A Critical Examination of Bill 133

By:  Ryan Venables

2011 December 01

Introduction

Divorce, also known as marriage breakdown, rings out with broken dreams, shattered lives, and unfulfilled promises.  However, it also symbolises a new beginning, and an opportunity for two people to equitably divide the assets of a relationship with an opportunity to look toward the future.

A common misconception within Canadian society is the percentage the average Canadian thinks a marriage ends in divorce.  Many people would answer, quite confidently, 50 per cent.  In reality the answer is much more complicated.  Figures suggest, by a couple’s 30^th wedding anniversary, divorce will occur from a low of approximately 17 per cent in Newfoundland and Labrador to a high of approximately 50 per cent in Quebec.[1]  However, nationally the average lies roughly in the middle at 38 per cent.[2]

Divorce is nothing new in Canadian society, and as such, legislation has been enacted to ease a couple through the transition of marriage to divorce and beyond.  The Family Law Act[3] and Pension and Benefits Act[4] are two such pieces of legislation.  These two statutes share a common area in the legal world: pension splitting through spousal separation.

When a marriage breaks down, lines are drawn in the proverbial sand.  Former lovers are now enemy combatants and there are only really two items that are consistently fought over, children and property.  This paper will deal with the latter, and critically analyse portions of the draft legislation known as Bill 133.[5]  Bill 133 deals with a range of topics encompassed in the PBA and FLA, however, for the purposes of this paper, the following issues involving pensions will be addressed:

1. Immediate settlement methods (ISM) in comparison to deferred settlement methods (DSM).
2. The exclusion of pension division requirements for common-law spouses.
3. The new defined calculations for valuating the member’s pension.

Although this paper will only critically analyse the above topics, the breadth of Bill 133 goes well beyond the limited area of pension and benefits.  Additionally, the Ontario Government has indicated that 2012 January 01 will be the date as to when the new legislation and accompanying regulations will come into force and effect.[6]

Summary of Conclusions

Through an analysis of the above areas, this paper will show that Bill 133 both succeeds and fails in its attempt to alleviate some of the problems critics and practitioners have called for.  First, through an examination of the various settlement methods available to members and non-members, the Government has taken a step forward in bringing equality toward former spouses, however, I suggest that by moving away from an immediate settlement method (“ISM”) and delayed settlement method (“DSM”) and embracing a hybrid or credit splitting approach, the new legislation is embracing the spirit of what pensions were intended for.  Second, by not including a presumption for common-law spouses to have access to pensionable credits, I would suggest the legislators missed a valuable opportunity to bring the level of equality up to par with that of traditionally married spouses.  Third, the new method of removing the valuation from actuaries and placing it within a rigid formula to be completed by the plan’s administrator may be problematic due to the rigidity of the new formulas. In the end, with the introduction of Bill 133, the Government of Ontario has aimed at shoring up holes that have long existed in both the PBA and FLA.  While they have succeeded in their goals in some respects, in others they missed the mark and can look toward other provincial legislation to plug the gaps.

Bill 133: ISM v DSM

During court proceedings, which are attempting to sort out the net family property of each spouse of a matrimonial breakdown, a key sticking point can be a member-spouse’s pension.  Additionally, a couple’s largest asset aside from the matrimonial home is generally a spouse’s pension.  As will be discussed, a spouse’s pension is included in the net family property of the individual.  Upon the conclusion of the proceedings, should there be an award of equalization, the non-member spouse will be entitled to a portion of the net family property of the member spouse.  Should the member spouse be unable to pay either with cash or assets, such as property, the court can rightfully award a portion of the pension.

Moving forward, there are two traditional methods of the dividing an employee’s pension when examining the assets in the relationship during divorce proceedings.  These include, an ISM or DSM.  However, with Bill 133 coming into force on the horizon, the new legislation will limit pension splitting to ISM.[7]  Eliminating the availability of DSM entirely.

In order to properly assess whether Bill 133, and the elimination of DSM is the correct method of progression in pension and family law, a historical examination must occur.

ISM

An ISM is the first of two methods in which an equalization payment could be made to the non-member spouse.  Prior to the introduction of Bill 133, in proceedings of marriage breakdown, definition of property is as follows:

“property” means any interest, present or future, vested or contingent, in real or personal property and includes,

(a) property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself,

(b) property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property, and

(c) in the case of a spouse’s rights under a pension plan that have vested, the spouse’s interest in the plan including contributions made by other persons; (“bien”) (the italics are my own).[8]

As such, the division of family assets, which a pension is considered to be as per subsection (c), was governed by Part I of the FLA.  Looking specifically at s. 9, the courts have indicated,

[o]nce the pension and all other assets have been tallied to produce the appellant’s “net family property”, the appellant is required to pay the respondent an amount equal to one-half of the difference between his and her net family properties. Section 9 of the Family Law Act allows a court to choose among several methods for payment of the equalization amount, including an order of immediate payment, the granting of a security interest, an instalment scheme, postponement of payment, creation of a trust, and the transferral, partition or sale of property.[9]

As such, an ISM is a “method of settlement of equalization obligations, there is an immediate transfer of a share of the value of the member’s pension to a locked-in RRSP or other prescribed vehicle.”[10]  There are obvious advantages and disadvantages of using an ISM method.

The first and arguably most significant advantage, as noted by the court is that “the pension-holding spouse (here the husband) must transfer real assets to the wife to equalize matrimonial property. The wife can use these real assets immediately.”[11]  The thought behind this albeit old-world train of thought, is that the husband was generally the spouse who provided the majority of the equity brought into the home.  Therefore, it was thought an immediate equalization payment to the wife could satisfy any immediate economic need following the dissolution of the marriage.  However, the obvious flipside to this advantage is the potential economic peril the pension-holding spouse is exposed to.  Ari Kaplan outlines such a situation,

If the value of the employee’s pension, as determined by the parties, is equal to $250,000 and all other family property has been otherwise settled, then a direct equalization payment would see the employee pay the spouse $125,000 (either by way of cash payment or by some other tax-effective method).

However, because an employee’s pension money is locked-in until retirement, this approach might involve a substantial degree of financial hardship on the employee.  The direct equalization payment approach presumes, therefore, that an employee will be able to access other assets or sources of revenue in order to satisfy the equalization payment.[12]

A second advantage of the ISM approach revolves around the spousal interest in death benefits payable to a former spouse.  The minimum standards of the PBA indicate quite clearly that unless the spouses were cohabitating and the non-member spouse had not waived their right to a pre-retirement death benefit, then the spouse would not be entitled to their accumulated portion of the pension.[13]  However, the statute has indicated there is an exception.  Section 48(13) states, “[a]n entitlement to a benefit under this section is subject to any right to or interest in the benefit set out in a domestic contract or an order referred to in section 51 (payment on marriage breakdown).”[14]  Therefore, despite the statutory requirement of cohabitating at the time of the member’s death, if a court order is in place, the surviving ex-spouse would still have a vested interest in the pre-retirement death benefit.

Despite subsection (13), there is still a grey area the statute does not address.  It appears as if a spouse would be shutout of any pre-retirement death benefit if a court order were not in place.  Take for example the situation of the spouse who shortly after the family law valuation date[15] learns of the death of the member.  On its face, the PBA would statutorily exclude the spouse from collecting.  However, the issue becomes more complicated depending on whether the member has named a beneficiary to the pre-retirement death benefit.  Section 48(6) “sets out the rules that apply when the member does not have a spouse on the day the member dies or is living separate and apart from his or her spouse on the date of death.  It provides that only in that case is the death benefit paid to a named beneficiary.”[16]  Therefore, if the member does not have a spouse as per the PBA and has not named a beneficiary the pre-retirement death benefit would be payable to the estate of the member.

However, the court in Carrigan indicated that as in the example above,

[t]hat there was no domestic contract or court order in favour of Mrs. Carrigan appears to be the nub of the conflict. The Pension Benefits Act does confer rights with respect to an employee’s pension on spouses, and former spouses. Sadly for Mrs. Carrigan, she no longer qualifies as the spouse entitled to the death benefits under the Pension Benefits Act. Rights as a former spouse depend upon the date of the marriage breakdown. If Mr. Carrigan and Mrs. Carrigan had entered into a domestic contract or there was a court order which identified a portion of the pension to which Mrs. Carrigan would have been entitled, that portion would have been deducted from the total pension and would have affected the value of the death benefit. Also, upon Mr. Carrigan’s death, Mrs. Carrigan had the opportunity to elect to take an equalization payment instead under the will, however, after letting the court extension lapse, she was deemed, pursuant to s. 6(11) of the Family Law Act, to have taken under the will.[17]

As such, if not fully advised of their legal rights, a former spouse may be shut out of a significant portion of a member’s pension, should the appropriate steps, elections, or time frames not be followed.

The third advantage of an ISM scheme is closely related to the second advantage.  By having an ISM, the couple that saw fit to end their marriage are able to walk away with a clean break and will not have to be continually connected through retirement.  The courts have recognized this advantage as well by indicating, “first and foremost, an ‘if and when’ scheme also requires a continued financial association between the ex-spouses that obviates a ‘clean break’ after the divorce.”[18]  In the event that the marriage produced no children, a DSM scheme would bind the couple together indefinitely, ultimately availing the opportunity for further complication that could result in additional legal proceedings.

DSM

A DSM or if and when scheme, is exactly this.  It is designed to provide the ex-spouse of the member with a pensionable income following the retirement of the member.  “By this method of settlement of equalization obligations, pension division occurs at a future point, at which time the non-member spouse receives a separate pension from the member’s plan.”[19]  It should be noted when Bill 133 comes into force, it will eliminate this option of pension splitting.  Despite this, there have been two methods of DSM adopted by the courts.

First is settlement by employee trust.  “This method imposes a trust upon the employee that requires the employee to pay over a portion of the pension payment directly to the spouse, once the employee retires under the pension plan and begins receiving the pension.”[20]  I would suggest that there is an immediate and apparent fatal flaw with the employee trust method.  As Kaplan indicates,

the imposition of a trust on the employee spouse involves minimal involvement of the plan administrator since 100 per cent of the pension is paid to the employee, who is entirely responsible for the division and redirection of payment to the spouse in compliance with the court order or separation agreement.[21]

This raises two significant problems.  First, suppose a court has ordered the member to pay a portion of their pension to their ex-spouse.  Further suppose that the proceedings were particularly charged with emotion, and the member felt as if they were not treated fairly by their ex-spouse.  There is every opportunity for the member to completely disregard the order or agreement simply to financially punish their ex-spouse.  In a perfect world, this would be remedied through court proceedings.  However, the reality is that it is very likely the ex-spouse, in this situation, will not receive their due entitlement when they need it most.  The second problem revolves around the uncertainty of payments.  If the plan holder suddenly dies before payments commence, or if there have been relatively few payments, the spouse will then be shut out from receiving further payments.[22]  Thus, potentially drastically reducing the amount of equity owed to them through the separation agreement or court order.

Second, is settlement by splitting pension payments at source.  Although this method is very similar to the employee trust method, it is differentiated insofar as the pension administrator is responsible for splitting the payment at the source to avoid many of the complications when the onus is on the employee.[23]  Although it alleviates one of the problems of employee trust methods, we are still left with the problem the non-member spouse may face upon of the death of the employee and the potential end of payments before the full amount was paid out.

Bill 133 & Credit Splitting

The final method, settlement by assignment and credit splitting, I would suggest appears to be a hybrid between the ISM and DSM models.  This method,

is one that permits the parties to divide and assign an employee’s pension ‘credits’ to the former spouse, who will then receive a separate pension annuity form the plan attributable to those credits, or, alternatively, be able to transfer an equivalent lump sum amount into a locked-in retirement savings vehicle.[24]

I would further suggest credit splitting is the best overall option moving forward.  “With a pension credit split, the former spouse becomes, conceptually, a limited form of de facto member of the plan who would continue receiving an annuity for the balance of the spouse’s life, even if the employee dies first, and even if the employee dies prior to retirement.”[25]  The courts have also briefly weighed in on this method of pension division,

[b]oth pension splitting and credit splitting are orders directed at the plan administrator and require their involvement. However, credit splitting creates a separately valued annuity from the plan. These are the types of settlements…which enables an eligible spouse to apply for a transfer of a lump sum from the plan to another pension plan, to a prescribed retirement savings arrangement, or to leave the lump sum in the plan to the credit of the eligible spouse; these options are only available if the administrator agrees.[26]

In addition to the comments in Carrigan, it appears as if the Ontario courts have remained relatively neutral as to which method of equalization is preferred, instead offering that each case needs to be analysed on its facts.[27]

With Bill 133 coming into force and effect in a short period of time, it appears legislators have determined the best way for a couple to move forward in their respective lives is to make the break between them clean and clear.  When Bill 133 comes into force, the DSM model of pension splitting will no longer be available.[28]  It appears as if the legislators have heeded the calls for reform by recognizing the clear disadvantages of the DSM model.  However, despite the shortcoming of the DSM model, the credit splitting model has one clear advantage over a straight DSM or ISM model of pension splitting.  This advantage is that credit splitting appears to be the most equitable method of resolving property disputes involving pensions.

For the employee, credit splitting minimizes the potential financial hardship of a direct equalization payment.  For the former spouse, it reduces the risks associated with an if-and-when settlement approach.  For both parties, credit splitting facilitates a clean break from one another.[29]

In this realm, credit splitting is attempting to act in the interest of all parties involved.  The credit splitting model is taking the advantages of both an ISM and DSM model and rolling them into a more efficient way of processing a pension split.  Arguably the most advantageous factor of an ISM model is its ability to bring immediate separation of assets from the spouses.  On the other hand, perhaps the best feature of the DSM model is the ability for the pension to remain in a locked in the pension vehicle.  By not granting immediate access to the pension, and allowing the credits accumulated during the course of the marriage to the valuation date, it is wholly within the spirit of what a pension plan is attempting to achieve by having the credits remain within the plan.  Therefore, by having a credit splitting model which will be encompassed in Bill 133, the non-member spouse will have options as to best proceed with the credits attributed to them.

Section 67.3(1) indicates the criterion that needs to be met prior to any transfer of accumulated pension credits.

A spouse of a member or former member of a pension plan is eligible to apply under this section for an immediate transfer of a lump sum from the plan if all of the following circumstances exist:

1. The spouses are separated and there is no reasonable prospect that they will resume cohabitation.

2. No payment of an installment of the member’s or former member’s pension was due on or before the family law valuation date.

3. A statement of the imputed value, for family law purposes, of the member’s pension benefits or the former member’s deferred pension has been obtained from the administrator under section 67.2.

4. The transfer is provided for by an order made under Part I (Family Property) of the Family Law Act or is authorized under a family arbitration award or domestic contract.

5. In the order, family arbitration award or domestic contract, the amount to be transferred as a lump sum is expressed,

i. as a specified amount, or

ii. as a proportion of the imputed value, for family law purposes, of the member’s pension benefits or the former member’s deferred pension.[30]

Furthermore, s. 67.3(2) places restrictions on where the money can be transferred once it is severed out of the member’s pension.

The eligible spouse may apply, in accordance with the regulations, to the administrator of the plan for any of the following:

1. Transfer of a lump sum from the plan to another pension plan registered under the pension benefits legislation in any jurisdiction in Canada or provided by a government in Canada. This option is available only if the administrator of the other plan agrees to accept the transfer.

2. Transfer of a lump sum from the plan to a prescribed retirement savings arrangement.

3. Transfer of a lump sum to another prescribed arrangement.

4. Implementation of the transfer of a lump sum by leaving it in the plan to the credit of the eligible spouse. This option is available in such circumstances as may be prescribed and only if the administrator agrees to it.[31]

Although the new sections of the PBA have enacted the steps needed to transfer a pension from the member to the non-member spouse.  It appears that all options of transferring out pension credits are to result in them staying in a locked-in retirement savings vehicle.  However, the FLA in conjunction with the PBA has also been updated to reflect a change in pension division.  In instances when an order will be made under s. 67.3 or 67.4, and the non-member spouse is within the criteria listed in s. 10.1(4) of the FLA, the non-member spouse will then be able to have an order granted to unlock the pension credits.  The newly created s. 10.1(4) outlines,

In determining whether to order the immediate transfer of a lump sum out of a pension plan and in determining the amount to be transferred, the court may consider the following matters and such other matters as the court considers appropriate:

1. The nature of the assets available to each spouse at the time of the hearing.

2. The proportion of a spouse’s net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan.

3. The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.

4. Any contingent tax liabilities in respect of the lump sum that would be transferred.

5. The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources.[32]

However, it should be noted when examining the amount that is to be transferred, the PBA clearly limits the amount at a maximum of 50 per cent.[33]  This amount will not change when the new sections come into force.[34]  In addition to the maximum transfer amount of 50 per cent, the Ontario Superior Court held that when a spouse is in arrears for support payments, the non-member spouse may proceed with an action that brings the deficient payments up to date through a transfer of the members remaining pension credits up to a maximum of the remaining 50 per cent.[35]  Despite the availability of 100 per cent of the pensionable credits available to the non-member spouse, it appears as though the member spouse would need to default on their obligation of spousal and or child support payments for an undetermined period of time before the non-member spouse would be able to obtain a order from the court to claim the remaining 50 percent.

Although the option is available for non-member spouses to obtain the member spouse’s full pension, it is quite apparent why a court would hesitate in making such an order.  Pensions are seen as a valuable benefit to employers and employees alike.  The availability of a pension for an employee equates to a safety blanket that will, in many cases, be a person’s primary means of income when they retire.  By ordering the member spouse’s entire pension to be transferred to their former spouse, this could lead to the member spouse becoming destitute upon retirement, or perhaps delay retirement altogether.  In his decision in Bielanski v Bielanski, Justice Gauthier stated,

In Nicholas, the Husband was incarcerated for having attempted to murder the Wife. The Husband had never paid any spousal or child support. As well, the parties had executed Minutes of Settlement which provided that the Husband was to transfer his entire pension for the benefit of his wife, as support and equalization of property.

…

I am not prepared to deprive him of 100% of what will likely be his only source of income, other than Canada Pension Plan.[36]

It should also be noted that after an order under s. 67.3 or s. 67.4 of the PBA, if the non-member spouse did not meet the criteria as established by s. 10.1(4) of the FLA, the non-member spouse is not without options.  If the non-member spouse was facing financial difficulties, they could apply to the Financial Services Commission of Ontario (“FSCO”) to have their pensionable credits unlocked through a financial hardship application.[37]  It should be noted that this application does not give an administrator of a pension the ability to release the pensionable credits to the FSCO.  If the non-member spouse had chosen to create a de novo pension within the member’s pension, they would first need to transfer out their existing credits to a locked-in retirement savings vehicle, then proceed with the application to FSCO.

Through the enactment of Bill 133, it is apparent the Ontario government is sending a clear message that credit splitting as enacted by s. 67.3 and 67.4 of the PBA is the preferred model for pension division in family law matters.  Although this apparent hybrid method of pension equalization has yet to be fully tested by the courts, I would suggest with the availability of the best of both the ISM and DSM models, that the credit splitting approach will deliver the most equitable remedy for both members and non-members alike.

Common-Law Exclusion

The last 25 years have seen many changes that may have once thought to be inconceivable only a few generations ago.  Arguably, some of the changes, such as same-sex marriage rights and shopping on Sunday, have come about as a direct result of the Charter of Rights and Freedoms.[38]  Despite these steps forward, the changes of Bill 133 is leaving one large gap in the division of assets.  I would suggest the legislators should have made provisions for non-member common-law spouses to have a presumption to transfer pensionable credits accumulated during the course of the relationship following a relationship breakdown.

However, before this could have been added into the possibilities of being added into Bill 133, an examination of the current legislation needs to be undertaken.  Part I of the FLA examines the division of family property.  Looking at s. 1(1) of the FLA, it will be noted that spouse is,

either of two persons who,

(a) are married to each other, or

(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.[39]

It should be further noted, that Part III of the FLA examines support obligations between spouses.  In s. 29, the definition of spouse as noted in s. 1(1) of the FLA is expanded upon to include, first, continuously for a period of not less than three years, or second, in a relationship of some permanence, if they are the natural or adoptive parents of a child.[40]  It is this added portion of the definition “spouse” which give rise to what is known as a common-law marriage.  However, because this definition resides wholly within Part III of the FLA which deals with support obligations, it is inconsistent with Part I, which deals family property issues.  Additionally, an examination of the PBA adds another variable into the foray.  Section 1(1) of the PBA indicates the definition of spouse as,

means either of two persons who,

(a) are married to each other, or

(b) are not married to each other and are living together in a conjugal relationship,

(i) continuously for a period of not less than three years, or

(ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child, both as defined in the Family Law Act; (“conjoint”).[41]

It will be noticed that this definition is consistent with s. 29 of the FLA.  Additionally, in the newly created s. 67.1(1), spouse will also be consistent with s. 29 of the FLA.[42]  Therefore, the conflict between common-law spouses and the equalization of net family property remains.  In the defining piece of jurisprudence of Wylie v Leclair,[43] at trial Justice Lafrance-Cardinal stated,

In the Province of Ontario, the Family Law Act does not give equal standing to common law spouses when it comes to property accumulated during the years of cohabitation. The Act does not talk of an equalization of net family properties, common law relationships are not viewed as partnerships as stated in the preamble of the Act.

It is worth noting that our society has evolved drastically in the last decade. We now talk of same sex benefits, of same sex spouses being able to bring a claim for spousal support, of same sex spouses being able to adopt children. The Income Tax Act, a federal statute, treats common law spouses in the same manner as married spouses. They are deemed common law if they have been living together for at least twelve continuous months. Common law spouses are subject to the same income tax rules as married spouses ie: — designation of principal residence, attribution rules, equivalent-to-spouse tax credit.

With respect to spousal support, the law does not treat a common law relationship any differently than a marital relationship except that you must have cohabitated continuously for a period of not less than 3 years before you can bring such a claim. (S. 29 of the Family Law Act)

However, with regards to property issues and long term common law relationships Parliament has not kept up with the times. Common law spouses have been accepted in our society as spouses. Politicians may have a political future even though they may be divorced and now live in a common law relationship. In most cases common law relationships, to the outsider looking in, have the same attributes as those relationships commenced with marital vows. There are two income families, two car garages, PTA meetings, car pooling, mortgages, pooling of incomes. However, at separation, common law spouses do not have the protection of the Family Law Act. The preamble of the Family Law Act does not protect them as it speaks of recognizing marriage as a form of partnership. If the assets are in one spouse’s name, the other spouse must prove their claim, their contribution, their entitlement. Parliament will have to address this lacuna, in the interim however, the trial judges will have to continue interpreting the common law spouses intentions and will have to inspect their investments, their accumulated wealth, their enrichment, their corresponding deprivation with a fine tooth comb.[44]

Despite Justice Lafrance-Cardinal’s strong wording toward equality for common-law spouses, much of what she indicated has been taken as nothing more than obiter.  In hearing the appeal of Wylie, Justice MacPherson for the Ontario Court of Appeal stated, “[a]ccordingly, there is no presumption that the net family property of common law spouses should be equalized upon breakdown of the relationship.”[45]

While there is no presumption of equalization in common-law relationships, there are instances where common-law relationships do qualify for a division of assets.  When common-law spouses separate, the division of their assets is only rendered where it is found that the couple engaged in a joint family venture.[46]  “In undertaking this analysis, it may be helpful to consider the evidence under four main headings: mutual effort, economic integration, actual intent and priority of the family.”[47]  In addition to a joint family venture, it also must be established that one of the spouses was unjustly enriched.  In examining the scope of unjust enrichment, Justice Hourigan in Holloway v Devenish,[48] quoted the seminal case of Peter v Bedlow,[49] “[a]n action for unjust enrichment arises when three elements are satisfied: (1) an enrichment; (2) a correspondent deprivation; and (3) the absence of a juristic reason for the enrichment.”[50]  If it established that one of the spouses has been unjustly enriched, they may then seek an order to have their interest in the property placed in a constructive trust.  This is opposed to a resulting trust, which is a presumption that the non-titled owner has a share in the property based on that person’s contribution to acquiring or maintaining the property.

Despite the availability of asset equalization by way of a resulting or constructive trust for common-law spouses, the courts have been very hesitant to order interest in the member’s pension.  I would suggest this is where Bill 133 misses an opportunity for equality.  In 2003, the historic case of Halpern v Canada[51] was decided in Ontario’s highest court, granting the right to marry for same-sex couples.  Yet in 2011, the only distinguishing feature between same-sex couples and opposite-sex couples, versus that of FLA or PBA defined common-law couples appears to be a marriage certificate.  The Ontario Human Rights Code outlines a number of prohibited grounds for discrimination in s. 1 as, “[e]very person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability [emphasis is my own].[52]  Going further, the HRC defines services as “not including, a levy, fee, tax or periodic payment imposed by law.”[53]  As such, I would suggest the act of obtaining a marriage license from authorized body is considered a service performed by the government.  In addition to the violation under the HRC, I would further suggest by making the distinction between married spouses and common-law spouses there are further implications with respect to s. 15 of the Charter which would not be upheld by s. 1 of the Charter.

Moving away from the general topic of common-law property rights, and toward the specific topic of pension division, the highlights of Bill 133 in relation to common-law spouses and pension division is summed up by a FSCO publication,

[u]nder the Ontario Family Law Act (FLA), the value of married spouses’ pension assets must be included in family property for purposes of the calculation and division of net family property.  However, there is no requirement under the FLA for common-law spouses to divide net family property (including the value of any pension assets) on breakdown of their spousal relationship. This will not change when the new rules come into effect.[54]

This succinctly outlines the inequality in which common-law spouses will continue to face.  Although Bill 133 does bring about a number of advantages to the PBA and FLA, it falls short in addressing property rights for common-law spouses.  In British Columbia, the government is also preparing for a legislative update.  However, I would suggest the update to the Family Relations Act[55] will step much further toward equality for common-law spouses.  The update to the FRA expected to commence on the road to parliamentary approval in 2011,[56] will provide common-law spouses with the same rights to property law and pension division that married couples currently enjoy.[57]  When Bill 133 comes into force it will not change current system, if a common-law spouse wants access to the non-member spouse’s pension during the division of assets, they must have obtained written consent from that member spouse.[58]  In the instance where written consent was not provided, it is likely that the non-member spouse will not be granted access to the pension, however, eligible assets can otherwise be divided up by the courts.  Whereas in British Columbia, “[t]he draft blueprint for reform recommends a raft of measures aimed at improving family law in line with the province’s new overarching philosophy that familial disputes are usually best handled outside court.”[59]  As a result, the draft changes will now include “[m]arital property division will be extended to common-law spouses who have lived together for two years in a marriage-like relationship, or who are in a marriage-like relationship of some permanence and have children together.”[60]

Despite the changes Ontario has made to the FLA, I would suggest, they did not go far enough.  As renowned family law critic and editor of the Reports on Family Law, Phillip Epstein, has indicated, “many other jurisdictions, including Ontario, could learn from British Columbia’s efforts.”[61]  In the end, the choice not to go through the marriage process either in a religious institution or a civil ceremony is a highly personal decision.  It is a decision that could be wrought with many factors, but it should not be a decision, upon meeting the statutory definition of spouse, that prevents the couple from receiving all the rights and benefits that are enjoyed by married spouses both during the marriage and during the marriage breakdown.

Pension Valuation

When Bill 133 comes into force, perhaps one of the most significant changes with respect for pension reform for defined benefit plans will encompass how valuation is conducted.  In an attempt to regulate the valuation of pension credits during a marriage breakdown, the PBA through O.Reg 287/11 given force by s. 67.2 of the draft legislation will provide for a specific set of formulas that the plan administrator will calculate to determine an imputed value for the pension.[62]  In other words, “Bill 133 changes this system in two significant ways.  First, it requires the valuation to be done according to a formula that is prescribed by regulation; second, it requires the valuation to be carried out by the administrator of the pension plan.”[63]  Despite the reforms provided by Bill 133, there is a concern that needs to be addressed.  This concern is whether the new rigid formulas, as prescribed by the regulations, will result in a fair evaluation of pension calculations

In its current state, “an actuarial valuation report prepared by the plan actuary is the key to identifying the employer’s required contributions, both with respect to the normal cost for funding the benefits as well as any special payments required to fund an unfunded liability or solvency deficiency.”[64]  As such, the courts and the Law Commission of Ontario (“LCO”) have identified three methods for valuating a defined benefit pension plan.  The first method, known as the retirement method involves calculating,

the present value of a pension’s future income stream based on the assumption that the employee will continue in employment – and accrue pension credits – until retirement.  The pension’s value is calculated using estimates of the employee’s projected salary, benefits, and service at the assumed retirement date.[65]

In contrast, the termination method,

calculates the value of a pension’s future income stream by deeming the employee to have terminated employment and plan membership on the valuation date…  An employee’s actual salary and years of pensionable service, as of the valuation date, are used to calculate the pension benefit to which the employee would be entitled on retirement.  Future contingencies, such as salary increases, years of service, and plan improvements, are generally not taken into account.[66]

The final valuation method appears to be a hybrid between the termination and retirement.  The hybrid termination-retirement method,

…combines elements of both the termination method (in that termination at the valuation date is assumed in order to determine the amount of the accrued pension benefit) and the retirement method (in that inflation is recognized where the plan is indexed and continued employment is assumed for purposes of eventual eligibility to take early retirement on an unreduced pension).[67]

It appears, when looking at the valuation methods in Ontario courts that “…the termination method seems generally to have found much more favour than the retirement method…”[68] for two main reasons.  First,

by projecting salary levels and service credits that might be earned after the valuation date, the retirement method gives the non-member spouse the “fruits” of the member spouse’s post-separation labours and is therefore in conflict with the FLA requirement that value be determined as of the valuation date.[69]

Second, is

…its highly speculative nature, resulting from the fact that it requires the making of assumptions as to what the member spouse’s salary and service credits will be and what plan improvements will have been made by the time he does retire.[70]

Despite the pension valuation problems the LCO outlines in their analysis of Bill 133, they do not commit to one method to move forward with into the future.  The reforms of Bill 133, and the formulaic methods to valuate pensions are designed, in part, to eliminate the debate between duelling actuarial valuations.  However, I would suggest this method fails for a number of reasons.

First, the reforms of Bill 133 remove the availability to examine individual instances that falls outside the general provisions as accounted for in the Regulations.  Because many defined benefit contribution pensions work similar to RRSP or savings accounts, individual circumstances may effect the date of retirement for the member spouse are not taken into account.  Rather, multiple formulas are provided which give plan administrators varying time ranges as to determine the pension value.  “…[P]ension provisions in Bill 133 include the elimination of flexibility in valuation of pensions.  Currently, lawyers and judges can consider special circumstances such as a plan member’s shortened life expectancy…”[71] when determining the value of the member spouse’s pension.  This falls short for the obvious reason that it ignores the individual circumstances of each member and eliminates discretion within the process.

Second, although the overall aim of Bill 133 is to reduce the amount of litigation in marriage breakdowns,[72] by placing the valuation squarely in the hands of pension administrators, the government has effectively taken the valuation process out of the hands of experts and placed it into those of generalists.  Actuaries in Canada are a regulated profession, overseen by the Canadian Institute of Actuaries.  There are regulations and rules of professional conduct, similar to that of lawyers, and tribunals are conducted in accordance with the principles of administrative law.[73]  There is no such regulating body for pension administrators.  As such, for example, should a non-member spouse commence an action where there are allegations of negligence or professional misconduct, the actuary would be covered by their personal or professional indemnity insurance.  Whereas in the case of the pension administrator, should the same circumstances take place, and an action was launched against the pension administrator, it is ultimately the entire pension, and subsequently, the plan members who may bare the cost of the administrator’s error.

Third, the rigid formulas only provide a pre-tax valuation figure.  Although plan administrators will be able to determine plan figures, their responsibility will end there.  Many assets, such as a house are determined on an after tax basis.  To determine the tax implications, a member or former spouse of the member will still need to contact an actuary to determine the relevant tax implications after the valuation figure has been assessed.

As such, plan members will likely require an outside actuary to estimate a tax rate in each case, which would defeat the simplicity intention of the bill and will entail additional costs.  When combined with the fees charged by plan administrators, the actual cost to the plan member could increase in comparison with current practice.[74]

A final example of how a rigid formula may fail the member and non-member alike arises in the instance where a pension plan becomes or is likely to become insolvent.

If the non-member obtains 50% of the imputed value by a transfer to a retirement vehicle, and if the pension loses 30% of the imputed value, the member will be left with 20% of the imputed value.

If the pension goes down in value after V-Day [valuation day] because it is underfunded or insolvent:

(a) What decline post V-Day is required to trigger section under 5(6) FLA for an unequal division;

(b) How will the court adjust the pension division or EP [equalization payment] as a result;

(c) What if there is an order for a transfer of 50% of the imputed value but the pension has declined to less than 50% of the imputed value?[75]

It is individual circumstances such as these where the rigid calculations of the Regulations can lead to an inequitable result.  Where the value of the member’s pension has decreased by such a dramatic amount after the valuation has been determined, the only recourse for the member is to bring an action under s. 5(6) of the FLA.  In this instance, the member spouse would be seeking a re-equalization of the pension funds to equate for the loss or potential loss that they occurred when the pension’s solvency liabilities outweighed their solvency assets.[76]  Although there is recourse under the FLA, if there was more flexibility in the valuation of the plan, such considerations could be taken into account.

Although there are concerns with placing the valuation of the pension in the hands of pension administrators, I would suggest that despite its shortcoming, improvements have been made.  Section 22 of O/Reg 287/11 is a step in the right direction toward providing a fair and equitable valuation of the pension.  By allowing for two valuation dates, Bill 133 can take steps toward tackling issues when there is a discrepancy between the values on each date.

Conclusion

When, then Attorney General Chris Bentley announced the changes that would encompass Bill 133 many thought it would be a big step into the future.  Pundits have been calling for change since the seminal case of Nantais v Nantais.[77]  In commencing the analysis Justice Brockenshire stated,

I commence my analysis by adding my own voice to the concerns raised by Justice Granger, Professor McLeod, and Catherine Aitken, that this whole very difficult area could and should be dealt with by Parliament and the provincial legislatures passing comprehensive pension legislation providing for the actual division of pensions on the breakdown of family relationships.[78]

Although the scope of changes for Bill 133 goes far beyond the realm of marriage breakdown and pension law, I would suggest that Bill 133 could have gone further to eliminate some of the issues addressed in this paper.

First, the traditional use of an ISM or DSM method for dividing a pension during a marriage breakdown can prove to be problematic.  Although, on its face, an ISM does have an immediate result by allowing the non-member spouse access to the pension credits immediately, there can be valuation issues that can lead to an inequitable result.  By transferring the result out of the member spouse’s plan immediately, there is a significant amount of built up credit that will be lost when the credits are transferred to another locked-in savings vehicle.  As with any plan where interest in accrued, the more money that is invested in the vehicle, the higher the return will be.  By allowing a non-member spouse to take from the plan, it will reduce the overall amount they otherwise would have obtained.  Oppositely, in a DSM model, by forcing the non-member spouse to wait and see, the courts have bound the couple together when the very thing that brought them before the courts is a desire to separate.  Thus, I would suggest a credit splitting or hybrid model between an ISM and DSM model is the most appropriate method to proceed with pension splitting.  By having the pension remain in its original location, yet completely controlled by the plan administrators allow the necessary autonomy for them should they require access to the funds in the future.

Second, Bill 133 had the opportunity to bring equality in an area that is far overdue for such treatment.  By not having the same equality rights for common-law spouses that married couples enjoy, I would suggest strikes to the very heart of the HRC and s. 15 of the Charter.  Coincidentally enough, the British Columbia government is planning on updating its FRA and in its intended changes, will be an inclusive set of property rights for common-law spouses.

Third, much of the debate surrounding Bill 133 appears to be stemming from the formulaic valuation the Regulations are providing to the PBA.  Although there are numerous actuarial interest groups pushing their message, I would suggest a rigid formula to calculate certain pensions is problematic.  By not taking into account individual circumstances and potential insolvency issues of plans, the strict formula may lead to inequitable results for members and non-members alike.

Consequently, although there are numerous arguments to be had on either side of the debate surrounding Bill 133 coming into force, I would suggest the improvement made to streamline the amount of litigation involving pensions in family breakdowns does not go far enough and will ultimately lead to inequitable results for both member and non-member spouses.

M E M O R A N D U M – Drug Testing in the Workplace

By: Ryan Venables

2011 April 01

Introduction

As technology advances, so do the risks associated with operating ever-growing technological workplaces.  Whether it is operating heavy machinery on a construction site, acting in the course of your duties as a police officer or firefighter, or operating Canada’s largest and busiest airport, one thing remains the same; the risks associated with all of these jobs are only compounded by the consumption of alcohol and drugs.

In Ontario there are a number of statutes that oversee occupational health and safety of the worker with an aim of protecting the worker against various sorts of wrongs.  These include the Occupational Health and Safety Act,[1] the Employment Standards Act,[2] the Labour Relations Act,[3] and the Human Rights Code.[4]  These acts all deal with complicated workplace matters for both employer and employees.  Additionally, the Ontario Workplace Safety and Insurance Act[5] provides guidance if a worker has been injured on the job, in addition to ensuring compliance by the employer.

As indicated, as technology has become more advanced, as to have the risks of workplace injury and death.  Combining these risks with the careless and at times flagrant use drugs and alcohol has prompted many employers to enact policy surrounding drug and alcohol testing.  Since the pivotal case of Lumber and Sawmill Workers Union, Local 2537 v KVP Co. Ltd.,[6] drug and alcohol policy and its implementation has constituted a reasonable exercise of management rights.  This has progressed from a mere right of the employer, to an entrenched collective agreement standard, where often refusal to submit to drug and alcohol testing post-accident, results in a reverse onus situation for the employee to prove otherwise to show they were not under the influence of drugs and or alcohol.[7]

As a result of such testing protocol, there are often a number of issues that need to be analysed following an accident in a safety-sensitive workplace.  This paper will examine the post accident scenario from four angles.  First, does post-accident drug testing in safety-sensitive workplaces violate the HRC?  Second, what is the standard to demand a worker submit to drug and or alcohol testing?  Third, following a positive test result of a drug and or alcohol test, what is the standard the employer held to in order to accommodate any disability the employee may have pursuant to s. 5 of the HRC?  Fourth, following an accident, the effectiveness of the various methods of drug and or alcohol testing to determine current impairment and their potential implications on any proceedings against an accused worker.

Summary of Conclusions

Through an analysis of the above areas, this paper will show drug and or alcohol testing in safety-sensitive workplaces is a necessary requirement for four reasons.  First, post-accident drug testing does not violate the HRC provided it is in accordance with the principles of the established jurisprudence.  Second, the standard to demand a worker to submit to a drug and or alcohol test is reasonable and probable grounds or analogous wording.  Third, following a positive test, an employer has a duty to accommodate an employee to a level that falls shy of undue hardship on the employer.  Fourth, following an accident, the most effective testing methods to detect impairment for alcohol are visual cues or a breathalyser test, and for drugs, it is through a Drug Recognition Expert (“DRE”).

Analysis

1. Does post-accident testing violate the Ontario HRC?

Accidents occur every day in Ontario workplaces.  The difference between many of them lies in the risk of another accident occurring, the severity of the accident, the injuries to employees or others, and the nature of the position.  However, for some workplaces, it has become established following an accident of a specified severity, when certain factors are met, the worker who caused the accident may be required to submit to a drug and or alcohol test to rule out impairment as a cause of the accident.  I am in agreement with the current state of the law, insofar as testing a worker in a post-accident situation, so long as it is in accordance with the collective bargaining agreement, and is not prima facie discriminatory.

In order to determine whether a post-accident test would violate the HRC, a number of conditions need to be ascertained.  Although many tribunals and courts have upheld the legitimacy of drug and alcohol testing on workers in a post-accident situation, this only transpires after the accident has occurred and has met certain criteria.  We must examine a number of key factors before any post-accident testing analysis can proceed.  First, what is an accident?  In Sterling Cranes, Arbitrator Jesin outlined “an accident or incident that has occurred and where such accident either had resulted in, or has had the potential to result in serious injury or death, or in serious and extensive harm to property…”[8]  In Sterling Cranes, although there was no serious injury or death, an accident did occur when the operator of a large crane came into contact with power lines causing a power outage to the surrounding areas for a period of time.[9]  The second area that needs to be looked at is whether the accident was in a safety-sensitive area?  In Greater Toronto Airports Authority v Public Service Alliance of Canada, Local 0004,[10] 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.[11]

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.[12]

Moving forward from these two definitions, we can begin to understand whether post-accident testing violates any Ontario statutes.  Often the most contentious statute is the HRC.  Employees who have been issued a demand for an alcohol and or drug test often use s. 5(1) of the HRC as a shield to the test claiming a disability.[13]  A drug and or alcohol test is prima facie a violation of a person’s human right’s as defined by the HRC.[14]  It is noted in s. 5(1) that “every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.”[15]  In order to determine whether a drug and or alcohol addiction fits within the definition of s. 5(1), we can examine the meaning of disability more in depth.  A handicap or disability has been defined in Entrop v. Imperial Oil Ltd.[16] 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.”[17] 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.[18] Alcoholism or drug addictions, for example, are viewed as disabilities.[19]  As such, they fall under the protection of the HRC.

The court in British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union[20] (Meiorin Grievance), looked at the protection given under the British Columbia Human Rights Code[21] and outlined principles on when discrimination is acceptable through employment.  The Supreme Court of Canada clarified and limited the amount that both the employer and employee could rely on the HRC as a sword or shied.[22]  In the decision, the court outlined a three-part test to justify whether discriminating against a person can be held as reasonable.  If the discriminatory behaviour is able to pass all three parts of the test, it will be held that it is a bona fide occupational requirement, and the discriminatory behaviour will stand.[23]  The test outlined the following,

1. That the standard was adopted for a purpose rationally connected to the performance of the job;

1. That 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

1. That the standard was reasonably necessary for the accomplishment of that legitimate work-related purpose.  In order to fulfil this last criterion, an employer would also be required to show that it was impossible to accommodate the individual employee(s) without imposing undue hardship on the employer.[24]

When evaluating Ms. Meiorin’s complaint through the application of the three-part test, they were able to conclude that the rule establishing a set standard for cardiovascular exercise for fire fighters was prima facie discriminatory.  As a result, they reinstated her to her former position.

Like Meiorin, in other recent cases, the union launches a grievance on behalf of an employee because of a policy enacted by the employer.  In Entrop, the court held not promoting or hiring an employee to a safety-sensitive position is not prima facie discriminatory if certain criteria are met.[25]  In his decision Laskin, J.A. (as he was then) indicated,

I would set aside the Board’s conclusion that random alcohol testing for employees in safety-sensitive positions violates the Code, and in its place I would hold that such testing is a BFOR provided the sanction for an employee testing positive is tailored to the employee’s circumstances.”[26]

However, the more recent decision in GTAA went against the Court of Appeal finding in Entrop.  In her decision, Arbitrator Devlin indicated,

under the GTAA’s policy, a positive drug test results in automatic denial of a safety-sensitive position and, in this respect, the provision is overly broad and cannot be regarded as a BFOR. Denying a safety-sensitive position to any employee who tests positive is inconsistent with the GTAA’s duty to accommodate.[27]

Although the consensus with the courts is not perfect, there are various factual issues which differentiate the cases and can be the cause for dissenting decisions.

In order to delve further into whether there is a potential violation, we turn to KVP to determine whether a worker’s refusal to submit to a post-accident drug and or alcohol test is considered a violation of the collective agreement.  According to the ruling in KVP, the breach of a rule introduced unilaterally by the employer can only be acted upon and give just cause for discipline if the rule meets the following criteria:

1. It must not be inconsistent with the collective agreement.

2. It must not be unreasonable.

3. It must be clear and unequivocal.

4. It must be brought to the attention of the employee affected before the company can act on it.

5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge.

6. Such rule should have been consistently enforced by the company from the time it was introduced.[28]

Furthermore,

although the employer must satisfy all of these requirements, many awards turn on the arbitrator’s assessment of the reasonableness of the rule in question. Whether or not a rule is found to be reasonable generally depends on whether the employer is able to establish that it promotes health and safety in the workplace or advances legitimate business interests.[29]

Through an examination of the factors that make up a potential s. 5(1) claim under the HRC, what is clear, is any potential grievances by a worker or union will be fact driven, and the grievance will need to be tested against the policy of the employer, collective agreement, and corresponding jurisprudence.  This was the case in Trimac Transportation Services - Bulk Systems v Transportation Communications Union Crane,[30] where Arbitrator Burkett indicated,

it is accepted that management will make rules and issue policies that are necessary to the achievement of its business objectives, subject to the right of the union to challenge these rules as not meeting the test of just cause if they are not reasonably related to the achievement of legitimate business objectives or as otherwise contrary to the terms of the collective agreement. There is not a single case of which I am aware that has found that rules relating to the safe operation of the workplace are not within the authority of management under its general right to manage. Indeed, in all cases dealing with drug and alcohol testing cited herein, this is taken as a given.[31]

As a result of the current jurisprudence in this area, taken in conjunction with the relevant facts and policies, I would submit an employer’s demand for analysis to determine whether an employee is impaired post-accident is in compliance with the HRC.  When there is an accident in a prescribed safety-sensitive area, and the criteria is met that warrants a drug and or alcohol test, I am in agreement with the courts in Entrop who have spoken clearly by outlining an employer’s right to test post-accident is intra vires the HRC.

2. What are reasonable and probable grounds post-accident?

In a post-accident situation in a designated safety-sensitive workplace, the courts have permitted the employer to demand that an employee submit to a drug and or alcohol test where the accident is of a certain level.[32]  The Criminal Code of Canada[33] demands officers have reasonable and probable grounds to make an arrest or to demand a sample of an accused’s alcohol in instances when impairment is suspected.[34]  At times in unionized environments, employees are told to “obey now and grieve later”[35] in order to avoid immediate sanction by the employer.  However, I would submit those who are seeking to have the employee consent to the testing at the time, and grieve later need to have evidence to support the demand on a scale analogous to reasonable and probable grounds.

Although current jurisprudence permits testing of employees in post-accident situations, I struggle with the identification of grounds needed and who can demand a test of an employee in such a situation.  In United Transportation Union v Canadian National Railway Co. (Keeping Grievance),[36] Aribitrator Picher, commenting on post-accident testing by the employer he stated,

…the right that an employer may have to demand that its employees be subjected to a drug test is a singular and limited exception to the right of freedom from physical intrusion to which employees are generally entitled by law. As such it must be used judiciously, and only with demonstrable justification, based on reasonable and probable grounds.[37]

In another case, Arbitrator Brent in Re: Provincial-American Truck Transporters and Teamsters Union, Loc. 880[38] outlined a two-part test for drug and or alcohol testing following an accident that was reiterated in Sterling Crane.

She concluded that drug testing would be within management’s rights if reasonable cause to demand the test existed. But for universal testing to be sustained, an employer would have to first prove that there was a drug and alcohol problem in the workplace and then prove that lesser non-invasive tests were not effective in solving the problem.[39]

In a third case, Arbitrator Jolliffe in United Assn. of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 663 v Mechanical Contractors Assn. of Sarnia (Drug and Alcohol Policy Grievance)[40] commented on the policy of testing simply on the basis the accident occurred with no other reason gives rise to the suspicion of drug and or alcohol use.  “[The policies] are acceptable where an incident/accident has occurred where there is cause to suspect alcohol or drug use by reason of the occurrence itself, observations and surrounding circumstances, and in such case testing should be done as soon as possible.”[41]  I would respectfully disagree with the beginning part of this statement, and would suggest conducting a test because the accident has occurred is fundamentally contradictory to other decisions where it has been held there needs to be reasonable and probable grounds, or grounds analogous in order to make a demand.

In addition to the reasonable grounds needed in order to conduct a test, the Mechanical Contractors case lacks a clear definition of what grounds are considered reasonable in order to test, and it does not outline who can evaluate the potential symptoms needed in order to make a decision to order an employee to submit to a test.  Further to this, in Sterling Crane, the company stated, “a supervisor of an employee must request an employee to submit to an alcohol and drug test if the supervisor and the next level of management at the company cannot reasonably eliminate alcohol or drugs as a contributing factor.”[42]  Looking further at the policy, reasonable grounds is defined as but not limited to,

1. Odour of alcohol;
2. Slurred speech;
3. “Groggy” or disoriented behaviour;
4. Glassy eyes,
5. Flushed face;
6. Unsteadiness in standing, walking, etc.;
7. Acting in a suspicious or unusual manner;
8. Explained inability to correct a chronic job performance or behaviour problem;
9. Excessive sick leave or suspicious patterns of sick leaves;
10. Involvement in a post rehabilitation program.***26

I would suggest that many of these signs and symptoms of intoxication are what would be considered as classic symptoms, however, what I fail to note, is how an employee can be forced to submit to a test if none of these signs or symptoms are present in a post-accident situation.  Again, in Sterling Crane the facts of the case indicate the employer had no grounds to believe the worker was impaired other than the fact the incident occurred.  After a worker, who had a clean accident record and 19 years experience refused to submit for a drug and or alcohol test he was suspended.  I would submit the employer did not have a right to enforce such a suspension and Arbitrator Jesin agreed.  In his decision, the Arbitrator reaffirmed the recent Ontario Court of Appeal decision in Imperial Oil Ltd. v CEP Local 900[43] by indicating a policy, which purports to test an employee in a post-accident situation, must be bound by reasonable cause.[44]

Although reasonable cause or reasonable and probable grounds are an extremely important aspect of the testing procedure, I submit, the most important part of the process in determining whether to demand a sample from an employee comes from the observations of the person who makes the demand.  If a person happened to be involved in a motor vehicle collision and it is suspected that alcohol may be involved, the only person who can demand a sample of your breath and or blood is a police officer.[45]  This however, is not the case following a workplace accident.  As outlined in the employer’s policy in Sterling Crane in order to receive permission for a demand for sample, the worker’s immediate supervisor needs to have formed reasonable grounds and this needs to be cleared with their immediate supervisor.[46]  Although this was obtained, the employer conceded in cross-examination that the grievor did not exhibit any noticeable signs of impairment during the investigation.  It was also established that the employer was not trained to observe signs of impairment.[47]  Furthermore, the tribunal heard,

the evidence also confirmed that individuals can be trained to observe signs of impairment. Studies dealing with police officers were referenced showing that officers were able to assess impairment with an accuracy rate of between 75% and 95%, depending on the number of factors that were observed.[48]

I would suggest these percentages are extremely important in a post-accident situation.  Police officers in Ontario (not RCMP members) attend the Ontario Police College and receive specific training with respect to observing signs of impairment in people who are operating a motor vehicle as well as in other situations.[49]  I would argue most supervisors in safety-sensitive workplaces do not have the same level knowledge or skill to recognize physical symptoms of impairment to the standard necessary to intrude on a person’s rights. Furthermore, police officers deal with people who are under the influence and have consumed alcohol on a daily basis, and often use this knowledge in a proactive manner to prevent further incident from occurring.  Whereas supervisors may only become aware there is an employee under the influence once an accident has occurred.  Furthermore, because workplace supervisors are not specifically trained to recognize very minute signs of impairment, in addition with their lack of regular contact with the signs and symptoms of impairment, I would suggest they are not qualified to make a determination on reasonable and probable grounds that an employee may be under the influence.  Moreover, in Entrop, it was a medical opinion that “properly trained supervisors had a ‘very high likelihood of being able to detect impairment’ on the job.  His opinion fails to appreciate that Imperial Oil does not use trained supervisors to detect impairment, but in conjunction with breathalyser testing.”[50]  I would suggest that this type of testing is exactly the sort the unions are consistently fighting against.  A supervisor, who is not trained to recognize the signs and symptoms of impairment, especially drug impairment, cannot in theory then use a breathalyser result in order to back up credence to the legitimacy and need for the test in the first place.  It is this sort of circular logic that leads to HRC and Canadian Charter of Rights and Freedoms[51] violations.

In the end, although I see value in the ability to test workers immediately in a post-accident situation, I do believe there are other routes an employer can undertake.  If it is suspected an employee is impaired following a severe accident, I would further suggest the most efficient route to determine if impairment was a root of the accident would be to contact the police.

3. Is there a duty to accommodate a worker with a drug and or alcohol dependency?

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.  The HRC adopts an expansive definition of the term “handicap” from s. 5(1) that encompasses physical, psychological, and mental conditions or disabilities.^[52]  Severe substance abuse is classified as a form of substance dependence, which has been recognized as a disability.^[53]  Examples include alcoholism and the abuse of drugs, both over the counter drugs and illicit drugs.  The Ontario Human Rights Commission (“Commission”) has found that “alcoholism is a handicap within the meaning of the Code [HRC], in that it is ‘an illness or disease creating physical disability or mental impairment, and interfering with physical, psychological and social functioning.’”^[54]

As mentioned above, s. 5(1) of the HRC stipulates that employers, except in limited circumstances, cannot discriminate based on disability.  Moreover, employers are obligated to accommodate their employee’s disabilities except to the degree of causing undue hardship to the company or employer.  While no precise definition of “undue hardship” has been given, I would suggest case law has provided guidelines for this interpretation. The effort on behalf of the employer to accommodate must be “serious” and “conscientious.” [55]  The steps taken to accommodate must be “genuine” and demonstrative of the employer’s “best efforts.” [56]

The duty to accommodate must be a central feature in the workplace.[57] Cases have articulated how much duty is to be imposed on an employer and several principles have been extracted from these cases.  Quebec (Commission des droits de la personne et des droits de la jeunesse) v Montreal (City) held employers and unions must be sensitive to the various ways in which individual capabilities may be accommodated.[58]  Grismer v British Columbia (A.G.) 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, Meiorin is the most comprehensive decision on the duty to accommodate.  It held accommodation measures must be taken to the point of undue hardship, and a strict approach must be taken with respect to exemptions from the duty to accommodate. This case 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?

1. If alternative standards have been investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?

1. 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?

1. 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?

1. Have other parties in the workplace – the union and the individual employee seeking accommodation – fully assisted in the search for a solution?[60]

As mentioned above in a previous section, Meiorin also postulated a three-step test to determine if the discrimination can be justified as a bona fide occupational requirement under human rights law.  Although the tests in Meiorin are helpful for determining whether discrimination is justified, some of the terms used in the test were not so clear. For example, what is meant by “undue hardship”? Central Alberta Dairy Pool v Alberta (Human Rights Commission)[61] 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.[62]  A certain degree of hardship is acceptable in accommodation requests, and the employer only has a defense if the inconvenience or hardship was undue.[63]  The employer must demonstrate a real and substantial effort was made to accommodate. [64]

If an employee’s drug dependency alters his or her performance at work, an employer is obligated to provide the employee with the opportunity to address his or her problem through rehabilitation and abstention programs.^[65]  However, 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.^[66]  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, an employer is justified in terminating the employment contract.[67]

Furthermore, in terms of disability, when an employee has a disability that requires accommodation, there is a duty on the employee to provide the employer with enough information so the employee may be assisted.[68]  In particular, the employee should supply the employer with information from a qualified professional confirming a disability exists and outlining what assistance would be needed for the employment.  The letter from the qualified professional does not need to outline the disability in detail, but should just give enough information so the employee can be properly accommodated.[69]  It is the responsibility of the employee to make his or her need known, to give the employer information about restrictions or limitations, to discuss with the employer possible accommodation solutions, and to continue to update the employer with regards to the status and success of the accommodation.[70]

It is the employer’s responsibility to accept accommodation requests (unless there are valid reasons not to),[71] to get expert opinions where it is required, to facilitate the accommodation process and to take an active role in arranging the accommodation.[72]  Any costs associated with medical documentation are for the employer to bear.[73]  The information provided to the employer must be kept confidential.

The courts have also indicated many employers are bound by a duty to accommodate once it is learned an employee has a substance abuse problem; and where a program does not exist, one should be created.[74]  In Communications, Energy and Paperworkers Union , Local 707 v Suncor Energy Inc.,[75] the employee had been with the company for almost twenty-seven years^[76] and throughout his employment he had suffered through both drug and alcohol abuse.  Suncor made available a substance abuse program for its employees, and the policy specifically outlined that Suncor “encouraged employees to seek treatment before their job performance was affected.”^[77]  The employee did not take advantage of the program and as a result, a number of workplace incidents occurred which were directly attributed to his substance abuse problem.  He was terminated for this and other incidents directly relating to his addictions.  He appealed the decision and the board indicated Suncor had made sufficient efforts to accommodate the employee; the termination was found to be appropriate.

In the end, the duty to accommodate an employee who is suffering from a drug and or alcohol disability appears to be a very fact driven issue with numerous variables that can account for whether an employer has done too little or the accommodation can be seen as to the point of undue hardship.

4. Effectiveness of the drug/alcohol testing methods

In a post-accident scenario where there is reason to believe the accident was caused by drug and or alcohol consumption, the goal of the investigator is simply to prove whether consumption of a drug was present, and secondly, to determine if the presence of the drug caused impairment.  However, as rights have been more clearly defined through the HRC and jurisprudence, and technology has developed alternative testing methods, debate has risen surrounding the various forms.  There has been focus on whether new methods of testing can prove impairment as opposed to simply presence of a substance in the worker.  Despite the availability of new tests, the traditional test methods including urinalysis to test for the presence of drugs and a breathalyser for alcohol are still the most reliable.[78]  I would submit although technology has improved, there is difficulty-proving impairment of drugs other than through visual observations.  Additionally, I would also suggest that the traditional means of a breathalyser is the most effective and established test to determine impairment from alcohol.

In a post-accident investigation where it is suspected on reasonable grounds that alcohol has played a role in the accident, the courts have firmly indicated an oral breathalyser test performed by the employer can adequately prove impairment.[79]  In an evaluation of a breathalyser, Arbitrator Devlin outlined,

alcohol testing under the GTAA’s drug and alcohol policy involves the use of a calibrated breathalyzer which can accurately detect impairment…  [T]he use of a breathalyzer is described as minimally intrusive, and there was no dispute that it provides an immediate result.  In other words, it is not a situation in which an employee is tested, returns to work in a safety-sensitive position and the test result is provided at a later date.[80]

Decision makers have universally accepted this view of determining alcohol impairment through a breathalyser as the most effective testing method.  For further evidence, one needs not look any further than your local RIDE (Reduce Impaired Driving Everywhere) program.  When police officers have grounds to believe a motorist is over the legal limit of 0.08 milligrams of alcohol per 100 milliliters of blood, they can arrest the motorist and demand they submit a breath sample into a Intoxilyzer 5000C.[81]  This device will give a numeric reading of the motorist’s blood alcohol concentration.  As a result of the numeric value, if it is over 0.08, it is considered conclusive that the operator of the motor vehicle was impaired at the time of operation.  It should be noted, the numeric value of 0.08 is the Criminal Code standard.  Employers in safety-sensitive workplaces often have a zero-tolerance or thresholds that are lower than the legal limit.[82]

A second method to test for impairment of alcohol is through a buccal swab.  In Imperial Oil Ltd. v Communications, Energy and Paperworkers Union of Canada, Local 900 (Policy Grievance),[83] it was held that,

oral fluid testing is no more intrusive than taking a breath sample. The Supreme Court of Canada has stated in a different context that a “buccal swab is quick and not terribly intrusive” (R. v. S.A.B., [2003] 2 S.C.R. 678, at para. 44)… Oral fluid testing is reliable and minimally intrusive. A positive oral fluid test shows impairment. Although there is a delay in allowing the Company to be informed of a positive test, the company still becomes aware that an employee was impaired while at work and can take measures to prevent a recurrence.[84]

As the court correctly pointed out, although it is minimally invasive, and it will return the same results, a breathalyser is an immediate test without the enhanced risk of contamination and other complications through delay.

Moving forward, methods of testing that determine whether there is impairment through drugs is not as straightforward as alcohol.  The traditional method to test for drug impairment is through urinalysis.  In Sterling Crane,

all of the witnesses agreed that urinalysis testing of the sort requested by the Responding Party in this case cannot confirm impairment of any individual. Indeed, the evidence suggested that some of the substances tested for, such as marijuana, may stay in one’s system for days and even weeks – long after any impairment would have dissipated. The evidence did indicate that any urinalysis test should be conducted within a short period of time after the incident, two to four hours later at most, in order to have any probative value.[85]

Furthermore in GTAA, an expert in the field of substance abuse in the workplace[86] outlined that “urinalysis testing cannot establish that an individual was suffering from impairment at the time of testing. Such testing is therefore not probative in and of itself.”  Although it is extremely difficult if not impossible to prove impairment through chemical tests alone, physical tests akin to tradition field sobriety tests used in policing are effective in determining impairment by drug.[87]  A DRE officer is able to determine impairment through a series of physical tests as well as the type of drug the person has consumed.[88]  However, it should be noted in order to testify in court as to the qualifications as a DRE, the officer has to qualify as an expert as per the Supreme Court of Canada’s holding in R v Mohan.[89]

In addition to urinalysis, blood samples have also been used to determine impairment.  It has been concluded that a blood test is an accurate measure of one’s impairment, particularity with cannabis.  In his findings, Dr. Scott MacDonald, an Epidemiologist with a specialization in addiction and substance abuse,[90] outlined “studies involving blood tests, which measure recent use and, therefore, impairment, have found an increased crash risk among drivers who tested positive for cannabis.”[91]  Although there is a correlation between cannabis and motor vehicle accidents, what a blood test does not conclusively indicate is the level of impairment.  Thus, I would suggest, this carries a diminished evidentiary weight when attempting to determine impairment.

A final test for drug impairment is hair follicle testing.  Although the procedure to test hair follicles does not appear to be new, it does not appear to be utilized in the field of post-accident in a safety-sensitive workplace.  In fact, the only relevant case discussing hair samples is Imperial Oil 2.[92]  In this case, the discussion centres around the legality of obtaining a hair sample from an individual without their consent and not on impairment.[93]  Although this type of testing is not being utilized in post-accident workplace investigations, hair follicle testing is being utilized in Family Court to enforce orders.  Despite follicle testing not being utilized at the moment, there is an opportunity in the future.  The Family Court has commented on the reliability of hair follicle testing in comparison with urinalysis as,

…hair follicle drug testing witness conceded that, although any drug testing is subject to human error, urine testing is less reliable than hair follicle testing, because of:

1. the timeliness of the testing; and,

2. the assessment of the randomness of the testing must be considered as marijuana dissipates in the urine within 3-5 days.[94]

Despite the availability of tests to determine impairment by drug and alcohol, I would submit that the most effective tests are not performed in a laboratory, but performed by a trained expert in the recognition of the signs and symptoms of alcohol and or drug impairment.  The courts have recognized “that supervisors may be trained to observe signs of impairment and that a positive test coupled with…observations may result in a reasonable inference of impairment.”[95]  In addition, and perhaps most conclusively, the court found in Entrop that there was no evidence to show any current test available could accurately determine the effects of drugs on an employee.^[96]  Consequently, if the results could not be accurately determined, the test on the whole could potentially lead to a violation of the HRC.

Conclusion

In any workplace that has been designated as safety-sensitive, there is an overriding theme of safety and accident prevention.  In the event where an accident does occur, there are a number of steps that need to be followed to ensure it does not occur again in the future.  One of these steps is ensuring the sobriety of the workers on the site.  This is done through drug and or alcohol testing when there are reasonable grounds to believe an employee who has been involved in an accident is under the influence of drugs and or alcohol.  Although objections can be made as to invasion of privacy, jurisprudence in this area has concluded this sort of testing is within the scope of safety for all parties involved and is necessary in a post-accident investigation.

This paper has examined a number of areas in post-accident drug testing in a safety-sensitive workplace including, first, whether post-accident testing violates the HRC; second, what are reasonable and probable grounds in a post-accident situation; third, whether there is a duty to accommodate a worker with a drug and or alcohol disability; and fourth, an examination of the various methods used to determine intoxication in a post-accident scenario.  I would submit the following conclusions could be made.  First, drug and or alcohol testing in a post-accident, safety-sensitive workplace is not a violation of the HRC so long as the principles of cases such as Meiorin and KVP are followed.  Second, I would submit reasonable and probable grounds following an accident amount to actual physical indicators, and do not apply to testing as a means of ruling out impairment.  Although an accident free workplace is an utmost priority in all safety-sensitive industries, jurisprudence, the HRC, and Canadian Human Rights Act[97] have all indicated an individual’s fundamental rights trump mere suspicion.[98]  Third, if it is presented that an employee has a drug and or alcohol problem that qualifies as a disability by the HRC, an employer must accommodate the employee.  However, it should be noted although there is an onus of accommodation placed on the employer, this only extends to such an extent where it would otherwise be considered unduly hard.  Should it exceed this level, the employer may terminate the employment contract.[99]  Fourth, I would submit the most effective methods for determining current impairment in post-accident investigation for alcohol is either a visual test performed by a trained individual or a breathalyser.  However, the ability to test for drug impairment is more complicated.  Many of the current methods, including urinalysis, swabs, hair follicle samples, and blood can only detect the presence and level of a drug in a person’s system, and cannot conclusively determine impairment.  It should also be pointed out that medical professionals have indicated there is a strong correlation between higher levels of a drug in the body and higher levels of impairment.[100]  However, the only conclusively proven method to determine impairment by drug in a person is through a series of physical tests and measurements.

In the end, despite the various arguments on either side, the very least a worker can ask of his employer is to prove a safe workplace, and I would suggest the overwhelming consensus is that drug testing in the workplace is an appropriate method to enhance safety of the public and workers.

M E M O R A N D U M:

Addiction & Accommodation in Policing – A Comprehensive look at Constables Kelly, Hall, & Vaughan-Evans

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.

Here is a radio interview I did with Jeff McArthur on London’s most popular talk-show “McArthur in the Morning” on AM980.  These are my opinions grounded in my experiences as a York Regional Police Officer and as a Law Student at the Faculty of Law at the University of Western Ontario.  The interview was conducted on June 29th, 2011 – the day after PC Styles #1405 was murdered.

For my take on what I think of what an accused should face when an officer is murdered – see this page on the murder of PC Vu Pham

You can listen to the audio interview here and go to June 29, 2011

By: Ryan Venables

2011 March 23

Introduction

The laws surrounding youth in Canada are ever evolving, however, it is through this evolution that debate follows.  Perhaps the most vigorously contested area of the Youth Criminal Justice Act[1] revolves around sentencing young offenders as adults.  The case that will be examined in this analysis focuses on a youth (as he was then) who committed serious crimes and the process the court looked at in determining an appropriate sentence.  The case, R v J.B.,[2] is from the Ontario Superior Court of Justice, and involves a youth who was convicted of manslaughter and attempted murder.  In the analysis of this case I will examine the following issues:

1. Society’s interest versus the interest of the offender.
2. How the actions of the accused pre and post incident effected the final disposition.
3. Socioeconomic and cultural factors.

It is through these three areas that I will attempt to show the balancing act Canadian courts attempt to make while crossing the politically charged and often unsteady waters of the YCJA.

Jurisprudence

On 02 June 2010, the accused was found guilty by a jury of one count of attempted murder and one count of manslaughter.  The incident, which occurred approximately 4 years earlier, took place at a birthday party in the Galloway Drive area of Scarborough (Toronto).  The incident began when the accused, who was 14 at the time of the incident, attended the party with two other individuals.  All three were armed.  A number of young men attempted to rob the accused, who responded by pulling out the sawed-off shotgun in an attempt to thwart the robbery.  The mother of the 16-year-old birthday girl observed the accused as he was putting the gun back in his pants.  Believing him to be causing trouble, she attempted to have him removed from the dwelling.  When J.B. resisted, another adult intervened and a struggle ensued.  J.B. removed the shotgun from his pants again and the two struggled over the possession of the gun.  When the adult male slipped on the floor, J.B. had sole possession of the firearm and shot the male in the chest.  The two associates who accompanied J.B. to the party immediately began to fire their handguns.  Bullets from the handguns also struck the adult male.  Tragically, a 17-year-old male partygoer, K.L., was also struck by a bullet from the one of the handguns and was killed.  His killer remains at large.  Although J.B did not shoot K.L., I could only speculate in a simplified analysis he was charged with manslaughter because of his reckless use of the firearm in the shooting of the adult.  The court would have undertaken in an analysis that J.B. objectively would have known by firing at the adult, this would have prompted his two associates, who were also carrying guns, to open fire in his defence.

Additional facts of the case reveal that J.B. was armed because he feared for his safety after being present as a drive-by shooting occurred.  It is unknown whether J.B. was the intended target of that shooting.  J.B. was also on probation and bail at the time of the incident and was in breach of a number of conditions by his presence at the party.  His conditions included house arrest, a weapons prohibition, and keeping the peace and being of good behaviour.  J.B. does have prior convictions which include, in 2006, failing to comply with a recognizance; in 2007, obstructing a peace officer, failing to comply with a recognizance; and in 2008, forcible confinement, robbery, use of an imitation firearm, and possession of property obtained by crime under $5,000.  It appears as if J.B. has been involved with the youth criminal justice system since he was 12 years old.  It should also be mentioned, J.B. has no alleged gang affiliation.

In his decision, Justice Nordheimer agreed with the Crown’s application under s. 64 and sentenced J.B. as an adult after looking at all factors and sentencing principles.  After working out credit for the 28 months pre-trial custody, sentence looked as follows:

1. Attempted murder:  2.5 years (6 years global).
2. Manslaughter:  6 months concurrent (4 years global).[3]

As such, the accused will spend another 2.5 years in custody on these two charges.

Summary of Conclusions:

Through an examination of the issues in J.B., I have opined against some of the reasoning Justice Nordheimer used to determine the sentence of the accused.  First, I believe a youth sentence is a more appropriate sentence for J.B. based on the principles of sentencing of the YCJA and because of the strides he has made in the last number of years.  I do not believe society’s interest would be any better served by having him serve additional time as an adult offender.  Second, I believe the actions of J.B. pre and post offence reflect the level of commitment to change and maturity he has shown.  Although the event is a tragic one, it is one ripe for a happy ending.  By placing too much weight on the pre-offence conduct, I believe Nordheimer, J. is discounting some of the expert testimony that diametrically opposes an adult sentence.  Last, I believe Justice Nordheimer did not place enough weight in J.B.’s socioeconomic and cultural disadvantages while determining his sentence.

Analysis

I.  Society’s interest versus the interest of the offender

While examining the principles of sentencing youth, a careful analysis to determine how to balance society’s interest versus that of the young offender’s can be fraught with competing factors that try to appease all involved parties.  Many of these factors are found in s. 3 and s. 38 of the YCJA, and include, the age of the accused, seriousness of the offence, prospects of rehabilitation, meaningful consequences to the accused, repairing the harm done to society, and reinforcing societal values.  While this list is not complete, it offers a guideline as to what judges must consider while sentencing a youth as that, or as an adult.

Having looked at all of the factors, I would suggest the main argument when there is contention between the Crown and defence with respect to sentencing a youth as an adult is the balance of society’s interest compared with that of the young person.  The case of J.B. illustrates this struggle as Justice Nordheimer was faced with the daunting decision of whether to sentence J.B. as an adult despite a significant amount of evidence which supported a youth sentence.  He also had to consider if sentencing as an adult, whether adding additional time to the amount of pre-trial custody would be required.  Before moving to an analysis of Justice Nordheimer’s reasons, s. 72 of the YCJA outlines the test the Crown must satisfy in order to establish the sentence of a youth as an adult as,

(1) In making its decision on an application heard in accordance with section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and

(a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and

(b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.[4]

In his reasoning, Nordheimer J, indicated,

a youth sentence “would have sufficient length to hold the young person accountable for his or her offending behaviour” then the court must impose a youth sentence. If the court is of the opinion that a youth sentence would not have that effect, then an adult sentence is to be imposed.[5]

Prior to making a determination on whether to sentence as an adult or youth, Nordheimer, J. turned to the Ontario Court of Appeal’s decision in R v A.O.[6] by indicating “the burden on the Crown on such an application is not [a] heavy one.”[7]  He then indicated “[s]ection 72(2) imposes an onus of satisfying the court, nothing more.”[8]  Although I agree with the analysis of Nordheimer, J., I believe the determination of whether to sentence a youth as an adult is very fact driven as it was in the case at bar.  The accused does have aggravating factors that support an adult sentence, such as previous convictions for serious violent offences,[9] breaching court orders,[10] and committing a serious violent offence in the case at bar.[11] However, I am not convinced these offset the mitigating factors, taken in combination with how the principles of sentencing of the YCJA are supposed to be followed.  The mitigating factors in this case include, the accused’s age and maturity,[12] the psychiatric reports,[13] the pre-sentence report,[14] his behaviour since the incident,[15] and his socioeconomic and cultural background.  Looking specifically at s. 72, I would suggest Nordheimer, J. did not appropriately take into consideration s. 72(1).  Albeit the charges the accused faced were very serious, similar cases do not reflect the range of sentence the accused now faces.  In R v K.S.,[16] in analogous circumstances as the case at bar, the accused a 17-year-old female, was convicted of aggravated assault after smashing a bottle into the face of a teen during an altercation at a party.  Justice Barry wrote for the Newfoundland and Labrador Court of Appeal by upholding the Provincial Court of Newfoundland and Labrador youth sentence of 20 months probation.[17]  In his decision he outlined, “[t]he Supreme Court of Canada in P.(B.W.) has made it clear that every young offender should have an individualized sentencing process. From the trial judge’s reasons in the present case it is clear that she followed the directions of P.(B.W.).”[18]   The Crown in K.S. appealed the decision of the Provincial Court as it saw the sentence as unfit[19] and was seeking a jail term.  Barry, J.A. noted, “[r]eferring to s. 3 of the YCJA, and the overall aim of promoting the long-term protection of the public, the trial judge noted the best way of attaining this objective would be to get K.S. back on track, which the pre-sentence report indicated was possible.”[20]  I would suggest this how Nordheimer, J. should have looked at the case at bar.  Taking into consideration all of the mitigating and aggravating features of the offence, I am in agreement with the diagnosis of all parties who have come in contact with J.B. since his incarceration.  In his own words, Justice Nordheimer, outlines that

J.B. has demonstrated that he can be a contributing member of our community, a leader not a follower, a positive example to other young persons. Further, J.B. has consistently expressed remorse for his actions throughout the time that he has been in custody including personally to this court during the course of this application.[21]

When looking at what else J.B. could have done to enhance his current situation he indicated “it is difficult to conceive of anything more that J.B. could have realistically undertaken and accomplished in that respect.”[22]  Although, the considerations listed under s. 72 include the seriousness of the offence, I would submit that Justice Nordheimer placed too much weight on this single aspect and not enough on what J.B. has done since he was just 14-years-old.

Despite the praise from Justice Nordheimer, manslaughter and aggravated assault remain very serious offences.  Manslaughter is one that in the adult system carries a potential sentence of life imprisonment.  It involves the death of another human by culpable means, and is one which society demands retribution for.  It is also a presumptive offence as defined by s. 2 of the YCJA and is applicable to a s. 62(a) order.  Under this section, “[a]n adult sentence shall be imposed on a young person who is found guilty of an indictable offence for which an adult is liable to imprisonment for a term of more than two years…”[23]  In cases where there is either a presumptive offence, or if the youth justice court makes an order under s. 70(2) outlining that if the young person does not indicate they want to be sentenced as a youth then it will be deemed they shall be sentenced as an adult.[24]   Also, s. 72(1)(b) indicates a youth shall be sentenced as an adult if the sentenced imposed would not be of sufficient length to hold the youth accountable for their offending behaviour.[25]  In the case at bar, it was unstated whether J.B. made an application pursuant to s. 63(1) in order to be sentenced as a youth.  However, it is clear that the Crown made an application pursuant to s. 64(2) which gives notice to the accused that the Crown will be seeking an adult sentence.  What can be assumed by the global sentence passed by Nordheimer, J., is he found J.B. on the higher end of culpability for both offences.  I would suggest these sentences do not reflect the degree of blameworthiness similar courts have allocated to like offenders, and as such, I submit the sentence given to J.B. is not in society’s interest.  Despite the fact the court opted to sentence as an adult, what is clear from the facts is J.B. did not go to the party looking to shoot one person and have another die.  Justice Nordheimer found as fact that J.B. was putting away the shotgun after he thwarted the robbery attempt on himself.[26]  Oppositely, the sentences for planned aggravated assaults appear to be in the 6 to 9 year range.[27]  Whereas those started as defence of person and turned into an assault range from less than 2 years to 4 years.[28]  It should also be noted, all of the victims in these cases received permanent and lifelong injuries, unlike the victim in the case at bar.[29]  As a result of the 6-year global sentence for the aggravated assault, Nordheimer, J. believes J.B. is at the higher end of culpability for the offence.  I fundamentally disagree with this rationale.

Additionally, although there is no statutory minimum for manslaughter cases, there are guidelines for sentencing.  For adults, it appears as if there are ranges from a suspended sentence to life imprisonment.[30]

There is such a range because the factual scenarios of manslaughter cases range from what can be characterized as extreme carelessness or “near accidental death” as in the case when a loaded rifle accidentally discharges killing someone, to “near murder”. The moral blameworthiness of the accused is the most significant factor in determining the sentencing range. At the low end of the range, ie “near accidents”, the moral culpability is low so a suspended sentence or very short custodial sentence may be justified. In the middle range the principle of general deterrence is generally the primary sentencing factor resulting in a sentence of 1-7 years. The higher range, from 6 years and up, indicates a need to remove the offender from the community due to the safety risks as well as for a concern for general deterrence.[31]

Whereas for youth,

[t]he age of the accused can be a factor in two ways. Firstly, the importance of rehabilitation as a sentencing principle increases in the case of a youthful accused. This is especially so in the case of an accused originally charged as a young offender… Secondly, a young age may be considered a mitigating factor in determining the sentence imposed, on the basis that a young person is not as mature and therefore not as culpable as an adult.[32]

In R v Brownlie,[33] Justice Romily speaking for the British Columbia Supreme Court stated “[i]n the case of youthful offenders, the principle element for consideration, consonant with the maintenance of public confidence in the effective enforcement of the criminal law, should be the offender’s reformation and rehabilitation.”[34]  He went further to outline, “for a serious offence or one involving violent crime, deterrence to others should be the prime consideration.”[35]  For a serious crime involving violence, a suspended sentence is not appropriate.[36]  I would argue that deterrence to others is a principle of s. 718 of the Criminal Code of Canada[37] and not of the YCJA, and as such does not have any place being considered in a youth sentence.

Looking at the combined sentencing ranges for aggravated assault and manslaughter, in comparison with the facts of the case at bar, I would suggest the sentence imposed by Nordheimer, J. was higher than the norm.  I would also reiterate that J.B. did not attend the party looking for trouble, and he was the victim of a violent crime.  Although he was carrying a loaded shotgun, let us not forget some of the circumstances surrounding the possession of the gun.  First, he had arguably been the target to a drive-by shooting, and second, the area of Toronto he resided was well known for its violence, gunplay, and notorious Galloway Boys street gang.[38]  Justice Nordheimer indicated his thoughts on what society’s interest are as, “if victims and the public at large do not, from their perspective, view sentences imposed as being meaningful, then the system will not command the respect that it must have.”[39]  Keeping in mind the psychiatric and pre-sentence reports as evidence to support a youth sentence, I would suggest Justice Nordheimer’s next statement supports a youth sentence despite attempting to lay reasoning for an adult sentence.

The useful quality of a sentence imposed on a young person will address a variety of purposes. It will attempt to serve the interests of the young person in rehabilitation and reintegration – interests that are shared by our society. At the same time, it should be a sentence that will garner public respect. By that, I mean that it must be a sentence that reasonable and fair-minded members of the public will view as being effective as to these purposes while at the same time reflecting a necessary balance between what may be the competing interests of the young person and the victims of the crime.[40]

I would suggest that a 14-year-old child who committed a heinous act, then entering custody and spending over 2 years learning and maturing has been serving the public interest.  Moreover, the public interest will continue to be supported, not by punishing the youth as he was then, but by supporting him into becoming a productive member of society upon his exit from custody.  However, in support of the adult sentence Justice Nordheimer continues to give weight to his decision by returning to the wording of s. 72(1).

It mandates that I must determine whether a youth sentence ‘would have sufficient length’ to hold the young person accountable for his or her offending behaviour… In my view, those realities demonstrate that a youth sentence would not have sufficient length to hold J.B. accountable for his behaviour. It is not a sentence that would be proportionate to the seriousness of the offences and the degree of responsibility that J.B. bears for the offences.[41]

It is well established that the principles principles of the YCJA are to rehabilitate and reintegrate the youth into society after serving their sentence.[42]  Studies have shown that “at least half of those young offenders who were placed in custody reoffended and returned to an adult or youth custody facility.”[43]  The courts have also recognized the damaging effects prison can have on offenders,

[i]f use is made of custody, a crucial element of rehabilitation must be supportive reintegration into the community at the completion of the custodial portion of the sentence.  If less serious adolescent offenders are placed in custody, they can be negatively influenced by the attitudes and ideas of more serious offenders.  Rather than serving to prevent further offending, a custodial sentence may enhance a youth’s reputation as a ‘tough kid’ and lead to further offending.[44]

The courts have also made concessions in an attempt to encourage the progress on the offender.  In R v J.A.G.,[45] Justice Weagant granted a 20-year-old J.A.G.’s request to remain in a youth facility as he recognized the accused “has a much better chance of reintegrating…thus, the chances of having to rely on crime to survive are reduced.  Everybody wins.”[46]  I would suggest just as Justice Weagant granted J.A.G. the opportunity to continue his success, Justice Nordheimer acted to the detriment of society and J.B. by sentencing him as an adult.

Further to this, part of the reasoning was that a standard “starting point” for credit is 1.5:1 for pre-trial custody.  Under Justice Nordheimer’s calculations this would result in J.B. being released immediately as the math would result in a sentence of over 3 years.  However, Justice Nordheimer also indicated the Ontario Court of Appeal in R v T.B.[47] outlined the sentencing judge retains a discretion to vary the credit in light of other circumstances.[48]  I would submit this is one of those sentences.  If J.B. were to be sentenced as a youth on a 1:1 ratio, he would still need to serve the remaining 8 months of his sentence.

In the end, both the principles of the YCJA and Justice Nordheimer outline the value society places to ensure it remains protected from those youth who choose to not live within society’s norms.  However, it is also within society’s interest to recognize when a sentence becomes overly harsh.  The latter will lead to more harm than it will protect by having the youth confined.  For J.B., who has spent the better part of his teenage years in custody and becoming a contributing member of society, it would be in his and society’s interest to sentence him as a youth.

 II. How the actions of the accused pre and post effected the final disposition

Through an examination of the facts, there is a stark contrast between the young person who committed the crimes for which he was found guilty, and the adult he is on track to become.  While awaiting trial, J.B. has been described as outstanding, as a leader, and as somebody who operates at the highest levels of privileges in the institution he resides.[49]  In his 28 months of detention, he went from a certain path of criminality to a young adult who psychiatrists and correctional institution employees compliment.  However, despite the progress of J.B., the focus of the sentencing hearing remained his past offences, his probation and bail conditions, and “blatant violations of its terms.”[50]  The court had the opportunity to look at two psychiatric reports and a pre-sentence report to help with the decision making process for this case, and chose to disregard the suggestions within them.  Section 42(1) outlines the responsibility of a judge in order for them to consider all recommendations as outlined to them.[51]  In the case at bar, Justice Nordheimer went against the expert opinion of two medical professionals and the author of the pre-sentence report.  The Vice-Principal of the school at the Roy McMurtry Youth Centre described J.B. as a “mentor and role model for other young persons who are in custody at the institution.”[52]  Yet Nordheimer, J. opted for the view that retribution was required.

Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more.[53]

The above quote from Lamer, C.J.C. (as he was then) was recently adopted in A.O. as the “objective of the process in the YCJA for determining whether an adult sentence should be imposed on a young person.”[54]  However, I believe Justice Nordheimer did not place enough weight on the most important part of Lamer, C.J.C.’s passage.  He spoke of restraint, as a just and appropriate sentence, and nothing more.  When those professionals who have spent hours evaluating J.B. and state very clearly “that the imposition of an adult sentence…would be ‘detrimental’”,[55] and Justice Nordheimer only mentions this “in passing”,[56] this shows a clear disregard for the point the Chief Justice was attempting to convey.  I go so far as to question whether the imposition of this sentence was to send a message of general deterrence and not to hold J.B. accountable as per the YCJA.

A further examination of the principles Justice Nordheimer used to render his decision reveals he placed a significant amount of weight in “whether a youth sentence ‘would have sufficient length’ to hold the young person accountable for his or her offending behaviour.”[57]  In this analysis, he referred back to the aggravating factors including, use of a firearm, recklessness in firing a gun in a crowded room of people, seriousness of the injuries, death of another young person, breaches of court orders, and the inexcusable nature of the violence.[58]  Making no excuses for the past conduct of the accused, I would agree with his Honour had J.B. not made such a significant amount of progress in the time available.  Justice Trotter in his decision in R v Lights,[59] was greatly aided by the psychiatric and pre-sentence evidence which concluded Lights as having a very high risk of recidivism,[60] and qualifying for a diagnosis of anti-personality disorder upon becoming an adult.[61]  However, in the case at bar, tests revealed J.B. has pro-social attitudes and values,[62] and has a low risk for not only reoffending, but also low risk for reoffending with violence.[63]  Consequently, the facts in the case at bar all point toward a young person who lost his way and made some terrible mistakes, but they also reveal a strong sense of hope for the future.

III. Socioeconomic and cultural factors

Through his examination of the facts in the case at bar, Nordheimer, J. appeared to graze over s. 72(1), which has been held as a key factor that the YCJA and the Canadian courts across the country have come to recognize.[64]  This takes into account the accused’s socioeconomic and cultural factors.  “There is little doubt that much of crime can be traced back to histories of poverty, abuse, and family dysfunction.  While we applaud those who rise above the limiting and even crippling circumstances of their backgrounds, it is obvious that many cannot.”[65]  Although it is not mentioned in the facts of the case, the area where the accused resides is perhaps one of the most dangerous gang areas in all of Toronto.[66]  The area was so bad in 2005 with shootings and turf wars; this led to not only death, but also the creation of the Toronto Anti-Violence Intervention Strategy (“TAVIS”) by the Toronto Police Service.[67]  Looking at a calendar, knowing that J.B. was 18 at the sentencing hearing in August 2010, this places an impressionable boy entering his teenage years in the heart of conflict during Toronto’s “summer of the gun.”[68]  These are relevant factors, but Justice Nordheimer’s only mention to socioeconomic and background factors is in relation to J.B. and his mother emigrating from Guyana when he was 1-year-old.  All reports indicate he came from a good family, but only really suffered from lack of supervision.[69]  I would suggest if he had this supervision, a boy would be alive, and another would not have spent his teen years in custody.  This suggestion is confirmed by the reports from experts and supervisors at the Roy McMurtry Youth Centre, who indicate J.B. excelled in their programming and is described as “an exceptional young man” who accepted the organization’s help and guidance willingly and who benefited from their programming.[70]

Further evidence supports the notion that Justice Nordheimer should have given more weight to the socioeconomic and cultural factors in J.B.  In R v E.F.,[71] the accused’s African-Canadian heritage was argued as analogous to the factors judges need to examine as a result of Gladue.

Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.[72]

Although the court in E.F. refrained on commenting on whether the upbringing of African-Canadian offenders should play a role in the sentencing procedure, I would suggest s. 72(1) of the YCJA already outlines this as a consideration.  Perhaps most unfortunately for J.B. is that his lawyer did not raise this argument during the sentencing hearing nor did Nordheimer, J. discuss it in any depth.  I believe there is much to be said on the economic disadvantage of a young person from Galloway Drive or Jane/Finch in comparison with a young person from the Bridal Path or Rosedale areas of Toronto.  Although I am not suggesting any amount of discrimination played a role in J.B.’s sentence, however, it should be pointed out “[w]hile decision makers may be unaware that they are making judgments influenced by cultural factors or communication difficulties, youth likely to be targets of systemic discrimination clearly perceive that they are less likely to get ‘the benefit of the doubt’…”  Although signs pointed toward J.B. receiving a youth sentence, the adult sentence, in my estimation, served no point other than to have him pay for his transgressions.[73]

In the end, although there are many indications that point toward socioeconomic and cultural disadvantage, looking at all of the factors considered by Justice Nordheimer suggests little attention was paid to this as mitigating factors in conjunction with the drastic improvements J.B. made while he was able to receive the supervision he lacked while at home.

Conclusion

The tragedy of J.B. is not limited to the shooting of one person, or the death of another.  It continues to the accused, who in the presiding judge’s own words “has done everything that could be reasonably expected of him.  We say that we want people to turn their lives around.  J.B. appears to have done exactly that.”[74]  Yet J.B. will not see the results of his hard work for another 2.5 years, the additional time he will face as an adult offender.  Justice Nordheimer sided with the view that society demands retribution, a phrase outlined in A.O., yet is oddly absent from the sentencing principles of the YCJA; he sided with the actions of the accused as he was then, and discounted many of the overwhelming changes to who he is now; and he sided against some very strong socioeconomic and cultural factors which indicate disadvantage and background are factors that need serious consideration in a sentencing of this nature.  In the end, although I disagree with much of the reasoning Justice Nordheimer used in his decision, my only hope, which is yet to be determined, is that J.B. has, will turn his tragedy into a triumph.

You’re driving down a rural/Country road in Ontario.  It’s day or night.  You check your rear view mirror and you see a vehicle approaching you and there is a green light or strobe is flashing on/in that vehicle.  You think to yourself, what the hell is that?  And why does he have a green light?

Your confusion COULD cost somebody their life.

Ontario Regulation 484/07 of the Highway Traffic Act says:

Use of flashing green lights

3. (1)  In addition to the persons described in paragraph 1 of subsection 62 (16) of the Act, the volunteer medical responders listed in subsection (3) may carry on or in a vehicle and operate a lamp that produces intermittent flashes of green light while,

(a) proceeding and responding to, but not returning from, a medical emergency call to which a police officer, firefighter or ambulance has also been dispatched;

(b) transporting a patient at the request of a government or government agency; or

(c) performing duties assigned in a municipal emergency plan to the volunteer medical response organization of which the volunteer medical responder is a member. O. Reg. 484/07, s. 3 (1).

(2)  While using flashing green lights as permitted under subsection (1), a volunteer medical responder shall carry the original or a copy of his or her photo identification of membership issued by the volunteer medical response organization and, upon the demand of a police officer or officer appointed for carrying out the provisions of the Act, shall surrender it for reasonable inspection. O. Reg. 484/07, s. 3 (2).

(3)  This section applies to the following volunteer medical responders:

1. A member of Hatzoloh Toronto.

2. A member of St. John Ambulance. O. Reg. 484/07, s. 3 (3).

4. Omitted (provides for coming into force of provisions of this Regulation). O. Reg. 484/07, s. 4.

So what does this mean to you?  Well it is found here:

Stop on approach of vehicle with flashing lights or bell or siren sounding

159. (1) The driver of a vehicle, upon the approach of a police department vehicle with its bell or siren sounding or with its lamp producing intermittent flashes of red light or red and blue light, or upon the approach of an ambulance, fire department vehicle or public utility emergency vehicle with its bell or siren sounding or its lamp producing intermittent flashes of red light, shall immediately bring such vehicle to a standstill,

(a) as near as is practicable to the right-hand curb or edge of the roadway and parallel therewith and clear of any intersection; or

(b) when on a roadway having more than two lanes for traffic and designated for the use of one-way traffic, as near as is practicable to the nearest curb or edge of the roadway and parallel therewith and clear of any intersection. 2009, c. 5, s. 49.

Simply put, although you do not HAVE to yield for an vehicle donning a green light, however, know by NOT yielding you are delaying a volunteer emergency responder from attending a scene where they are required to be.

Tonight I was driving toward highway 401 and I saw a vehicle approaching with a green light flashing from 3 cars behind me.  I knew not many people were aware of the custom to pull over for these vehicles, so I put on my 4-ways and then pulled over.  Luckily the vehicle behind me did the same.  However, the vehicle directly in front of the green light vehicle continued on it’s way and essentially held up the vehicle.  See if I did not mention before, a green light vehicle is NOT allowed to speed or disobey other HTA laws while en route to their call.  As such, the vehicle was delayed by the unaware driver in front of him.  We pulled on to the 401 and quickly approached a scene where a coach bus transporting the University of Western Ontario men and women’s volleyball teams was fully engulfed in flames. Luckily, there were only very minor injuries.

You may be asking the significance?

As I mentioned earlier, you could be delaying a first responder to the scene of something horrific, where their presence can be the difference in saving a life.  In this instance, the green light vehicle was THE FIRST EMERGENCY VEHICLE ON SCENE!!!  As I mentioned, there were little to no injuries, however, this could have been a very different storey.

Just keep this in mind for the future… if you see a vehicle donning a green light, please treat it like any other emergency vehicle.

Stay safe.

The University of Western Ontario men’s and women’s volleyball teams escaped harm Sunday when fire erupted at the rear of their charter bus and tore through it.

Patrick Johnston, a 23-year-old Mustangs libero, says the team’s bus — bedecked in UWO decals — was heading toward London from Toronto along Hwy. 401 when fire inexplicably broke out in the back end.

The driver pulled over and the players, fresh of games at the University of Toronto, exited before flames ripped through the bus — which Johnston figures is “a write-off.”

“It’s toast,” he said. “All (our) jerseys and shoes are wrecked. (But) we’re fine. We’re all fine.”

The team was put on another bus and was pulling into London at just after 9:30 p.m. Sunday.

Witnesses, who estimated the fire started at about 8:30 p.m., were stunned by the spectacle of the fiery bus, which had been pulled over to the right shoulder.

Ryan Venables, a former police officer now studying law at Western, says he and his wife “gasped” as the flames rose higher than the bus itself.

“Once you got within about 100 metres of it, you could see the reflection of the flames off the asphalt,” he said. “I’ve seen that before (as a police officer). I wasn’t really expecting to see it now.”

UWO officials, relieved no one was injured, are still gathering details. Therese Quigley, the Mustangs’ director of sports and recreation services, is headed to campus to greet the athletes upon their return.

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

Introduction

The 2010 decision of R v. Gomboc[1] by the Supreme Court of Canada (“the Court”) has resulted in an incremental step down the path toward narrowing s. 8 of the Canadian Charter of Rights and Freedoms.[2] The issues brought before the court in the case at bar hinged around privacy and search rights as protected by the Charter.  The seven-member court was split on the issues and offered three decisions, a majority, concurring, and dissent.  The main issues the court heard include:

1. Whether the digital recording ammeter (“DRA”) discloses intimate details of the individual that form part of the biographical core data protected by the Charter’s guarantee of informational and territorial privacy?
2. Whether no action allows s. 10(3)(f) of the Code of Conduct Regulation[3] pursuant to the Electrical Utilities Act[4] amounts to an explicit authorization to disclose the information?
3. Whether the installation of the DRA amounted to a search that would interfere with a person’s reasonable expectation to privacy, whether it upheld the values of the Charter, and whether the Regulation negates or objectively reduces a person’s reasonable privacy interest?
4. If a search was established, was it reasonable?

This case comment will focus on the following areas of the majority, concurring, and dissenting decisions.  First, I will disagree with the majority and indicate that I believe a reasonable expectation of both privacy and territorial privacy interests do exist on a subjective and objective level, thus establishing the need for Charter protection.

Second, I believe that s. 10(3)(f) of the Regulation read with s. 487.014(2) of the Criminal Code of Canada[5] which indicates that s. 25 of the Criminal Code provide authorization for Enmax to cooperate with the police triggers a s. 1 argument.

Background Jurisprudence

Before looking critically at the decision in Gomboc, we must look at the law prior to examine its progression.  The pre-Charter case of Laporte v. Laganiere[6] was an instrumental case in laying the groundwork with respect to search for future cases.  In an appeal over a warrant issued to extract a bullet from Laporte’s body, Justice Hugessen parted ways with a number of US cases, mainly Schmerber v. California[7] and Re Crowder United States District Court for Columbia[8] (not yet reported), that indicated “…we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions…” did not violate self-incrimination, due process, or unreasonable search and seizure provisions of the United States Constitution.[9] Justice Hugessen differentiated Canadian and US laws by indicating that US law is accepting of minor intrusions of the person,

Curran C.J. authorized the issuance of a search warrant for the surgical removal of what was thought to be a bullet “lying superficially beneath the skin” of a prisoner’s forearm. The same decision refused a search warrant for the removal of a similar bullet in Crowder’s left thigh “because this procedure might cause the reduction of use or function of his left leg.”[10]

Whereas in Canada,

In my view the Justice had no jurisdiction, either by statute or at common law, to issue this warrant and it is my duty to interfere and prevent what I can only describe as a grotesque perversion of the machinery of justice and an unwarranted invasion upon the basic inviolability of the human person. Even if the operations proposed were minor, and the evidence is that it is not, I would not be prepared to sanction it and I do not do so. Crowder may or may not be the law in the United States; it is not the law in Canada.[11]

Perhaps the foundational post-Charter case with respect to furthering s. 8 privacy rights in Canada is Hunter v. Southam Inc.[12] The Court in the case at bar, indicates these rights are no less important today than they were in 1984 when they were established.[13] Perhaps the biggest principle to take away from Southam is “…the purpose of s. 8.  That purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy.”[14] The Justice Dickson (as he was then), outlined determination of a reasonable expectation of privacy in the following:

The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a ”reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement. [Emphasis in original; pp. 159-60.][15]

Post Hunter, and preceding some of the more technical cases of today, saw the cases of R. v. Collins[16] and R. v. Edwards.[17] Collins set a number of principles that were enforced until only last year when the Court rendered its decision of R. v. Grant.[18] Collins also indicated that Charter-protected privacy interests would be held to be reasonable if the police are authorized by law to conduct the search, if the law authorizing the search is reasonable, and if the search is conducted in a reasonable manner.[19] Fast forwarding to Edwards, the Court while interpreting Hunter, indicated s. 8 validity can only be judged on the totality of the circumstances[20] and the Court also affirmed the Ontario Court of Appeal decision in Edwards[21] which indicated that only the person whose Charter rights had been infringed could apply for relief.

Moving forward, more technical cases have provided the Charter an opportunity to expand and contract the laws surrounding s. 8 challenges.  As technology has changed, so too have challenges the Court has found itself adjudicating.  The Court’s decisions of R. v. Kang-Brown[22] and R. v. A.M.[23] focused on police canines where the court ruled in both instances the warrantless use of the sniffing capabilities of the canine constituted a breach of s. 8.[24] An additionally related case to A.M. is R. v. M.R.M.[25] that held a principle was acting as agent with the police while conducting a search.[26]

Additionally, the decisions of R. v. Plant[27] and R. v. Tessling[28] looked at techniques for unveiling marijuana grow operations using electricity records and Forward Looking Infa-Red (FLIR) technology respectively.  The decision of Plant ultimately held against the accused, although it was determined a warrantless perimeter search was held to be in violation of s. 8.[29] Oppositely, the decision of Tessling steps toward narrowing s. 8 by allowing the police to use FLIR heat signatures to detect potential marijuana grow operations.[30]

Finally the recent decisions of R. v. Nolet[31] and R. v. Patrick[32] continue the back and forth struggle with respect to s. 8.  Nolet a case centred on a warrantless search held “[a] warrantless search is presumptively unreasonable and contrary to s. 8 of the Charter…”[33] whereas Patrick held after a subjective and objective test the accused had abandoned the items as garbage so the police could collect them.[34]

The Court’s Opinion

I – Majority

The four-judge majority decision delivered by Justice Deschamps overturned the Alberta Court of Appeal decision by Justice Martin.  Deschamps J. focused the decision primarily on “whether Mr. Gomboc had a reasonable expectation of privacy in information about the pattern of the use of electricity disclosed by the DRA” holding no reasonable expectation of privacy could be expected.[35] Through the evidence provided by Detective Sergeant Morrison, Deschamps J. agreed the DRA did not provide any significant biographical indicators that would constitute a violation of privacy.[36] Furthermore, the majority relied heavily on the principles of Hunter reiterating s. 8 of the Charter is designed to protection “people, not places.”[37]

Focusing specifically on Plant and Tessling, the Court drew analogies between those and the case at bar.  Deschamps J. suggested the holdings in Plant, “which established that a homeowner has no expectation of privacy in electricity use records maintained by a utility,”[38] and in Tessling, “where the privacy interest asserted involved heat patterns emanating from a private home and photographed by police overflying it in an aircraft,”[39] were alike because they were able to take the police technique and apply it to the investigation.  Ultimately leading to the evidence that revealed marijuana growing in the home.  The court looked at the totality of the circumstances, paying particular attention to the informational privacy interest and the territorial privacy interest.  Additionally, much like in Patrick, the court took into account subjective and objective standards.  Justice Deschamps first examined the informational privacy interest.  The Court held the DRA did not offer any “foundation for concluding that the information disclosed by Enmax yielded any useful information at all about household activities of an intimate or private nature that form part of the inhabitant’s biographical core data.”[40] In an examination of territorial privacy interests, the Court indicated again s. 8 of the Charter was not designed to protect the home, but rather the person in the home.[41] The Court goes to great lengths establishing various police techniques that built grounds for the DRA, and concludes by pointing out at no time was the house ever “directly the object of a search.”[42] As a result of the information examined in the informational and territorial privacy analyses, the majority held that a search had not been conducted, which further resulted in no Charter protection for the accused.

II – Concurring

Justice Abella, focused the decision on the exemption clause as indicated in s. 10(3)(f) of the Regulation, delivered the three-judge concurring decision.  She differed from the majority by indicating “…the information emanated from his home, the most protected of privacy spheres, he may well have succeeded but for the existence of the Regulation, which makes any expectation of privacy objectively unreasonable.”[43] In essence, Abella J. indicated, had Mr. Gomboc not objectively agreed to the release of information to Enmax, or had his lawyer launched a s. 24 challenge, this case may have swung in agreement with the dissent.[44] Justice Abella also went through the test developed in Edwards and expanded on in Tessling that outlines a person’s reasonable expectation of privacy.[45] Concluding the unambiguous wording of the legislation “…can only play a role where there is a genuine ambiguity in the legislation (emphasis in original).”[46] This resulted in an erosion of the objective standard that Mr. Gomboc was relying on.

Furthermore, Justice Abella glanced over the average customer knowledge about his or her contractual obligations and rolls them into the subjective and objective standard.[47] She then concludes by looking at the totality of the circumstances, indicating no search took place under s. 8, and allowed the appeal.

III – Dissent

Chief Justice McLachlin headed the two-judge dissent by taking the next step beyond what the concurring decision stated.  Clearly outlining the main issue as “regarding the protection of privacy safeguarded by s. 8 of the Charter.”[48] The dissent also runs through an analytical framework of what is objectively reasonable through what a “reasonable person would expect.”[49] The dissent also takes a different look at warrantless searches in Nolet, concluding, “a warrantless search is presumptively unreasonable.”[50] McLachlin C.J. then examines “whether a reasonable person in the place of Mr. Gomboc would have expected his DRA-revealed electricity information to remain private,”[51] ultimately indicating the issue turns on first “the degree of intrusiveness”[52] and second “the presence of a regulatory framework.”[53] The dissenting court concludes there is a sufficient degree of intrusiveness as the results need not produce “conclusive determinations” to be considered intrusive.[54] Second, they hold it is reasonable resolve this issue by indicating a reasonable person

cannot be expected to be aware of the details of a complex regulatory scheme…which permits the utility company to pass information on electricity usage to the police, especially when a presumption of awareness operates to, in effect, narrow the consumer’s constitutional rights.[55]

McLachlin C.J. concludes by indicating as a result of the totality of the information available, the actions of the accused, and actions of the police, “we are of the view that the Crown has not demonstrated that a search was authorized by law.”[56]

Analysis

I – Informational & Territorial Privacy Interests

The main issues the majority fleshes out throughout its decision are reasonable expectation of informational privacy interest and territorial privacy interest.  The majority reaches the conclusion that neither the informational or territorial privacy interest raises enough protection to activate the Charter.  With respect for the learned justices of the Court, I cannot agree with this conclusion.

While examining the informational privacy interest, Justice Deschamps rightfully outlines the highly significant relationship between Mr. Gomboc and Enmax.[57] Although the Court maintains they are taking an approach that is looking at the totality of the situation, I believe they are placing too much weight on factors that do not deserve such credence.  With respect to s. 10(3)(f) of the Regulation, the Court indicates, “Mr. Gomboc did not request his customer information be kept confidential.”[58] The Court uses this statement and interpretation of the Regulation to suggest because Mr. Gomboc did not expressly indicate he did not want this information to be released to the police, it was implied he was accepting, or at the very least indifferent as to what Enmax did with his customer information.  Although taken at face value this is correct, however, using the totality approach the Court outlines, one can clearly see Justice Deschamps contradicts an earlier statement.  The Court indicates,

[t]he available evidence makes clear that Mr. Gomboc exhibited a strong desire for privacy in his habits of electricity use.  The electricity meter on the property – the usual device employed to measure the quantity of electricity being used in a home – had been deliberately bypassed to prevent it from performing this function.  The only reason can be a desire to shield his electric use from detection.[59]

The Court points out the polarizing position taken by the dissent is such that it gives too much weight to the fact “the average consumer could not be expected to know that consumption data obtained by the electricity provider may be subject to varying degrees of confidentiality pursuant to relevant legislation.”[60] I would adopt the Chief Justice’s position but go further to indicate in a point and click society that is driven by technology, often people sign up for services such as utilities and do not read the fine print.  I would also suggest it would be reasonable for the average client or customer to believe their personal information is secure from disclosure to the police or Crown without their consent or a valid search warrant.  Something neither obtained in this instance.

Additionally, without delving too far into the fine intricacies of contract law, the courts have held where exceptional or onerous provisions are included in a contract, the party seeking to enforce it (Crown) must show the provision was brought to the attention of the other party (Gomboc).[61] This is something the facts of the case show was not done.  In her concurring decision, Abella J. raised the contractual nature of the agreement between Mr. Gomboc and Enmax, but inexplicably glanced over this issue without fleshing out the possibility of contractual breaches.  In my opinion, this would have led to a breach of contract nullifying the agreement between Mr. Gomboc and Enmax had a s. 24 argument been forwarded.  In turn, resulting in the warrantless search the police conducted to be deemed illegal.  As a result, I believe Mr. Gomboc had a subjective and objective belief this information would not be disclosed without his consent.

Turning to the territorial privacy interest the Court indicates, “[v]iewed purposively, the rationale behind the elevated expectation of privacy is that although s. 8 of the Charter protects ‘people, not places’, the home is where our most intimate and personal activities often take place.”[62] I fully agree with this analysis, however, I depart opinion from the learned Justice Deschamps when the analysis continues by indicating “…the home was never directly the object of a search,”[63] thus it appears as if the Court is drawing a bright red line between the requirements of searches on the property and searches off of the property.  I do not support this view.  I would advocate it is a mere technicality the device was not physically placed on the residence of Mr. Gomboc.  In turn, it begs the question, would a warrant be required had the device actually been situated on his property?  I believe the court has already answered this in R. v. Kokesch,[64] indicating a warrantless search that required the police to enter the accused’s physical property for visual purposes was held to be a violation of s. 8 of the Charter.[65]

Continuing in the analysis, the Court held because the DRA meter was installed on the power lines adjacent to the residence, this constituted enough of a separation from the residence that it was not a territorial privacy invasion.  However, I hold this analogy is flawed.  As technology moves forward and methods to make life more convenient increase, this should not result in a lowered expectation of privacy, simply because the technology has made it easier to install a device on a telephone pole as opposed to the side of a house.  I would draw an analogy to the advancements of the case at bar to communication interceptions.  Part VI of the Criminal Code outlines the authorization needed for obtaining various communication intercepts.  The judicial authorization needed to obtain these interceptions are no less important or valid hinging on whether the point of interception is located on the residence, a telephone pole, or done electronically through Bell Canada.  The fact remains although technology has seen advancements that no longer require a physical presence at the residence to obtain the interception; the warrant is no less required.

The Court went further to distinguish the location based on the type of privacy information that flowed from it.  The Court made no distinction between DRA information and the FLIR scans of Tessling and the electrical readings of Plant.  With respect, I would have to disagree with the analogy the Court drew.  The Court adopted the view of Tessling and Plant in the case at bar by indicating “‘the nature and quality of the information made accessible’ by the alleged search was of the sort that did not reveal any biographical core information of an intimate and personal nature.[66] However in Tessling the court also adopted the position where

[w]hatever evolution occurs in future will have to be dealt with by the courts step by step. Concerns should be addressed as they truly arise. FLIR technology at this stage of its development is both non-intrusive in its operations and mundane in the data it is capable of producing.[67]

I would put it to the court that the next step in the evolution is Gomboc.  The heat signatures of Tessling reveal one thing, how hot a house is.  In comparison, the electrical readings of Plant indicate how much electricity a person is using.  Where in contrast, the DRA readings are specifically indicating when, and how much electricity is being used.[68] Such information can potentially reveal the sources for the output, and perhaps more importantly the patterns of behaviour for the homeowners.[69] Furthermore, the measurements are so sensitive the majority of the Court of Appeal, and majority of the Court believe is reveals core biographical information.[70]

In light of the contradiction, I believe that the majority’s analysis of the totality of the informational privacy and territorial privacy interests must fail, and with it I believe the instillation of the DRA sufficiently invaded his privacy engaging his s. 8 rights.

II – Section 1 Argument

An argument that I believe the court missed an opportunity to comment on is whether the infringement on Mr. Gomboc’s s. 8 Charter rights can be upheld by s. 1.  Resulting from my analysis of the search, I would deem the instillation of the DRA to have constituted a search that would have afforded Mr. Gomboc s. 8 protections.  As such, I believe the case at bar serves and interesting purpose and it meets the narrow circumstance where s. 1 can be used in a breach of s. 8 of the Charter.  Prof. Peter Hogg states “…it seems to me…after a law has been found in violation of s. 8, ‘s. 1 must then become operative to allow the Crown to lead evidence of reasonableness and demonstrable justification to support the search or seizure.’”[71] Generally, s. 8 violations occur not due to breaches of statutes, but rather on the actions of the police.  As such, s. 1 is not engaged, and any potential remedies are utilized through s. 24.  We know for a Charter breach to be saved by s. 1, the impugned law breach must pass two stages.  First is the prescribed by law test as outlined in Irwin Toy Ltd. v. Quebec (Attorney General),[72] second is the test the Court outlined in R v. Oakes.[73]

The prescribed by law stage that Irwin Toy indicated if a law is overly vague as to not be able to be interpreted by the courts, it will fail the first part of the test.[74] In the case at bar, language used by the Court is clear.[75] As a result of s. 487.014 of the Criminal Code being read in accordance with s. 25 of the Criminal Code and in conjunction with s. 10(3)(f) of the Regulation, it provided the police the authorization to ask Enmax to install a DRA on Mr. Gomboc’s meter because there was no request to keep his information private as per s. 10(3)(f) of the Regulation.[76] Section 487.014(1) of the Criminal Code specifically refers to s. 25 of the Criminal Code by indicating no order is necessary for the police to enforce any act of Parliament or to ask a person to voluntarily provide documents, data or information the person is not prohibited by law from providing.[77] Section 487.014(2) deems a person referred to in ss. 1 as authorized as per s. 25 of the Criminal Code.[78] Section 25(1) of the Criminal Code allows a person, required or authorized by law to carry out a process as long as it is done reasonably.[79] Subsection 2 provides ensures the process was completed in good faith.[80] These sections, read in conjunction with s. 10(3)(f) of the Regulation, indicate customer information may be disclosed without consent to a peace officer for the purpose of investigating an offence so long as it is not contrary to the consent of the customer.[81] As a result, I would argue the totality of these three sections read together satisfies the prescribed by law requirement

The second part of the s. 1 analysis is where the impugned legislation will be upheld or fails to be justified under the Oakes test.  The first part of Oakes centres around whether the objective in limiting the right, is the pressing and substantial and is in accordance with the values of a free and democratic society.[82] In the case at bar, I would argue the pressing and substantial objective is satisfied because as technology increases the frequency and scale of home grown drug labs is raising serious safety issues across the country.  As such, such an override of s. 8 violations would give the police the necessary tools to continue to move forward in keeping our communities safer.  The second part of the Oakes test hinges on the proportionality between Parliament’s objectives and the means used to further that objective.[83] The first subcategory to determine proportionality is to ask whether there is a rational connection to Parliament’s objective.[84] In the case at bar, the means used to achieve the objective is through the Regulation dovetailing with the Criminal Code.  By intertwining these two laws, two levels of government have enacted statutes that aim in avoiding arbitrariness or unfairness, while seeking to advance the purpose of the legislation.  The second subcategory is minimal impairment.[85] In this category, the objective is to impair the right as little as possible.  In the case at bar, I believe this is the objective of the legislation.  As the majority has indicated, the legislation states, if clients do not consent to the disclosure of their information it will not be released.  I would argue in the context of a s. 1 analysis, this sufficiently protects the customer and all Canadians to ensure their rights are protected.  The third subcategory is the proportionality between the effects and objective.[86] In this category, the driving force is to ensure the measures responsible for limiting the Charter right are proportional to the objective.  In the case at bar, I would argue the objective does meet this objective on the fact that the cultivation of illicit narcotics in society pose a risk not only to those who consume them, but have far reaching effects on all Canadians.

In the end, I believe after going through all of the steps in Oakes, although there was a breach of Mr. Gomboc’s s. 8 rights, had the Court decided to employ a s. 1 analysis they would have had a strong argument in upholding the breach.

Conclusion

The Court’s decision in Gomboc has taken a further step toward narrowing s. 8 rights in Canada.  The Court’s decision has clearly pitted investigational techniques of law enforcement against informational and territorial privacy rights of the citizen.  I have made comments with respect to the following two issues in the Gomboc decision.

First, examining the informational privacy interest, I believe the majority placed too much weight on Mr. Gomboc’s lack of an express indication to Enmax that he did not want his information disclosed.  Furthermore, I believe basic principals of contract law in combination with s. 24 of the Charter would have ultimately deemed the information obtained by the police to be unjustified.  Additionally, examining the territorial privacy interest, I believe the majority’s analysis indicating a search warrant was not necessary because the search never “directly”[87] took place on Mr. Gomboc’s property is flawed, and is only the result of technological developments.  Had the police entered his property to place such a device on his residence, it would have been considered a search with the appropriate Charter protections.

Second, I concluded as a result of the informational and territorial privacy interest analysis the instillation of the DRA constituted a search within the meaning of s. 8.  As such, this would have afforded Mr. Gomboc protection under the Charter.  During the s. 1 analysis, I ultimately concluded although there was a breach, it would ultimately be saved by s. 1.

Consequently, faced with the crossroads of technologically advanced investigational techniques and s. 8 Charter rights, I believe the Court in Gomboc made the correct overall decision, but like Tessling, correctly allowing for limitation in the future should such technology continue to advance.

2010 November 01

By: Ryan Venables

Introduction

The 2009 decision of the Alberta Labour Relations Board (“the Board”) in United Food and Commercial Workers Union, Local No. 401 v. Old Dutch Food Ltd.,[1] resulted in a significant change to the Alberta Labour Relations Code.[2] The issues the United Food and Commercial Workers Union, Local 401 (“the Union”) brought before the Board against Old Dutch Foods Ltd. (“the Employer”) were threefold:

1. The omission of the Rand formula[3] in the LRA is a violation of section 2(d) of the Canadian Charter of Rights and Freedoms.[4]
2. The Employer did not make every reasonable effort to bargain in good faith, which resulted in a bargaining impasse and a subsequent breach of section 60(1)(b) of the LRA.
3. Statements to employees with respect to retroactive pay resulted in a violation of the Employer bargaining in bad faith and committing an unfair labour practice contrary to section 148(1)(a)(ii).[5]

This case comment will focus on the areas the Union brought to the Board’s attention.  First, the Board’s reasons with respect to the ruling that the exclusion of the Rand formula is a violation of section 2(d) of the Charter.  I agree with the decision rendered by the Board.  Second, the Board’s reasons with respect to the ruling that the Employer did not make every reasonable effort to engage in good faith bargaining.  I do not agree with this decision of the board.  Third, the Board’s reasons with respect to the ruling that the Employer did not engage in bad faith bargaining.  I agree with the decision of the board.

Background

Before looking critically at the decision of ODF, we must look at the law prior to examine its progression.  The most significant case discussed by the Board in ODF is Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia.[6] The Supreme Court of Canada directly tackled the question of whether section 2(d) of the Charter could be extended to include collective bargaining in its interpretation of freedom of association.  Prior to Health Services, the Supreme Court of Canada had released three concurring decisions in which it outlined why the freedom of association was not extended to collective bargaining.  The decisions of Reference re Public Service Employee Relations Act (Alta.),[7] PSAC v. Canada,[8] and RWDSU v. Saskatchewan[9] known as the “labour trilogy,” in addition to Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner)[10] set forth five reasons in support of the exclusion of collective bargaining from section 2(d) of the Charter.

1. The right to strike and collective bargaining are “modern rights” created by “fundamental freedoms.”[11] [12]
2. Recognition of a right to collective bargaining would go against the principle of judicial restraint in interfering with government regulation of labour relations.[13]
3. The recognition of the view that the freedom of association only protects those activities performable by an individual.[14]
4. Section 2(d) was not intended to protect the “objects” or goals of an association.[15]
5. The decision in Dunmore v. Attorney General (Ontario)[16] overruled the previous view(s) of the court in the decisions above.[17]

The subsequent decision of the Supreme Court of Canada in Health Services overturned the labour trilogy, when the majority concluded it “…leads to the conclusion that s. 2(d) should be understood as protecting the right of employees to associate for the purpose of advancing workplace goals through a process of collective bargaining.”[18] In Health Services, the Supreme Court of Canada followed its decision in Dunmore where the court indicated, “…as I see it, the very notion of ‘association’ recognizes the qualitative differences between individuals and collectives.”[19] The court continued by indicating the exclusion of collective bargaining “…would surely undermine the purpose of s. 2(d), which is to allow the achievement of individual potential through interpersonal relationships and collective action.”[20]

Going forward, the Ontario Court of Appeal in Fraser v. Ontario (Attorney General)[21] noted the combined effect of Dunmore and Health Services is to recognize that section 2(d) protects the rights of workers to organize and to engage in meaningful collective bargaining.  Furthermore, the court also indicated governments, in certain circumstances, would have a positive obligation to enact legislation that would encompass those groups deemed vulnerable.[22] A positive obligation test, first outlined in Dunmore, was expanded in Baier v. Alberta,[23] which sought to answer five questions:

1. Are the activities for which the appellants seek section 2(d) protection associational activities?
2. Are the appellants seeking a positive entitlement to government action, or simply the right to be free from government interference? If the former, then the so-called “Dunmore factors” must be considered.
3. Are the claims grounded in a fundamental freedom protected by section 2(d), rather than in access to a particular statutory regime?
4. Have the appellants demonstrated that exclusion from a statutory regime has the purpose or effect of substantially interfering with the freedom to organize or the right to bargain collectively?
5. Is the government responsible for the inability to exercise the fundamental freedom?[24]

Additionally, prior to ODF, Alberta was one of only four provinces (others include Prince Edward Island, New Brunswick, and Nova Scotia) that did not legislate a minimum level of union security.[25] After the decisions of Dunmore and Health Services, the door was opened for a decision such as ODF to provide for the inclusion of a Rand formula within the meaning of section 2(d) of the Charter.

The second and third issues surround sections 60(1)(b) and 148(1)(a)(ii), are established principles of the LRA, and as such, the focus was a matter of interpreting the facts before the Board and comparing them to the Board’s interpretation of Health Services.  With the potential inclusion of the Rand formula, the Board could now use this to help resolve how the Employer was bargaining.

Board’s Opinion

I.               Inclusion of the Rand Formula & section 2(d) of the Charter

The primary issue the Union raised before the Board revolved around the exclusion of the Rand formula from the LRA. In deciding this, the Board had a number of decisions as a basis to draw upon.  Recently decided cases such as Dunmore, Health Services, Fraser, and Baier all provided a framework for the Board to render its decision on the exclusion of the Rand formula.  In deciding whether Alberta should legislate a Rand formula the Board relied, in part, on the five questions as outlined in Baier.  In answering the first question, the Board indicated, “…joining together to pursue collective activities and to engage in collective bargaining are associational activities…”[26] passing the first requirement.  Second, the Board said the Union was seeking to have a positive entitlement placed upon the government; as such the three Dunmore factors will need to be considered.  Third, the Board outlined as a result of Dunmore, “we are of the opinion that the claims of the Union…are grounded in the fundamental freedom of association rather than in a denial of access to a process founded only in the Code.”[27] Fourth, the Board accepted the Union’s claim that the LRA “…is underinclusive because it fails to provide adequate statutory protection to enable it…to engage in meaningful collective bargaining…substantially interfere[ing] with the fundamental freedom of association.”[28] In final question, the Board agreed with the Alberta Attorney General (listed as an interested party) by indicating the absence of a Rand formula does not preclude the collective bargaining process.  The Board indicated (from Fraser) “a government actor could not be held responsible for the inability of workers to exercise their s. 2(d) rights against private employers.”[29] However, taken in its totality, the Baier test does layout a strong argument that “a statutory Rand formula does not guarantee the outcome of collective bargaining about workplace issue[s] but it does preserve the integrity of the collective bargaining process.”[30]

Taking the Baier test one step further was the Board’s discussion on whether their decision should legislate the Alberta government to adopt a Rand formula within the LRA.  The Board was of the view the door was opened to allow for protection, and as a result of the lack of inclusion of the Rand formula in the LRA, it was a violation of the Charter that could only be remedied by legislative action.[31] In its decision the Board indicated, “[t]he union has demonstrated to our satisfaction that this absence is solely attributable to government and is a violation of the fundamental right of these workers under s. 2(d) right to bargain collectively.”[32] The Board also considered that the Alberta Attorney General did not bring forward any arguments as to why the breach would have been justified under section 1 of the Charter.[33]

II.             Section 60(1)(b) Complaint

The Union is arguing the Employer failed to bargain in good faith by not making every reasonable effort to conclude a collective agreement by bargaining a Union security clause to an impasse.[34] As a result of the Board’s decision, the section 2(d) argument “can no longer be considered an issue capable of being the subject of collective bargaining.”[35] Additionally, the Board said “in light of Health Services, the refusal by ODF to argue to a Rand formula is now considered by the Board to be a failure to bargain in good faith,”[36] resulting in a violation of section 60(1)(b).

III.           Section 148(1)(a)(ii) Complaint

The Union’s final argument centred on a March 2009 letter, where the Employer indicated that should employees not accept a Final Offer before April 15, 2009, the retroactive pay for employees would become unavailable.  The Union argued the letter submitted to employees constituted an interference with the representation of its members; however, the Board disagreed and dismissed the claim.

Analysis

I.               Inclusion of the Rand Formula & section 2(d) of the Charter

While examining the issues as outlined by the Union, the Board rightly focused the majority of its effort on the question of whether the exclusion of a Rand formula in the LRA constituted a violation of section 2(d) of the Charter.  The crux of this decision centred on the recent cases of Health Services, Fraser, Baier, and to a lesser extent, Dunmore.

The Board’s ruling will have a profound impact in the area of labour and employment law in Alberta, and potentially stretching to New Brunswick, Nova Scotia, and Prince Edward Island.  The Board now clearly indicates the inclusion of a Rand formula eliminates the Employers preference of an open shop in collective bargaining.[37] Although ODF is not binding in other provincial jurisdictions, there is a large entrance for which other board members to walk through in accordance with this decision.

With the ability to collect dues from all employees, whether or not they join the union is likely to have a profound impact on union coffers, which in turn will allow for unions to better represent their members.  The Board rightly outlines the Employer has had successful collective agreements in Winnipeg, Manitoba; and Lachine, Quebec; where union security is legislatively guaranteed.[38] Although Alberta has historically rejected a compulsory check-off of union dues, other provinces and federally legislated corporations regulated under the Canada Labour Code[39] have been operating under its umbrella since Justice Rand’s decision in Ford Motor Company of Canada Limited v. International Union of United Automobile, Aircraft and Agricultural Implement Workers of America.[40]

The Board clearly indicates there is “empirical evidence…appears to exist to support the fact the lack of a statutory Rand formula is one causal factor that contributes significantly to lowered rates of union membership in Alberta.”[41] The effect of the decision is not to promote a pro-union state within Alberta.  There is an age-old mantra that states, there is power in numbers.  Employers rightfully know unions with weak or low membership have an equally reduced position with respect to collective bargaining.  The board seeks to rectify this in the case at bar, although the Board does indicate ODF is not about low union membership in Alberta,[42] rather the inclusion of a Rand formula will have a “…salutary effect by reducing what are often lengthy periods of collective bargaining…”[43]

Additionally, the Board indicated the implementation of a Rand formula would be virtually cost free to the employer.[44] However, I believe the Board missed an opportunity to speak to the importance of cost effectiveness in labour relations.  The Board did not touch on how such a system can benefit both parties during the collective bargaining phase.  It is only assumed the Union and the Employer want to avoid a strike or lockout situation, while furthermore, it is legislated that both enter collective bargaining in an effort to reach an agreement.[45] It would only make sense then for a Rand formula to be in place to avoid situations where there is a power imbalance.  The Union outlines,

a balanced principle of fair representation is to operate in conjunction with the majoritarianism and exclusivity principles and is necessary to facilitate industrial peace and stability and to decrease the number and volatility of industrial disputes.[46]

As such, the balanced approach provided by a Rand formula could result in increased negotiations and efforts to resolve impasse, as opposed to hard bargaining by either side.  In turn, the result is a collective agreement that is negotiated faster, which could decrease the amount of lost production seen in strike or lockout situations.

II.             Section 60(1)(b) Complaint

The Union brought forward a second complaint centring on the Employers unwillingness to make every effort to bargain in good faith, resulting in negotiations coming to an impasse violating section 60(1)(b) of the LRA.  The Board accepted the position of the Union indicating “the effect of Health Services is such that no longer is it possible to accept as a blanket statement that union security can be the subject of collective bargaining in Alberta.”[47] The Board went further by indicating

…it is only those forms of union security greater than the Rand formula, such as a union shop or closed shop that remains subject to collective bargaining…section 2(d)…can no longer be considered an issue capable of being the subject of collective bargaining.[48]

With respect to the learned Board members, I do not agree with this analysis.  The application of the law up to this point was such that Alberta was in operation without a Rand formula.  As such, on its face it appears as if the argument presented by the Union had not previously been tested much less adopted by the Alberta Labour Relations Board.  How can the inclusion of the Rand formula in the case at bar, be turned to be used against the Employer to determine a section 60(1)(b) violation?  The Board maintains, “in light of Health Services, the refusal by ODF to agree to a Rand formula is now considered by the Board to be a failure to bargain in good faith.”[49] It appears as if the Board is taking the decision of Health Services and applying the principle retroactively.  Again, I do not feel this is the correct method for interpreting the decision.  The correct way to apply Health Services in conjunction with the Board’s holding in ODF would be to apply this principle to all future cases.  I find it hard to reconcile how the Employer can be found to be in violation of section 60(1)(b) from January 2008 – April 2009, when the Board had only ruled on the inclusion of the Rand formula in November 2009.

In addition, the Board indicates the Employer “failed to make ‘every reasonable [effort] to enter into a collective agreement.’”[50] Factually this is simply incorrect.  There was a series of correspondences between the Union and the Employer between January 2008 and April 2009.  In these correspondences, both the Union and the Employer presented offers.  The Employer maintained from the beginning it was not prepared to accept a Rand formula and “denied there was any failure on its part to bargain in good faith as prior decisions of the Board have held that union security is a bargainable issue in Alberta.”[51] [52] The Board’s reasoning that the Union failed to “make every reasonable effort to enter into a collective agreement”[53] should mean the Employer must be willing to accept a Rand formula in light of the decision of the case at bar.  I disagree with the Board’s rationale behind this, and would submit the Employer was only engaged in hard bargaining as they had previously engaged in since 1971.  A strict interpretation of the statute would recognize that the Employer made efforts on numerous occasions.  As such, I fail to comprehend how the Board can reason that the Employer was in violation of section 60(1)(b) of the LRA.

III.           Section 148(1)(a)(ii) Complaint

The Union brought forward a third issue for the Board to deal with.  The Union alleges the letter dated, March 19, 2009, amounted to an unfair labour practice within the meaning of section 148(1)(b)(ii).  The Union alleged the “…statement is evidence of an ‘anti-union posture’ on the part of ODF and thus constitutes interference by ODF in the Union’s representation of the employees.”[54] The Board held the “…statement was not a misrepresentation of the contents of the Final Offer…”[55] The Board further opined that “the views expressed by ODF were not of the sort that would otherwise be found to be impermissible.”[56] I concur with the Board’s analysis of this issue, but would add the Employer’s letter of March 19, 2009 was likely the result of a hard bargaining and a collective bargaining process that had been unresolved for fifteen months.

Conclusion

The Board’s decision in ODF was a historic case for labour law in Alberta.  Facing a series of recent decisions that struck down the principles of the labour trilogy, the Board had been provided the groundwork for the inclusion of the Rand formula within section 2(d) of the Charter.  Additionally, two complaints by the Union centred on sections 60(1)(b) and 148(1)(b)(ii) respectively.

First, the Board correctly decided the recent decisions that struck down the labour trilogy equated for the inclusion of the Rand formula within LRA.  Although the decision was suspended, the possibility exists for provinces that do not legislate a Rand formula to follow suit.  Additionally, the Board’s decision is likely to bring the balance of power previously enjoyed by employers during the collective bargaining process to a leveller plain.  Finally, although the Board did not comment on this aspect, I believe now that equal bargaining power can be achieve, it will result in a faster collective bargaining process, which in turn will lead to increased employment productivity.

Second, the Board moved to dismiss the Union’s complaint that the Employer violated section 60(1)(b).  I maintain the Board misinterpreted the case at bar in two ways.  First, the Board is retroactively applying Health Services to justify the violation of section 60(1)(b).  Secondly, the Board engaged in an interpretation that held the Employer failed to maintain good faith negotiations with the Union.  I argue that a strict interpretation of the statute would result in an error in the Board’s reasoning on the Union’s efforts.

Third and finally, the Board rightfully dismissed the section 148(1)(b)(ii) claim of the Union.  I agree with the Board’s decision that the letter of March 19, 2009 did not purport to have any misrepresentation.  Additionally, I would go further to indicate that the letter was grounded in the principle of hard bargaining.

Consequently, although there are two ancillary issues at play in ODF, the ultimate decision by the Board was the correct one, and resulted in not only an advancement of the case at bar, but also the progression of labour law in Canada.

That was the message conveyed by former International Olympic Committee Vice-President Dick Pound on November 01, 2010. Mr. Pound, entertained students at UWO’s Faculty of Law for a little over an hour as he presented his paper on: “Doping’s Impact on Sport: When is Sport No Longer Sport?
Mr. Pound’s presence was the beginning of the first annual Sport Law week at Western Law, and the keynote speaker did not disappoint. With a resume that included positions as former President of the World Anti-Doping Agency, former Chancellor of McGill University, former VP of the IOC, and Partner at Stikeman-Elliot, Mr. Pound is one if not THE foremost expert in doping in sport.

Speaking on the history of sport, the St. Catherine’s native (now residing in Montreal) outlined the basics of sport. Mr. Pound indicated that “sport is and inseparable from rules.” Thus indicating that all players that participate must do so in accordance with the rules.

Additionally, he also mentioned the two instances when a sport in no longer considered a sport. First, when there is a fundamental breach of the agreed rules which prevents a level playing field. Second, when the uncertainty of the outcome is removed.

It is these two factors that he honed in on. He indicated that in the past, doping was not prohibited and as a result, the phenomenon grew. It was not until the 1968 Olympics that testing began. Although the testing was not as a result to root out cheating, or to maintain fairness, it was to prevent the growing abuses of doping that were causing the deaths of many athletes.

It appears since the onset of testing a cat and mouse game of science has been played out. As soon as science catches up with the latest doping methods, the offenders are coming up with new methods to avoid the tests.

In an attempt to stay at the top of their field, Mr. Pound indicated that doping is present in almost if not all major sporting categories. He even recalled what disgraced Canadian sprinter Ben Johnson’s former coach revealed, “athletes that are not doping were starting 1 metre behind [those who were] in a 100m event.” We all know where that left Ben. “Cheater’s” energy drinks anyone?

Although doping is the major culprit, Mr. Pound pointed out that at this year’s Tour de France, a cyclist was rumoured to have a MOTOR on his bike during the mountainous stages.

Or what about the controversy of South African middle-distance runner Caster Semenya? It was alleged that she had a physical condition that garnered her an unfair advantage over other female athletes. Although this concept is not new, the IOC officially stopped gender testing in athletes in 1999. However, it should be pointed out that those who generally fall victim to this controversy are usually intersex or hermaphrodites.

Going forward, Mr. Pound took questions from the group of students, faculty, and media.

Shying away from the bee’s nest that was stirred up last time he was at UWO, he indicated only that he believes that there is no evidence of doping in the NHL because they refuse to test the players. This differs from the last statement, where he suggested over a third of NHL’ers used steroids. It was later held that he made up the figure, but since the statement a number of NHL’ers have tested positive.

Mr. Pound also indicated that he believes the University of Waterloo sent the right message with the self-imposed suspension of the entire football program for the year, after a number of players tested positive for performance enhancing drugs. He feels bad for those who were not involved, but indicated that he does not think this problem is isolated to Waterloo and hopes other athletic directors take note.

Ending his talk, Mr. Pound indicated that there is more awareness of doping and those who are entering professional sports are less likely to try it, while those who are already in the system are only getting better at hiding their use.