By: Ryan Venables, B.A., J.D. (Candidate 2012 – UWO Faculty of Law)

2011 April 15

Introduction

Policing is a career of many hats.  Officers primarily enforce federal, provincial, and municipal laws of Canada, but they also act as psychologists, social workers, rescuers, teachers, and shoulders to lean on in times of need.  It is without a doubt that policing, and all first responder jobs, including fire fighting and paramedics, are among the most stressful jobs a person could perform.[1]  In fact, a study published in 2007 indicated police officers and firefighters were two occupations where a person who was suffering from high levels of stress at the workplace was least likely to report it.[2]  In light of this study, it begs the question to be asked, where does the law stand when it is the police officer that is in need?  It is this general question I intend to answer throughout this paper as I examine accommodation and addiction issues in the workplace.

In Ontario there are a number of statutes that oversee the employment contract, but the main legislative area when dealing with accommodation is the Human Rights Code.[3]  This paper will focus on accommodation issues surrounding police officers and their addictions, with a special focus being on the trilogy of recent Ontario cases.  The trilogy includes, Toronto (City) Police Service v Kelly,[4] Hall v Ottawa Police Service,[5] and Vaughan-Evans v Toronto Police Service.[6]  These cases examined a number of issues surrounding accommodation in policing when it is the officer who is the subject to addiction.  This paper will go further to examine four points,

1. Is the level of accommodation equal when it is a job-induced addiction as opposed to one that was pre-existing?
2. Who is required to initiate the accommodation?
3. What is considered “undue hardship”?[7]
4. Accommodation versus the power to discipline?

When the Ontario Superior Court of Justice and Ontario Civilian Commission on Police Services (“OCCPS”) resolved the cases, Constable Kelly had been accommodated, but Constable Hall and Constable Vaughan-Evans had not.  I would submit it is through the analysis this paper aims to undertake, that will clarify why the court accommodated one but not the other two.

Jurisprudence

1. Constable Robert Kelly – Toronto Police Service

Constable Kelly joined the Toronto Police Service (“TPS”) in 1989.  At the time of the incidents in 2001, which led to the case at bar, he was a member of the Northwest Field Command Drug Squad (“Drug Squad”) where duties included surveillance, preparing search warrants, executing search warrants, intelligence gathering, developing informants, working with agents, case preparation and undercover work.[8]  Like many positions in policing, the workload was heavy, and the “average week involved approximately seventy hours of work. Like members of other specialized units, members of the Drug Squad were required to carry pagers and be “on call” twenty-four hours a day, seven days a week.”[9]  Constable Kelly was also used in an undercover capacity on a routine basis for mid-level drug operations.  Between 1998 and 2001 Constable Kelly experienced a number of traumatic events, which include,

1. The passing of his father.  Constable Kelly was particularly close with his father.
2. The shooting of his partner.
3. The apprehension of a suspect who attempted to murder him with a shotgun.
4. The breakup of his common law marriage.
5. Not being promoted because of a disciplinary issue for which he was later acquitted of.
6. An on-duty motor vehicle accident where he and another officer were almost killed.[10]

In the fall of 2001, Constable Kelly began to use cocaine as a self-remedy for the on going emotional pain and psychological issues he was suffering from.  Because of his knowledge, and position in the Drug Squad, he had immediate access to people who could provide him with drugs.  He became involved with a civilian who had previous supplied him with information.  The two began to share small amounts of cocaine.  On two occasions, Constable Kelly purchased cocaine for them to share.  At the time of these purchases, the civilian was acting as a police agent.[11]  As a result, Constable Kelly was charged and pled guilty to two counts of possession of a controlled substance contrary to s. 4(3) of the Controlled Drugs and Substances Act.[12]  He received a suspended sentence.  Constable Kelly also pled guilty to two counts of discreditable conduct contrary to s. 2(1)(a)(xi) of the Schedule Code of Conduct of Ontario Regulation 123 for 1998 amended to 328/2004 [13] and therefore contrary to s. 74(1)(a) of the Ontario Police Services Act.[14]

There was an agreed disposition between Constable Kelly’s lawyer and the prosecutor, but the Hearing Officer decided it was an unacceptable disposition, and ordered Constable Kelly to resign within seven days or be fired.  Constable Kelly appealed the disposition as per s. 87(1) of the PSA to OCCPS (OCCPS is now known as the Ontario Civilian Police Commission or “OCPC”) on a number of issues that surround accommodation and the reasonableness of the decision.[15]  After looking at the issues, OCCPS found in favour of Constable Kelly and disagreed with the reasoning of the Hearing Officer.  TPS then proceeded to the Ontario Superior Court of Justice by way of a judicial review.  The judicial review centred on similar issues as the appeal to OCCPS did, eventually determining the decision in OCCPS was sound.  The end result is that Constable Kelly’s addiction was accommodated.

2. Constable Kevin Hall – Ottawa Police Service

Constable Hall joined the Ottawa Police Service (“OPS”) in 1999, and was placed in a general patrol capacity.  Prior to his hire, Constable Hall began using marijuana at the age of 15 and continued to do so until he was 33.  He only decided to stop using because he wanted to pursue a career in policing.[16]  During the application to OPS, he deliberately lied about his past usage and indicated he only tried marijuana over a short period in 1980.

In 2001, Constable Hall’s wife lost her job, which led to financial issues.  Also in 2001, Constable Hall had an affair, which caused serious strain on their marriage.  This resulted in Constable Hall smoking marijuana again to escape from his personal problems.  Between 2001 and 2004, he used increasing amounts as it started to become less effective.  In 2004, he began using cocaine following a traffic stop in which he seized the drug off a motorist and used it for his own personal consumption.[17]  Between 2004 and 2005, Constable Hall purchased cocaine for his own use on several occasions.  On 05 August 2005, Constable Hall removed some cocaine from a drug envelope for personal consumption.  On 30 September 2005, Constable Hall once again seized cocaine on a traffic stop and used it for his own personal use.  Between 01 September 2005 and 01 October 2005, Constable Hall took drugs from the drug depository box for his personal use.[18]

It was agreed that Constable Hall never used cocaine or was intoxicated by any substances while in the course of his duties as a police officer.  As a result of the above-mentioned incidents, he was charged with numerous PSA offences.  Following a PSA trial,

Constable Hall was found guilty of the following offences contrary to O.Reg. 123/98, Schedule, Code of Conduct, which constitutes misconduct pursuant to the PSA: five counts of discreditable conduct under s. 2(1)(a)(xi); two counts of corrupt practice under s. 2(1)(f)(ii); and, one count of neglect of duty under s. 2(1)(c)(v). Hall was not charged with any criminal offences in relation to these acts of misconduct.[19]

He was ordered to resign within seven days or be fired.

Constable Hall appealed his decision to OCCPS who reviewed the Hearing Officer’s decision and paid particular focus to accommodation issues and the standard of review in a PSA appeal.  After looking at all of the issues, OCCPS determined that despite the need to accommodate as per the HRC, the Hearing Officer’s decision was within the realm of reasonableness.  Constable Hall sought a judicial review of the OCCPS decision to the Ontario Superior Court of Justice.  In the decision, the court looked at the standard of review for OCCPS and looked at the law on the duty to accommodate an officer in Constable Hall’s position.  Again the decision was upheld.

3. Constable James Vaughan-Evans – Toronto Police Service

Constable Vaughan-Evans was hired as a police officer by TPS in 1987 at the age of 19.  Prior to his policing career he used marijuana from the age of 12 until 18.  After a number of years on the job, he obtained position in the 12 Division Youth Bureau investigating youth crimes and child abuse.[20]  Shortly thereafter, he investigated two very horrific murders of infants.  This caused Constable Vaughan-Evans to suffer from “negative feelings and emotions, nightmares, cold sweats and could not get the two incidents out of his mind. He lost his appetite, he isolated himself from others and his marriage deteriorated.”[21]  As a result, he started using marijuana again and became a heavy user.  He sought treatment, and it was reported that he was smoking between 10 and 12 joints a day.  His consumption became so great that he started to hallucinate and he exhibited an inability to cut down his usage.  In 1994, in an attempt to pay for the marijuana, he stole a number of cheques from fellow police officers totalling $5800.[22]  As a result, he was charged and pled guilty to one count of fraud under $5000 contrary to s. 380(2) of the Criminal Code of Canada.[23]  He received a two-year conditional discharge.  In addition, he was charged under the PSA.  He pled guilty to one count of discreditable conduct and was ordered to resign within seven days or be terminated.[24]  He appealed this decision to the Toronto Police Services Board and was reinstated pending a number of conditions, all of which he accepted.

As a result, he was placed on modified duties.  Constable Vaughan-Evans began using marijuana again in January 2003 after he began singing in a bar.  His consumption escalated and he admits to purchasing marijuana on at least 50 occasions.  In the summer of 2003, it was suggested to him that he should assume the role of a Child Abuse Coordinator.  A co-worker called his former Staff Sergeant and suggested this may not be an appropriate role considering his history.  Constable Vaughan-Evans was removed as a Child Abuse Coordinator and transferred to a position as the Civilian Police College Coordinator.  “He was upset by this move and was unsuccessful in his attempts to have it reversed.”[25]

On 19 December 2003, Constable Vaughan-Evans went to the staff washroom, and upon his exit he walked by an Acting Sergeant who noticed a strong smell of marijuana emanating from his person.  It was reported to the Staff Sergeant, and together they found the remains of a marijuana cigarette in the washroom.  Upon confronting Constable Vaughan-Evans, he denied smoking in the washroom, but said he did smoke marijuana in the morning.  He was then suspended from his duties as a police officer.[26]

On 02 June 2004, in an attempt to link the DNA from the cigarette, police were conducting surveillance when they observed him rolling a marijuana cigarette in a parking lot.  He was charged and pled guilty to one count contrary to s. 4(5) of the CDSA.  Constable Vaughan-Evans pled guilty to one count of discreditable conduct contrary to s. 2(1)(a)(ix) of the Code of Conduct on 03 November 2006.  As a result of the PSA hearing, he was ordered to resign within seven days or be terminated.  Constable Vaughan-Evans appealed the decision to OCCPS, on issues that the punishment was too severe and TPS had not properly accommodated his addiction.  OCCPS held the Hearing Officer’s decision was not outside the realm of normal for these types of cases, and TPS had gone to great lengths to accommodate Constable Vaughan-Evans.  As a result, the punishment was upheld.[27]

Summary of Conclusions

Through an analysis of disability accommodation of drug and or alcohol problems in policing, this paper aims to draw the following conclusions.  First, that there is a distinction between a pre-existing disability and one that was developed through the course of an officer’s duty.  I would suggest this distinction draws a clear difference insofar as a pre-existing disability in the form of a drug and or alcohol addiction precludes the officer from properly fulfilling their role as a police officer as defined by the PSA.

Second, despite the onus on an employer to accommodate an employee who has an established disability, I would suggest the word established is of particular concern.  An employer cannot provide assistance to an employee who deceives, or by other means prevents an employer from accommodating them if the disability is not known.  As such, I would suggest by preventing the employer from learning about the disability, it mitigates the duty to accommodate an employer would owe to an employee.

Third, although undue hardship has never been defined through the courts or legislation, the courts have established criteria as to what fits into undue hardship.  In policing, I would suggest undue hardship cannot be properly defined in any given case unless an analysis of mixed fact and law is applied in the given circumstances.  As a result, the employee’s continued employment will be considered irreconcilable if the employer’s accommodation efforts in combination with the duties outlined in s. 42(1) of the PSA; thus resulting in a situation of undue hardship.

Fourth, in many PSA hearings where accommodation through a drug and or alcohol disability is an issue, there are two competing sides; the officer who is attempting to have his disability mitigated in order to achieve accommodation, and the police service that is attempting to draw light on the officer’s actions in order to achieve discipline.  It is through this struggle that a determination will be made.  It is also through the desire to achieve accommodation and the power to enforce discipline in combination with jurisprudence of a similar nature that will assist in determining the outcome.  But in the end, it will be the facts of the case that will govern the nature of the proceeding.

Analysis

1. Is the level of accommodation equal when it is a job-induced addiction as opposed to one that was pre-existing?

Accommodation of an employee’s disability has been deemed such an important part of the employment contract that it has been built into the HRC and PSA in order to force employers to recognize the need to assist their employees.  But are there differences in a pre-existing disability as opposed to a disability that the employee obtained through the course of their duties?  Before we can examine this, we must look first at some of the basics of disability and accommodation.

A handicap or disability has been defined in Entrop v Imperial Oil Ltd.[28] as “an illness, injury or disfigurement that creates a physical or mental impairment and thereby interferes with a person’s physical, psychological and/or social functioning.”[29] The disability or impairment can be temporary, long lasting, or permanent.  It may be an actual disability or something that is only perceived as a disability in the eyes of others, or even an impairment that no longer exists.[30] Alcoholism and or drug addiction, are for example, viewed as disabilities.[31]

 

Courts have also held the following scenarios constitute disability and may need to be accommodated by the employer.  Whether these disabilities need to be accommodated depends on the employee’s degree of impairment and the workplace requirements.  A non-exhaustive list of disabilities includes:

 

1. Obesity[32]
2. Height[33]
3. HIV and AIDs[34]
4. Depression[35]
5. Heart attack/heart condition[36]
6. Alcoholism[37]
7. Hypertension[38]
8. Drug dependence[39]
9. Hysterectomy[40]
10. Colour blindness[41]
11. Speech impediment[42]
12. Broken foot[43]
13. Knee pain[44]
14. Panic attacks[45]
15. Dyslexia[46]
16. Stress[47]
17. Tobacco addiction[48]
18. Fear of flying[49]

 

In addition to this list, it should be noted the courts have also rejected the claim of disability when there is no established record of disability.

In my opinion, Mr. Middlemiss has not established that he was perceived to have a disability by Mr. Edwards, who made the decision to ban him from the site. Nor am I persuaded that the policy itself contains evidence that Norske perceived those who violated the policy to be addicted to alcohol or drugs and, therefore, disabled.

I find that Mr. Middlemiss has not established a prima facie case that Norske discriminated against him on the basis of disability contrary to s. 13 of the Code.[50]

 

Furthermore, the HRC has also adopted an expansive definition of the term “handicap” from s. 5(1), which encompasses physical, psychological and mental conditions or disabilities.^[51]  Severe substance abuse is classified as a form of substance dependence, which has been recognized as a disability.^[52]  Examples include alcoholism and the abuse of drugs, both over the counter drugs and illicit drugs.  The Ontario Human Rights Commission (“Commission”) has found “alcoholism is a handicap within the meaning of the Code, in that it is ‘an illness or disease creating physical disability or mental impairment, and interfering with physical, psychological and social functioning.’”^[53]

 

Additionally, s. 47(1) of the PSA outlines “if an employee of a municipal police force becomes mentally or physically disabled and as a result is incapable of performing the essential duties of the position, the board shall accommodate his or her needs in accordance with the Human Rights Code.”[54]  Moreover, employers are obligated to accommodate their employees’ disabilities except to the degree of causing undue hardship to the company or employer.  The duty to accommodate must be a central feature in the workplace.[55]  Cases have articulated how much duty is to be imposed on an employer and several principles have been extracted from these cases.

 

In Quebec (Commission des droits de la personne et des droits de la jeunesse) v Montreal (City),[56] the court held employers and unions must be sensitive to the various ways in which individual capabilities may be accommodated.[57]  Grismer v British Columbia (A.G.)[58] stated workplace standards that unintentionally distinguished among employees (i.e. lifting requirements) on a protected human rights ground (i.e. disability) may be struck down or amended.[59]

 

Currently, British Columbia (PSERC) v British Columbia Government and Service Employees’ Union[60] is the most comprehensive decision on the duty to accommodate.[61] It held that accommodation measures must be taken to the point of undue hardship, and that a strict approach must be taken with respect to exemptions from the duty to accommodate.  Meiorin outlines a variety of considerations for employers with respect to employees with disabilities.  A list of questions was stipulated for determining whether there is a duty to accommodate:

 

1. Have alternative approaches been investigated that do not have a discriminatory effect, such as individual testing?
2. If alternative standards have been investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?
3. Is it necessary to have all employees meet the single standard for the employer to meet its legitimate purpose? As well, could standards reflective of group or individual differences and capabilities be established?
4. Is there a way to do the job that is less discriminatory while still accomplishing the

employer’s business objectives?

1. Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?
2. Have other parties in the workplace – the union and the individual employee seeking

accommodation – fully assisted in the search for a solution?[62]

 

Additionally, Meiorin also postulated a three-step test to determine if the discrimination can be justified under human rights law as a bona fide occupational requirement.

 

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 fulfillment 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.[63]

 

Moving forward, we can now ask the question of whether there is a difference between a pre-existing disability and one that was acquired through a job related performance?  In Ontario, there are specific cases that have ruled on how employers are to treat employees who are suffering from alcohol and drug addiction or dependence.  However, courts have not yet firmly determined how to deal with drug problems that exist prior to employment with a company.  However in looking at the trilogy of police addiction cases in Ontario we can see subtle differences that help to establish a conclusion.

 

It was clearly established in the facts of Kelly OSC that Constable Kelly’s disability occurred after he became a police officer.[64]  Where as the disabilities of Constables Hall and Vaughan-Evans followed them to their policing careers.[65]  In his appeal to OCCPS, Constable Hall, relied in large part on the decision in Kelly OSC.  “He argued that there were compelling similarities between the cases of Constable Kelly and Constable Hall and the Hearing Officer should have applied the same reasoning to formulate a penalty that did not entail loss of employment.”[66]  In both Hall v Ottawa Police Service[67] and Hall OSC, the decision makers found factual differences between the two cases.  Despite pointing out 12 differences between the two cases, the most obvious was that Constable Hall joined OPS with the disability, and hid it from his future employers.

 

Part of the Service’s selection process required Kevin Hall to complete a Good Moral Character and Habits Questionnaire. It contained a series of questions directed at alcohol and drug use. In his answers Kevin Hall acknowledged consuming “1 to 2 beers a week during the summer months”. As well, he acknowledged trying marijuana “over a period of 2 weeks” in 1980. He attested that he stopped using marijuana at that time. No mention was made of his time at Rideauwood.[68]

 

I would suggest this is a fundamental difference in the way he was eventually treated as opposed to Constables Kelly and Vaughan-Evans.  Although there is little case law which specifically references an employer’s obligation based on whether the employee’s disability was job-induced or if it was pre-existing, the courts are clear about an analogous area.  I would suggest that drug testing prior to employment is an immediate family member to pre-employment disability in policing.  I draw this link because I believe the job of policing can be considered a safety-sensitive workplace.  In Greater Toronto Airports Authority v Public Service Alliance of Canada, Local 0004,[69] a safety-sensitive area was defined as,

…those in which individuals, who may work independently for varying or extended periods of time, have a key and direct role in an operation where impaired performance could result in (i) a significant accident or incident affecting the health or safety of employees, others working at the airport, customers, the public or the environment, or (ii) an inadequate response to an emergency or operational situation.[70]

In addition, the Canadian Human Rights Commission policy on alcohol and drug testing also defines safety-sensitive as,

one in which incapacity due to drug or alcohol impairment could result in direct and significant risk of injury to the employee, others or the environment. Whether a job can be categorized as safety-sensitive must be considered within the context of the industry, the particular workplace, and an employee’s direct involvement in a high-risk operation. Any definition must take into account the role of properly trained supervisors and the checks and balances present in the workplace.[71]

As such, I believe policing falls within the scope of this definition.  As a result, had Constables Hall and Vaughan-Evans been subjected to pre-employment drug testing because of the safety-sensitive nature of their employment, it may have prevented their employment as suitable candidates.

Moving forward we know from Meiorin that denying employment based on a disability is prima facie discriminatory as per the HRC.  Meiorin also points out the discriminatory practice can stand so long as it passes the three-part bona fide occupational requirement test.[72]  At this point, I believe it would be beneficial to run through the test to determine if discriminating against a drug and or alcohol addiction would pass the test to determine if a police candidate who is free from drugs and or alcohol is a bona fide occupational requirement.

The first part of the test asks, “if the standard was adopted for a purpose rationally connected to the performance of the job?”[73]  I would suggest when looking at candidates, police recruiters spend a great deal of time to ensure those who they consider calling colleagues are of the variety that will be able to represent the service with honour and dignity.  Additionally, policing can be a very stressful job, one that carries many risks with it including, driving at high speeds, making life or death split decisions, saving lives, and carrying and potentially using a firearm.  I would suggest that a person who has a disability in the form of addiction may not be able to perform some of the key roles of a police officer as outlined by the PSA.  These include,

(a) preserving the peace;

(b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention;

(c) assisting victims of crime;

(d) apprehending criminals and other offenders and others who may lawfully be taken into custody;

(e) laying charges and participating in prosecutions;

(f) executing warrants that are to be executed by police officers and performing related duties;

(g) performing the lawful duties that the chief of police assigns;

(h) in the case of a municipal police force and in the case of an agreement under section 10 (agreement for provision of police services by O.P.P.), enforcing municipal by-laws;

(i) completing the prescribed training.[74]

A person who has a dependency to drugs and or alcohol may not be able to fulfill some of these criteria, and more likely, their addiction may cause harm to themselves, other officers, or the general public.  In addition in Vaughan-Evans, the Hearing Officer correctly pointed out,

[t]his Police Service has dedicated many officers and effort into educating the public on illegal drugs. More than anyone, police officers are witness to the devastation that illegal drugs can bring to a community and individuals. It has long been the policy of this Tribunal that zero tolerance with respect to illegal drugs is the only message to be sent to all members and the community at large. There can be no exceptions, otherwise the impact and credibility of the many drug programs directed at the public in general, and for the school population in particular, will be seriously compromised. For a police officer to become involved as a participant in a drug scene is totally unacceptable.[75]

I believe this passage speaks volumes as to why it is appropriate for police officers to be free and clear of a dependence on drugs and or alcohol despite its recognition as a disability under the HRC.

The second part of the test states, “that the standard was adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose.”[76]  I would submit the standard to have police officer candidates free from a drug and or alcohol disability was adopted in good faith.  I believe it is critical for police services to maintain a higher level of accountability among the population they serve, and for a police service to hire a person who is potentially addicted to illicit drugs would be quite frankly hypocritical.  In disciplinary cases one of the criteria Hearing Officers often use to establish punishment is whether the reputation of the service has been damaged by the actions of the officer.  In Kelly OSC, Hall OSC, and Vaughan-Evans, this was mentioned as an aggravating factor with respect to the individual officer’s drug use.[77]

The third step in the Meiorin test is,

that the standard was reasonably necessary for the accomplishment of that legitimate work-related purpose.  In order to fulfill this last criterion, and employer would also be required to show that is was impossible to accommodate the individual employee(s) without imposing undue hardship on the employer.[78]

I would suggest this step is the quickest step to determine.  When hiring a potential employee as a police officer, if they have an addiction that could bring harm to the public, themselves, or other officers, it would be imperative for the police service to ensure they were not in a uniform.  Furthermore, if they were hired, I would suggest the need for accommodation would be required immediately.  When police officers are hired in Ontario, they attend the Ontario Police College Basic Constable Training Program in Aylmer, Ontario.  During their time at the Ontario Police College (“OPC”) future constables are trained in firearms, police vehicle operations, defensive tactics, and situation based training.  As a result, I would suggest it would be an enormous liability for any police agency to send a new member to OPC aware of their drug and or alcohol disability.  It goes contrary to everything that is taught at OPC, and as such, I would submit police agencies prima facie discriminatory behaviour of not hiring those with a drug and or alcohol disability is within the scope of a bona fide occupational requirement.

In contrast, I would suggest accommodation is required if a police officer develops a disability through the course of their employment.  As such, attempts by the employer to accommodate a disability must be serious,^[79] conscientious,^[80] genuine,^[81] and demonstrated to be “best efforts.”^[82]  Employers in Canada are required to make every reasonable effort to accommodate an employee who is disabled, short of experiencing undue hardship.  The employer bears the legal responsibility to initiate the process of accommodation. ^[83]  The Canadian Human Rights Tribunal has stated, at the very least, this involves “an examination of the employee’s medical condition, the prognosis for recovery and the employee’s capabilities for alternative work.”^[84]  In Kelly OSC, the court correctly noted the Hearing Officer wrongfully ignored the two provisioning statutes,

 

In deciding the appropriate disposition, the Hearing Officer must consider not only the conduct of the police officer, but also the employer’s duty to a disabled officer under the Ontario Human Rights Code. This duty to “accommodate” flows from a combination of two statutes:

47.(1) Subject to subsection (2), if a member of a municipal police force becomes mentally or physically disabled and as a result is incapable of performing the essential duties of the position, the board shall accommodate his or her needs in accordance with the Human Rights Code.

Police Services Act, R.S.O. 1990, c. P. 15. s. 47(1) …

5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of … disability.

Ontario Human Rights Code, R.S.O. 1990, c. H. 19, s. 5(1).[85]

As a result of the above analysis, I would come to the conclusion that despite the lack of case law specifically dealing with accommodation of a pre-existing drug and or alcohol disability, police services do not have the show the same level of accommodation because of the jurisprudence established from the three-part Meiorin test and accompanying PSA and HRC statutes.

2. Who is required to initiate the accommodation?

When it has been discovered an employee has a disability, there can be confusion as to where the responsibility lies in terms of getting help to that employee.  Some employers have Employee Assistance Plans (“EAP”), while other employers may utilize a change in the employee’s position, schedule, or hours of work.  If an employee’s drug dependency alters his or her performance at work, an employer is obligated to provide that employee with the opportunity to address his or her problem through rehabilitation and abstention programs.^[86]  As such, when it is discovered that an employee is in need of accommodation, who is required to initiate the accommodation?

Current jurisprudence suggests the primary responsibility for accommodation is on the employer; once an employee has made it clear that he or she has a disability that requires accommodation, the employer must make every reasonable effort to assist the employee.[87]  It has also been suggested the employee is expected to participate in the accommodation process and cannot refuse a reasonable accommodation offer.[88]  Looking at Vaughan-Evans, I would suggest he did refuse an accommodation offer.  By all account, Constable Vaughan-Evans was making real progress in his recovery, and in 2003, it was suggested to him that his skills could better be used in an investigative capacity.[89]  When he was appointed back to the area of investigation that triggered the initial heavy marijuana use, a Detective contacted Constable Vaughan-Evans’ Staff Sergeant and outlined some concerns about these types of investigations potentially triggering the same feelings as before.[90]  Although it should be pointed out the Detective who made this call was a victim of Constable Vaughan-Evans previous frauds, the motive for the call is unknown.  Despite this, the Staff Sergeant agreed and transferred him to a less stressful position as Civilian Police College Coordinator.[91]  I would suggest this was an attempt to accommodate Constable Vaughan-Evans.  I would further suggest this type of proactive accommodation is exactly what is required of employers.  In Hall OCCPS, it was pointed out “on December 15, 2005 Constable Hall was charged with nine disciplinary offences.  Prior to this, Constable Hall was unaware that the Service suspected he had been using cocaine.”[92]  I would suggest when OPS became suspicious of Constable Hall’s drug use and growing addiction, instead of offering him assistance, they were motivated only by an attempt to add addition evidence to proceed with PSA charges.

Although an employer is not mandated to coerce a worker to attend a rehabilitation program or monitor the employee’s progress. The employer’s accommodation duty is satisfied when an employer has extended several chances to an employee to address his or her drinking even if the employee drops out of the rehabilitation program.^[93]  It was this rationale that OCCPS noted when examining the arguments from the PSA hearing in Vaughan-Evans,

 

Mr. Meagher pointed out that the Hearing Officer found that the Appellant had had many opportunities to reform or rehabilitate himself, and that he had failed to do so… In our view the Hearing Officer’s finding that Constable Vaughan-Evans’ actions taken in context, amounted to serious misconduct, is amply supported by the record. As the Hearing Officer noted a number of times in his decision, the Appellant’s misconduct in 2003 and 2004 was strikingly similar to his misconduct in 1994 and 1995. During both periods the Appellant’s conduct was criminal in nature and a breach of his sworn duties as a police officer.[94]

In his own words, the Hearing Officer, indicated,

How does Constable Vaughan-Evans respond to the various modifications made to tailor his integration into the Toronto Police Service? He smokes a marijuana cigarette in the washroom of Police Headquarters.  This act of December 19^th, 2003, leads to his suspension and some 6 months later he is again arrested in his car in possession of marijuana.[95]

Although Constable Vaughan-Evans appears to be the author of his own fate, TPS did attempt to accommodate him on a number of occasions.

Oppositely, what is an employer to do when the employee hides the disability from them?  This was the case with Constable Hall’s plight with addiction.  Unlike Constables Kelly and Vaughan-Evans, Constable Hall did everything in his power to deceive and hide his disability from OPS.  When attempting to ask the question on who is responsible for accommodating a disability, I would suggest a significant weight should be given to the employer who makes the decision to terminate based on the fact the employee hides and deceives his disability in a safety-sensitive workplace rather than seek help.  Unlike Constable Kelly’s situation with TPS, OPS did have programs in place to assist officers who were battling addiction.[96]  In Hall OCCPS, the decision makers paid particular attention the fact that Constable Hall lied on his initial application to OPS.

Part of the Service’s selection process required Kevin Hall to complete a Good Moral Character and Habits Questionnaire. It contained a series of questions directed at alcohol and drug use. In his answers Kevin Hall acknowledged consuming “1 to 2 beers a week during the summer months”. As well, he acknowledged trying marijuana “over a period of 2 weeks” in 1980. He attested that he stopped using marijuana at that time. No mention was made of his time at Rideauwood.[97]

Furthermore, OPS’ position was stated through the prosecutor as,

this was not fundamentally a Human Rights case, but rather a case of gross abuse of authority. He acknowledged that the Service had a duty to accommodate, but suggested that there was a corresponding responsibility on the employee. On this point he observed Constable Hall’s efforts to hide his situation and failure to take advantage of the Service’s confidential employee assistance programs.

 

Mr. Houston argued that the law cannot be interpreted to mean that an employee is entitled to be excused from repeated egregious breaches of his or her duty. Further, he noted the evidence of Superintendent Erfle that to accommodate Constable Hall would impose an undue hardship to the Service.[98]

 

I would suggest Constable Hall already knew he had difficulties with substance abuse and it was for this reason that he lied on his application.  I would further suggest, the lie was also compounded by a fear he had that if he had admitted to the amount of drug use in the past, he would not have been a successful candidate with OPS.  Although drug use in the past is not an automatic disqualification for the position of police constable, many police services include a good character requirement or specifically state a time frame for when an applicant should have refrained from drug use.[99]  In addition, Constable Hall kept his addiction and treatment to himself, thus preventing any opportunity for OPS to accommodate him until after he was already committing serious breaches of trust.[100]  In Re: Ottawa Civic Hospital and O.N.A. (Hodgins),[101] it was held that

knowledge of a disability has been held to be an essential part of a breach of human rights legislation. This conclusion was reached by a panel of the Canadian Human Rights Tribunal in Re Worobetz and Canada Post Corp. (1995), 95 C.L.L.C. [para] 230-036 (at pp. 14,097-8):

However, when the disability underlying inadequate job performance is unknown until after the termination and such lack of knowledge is not due to such things as late blindness or neglect on the part of the employer … the dismissal is not at all based upon a discriminatory ground and no prima facie case exists. To find otherwise would lead to impractical and unreasonable consequences for employers who are legitimately not aware of an employee’s existing disability and may also lead to additional and unrealistic rights for such employees.[102]

Although OPS had become aware of Constable Hall’s disability, I would suggest they did not see it as a disability, but rather as a character flaw to a rogue officer who was looking to obtain drugs either for personal use or sale.  In the 2010, Constable Peter Hodson of the Vancouver Police Service was fired following an unprecedented investigation into street-level trafficking of marijuana.[103]  In his address of the media, Chief Constable Jim Chu flatly stated,

While I can’t discuss many of the details because they are before the courts, I can tell you that we observed behaviour that suggested Hodson was trafficking street level amounts of marijuana both on and off duty.

There will be no discussion here of discipline or suspension.

I have taken the step of firing Hodson as of today.

He is no longer a member of this Department.[104]

Chief Chu did not wait for a disciplinary hearing to determine if there was any need for accommodation, and I believe his decision is indicative of the position many police services take with respect to their officers consuming or being involved with the drug trade.  Shifting the focus back to Constable Hall, I also believe although his practices were arguably equally corrupt, he had a long established history of addiction, something that was not presented in Constable Hodson’s case.

Furthermore, had OPS been aware there was a need for accommodation prior to the commencement of disciplinary actions against Constable Hall, I would suggest the Hearing Officer may have given more weight to his argument of disability.  However, after Constable Hall faced charges under the PSA, one could suggest now that OPS was fully aware of Constable Hall’s disability he should be entitled to receive accommodation.  In a letter to the court, Dr. Morissette, stated, “I think the police force could accommodate him relatively easily. Kevin could be assigned to investigative work where there would be little or no risk to his being exposed to cocaine. This of course precluded his ever working in the ‘drug squad.’”[105]  However, in Hall OCCPS, the tribunal stated,

[t]here is a duty to accommodate. However, it is not bottomless or a license to breach statutory duties. Given Constable Hall’s history, the nature of his misconduct and the evidence of Superintendent Erfle it was certainly open to the Hearing Officer to conclude that accommodation in this situation would cause undue hardship on the Service.[106]

As a result, of Constable Hall’s actions by not coming forward and seeking some assistance from OPS, they in turn believed that Constable Hall had breached the employment contract to such an extent that it vitiated any duty they had to accommodate his disability.

The way Constable Hall dealt with his disability is in stark contrast with Constable Kelly’s efforts to obtain a new position because of his troubles.  This was one of the key issues brought forward by Constable Kelly.  “Constable Kelly spoke to his supervisors on more than one occasion about transferring to a unit where his duties would be less stressful.  However, he did not make a formal application for transfer and no transfer took place.”[107]  I would submit after Constable Kelly brought this to the attention of his supervisors, it was their responsibility to either accommodate the transfer, or to offer him the assistance he required as a preventative measure.  Although it is unknown what the result of the transfer may have been, the only thing that is for certain is his transfer request fell on deaf ears.  This is also previously indicated in the 1998 decision of St. Catharines General Hospital v Ontario Nurses’ Assn. (Bowman Grievance),[108] when Chair Charney stated,

[t]his law does not support the Hospital’s view that it is the grievor who has the primary responsibility to initiate accommodation proposals. What is clear is that the grievor must co-operate with reasonable requests by the Hospital in its efforts to seek out a reasonable accommodation for the grievor.[109]

Consequently, the jurisprudence is clear, the responsibility to accommodate a worker is on the employer.  Despite this, I would suggest, there is also an onus on an employee who is suffering from a disability to report this to their employer.  I would further suggest, by having an employee not report a disability, this lessens the duty owed to that employee if and when it is discovered they have a disability.

3. What is considered “undue hardship”?

While no precise definition of “undue hardship” has been given, case law has provided guidelines for interpretation.  The effort on behalf of the employer to accommodate must be “serious” and “conscientious.”[110]  The steps taken to accommodate must be “genuine” and demonstrative of the employer’s “best efforts.”[111]  The employer’s duty to accommodate requires more than simply investigating whether any existing job might be suitable for a disabled employee.  The law requires an employer to determine whether existing positions can be adjusted or modified for the employee, or whether there are other positions in the workplace that might be suitable for the employee.^[112]  An employer is required to look at all other reasonable alternatives for employment within the organization or business.  To demonstrate the employer’s accommodation efforts were serious and conscientious, an employer is required to engage in a four-step process:

 

1. Can the employee perform his/her job as is?
2. If no, can the employee perform his/her job in a modified/ “re-bundled” form?
3. If no, can he/she perform another job in its existing form?
4. If no, can he/she perform another job in a modified/ “re-bundled” form?^[113]

 

The ability to re-bundle depends on the size of the organization. Sometimes a court will find it will be unduly harsh for an organization to modify the tasks performed by its employees because the business or company is too small.  This is not the case in larger organizations that have the space and resources to accommodate disabled employees,^[114] as in the case of TPS and OPS.  Notwithstanding the size of the organization, an employer’s obligation to accommodate extends to training, provided the costs of training do not amount to undue hardship.^[115]  If there were no full-time, permanent positions (either existing or restructured) that would provide an accommodation for the employee within her or his limitations short of undue hardship, the duty to accommodate will have been deemed to be fulfilled.[116]

Moving forward, despite the need to accommodate, employers must balance an employee’s right to equal treatment with their own right to operate a productive workplace.  In Holmes a pay clerk developed numbness and pain in her right shoulder, making it difficult to perform her duties.[117] Other assignments as a receptionist or a special project clerk proved to be too demanding and all of the other positions within her skill level required the use of the same, damaged muscles. It was eventually determined she could not perform the essential components of her job duties and the employer released her.  She filed a complaint with the Canadian Human Rights Commission, which found the employer had taken reasonable steps to accommodate her.  The rationale used in Holmes is the same rationale used in Hall OCCPS and Vaughan-Evans.[118]  In Vaughan-Evans specifically, Chair Chitra stated,

In our view the Hearing Officer’s findings that the Constable underwent repeated relapses are supported in the record. This speaks directly to the question of Constable Vaughan- Evans’ potential for rehabilitation and usefulness to the Service. As the Hearing Officer stated at page 87 of his reasons: “I find that Constable Vaughan-Evans has had more than ample opportunity to reform and he seems consistently to be unsuccessful regarding this test.”[119]

Although the tests in Meiorin are helpful for determining whether discrimination is justified, some of the terms used in the test were ambiguous.  For example, what is meant by “undue hardship?” Central Alberta held “undue hardship” could be determined by considering a variety of factors including financial cost, impact on a collective agreement, employee morale, interchangeability of the work force and facilities, size of the employer’s operations, and safety.[120]  A certain degree of hardship is acceptable in accommodation requests, and the employer only has a defence if the inconvenience or hardship was undue.[121]  The employer must demonstrate a real and substantial effort was made to accommodate.[122]  As a result, it could be argued that TPS accommodated Constable Vaughan-Evans to the point where if they accommodated him any further it would be considered as an undue hardship.  In furthering this notion it was stated in Hamilton Police Assn. v Hamilton (City) Police Services Board,[123]

[u]nder the Code and the Police Services Act, an employee of a police services board can only be dismissed from employment as a result of a disability that makes the employee incapable of fulfilling the essential duties of the position if the decision maker is satisfied that “the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any” (Code, s. 17; Act, s. 47).[124]

Following this, it can be concluded if an employer accommodates an employee to the point of undue hardship, particularly if the employee’s addiction continues to disrupt productivity and threatens the safety of other workers, then an employer is justified in terminating the employment contract.[125]

In the context of policing, undue hardship is covered under s. 47(2) of the PSA, which indicates,

The board may discharge the employee, or retire him or her if entitled to retire, if, after holding a hearing at which the evidence of two legally qualified medical practitioners is received, the board,

(a) determines, on the basis of that evidence, that the employee is mentally or physically disabled and as a result incapable of performing the essential duties of the position, and what duties the employee is capable of performing; and

(b) concludes that the employee’s needs cannot be accommodated without undue hardship on the board.[126]

In support of this in Hall OSC, Superintendent Ralph Erfle of OPS stated “[i]t would be an unprecedented challenge to place Hall in a position within the OPS, given that Hall’s violation of trust was serious.  Superintendent Erfle was concerned about the image of the OPS.  To attempt to reintroduce Hall into the OPS would constitute an undue hardship.”[127]  In addition, in Hall OCCPS, the Chair Chitra stated,

There is a duty to accommodate. However, it is not bottomless or a license to breach statutory duties. Given Constable Hall’s history, the nature of his misconduct and the evidence of Superintendent Erfle it was certainly open to the Hearing Officer to conclude that accommodation in this situation would cause undue hardship on the Service.[128]

Oppositely, in Kelly OCCPS, it was held,

We do not excuse Constable Kelly’s actions. They were reprehensible. However, he appears to have done everything in his power to make things right. He pled guilty to both his criminal and disciplinary charges. He has accepted responsibility for his actions and taken meaningful steps to address his problems. There is undisputed medical evidence that there is low risk of relapse. His potential for rehabilitation has been recognized by his employer. Accommodation without undue hardship is possible.[129]

Thus it appears from the trilogy of cases examined, that undue hardship will result from a question of mixed fact and law.

Despite the statutory provision in the PSA, it has been argued the decisions from Hearing Officers and OCCPS are producing diminished standards for police services and their employees.[130]  “Rather than starting with the presumption that a disability must be accommodated to the point of undue hardship, adjudicators in the police discipline realm, have recently been treating disabilities as a ‘mitigating factor’ in determining the appropriate sentence.”[131]  Notwithstanding this assertion, the Hearing Officer in Vaughan-Evans did agree,

it is “a shared responsibility which must take into account the essential requirements of the employment in question.”  OCCPS concluded that the Service had fulfilled their duty, and concluded that the Appellant failed to take full advantage of the treatments and services extended to him, medical and otherwise, on and off the job. Further, OCCPS held that he did not make a concerted effort to reform himself and overcome the addiction, which led him to persistent criminal behaviour.[132]

Therefore, although jurisprudence has not specifically indicated what undue hardship requires for an employer to fulfil, they have given a solid foundation.  I would argue, in policing undue hardship has occurred when an employer has attempted to accommodate a police officer but police officer’s disability has compromised his ability to fulfil the general duties of a police officer as defined by s. 42 of the PSA.  However, for a firm decision of an employee, it will need to be examined through an analysis of mixed fact and law.

4. Accommodation versus the power to discipline?

In the trilogy of cases examined thus far, all of the constables have all argued for accommodation.  Whereas the police services have all approached the disabilities from the view that there was a need to discipline.  It is this struggle that can lead to appeals and judicial reviews by both the police service and the subject officer.

In Canadian Postmasters and Assistants Assn. v Canada Post Corp. (MacMillan Grievance, CPAA NS 00-00004, Arb.Christie),[133] Arbitrator Christie held the existence of an illness or disorder should result in reinstatement only if the following criteria are satisfied:

1. The grievor was experiencing an illness or condition at the time of the misconduct.
2. A causal linkage or nexus between the illness or condition and the aberrant conduct has been established.
3. If a causal linkage is found, the arbitrator must be persuaded that there was a sufficient displacement of responsibility from the grievor to render the conduct less culpable. In other words, even if it is found that the misconduct would not have occurred but for the illness or condition, the arbitrator may nevertheless conclude that the grievor was sufficiently responsible for his or her actions to make modification of the penalty inappropriate.
4. Even where the above criteria are met, the arbitrator must be satisfied that the grievor has been rehabilitated, and that the risk of a recurrence of the aberrant behaviour is minimal.[134]

Additionally,

[a]rbitrator Christie noted, even in cases where it is established that the grievor was suffering from a disability within the meaning of human rights legislation, and the disability was causally connected to the misconduct, it may amount to undue hardship to require that the employer reinstate the grievor. In such instances, he observed, evidence of rehabilitation and the risk of recurrence will be of great importance.[135]

I would suggest the above paragraph is instrumental in the minds of Hearing Officers and those alike who are considering what level of discipline to afford to the subject police officer.  In addition, in policing many cases involving serious discipline under the PSA cites the key case of Williams v Ontario Provincial Police.[136]  Through this case, OCCPS established three key elements to be considered when disciplining a police officer.  “These include the nature and seriousness of the misconduct, the ability to reform or rehabilitate the officer and the damage to the reputation of the police force that would occur if the officer remained on the force.”[137]

In each of the trilogy cases, these along with other factors were examined in depth.  First, in Kelly OSC, Justice Carnwath spoke of the joint submission presented to the Hearing Officer at Constable Kelly’s PSA hearing.  In a joint submission the prosecutor and Constable Kelly’s lawyer, had agreed to 13 terms he would need to abide by in order for TPS to accommodate him.  If he violated any of these terms, TPS would seek his dismissal.[138]  In Kelly OCCPS, in correcting the Hearing Officer’s unreasonable decision, OCCPS dismissed claims that Constable Kelly could not be accommodated, or “Kelly’s own deliberate acts that amount to criminal behaviour led to his addiction and, accordingly, the need for the employer to accommodate Kelly is lessened.”[139]  Rather they correctly looked at punishment as:

1. The nature and seriousness of the misconduct;
2. The ability to reform or rehabilitate the officer;
3. The damage to the reputation of the Police Force were the officer to remain on the Force;
4. Employment history and experience;
5. Recognition of the seriousness of the transgression;
6. Handicap or other relevant personal consideration;
7. Prior disciplinary cases dealing with similar types of misconduct.[140]

After analyzing these factors, a determination was made through the standard of review process that the Hearing Officer’s decision was unreasonable and therefore could not stand.

Second, in Hall OCCPS, Chair Chitra drew particular attention to two of the prosecution’s witnesses who spoke of Constable Hall’s ability to continue his duties as a police officer.

They were Mr. David McKercher, a federal Crown prosecutor and Superintendent Ralph Erfle of the Service. Mr. McKercher testified to the question of the credibility of police witnesses in criminal proceedings. Superintendent Erfle testified concerning the duties of police officers, Service values, public trust, community confidence, the impact of the conduct in question, employee assistance programs, accommodation and the potential for Constable Hall’s reintegration.[141]

Additionally in Hall OSC, Justice Cunningham indicated,

[a]fter acknowledging the principles and factors that ought to be taken into account by a Hearing Officer in assessing the appropriate penalty, the OCCPS properly stated its role:

… It is not to second-guess the hearing officer’s decision, even if we may have imposed a different penalty. Rather, it is to assess whether or not the hearing officer considered and appropriately weighed these principles in a fair and impartial manner. We may vary a penalty that is unreasonable, fails to consider all relevant matters, demonstrates a manifest error in principle or would amount of an injustice. This is not done lightly.[142]

 Through the duty to accommodate and power to discipline process it became clear, perhaps by Constable Hall’s own actions of not reporting his disability in order to seek accommodation that the original disposition at his PSA hearing was upheld.

Third, in Vaughan-Evans, Chair Chitra pointed out that in relation to all of the incidents involving Constable Vaughan-Evans,

[t]he Hearing Officer stated at pages 80 and 81 of his decision that Constable Vaughan- Evans’ conduct “has to be assessed as a whole and not in microscopic sections. A common series of events and repetitive misconduct may be considered as more serious than a single isolated incident.”[143]

Additionally OCCPS also paid attention to the Hearing Officer when he stated, “[i]t was not lost on the Tribunal that Constable Vaughan-Evans had been fired and reinstated just a few short years earlier in relation to his use of marijuana, yet here he is again, a serving police officer, purchasing marijuana again, this time in public drinking establishments.”[144]  They continued by outlining,

[t]he duty to accommodate must be considered in light of an individual employee and his or her employer. This is a shared responsibility which must take into account the essential requirements of the employment in question. The analysis to determine if the duty to accommodate has been met presents particular challenges in the disciplinary context where there is often a mix of culpable and non-culpable factors. This is the case here.[145]

As a result of this analysis OCCPS outlined that it was not their job to second-guess the Hearing Officer, but rather to decide whether the punishment in comparison with the circumstances would be considered unreasonable.  In this instance, they opined, “in our view the penalty imposed by the Hearing Officer is severe but, given the circumstances, not disproportionate or outside of the range available to him.”[146]

As such, the trilogy of cases outlines through their individual analysis that there is a comparison between the duty to accommodate, power to discipline, and applicable case law.  It is unquestionable that every case will have distinctions and similarities, but at the conclusion of the analysis, it will be the comparison of these three factors that will determine the outcome of the subject officer.

Conclusion

Policing is a job filled with various stressors.  Some police officers are able to handler stress through positive outlets, such as exercise.  In other instances some police officers turn to negative coping methods, such as drugs and or alcohol.  The determination of the path of the officer’s career is often decided when the officer or the police service realizes they have a disability and the whole of the circumstances is looked at to determine if accommodation is appropriate.  In examining this, four key areas will be explored.  First, whether the officer had a pre-existing disability prior to their commencement as a police officer, like Constables Hall and Vaughan-Evans.  Or alternatively, if the disability was created in part because of the nature of the job like Constable Kelly.  I would suggest a pre-existing disability related from alcohol or drugs is not on the same level as a disability acquired after commencement as a police officer for the simple reason that if a person commences a career in policing with this type of disability, it will be very difficult for them to meet the demands required of a police officer; and they will be unable to fulfil the requirements of s. 42 of the PSA which outline the duties of a police officer.  Additionally, in a situation where job-related illness or disability has developed is a long established requirement of the employer to accommodate and or assist the employee.

Second, although jurisprudence has established there is a strong onus on an employer to initiate accommodation of an employee, I would submit the onus is also on police officers suffering from a disability to come forward so they do not suffer in silence.  Policing is a strong knit community with EAP programs that are very beneficial.  If officers do not seek to inform their police service, the onus cannot then be placed on the employer to accommodate an employee they did not know had a disability.  In the end, if an officer struggles in silence, they risk becoming like Constable Hall.

Third, through an examination of undue hardship in the workplace, it has been established that no precise definition of undue hardship exists.  Despite this, the courts and tribunals have established a clear road to travel when attempting to ascertain when undue hardship may exist.  I would submit, in policing, undue hardship is established when a police officer, who is the subject to accommodation, cannot be accommodated because it would violate a number of the officer’s duties as per s. 42 of the PSA.

Fourth, a PSA hearing is an adversarial process.  When the above trilogy of police officers faced disciplinary proceedings based on their drug and or alcohol addictions, it placed the duty to accommodate against the power to discipline.  Cases like Williams act as roadmaps for how Hearing Officers are to decide cases that feature similar characteristics.  But in the end, it will be a factual determination that pilots the duty to accommodate, the power to discipline, and the established case law through the course of the proceedings.

Unfortunately, addiction and policing go hand and hand.  They are known as odd bedfellows, and new police officers are routinely warned against the dangers of drugs and alcohol.[147]  Additionally, EAP services, mentoring programs, and continuing education help prevent cases like Constable Kelly, Constable Hall, and Constable Vaughan-Evans.  Fortunately, they are the exception rather than the rule.  However, when similar cases come before a Hearing Officer, there will be onus on the police officer and the police service as to how a bright career was snuffed out by addiction.  Consequently, although accommodation is a key principle of the employment contract, in the end, recognizing disability is everybody’s responsibility.