specialized tribunal, protected by a strong privative clause, the overall standard of review is patent unreasonableness. Nevertheless, the petitioner argues, the correctness standard applies to the interpretation and application of principles of the general law, including the interpretation of the duty to accommodate under human rights legislation.
[19] The respondent’s position is that the award can only be set aside on judicial review if it is patently unreasonable, citing Canadian Airlines International Ltd. v. Canadian Air Line Pilots Assn. (1997), 39 B.C.L.R. (3d) 131 (B.C.C.A.).
[20] The privative clause is in section 58 of the Code:
58(1) Decisions not to be reviewed by court – Every order or decision of an arbitrator or arbitration board is final and shall not be questioned or reviewed in any court.
58(2) No review by certiorari, etc. – No order shall be made, process entered or proceeding taken in any court, whether by way, of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an arbitrator or arbitration board in any of their proceedings under this Part.
[21] The respondent argues that in the present case the Canadian Human Rights Act is a statute which is so closely linked to the interpretation of the parties’ collective agreement that the arbitrator’s analysis of the duty of accommodation attracts deference on the standard of patent unreasonableness. The respondent refers to Toronto Board of Education v. Ontario Secondary School Teachers’ Federation, District 15, [1997] 1 S.C.R. 487, at paras. 42 and 43.
[22] The Court of Appeal in Canadian Union of Postal Workers v. Canada Post Corporation, 2001 BCCA 256, 87 B.C.L.R. (3d) 341 (“I.S.”) held that patent unreasonableness was the appropriate standard of review when reviewing a federal arbitrator’s application of the law to the facts in determining whether an employer had reasonably accommodated an employee. Donald J.A. referred to Laskin J.A.’s judgment in Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18 (Ont. C.A.) at 35-36:
Under s.42(3) of the Code, an appeal from a Board decision to the Divisional Court may be made on questions of law or factor both and the Divisional Court has wide powers to affirm, reverse or substitute its opinion for that of the Board. The standard of review applicable to a human rights tribunal subject to such a broad right of appeal has been settled by the Supreme Court of Canada in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 at pp. 583-85 and Berg v. University of British Columbia, [1993] 2 S.C.R. 353 at pp. 368-69, 102 D.L.R. (4th) 665. The standard of review of general questions of law, including the interpretation of the governing human rights statute is correctness; the standard of review of the Board’s findings of fact and the application of the law to those findings of fact is reasonableness.
[emphasis added]
[23] In reaching its conclusion, the Court explicitly accepted the “arbitrator’s findings on the question of hardship generally” as “a matter of fact to which I give full deference”, and rejected the Union’s contention that the arbitrator’s decision was faulty because the arbitrator did not analyze the evidence relating to hardship according to the factors discussed in the jurisprudence. The Court reiterated that “[h]ardship and reasonable measures are factual matters which vary with the case” (para. 19, citing Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at 984) and stated that “the question of accommodation must be approached with ‘common sense and flexibility’” (para. 20, citing British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R. 3 at 35-36).
[24] Kelleher J. in Canada Post Corporation v. Canadian Union of Postal Workers, 2007 BCSC 1702 (“Mailloux”), considered what standard of review applied to the decision of an arbitrator assessing an employer’s duty to accommodate a disabled employee. Kelleher J. noted that the general articulation of the duty to accommodate is a question of law to be reviewed on a less deferential standard because the duty to accommodate concept arises from the Canadian Human Rights Act, but found that because the application of the duty in particular cases is a question of fact that is frequently encountered by labour arbitration boards, it attracts some degree of deference and is to be reviewed on the standard of patent unreasonableness (at paras. 58-64).
[25] In its recent decision in Dunsmuir v. New Brunswick, the Supreme Court of Canada reconsidered the number and definitions of the standards of review, and stated that there ought to be only two standards of review: correctness and reasonableness (although there may be different degrees of deference within the reasonableness standard).
[26] The majority (per Bastarache and LeBel JJ.) said, with respect to reasonableness (at para. 47):
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[27] Commenting that the standard of correctness must be maintained with respect to jurisdictional and some other questions of law (at para. 50), the majority stated that the correctness standard will apply in cases such as those where there are true questions of jurisdiction or vires (at para. 59), constitutional questions regarding the division of powers and other constitutional issues (at para. 58), or questions of general law that are “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” (at para. 60, citing Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63 at para. 62).
[28] The analysis leading to the determination of the standard of review must be contextual, and take into account a number of factors including: the presence or absence of a privative clause; the purpose of the tribunal as determined by interpretation of its enabling legislation; the nature of the question at issue; and the expertise of the tribunal (para. 64).
[29] The Supreme Court unanimously decided that the standard of reasonableness applied to the case before it, which involved judicial review of an adjudicator’s decision regarding a grievance under the New Brunswick Public Service Labour Relations Act., R.S.N.B. 1973, c. P-25. The adjudicator’s decision had entailed deciding a preliminary issue of statutory interpretation of that legislation.
[30] In the case before me, since the parties had agreed that the Grievor should be reinstated with conditions, the arbitrator was required to determine what terms and conditions the employer could impose and for what duration.
[31] The arbitrator was required to apply the collective agreement, the enabling legislation and the Canadian Human Rights Act to the particular facts before him. He was not required to decide a true question of jurisdiction, a constitutional question, or a question of general law of central importance to the legal system.
[32] The Canadian Human Rights Act is a statute closely connected to the arbitrator’s function under the Code. The majority in Dunsmuir stated at para. 54:
Guidance with regard to the questions that will be reviewed on a reasonableness standard can be found in the existing case law. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity: Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157, at para. 48; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at para. 39. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context: Toronto (City) v. C.U.P.E., at para. 72. Adjudication in labour law remains a good example of the relevance of this approach. The case law has moved away considerably from the strict position evidenced in McLeod v. Egan, [1975] 1 S.C.R. 517, where it was held that an administrative decision maker will always risk having its interpretation of an external statute set aside upon judicial review.
[emphasis added]
[33] I find that the standard of review in this case is reasonableness. The question that came before the arbitrator was amenable to a number of possible reasonable conclusions and some deference to the arbitrator is warranted.
B. THE HUMAN RIGHTS ARGUMENT
(1) Submissions of the Petitioner
[34] The petitioner submits that the arbitrator, in reinstating the Grievor on permanent and onerous terms and conditions, treated him in a discriminatory manner contrary to his rights under the Canadian Human Rights Act.
[35] The parties agreed that addictions to alcohol and cocaine are disabilities within the meaning of the Canadian Human Rights Act. The petitioner submits that in cases involving alcohol or drug dependency disability, arbitrators are required to follow the analytical process set out in Kemess Mines Ltd. v. International Union of Operating Engineers, Local 115, 2006 BCCA 58, 54 B.C.L.R. (4th) 252, and Health Employers Assn. of British Columbia v. British Columbia Nurses' Union, 2006 BCCA 57, 54 B.C.L.R. (4th) 113 (Kootenay Boundary Regional Hospital). The petitioner observes that this analytical process consists of, first, determining whether a prima facie case of discrimination has been made out by the grievor, and, second, addressing the employer’s duty to accommodate.
[36] It was common ground between the parties that since the Grievor’s attendance problems were due to his addictions, a prima facie case of discrimination has been established.
[37] The petitioner identifies two issues that arise in connection with the duty to accommodate, at the second stage of the analysis: first, whether the grievor has acted reasonably to overcome the disability, and, second, whether the employer has lived up to its duty to accommodate the grievor’s disability up to the point of undue hardship. The petitioner submits that there is no serious contest over whether the Grievor has taken reasonable steps to overcome his addictions, and in support of this position refers to the Grievor’s attendance at a 30-day residential treatment program and his obtaining counselling from the Victoria Alcohol and Drug Services Clinic.
[38] With respect to the accommodation of the Grievor’s disability, the petitioner refers to the approach endorsed by the Court of Appeal in U.S.W.A., Local 7884 v. Fording Coal, 1999 BCCA 534, 70 B.C.L.R. (3d) 74, and I.S., supra. In that approach, the arbitrator first decides the issues according to the law of the collective agreement, and then asks whether that resolution of the case is in accordance with the requirements of the Canadian Human Rights Act. The petitioner submits that “the fundamental flaw in the award in the present case is Arbitrator Blasina’s complete failure to undertake the second stage of the analysis, and to ask himself the question of whether “his resolution of the case accorded with the requirements of the Canadian Human Rights Act”.
[39] The petitioner argues that the arbitrator’s order fails to meet the standard required by the duty to accommodate because it has the following effects:
• On the assumption that there are about as many employees who exceed the section attendance average of eight days of absence per year as there are those who are below it, the award requires the Grievor to achieve in every year for the remainder of his employment, a higher standard of attendance than is achieved by approximately one-half of the work force in the section, despite his disability.
• The Grievor’s security of employment is substantially diminished, on a permanent basis, by reason of the right of Canada Post to terminate his employment for a single breach of the attendance requirement, or a breach of any of the other clauses of the agreement.
• The order effectively overrides certain provisions of the collective agreement, including Article 20.06(a), which provides for the right to ten sick days per year without a medical certificate; and Article 20.08, which provides that an employee “may” be asked for a medical certificate after an absence of more than 5 days. Under the terms of the order, the Grievor will be required to provide a medical certificate for each occasion of absence, no matter how short, and the medical certificate required of the Grievor contains more detail than is required in the medical certificates mandated by Article 20.08.11.
• Under provision 2 of the terms and conditions, Canada Post is entitled to direct the Grievor as to the type and frequency of his medical treatment for his addictions, on a permanent basis.
• The Grievor’s right to the privacy of his medical treatment for substance abuse is eliminated by provision 3 of the terms and conditions, which provides for the employer to receive reports from his therapist.
[40] (I note that the first alleged effect is based upon an unproven, and likely faulty assumption -- eight days is the average number of days of absence per year, not the median -- but it is the case that the Grievor is expected to achieve a higher standard of attendance than some other employees.)
[41] Counsel for the petitioner argues that each of these effects causes the Grievor to be treated differently than his colleagues at Canada Post, as though his employment is governed by a “B” version of the collective agreement. The petitioner says that imposition of permanent terms and conditions is, to the knowledge of its representative, unprecedented and denies the Grievor the opportunity ever to show that he has achieved rehabilitation and entitlement to the same employment status as other employees. This, says the petitioner, subverts the rehabilitative purpose typical of “last chance” agreements.
[42] The petitioner asserts that the differential treatment created by the award amounts to discrimination according to the definition in Ontario (Human Rights Commission) v. Simpsons Sears Ltd. (O’MaIIey), [1985] 2 S.C.R. 536 at para. 12:
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.
[43] The petitioner also attacks the arbitrator’s order on the ground that it contains “the implicit assumption that no matter how much success [Mr. Black] may achieve in therapy, there is no prospect of regular attendance in the future without discriminatory terms and conditions”. This assumption, argues the petitioner, is not supported by medical justification on the record, nor by any other rational basis. The petitioner notes the arbitrator’s reference to unspecified evidence he had heard in other proceedings and his apparent generalization that alcohol and cocaine addictions are incurable conditions that cannot be permanently overcome without the imposition of onerous terms in perpetuity. The petitioner takes issue with this generalization and says that this generalization fits within the definition of “discrimination” set out by McIntyre J. in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143:
I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.
[44] The petitioner also refers to McGill University Health Centre (Montreal General Hospital) v. Syndicat des Employés de l’Hopital Général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, at para. 48, for the following explanation of discrimination:
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 characteristic. 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.
[45] The petitioner alleges that the arbitrator’s interpretation and application of the Canadian Human Rights Act, insofar as it is reflected in his order, has resulted in an “absurd” consequence, as that concept is described by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 27:
In my opinion, the consequences or effects which result from the Court of Appeal’s interpretation of ss. 40 and 40a of the ESA are incompatible with both the object of the Act and with the, object of the termination and severance pay provisions themselves. It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Coté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose’ of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88).
[46] The petitioner submits that inasmuch as the purpose of the Canadian Human Rights Act is the elimination of discrimination, to have imposed on the Grievor a permanent legal disadvantage as the result of his disability is an interpretation that entirely defeats the purpose of the Canadian Human Rights Act, and is therefore absurd.
(2) Submissions of the Respondent
[47] The respondent submits that the award is not patently unreasonable or unreasonable, and furthermore that if correctness is required, the award is correct. It says that the arbitrator fashioned a remedy that allows Canada Post to accommodate the Grievor’s disability without undue hardship to Canada Post, as required by the Canadian Human Rights Act.
[48] The respondent notes that section 15 of that Act provides that a policy established by an employer based on a bona fide occupational requirement is not a discriminatory practice:
15. (1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;
(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.
[emphasis added by respondent]
[49] The respondent cites British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R. 3 at para. 54, as authority for the proposition that a prima facie discriminatory standard is a “bona fide occupational requirement” if it passes the following three-step analysis:
1. the standard was adopted for a purpose rationally connected to the performance of the job;
2. the standard was adopted in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
3. the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary to the accomplishment of the work-related purpose, it must be demonstrated that it is impossible to accommodate the individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
[50] The respondent submits that it is appropriate for arbitrators, in considering the third step of the Meiorin test, to examine a wide range of factors in determining whether an employer has met the duty to accommodate, including the extent to which the employer had already accommodated the employee, as well as the degree to which the employee cooperated in the employer’s attempts to assist him or her in overcoming the addiction. The respondent cites Kellogg Canada Inc. and B.C.T., Loc. 154-G (Fickling) (Re) (2006), 152 L.A.C. (4th) 1, observing that the arbitrator in that case wrote at p. 10:
Most arbitrators acknowledge that “accommodating an alcoholic employee may demand allowances for a relapse and require unions, employers and arbitrators to fashion careful solutions that balance the interests of the grievor, co-workers and the employer while at the same time being realistic about the nature of the disease.” Re Uniroyal Goodrich Canada Inc. and U.S.W.A., Loc. 677 (N.S.) (1999), 79 L.A.C. (4th) 129 (Knopf) at 183, as cited in Pacific Blue Cross, supra, at para 79. Nevertheless, when an aIcoholic employee has failed to respond to multiple rehabilitation efforts and there is no objective evidence that further efforts at accommodation would be likely to succeed, it is generally concluded that the employee has been accommodated to the point of undue hardship and his or her termination should be upheld.
For instance, in Re York Region District School Board and C.U.P.E., Loc. 1196 (Bowyer) (2004), 128 L.A.C. (4th) 317 (Craven), the termination of an alcoholic employee was upheld because the employer had already engaged in extensive rehabilitation efforts that included: (1) two leaves of absence for treatment at rehabilitation centres; (2) one leave of absence for a two-month term of incarceration for impaired driving; (3) establishment of a modified work program for the grievor; (4) multiple attempts at attendance management; (5) and, a last chance agreement. In the absence of evidence showing that further efforts at accommodation were “likely to be substantially more successful in motivating and assisting the grievor to curtail his of alcohol,” id., at 329, it was concluded that requiring the employer to make further efforts to accommodate the grievor would constitute the imposition of an undue hardship within the meaning of the Ontario Human Rights Code.
[emphasis added by respondent]
[51] Addressing the Meiorin test, the respondent argues that the 2006 Reinstatement Terms were imposed by the arbitrator for a purpose rationally connected to the performance of the Grievor’s job: “to assist Black to treat his addictions such that he can maintain an acceptable attendance record and ultimately to retain his employment”. The respondent submits that the 2006 Reinstatement Terms meet the Meiorin test as they: (1) are rationally connected to the Grievor’s ability to perform his job; (2) were adopted in an honest and good faith belief — with the participation of the Union — that they were necessary to the fulfillment of a work-related purpose; and (3) are reasonably necessary to the fulfillment of that work-related purpose.
[52] The respondent further contends that the court must also consider the history of accommodation and the burden on the employer due to the potential of continuing misconduct of the employee, in determining whether further accommodation is required or if further accommodation constitutes an undue hardship. This contention, says the respondent, is supported by authorities: Niles v. Canadian National Railway Co. (1992), 94 D.L.R. (4th) 33 (Fed. CA.); Re Ottawa Civic Hospital and O.N.A. (1996), 48 L.A.C. (4th) 388 (R.M. Brown); Alcan Rolled Products and U.S.W.A., Loc. 343, Re (1996), 56 L.A.C. (4th) 187.
[53] The respondent also submits that it is clear from the authorities that what constitutes reasonable and undue hardship varies with the circumstances of each case and the concept must be applied with common sense and flexibility. The fact-driven test for undue hardship, says the respondent, makes irrelevant the petitioner’s submission that it is unaware of other cases where permanent terms and conditions have been imposed. In any event, the respondent points to instances of arbitrators imposing permanent terms and conditions on drug-addicted employees. It refers to Mainland Sawmills v. Industrial Wood and Allied Workers of Canada, Local 2171 (Kandola Grievance) (2002), 104 L.A.C. (4th) 385, in which, at para. 128, the arbitrator ordered the re-instatement of a drug-addicted grievor on conditions, including:
4. The Employer may also terminate the Grievor’s employment if there is any future indication that the grievor is again consuming alcohol. The Griever must continue to demonstrate a determination not to drink and to maintain a chemically free lifestyle. The Grievor must face the fact that his alcohol addiction is a disease for which there is no cure.
The respondent points out that the condition above has no time limit, and that the arbitrator who made the award does not appear to have heard any specific evidence concerning the incurability of addiction.
[54] The respondent also refers to Re Government of Province of Alberta (Department of Environment) and Alberta Union of Provincial Employees, (1991), 17 L.A.C. (4th) 328, and observes that the arbitration board in that case mandated permanent terms and conditions at 339, specifically:
3. That if the grievor is found at any time to be using alcohol or drugs, whether in the work place, or otherwise, the employer shall be entitled to impose whatever discipline it sees fit up to and including immediate discharge.
[55] The respondent justifies its characterization of the arbitrator’s purpose by pointing out that the arbitrator “made it clear that his goal was not to merely reinstate Black but do so in a manner that would help Black remain employed with Canada Post long enough to qualify for a full pension”. The respondent notes that the arbitrator found that the Grievor was motivated to attend work regularly when he knew he was subject to terms and conditions of reinstatement; thus, the arbitrator had every reason to believe that the permanent nature of the 2006 Reinstatement Terms would assist him.
(3) Conclusion
[56] As stated in Fording Coal and I.S., the arbitrator was required first to decide the issues according to the collective agreement, then assess whether that resolution complied with human rights legislation. There was no dispute that the collective agreement permitted termination for incapacity. The sole question is whether the conditions imposed on reinstatement were consistent with the requirements of the Canadian Human Rights Act.
[57] The respondent concedes that the terms and conditions in the arbitrator’s order are prima facie discriminatory. Further, both parties appear to take for granted that the arbitrator’s award meets the first two parts of the Meiorin test; indeed, it seems indisputable that the terms and conditions are rationally connected to the performance of the Grievor’s job and that the employer has a good faith belief that they are necessary to the fulfilment of that purpose. The question is whether the arbitrator was reasonable in concluding (implicitly) that it was impossible to accommodate the Grievor through conditions of more limited duration, without imposing undue hardship on the employer.
[58] Because Canada Post accepted that the Grievor’s addictions are a disability that must be accommodated under the Canadian Human Rights Act, at the arbitration the parties agreed that no viva voce evidence was necessary and that there should be reinstatement with conditions. The only real dispute was as to the duration of those conditions. The arbitrator did not explicitly refer to the two-stage analysis or to the Canadian Human Rights Act. However, he began his analysis by referring to the parties’ positions as to “accommodation”. He used other terminology, such as “undue hardship”, making it clear that he was applying the requisite human rights analysis to the appropriateness of the conditions. He referred to the role the conditions could play in assisting the Grievor to maintain his employment until retirement age.
[59] The Court of Appeal in I.S. did not insist upon an explicit review of the human rights analysis, but upheld a decision that was reasonable in its conclusion.
[60] I find that the arbitrator in this case, where there was not a formal hearing with submissions, did not err in failing explicitly to review compliance with the Canadian Human Rights Act. There can be no doubt in the context, and given his references to “accommodation”, that the arbitrator was aware of his obligation to apply that legislation and that he set out to do so.
[61] The Grievor had, over a five-year period, received accommodation for his disability and assistance in overcoming it. He had told the employer that he continued to have a problem with his addictions, and that he did better when he was subject to terms and conditions. The reasoning process of the arbitrator was sufficiently clear. There was evidence before him (without reference to the evidence from other hearings that he mentioned) upon which he could reasonably conclude that the remedy he fashioned amounted to reasonable accommodation as that concept is defined in human rights jurisprudence. There was evidence before the arbitrator upon which he could reasonably conclude that conditions of shorter duration would be ineffective and would impose undue hardship on the employer.
[62] The arbitrator’s decision was intelligible and fell within a range of possible, acceptable outcomes which are defensible in this case.
[63] I conclude that the petitioner has not established that the arbitrator was unreasonable in finding that permanent conditions were consistent with the duty to accommodate in this case.
C. THE USE OF EXTRA-RECORD INFORMATION
(1) Submissions of the Petitioner
[64] The petitioner alleges that the arbitrator supplemented the evidence in the proceeding with information taken from his personal knowledge, without informing the petitioner or offering it an opportunity to respond, and that this amounts to a denial of fair process. The arbitrator stated that he was “mindful of the expert evidence I have heard previously in cases of this sort” but the petitioner’s representative, Ed Nicholles, deposed in an affidavit that “[a]t no point during the mediation/arbitration hearing did Arbitrator Blasina describe the nature of the expert evidence he is referring to”.
[65] The petitioner argues that the arbitrator used this extra-record information to justify the imposition of permanent terms and conditions. In oral argument, counsel for the petitioner agreed that it may be appropriate for an arbitrator to take notice that alcoholism is a lifelong affliction, but maintained that there was no evidence properly before the arbitrator that alcoholism can only be dealt with by imposing permanent terms and conditions on employment. Counsel asserted that it was inappropriate for the arbitrator to rely on evidence not before the parties to support a novel and unprecedented remedy, particularly since the petitioner did not know what the expert evidence was, did not know that that it was being considered, and did not have the opportunity to present rebuttal evidence.
[66] In support of its submission, the petitioner cites Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback, 2003) at 12:2000:
12:2000 Administrative Adjudication
If adjudicative decision-makers are permitted to unilaterally conduct their own investigations, the ability of parties to participate in the decision-making process through the presentation of proofs and argument to neutral decision-makers may be impaired in three distinct but related ways. First, to allow a tribunal to gather evidence outside of the hearing would defeat any legal requirement that the tribunal hold hearings in the presence of the parties or in public. Second, for a tribunal member to conduct a clandestine investigation for the purpose of providing material for questioning a witness may constitute bias in the sense that a person discharging, an adjudicative function should not appear to enter the arena as a third party. Third, it is a breach of the duty of the audi alteram partem principle for a decision-maker to base a decision on information that has not been disclosed to the party adversely affected, or if it has been disclosed, done in such a manner as not to give the parties a fair opportunity to rebut it.
As a result, when performing essentially adjudicative functions, administrative decision-maker, like judges, are generally precluded from ex parte fact-finding or from meeting privately with a party or third persons in relation to the matter in question. Moreover, as a general rule it will constitute a breach of the rules of natural justice for an adjudicator to conduct private interviews, make private inquiries, carry out a private time-and-motion study, or bring personal knowledge to supplement the evidence adduced at the hearing on a question of fact that is controvertible.
[67] In short, the petitioner argues that it was a breach of the rules of natural justice for the arbitrator to take into account in his reasons evidence that had not been presented at the hearing.
(2) Submissions of the Respondent
[68] On the other hand, the respondent contends that the arbitrator properly took notice of the incurability of addiction in making a finding of fact, based on Mr. Black’s history of addiction, that Mr. Black is likely to struggle with addiction for the rest of his life. The respondent emphasizes that in addition to his consideration of evidence heard in other cases, the arbitrator also relied on documentary exhibits entered by consent of the parties at the arbitration hearing, as referenced in the award.
[69] The respondent’s submission is that to the extent that arbitrator relied on extra-record evidence with respect to his comments on the incurability of addiction, the arbitrator properly took arbitral notice analogous to judicial notice. The respondent submits that the doctrine of judicial notice is an exception to the general rule that a trier of fact may not refer to evidence not adduced before him or her, and refers for support to Hamish Stewart, Evidence: A Canadian Casebook (Toronto: Edmond Montgomery Publications Limited, 2002) at 930.
[70] The respondent cites Regina v. Potts (1982), 36 O.R. (2d) 195 (C.A.), as setting out the following precondition for the taking of judicial notice:
[A] court may properly take judicial notice of any fact or matter which is so generally known and accepted that it cannot reasonably be questioned, or any fact or matter which can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned.
[71] The respondent cites in its written submission two cases as examples of an arbitrator taking arbitral notice of the incurability of addiction:
(a) An addiction is generally defined as a compulsive, long-standing and essentially irresistible dependency on a particular substance as opposed to what is colloquially described as recreational or occasional use.
Accuride Canada Inc. (2006), 154 L.A.C. (4th) 300 (Hinnegan).
(b) The Arbitration Board in Re Government of Province of Alberta (Department of Environment) and Alberta Union of Provincial Employees (1991), 17 L.A.C. (4th) 328 enunciated at pp. 337 and 338 the considerations and principles that arbitrators take into account in cases related to discipline of alcohol-addicted employees. The principle dealing with reinstatement and last-chance agreements was as follows:
6. That where reinstatement occurs in substitution for discharge arbitrators are prepared to attach conditions to such reinstatement. Recognizing that alcoholism and drug addiction are not curable and can only be arrested by total abstinence one such condition often attached to reinstatement is the requirement that the employee remain drug and alcohol-free.
[emphasis added by respondent]
[72] The respondent also refers to Alcan Rolled Products and U.S.W.A., Loc. 343, Re, supra, at para. 100, where the arbitrator did not take arbitral notice of the incurability of addiction per se, but did take arbitral notice of the traits of the disease of alcoholism:
Although I was offered no expert testimony about it, I can accept as a fact that there is an illness or disease known as alcoholism which is “characterized by impaired control over drinking, preoccupation with the drug alcohol, use of alcohol despite adverse consequences, and distortions in thinking, most notably denial.” That much seems sufficiently indisputable as to be the subject of judicial notice or its arbitral equivalent.
[73] The respondent submits that in an analogous fashion the arbitrator in this case properly took notice that a trait of chronic alcoholism is that it is treatable, but not curable.
(3) Conclusion
[74] A recent Supreme Court of Canada authority on judicial notice is R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458. In Spence, Binnie J. reviewed the differing views of judicial notice propounded by two American professors, James Thayer and E.M. Morgan. According to Binnie J., “Professor Thayer's view was that ‘[i]n conducting a process of judicial reasoning, as of other reasoning, not a step can be taken without assuming something which has not been proved’”, and that “courts may and should notice without proof, and assume as known by others, whatever, as the phrase is, everybody knows". Morgan’s view, much stricter than Thayer’s, was that judicial notice should only be taken of facts so notoriously correct as “not to be the subject of debate among reasonable persons” or capable of immediate demonstration by resort to “readily accessible sources of indisputable accuracy”. Binnie J. noted the “useful distinction between adjudicative facts (the where, when and why of what the accused is alleged to have done) and ‘social facts’ and ‘legislative facts’ which have relevance to the reasoning process and may involve broad considerations of policy”. Binnie J. continued (paras. 61-63, and 65):
To put it another way, the closer the fact approaches the dispositive issue, the more the court ought to insist on compliance with the stricter Morgan criteria. Thus in Find, the Court's consideration of alleged juror bias arising out of the repellant nature of the offences against the accused did not relate to the issue of guilt or innocence, and was not "adjudicative" fact in that sense, but nevertheless the Court insisted on compliance with the Morgan criteria because of the centrality of the issue, which was hotly disputed, to the disposition of the appeal. While some learned commentators seek to limit the Morgan criteria to adjudicative fact (see, e.g., Paciocco and Stuesser, at p. 286; McCormick, at p. 316), I believe the Court's decision in Find takes a firmer line. I believe a review of our jurisprudence suggests that the Court will start with the Morgan criteria, whatever may be the type of "fact" that is sought to be judicially noticed. The Morgan criteria represent the gold standard and, if satisfied, the "fact" will be judicially noticed, and that is the end of the matter.
If the Morgan criteria are not satisfied, and the fact is "adjudicative" in nature, the fact will not be judicially recognized, and that too is the end of the matter.
It is when dealing with social facts and legislative facts that the Morgan criteria, while relevant, are not necessarily conclusive. There are levels of notoriety and indisputability. Some legislative "facts" are necessarily laced with supposition, prediction, presumption, perception and wishful thinking. Outside the realm of adjudicative fact, the limits of judicial notice are inevitably somewhat elastic. Still, the Morgan criteria will have great weight when the legislative fact or social fact approaches the dispositive issue. …
…
When asked to take judicial notice of matters falling between the high end already discussed where the Morgan criteria will be insisted upon, and the low end of background facts where the court will likely proceed (consciously or unconsciously) on the basis that the matter is beyond serious controversy, I believe a court ought to ask itself whether such "fact" would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used, keeping in mind that the need for reliability and trustworthiness increases directly with the centrality of the "fact" to the disposition of the controversy.
[75] Thus, the centrality of the fact in question to the disposition of the controversy affects the standard for appropriateness of judicial notice. It is therefore necessary to assess what role the fact allegedly noticed by the arbitrator played in his disposition of this grievance. Here, the context of the arbitrator’s reference to the extra-record information is relevant.
[76] The arbitrator said that he was “mindful” of extra-record information in reaching his conclusion on the duration of the terms and conditions of the Grievor’s reinstatement, but it does not appear that the extra-record information was central to his disposition of the case. The petitioner conceded that addictions are often life-long problems. The Grievor’s history showed that his addictions are long-standing. The Grievor told his employer that the imposition of terms and conditions assisted him in dealing with his additions.
[77] In addition, it was open to the arbitrator to take arbitral notice of the longevity of addiction to alcohol and cocaine. That "fact" would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it was to be used.
[78] I do not accept the petitioner’s argument that the arbitrator wrongly found or assumed that permanent conditions are always necessary simply because addictions are long-standing problems. There was evidence before the arbitrator upon which he could reasonably conclude that permanent conditions were necessary for Mr. Black, taking into account the persistent difficulty Mr. Black had had in maintaining his attendance at work due to his addictions, and the fact that addictions can pose long-lasting problems.
[79] I do not find that the Grievor was denied natural justice in connection with this aspect of the arbitrator’s reasoning.
V. CONCLUSION
[80] The application for judicial review is dismissed.
“Smith, J.”