Facts Generally Unique to Medical Employment

Substance addictions in medical professions (involving circumstances where one has access to narcotics at work) have driven arbitral jurisprudence covering the unique intersection between criminal behaviour (theft) and human rights protection.

Unlike those addicted to illicit substances and/or those with the disease of alcoholism, access to the “drug of choice” can at times be more intensely and intrinsically linked to their place of employment. For instance, an alcoholic can simply go to the liquor store, and a person addicted to an illicit substance has already (necessarily) developed illicit, criminal connections for the purpose of procuring their chosen substance. A nurse who may be addicted to narcotics, cannot simply go to a store to purchase the substance and very often is not engaged in any other form of criminal activity, and therefore has not developed an alternate procurement strategy. As such, the addicted nurse may be “sole sourcing” from their provider of convenience…their employer. This fact set has driven some of the case law surrounding the intersection of criminal activity at work and human rights.

But for this case, since 2008 through the use of variously applied legal tests, a general pattern has formed. When a nurse’s termination for theft is challenged and when the nurse:

1. suffers from an addiction
2. establishes a causal link to the addiction and theft (i.e. theft of substance for which the nurse is addicted), and
3. commits to and undergoes treatment and rehabilitation together with ongoing compliance with aftercare programs.

there has been a tendency for arbitrators to reinstate (absent back pay).

[Note: This article was inspired by an October 19, 2017 Michael MacLellan of CCPartners article published by Mondaq.com and is based on Cambridge Memorial Hospital v Ontario Nurses’ Association, 2017 CanLII 2305 (ON LA)]

 The Decision

The grievor admitted to stealing 2-6 Percocet tabs per shift and falsifying records to conceal the theft over a prolonged period of time (years). In addition, the grievor gave evidence that at no time did she consume the narcotics while on shift. Upon realizing this behaviour an investigation ensued which lead to the grievor’s termination. This termination, despite an acceptance of the causal relationship between the addiction and the theft, and the grievor’s progress in rehabilitation was upheld by the decision of the arbitrator.

Context of Decision

The context of this award is it follows 8-9 Ontario decisions that support reinstatement driven by a human rights argument for nurses who committed theft of a narcotic if the employee admitted to having an addiction to the substances stolen, and was committed to rehabilitation and treatment.

The award dedicated much attention to the concept of compulsion, that being, if the phenomenon of compulsion to commit the theft exists within the addicted employee because of their addiction, then they are less culpable, which has the effect of eliminating or reducing the quantum of discipline that would survive arbitral scrutiny (akin to the mitigation of penalty due to illness doctrine). This is what has evolved from the short-lived “hybrid approach” adopted by a number of BC arbitrations in and around 2008, which required a disciplinary or just cause approach to the culpable behaviour and an accommodation/human rights approach to the non-culpable behaviour (Gooding, 2008).

From the introduction to the hybrid approach and the “mimicking” legal frameworks that followed, there was a departure from focusing on the decisions and conduct of the employer, in favour of (in my opinion) a fruitless focus on the nuances, nature and intricacies of the employee’s response to their addiction. All of which is beyond the reasonable purview and responsibility of the employer, and unions and I would even say, leads to a never-ending loop for employment administrative tribunals.

This decision marks a first step back towards establishing the requirement to in the first instance prove discriminatory conduct on the part of the employer in order to establish a prima facie case for discrimination. Under this scheme (and what I hope to be a return to normalcy), it is only after the prima facie case is established that there is a potential for weighing of the nature of the addiction and the individual’s response to their addiction. After which, there is reliance on something that resembles a mitigation doctrine approach to evaluate the reasonableness and quantum of discipline. Ultimately, this reverts back to the employer’s decision and whether or not it was arbitrary or based on preconceived stereotypes. And at least this is something the employer has control over, and can thus be held to account.

If the grievor cannot prove discrimination played any part in the employer’s decision to terminate then the grievance fails. This is also consistent with the rationale in the recent Supreme Court of Canada Stewart v. Elk Coal Valley Coal Corp, so it appears as though there is a positive trend emerging for employers and for the general workability of employer A&D policy administration.

Extreme caution should be used and legal advice should be sought during the early stages of case managing files such as these files. On that note, this article was inspired by an article written on  October 19, 2017 by Michael MacLellan of CCPartners article published by Mondaq.com.

Many construction companies are moving into the British Columbia market. Those that do so on “autopilot” may create serious issues for your organization and your client.

A recent BC Human Rights Tribunal’s decision again highlights the difference in BC Human Rights Code versus other jurisdictions such as in Alberta, which confines the Act to discrimination arising from the employment relationship…to employers.

For instance, in Alberta, it is clear that employment-related human rights obligations are confined to employers. Example: Syncrude was found not to be an employer for the purpose of administering the act when an existing employee of Lockerbie & Hole Industrial was barred from employment on a Syncrude site due to a Syncrude-imposed site access test failed by the impacted Lockerbie & Hole Industrial employee. (Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3)

In British Columbia, owner/client site access rules, and workforce administration activated pursuant to private property rights, or in the case of construction management entities, prime contractor responsibility; can attract employer-like obligations on the part of owners and construction management entities in BC. Most notably, owner/client and non-employing construction management entities can be readily named as a party in human rights litigation.

Failing to properly address and structure work rules in light of the above can result in your organization essentially giving a “hospital pass” to your client.

“Hospital pass” is a term originally used in football codes to describe a pass that subjects the recipient to heavy contact, usually unavoidable, from an opposing player — the expression implying that the recipient of the pass could end up in hospital…

A hospital pass is usually made in an attempt to avoid being tackled. The pass is often made under pressure and without considering the situation of the receiver, who is often stationary and thus presents an easy target. Alternatively, the passer is under little pressure but misreads the play and passes to a player who is already heavily marked and has little time to avoid contact.

Report inspired by an October 19, 2017 by Kate Byers of Cassels Brock, “Oh Snap!: Franchisors May be Liable for Human Rights Complaints Initiated by Employees of Franchisees In British Columbia” and based on d Bernadette Reid v.  X and A Fitness Club Inc. dba  Snap Fitness Cloverdale and Snap Fitness of Canada Inc. and Snap Fitness Inc. and Tina An

Care needs to be taken in structuring site/project obligations and work rules when executing work in BC. Employers need to adopt & establish the foregoing as conditions of employment and administer the same as conditions of employment. Relying on owners or construction management entities to administer project rules is neither available nor advisable for employers working on major construction work in the province of BC, especially when such rules may have human rights implications. Accordingly, work rules and contract risk profiles need to be addressed in consideration of the above.

Decision

Snap Fitness Inc. is the franchisor of the chain (and brand) of independently owned and operated fitness clubs. This case pertains to a human rights complaint naming franchisor Snap Fitness Inc. arising from an employment relationship with one of its independently owned and operated franchisee fitness clubs in the province of BC.

The complainant, prior to working for X and A Fitness Club Inc. (operating as “Snap Fitness Coverdale”) was involved in a motor vehicle accident which left her with physical limitations impacting her ability to perform her duties at work.

X and A Fitness Club Inc. put forward a defence that the complainant did not disclose physical restrictions prior to the termination of the employment relationship.

Snap Fitness Inc. put forward a defence that it was not a proper party to the complaint as it was neither the employer of the complainant nor the operator of the fitness club in question. To which the Tribunal responded:

The position taken by Snap Fitness that it is improperly named in the complaint because it was never Ms. Reid’s employer is misconceived. It is clear from the reading of s. 13 that a respondent does not need to employ a complainant in order to be in violation of the Code. The Code provides that a “person”, not necessarily an “employer”, must not discriminate regarding employment or a term or condition of employment. Typically, it will be an employer that runs afoul of s.13, however, any person whose actions or omissions discriminate against another person regarding employment or terms or conditions of employment or terms or conditions of employment will be in violation of s. 13 of the Code.
The Code, therefore, does not require that Snap Fitness be Ms. Reid’s employer in order to be found to have violated s. 13 of the Code. It is settled law that discrimination can be established in the absence of an employment relationship because the subject of the complaint has the ability to interfere with or influence the employment relationship: Schrenk v. British Columbia (Human Rights Tribunal), 2016 BCCA 146 at para 19. The Tribunal has held that liability may be found where a franchisor has the ability to interfere with and influence that franchisee’s employment relationship with its employees and fails to do so: Chien and other v. Tim Hortons and others (No.2), 2015 BCHRT 169 at paras. 73-74; Charthaigh v. Blenz The Canadian Coffee Company, 2012 BCHRT 264 at paras, 19-20.