British Columbia v. British Columbia Government and Service Employees' Union, 2008 BCCA 357

• Judge: Huddart, Kirkpatrick and Tysoe, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 18, 2008
• Jurisdiction: British Columbia
• Citations: 2008 BCCA 357;(2008), 259 B.C.A.C. 204 (CA)

B.C. v. BCGSEU (2008), 259 B.C.A.C. 204 (CA);

    436 W.A.C. 204

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. SE.025

The Government of British Columbia (represented by the B.C. Public Service Agency) (appellant) v. British Columbia Government and Service Employees' Union (respondent)

(CA034905; 2008 BCCA 357)

Indexed As: British Columbia v. British Columbia Government and Service Employees' Union

British Columbia Court of Appeal

Huddart, Kirkpatrick and Tysoe, JJ.A.

September 18, 2008.

Summary:

A supervisory employee (liquor store manager) was suspected of stealing significant quantities of alcohol. The employee, when confronted, admitted the thefts, but only after being assured that he would not be criminally charged. He also admitted to being an alcoholic. The employer terminated the employee. The employee complained of discrimination on the basis of disability (alcoholism). For employees convicted of theft related to their employment, s. 13(1) of the Human Rights Code precluded a finding of discrimination for dismissals because of theft. An arbitrator ruled that the employee's termination was prima facie discriminatory because the employee's disability (alcoholism) was a factor in the theft and there was a causal link between the disability and the decision to terminate. The employer appealed. At issue was "whether section 13 of the Human Rights Code ... requires an employer to accommodate an employee who is guilty of theft because he suffers from an alcohol dependency".

The British Columbia Court of Appeal, Kirkpatrick, J.A., dissenting, allowed the appeal and remitted the matter to the arbitrator to complete his determination under s. 89 of the Labour Relations Code as to whether the dismissal was excessive in all of the circumstances.

Civil Rights - Topic 911

Discrimination - General principles - Causation - A supervisory employee (liquor store manager) was suspected of stealing significant quantities of alcohol - The employee, when confronted, admitted the thefts, but only after being assured that he would not be criminally charged - He also admitted to being an alcoholic - The employer terminated the employee - The employee complained of discrimination on the basis of disability (alcoholism) - Had the employee been convicted of theft related to his employment, s. 13(1) of the Human Rights Code would have precluded a finding of discrimination in dismissing him because of the theft - An arbitrator ruled that the employee's termination was prima facie discriminatory because his disability (alcoholism) was a factor in the theft and there was a causal link between the disability and the decision to terminate - The employer appealed - At issue was "whether section 13 of the Human Rights Code ... requires an employer to accommodate an employee who is guilty of theft because he suffers from an alcohol dependency" - The British Columbia Court of Appeal allowed the appeal - The employee's alcoholism played no part in the decision to terminate - The employee was terminated for theft just like any other employee would have been - The adjudicator erred in finding prima facie discrimination - The employee's termination was not arbitrary or based on preconceived ideas concerning his alcohol dependency - It was based on misconduct that rose to the level of crime - The fact that the conduct was influenced by his alcoholism was irrelevant where the admitted alcoholism played no part in the employer's decision to terminate and the impact suffered by the employee was no greater than that suffered by any other employee dismissed for the same misconduct - The court stated that "the Human Rights Code was not designed to prevent employers from dismissing an employee who has committed a crime related to his or her employment" - See paragraphs 1 to 18.

Civil Rights - Topic 989

Discrimination - Employment - On basis of physical or mental disability - [See Civil Rights - Topic 911 ].

Civil Rights - Topic 989.3

Discrimination - Employment - On basis of criminal misconduct related to employment - [See Civil Rights - Topic 911 ].

Cases Noticed:

Wu v. Ellery Manufacturing Ltd., 2000 BCHRT 53, refd to. [para. 4].

Martin v. Carter Chevrolet Oldsmobile, [2001] B.C.H.R.T.D. No. 39; 2002 C.L.L.C. 230-020; 2001 BCHRT 37, refd to. [para. 6].

Holloway v. MacDonald and Clairco Foods Ltd. (1983), 4 C.H.R.R. D/144; 83 C.L.L.C. 17,019 (B.C. Bd. of Inquiry), refd to. [para. 7].

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241; 23 D.L.R.(4th) 321, refd to. [para. 9].

Health Employers Association of British Columbia (Kootenay Boundary Regional Hospital) v. British Columbia Nurses' Union (2006), 222 B.C.A.C. 201; 368 W.A.C. 201; 54 B.C.L.R.(4th) 113; 2006 BCCA 57, refd to. [para. 10].

McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal et al., [2007] 1 S.C.R. 161; 356 N.R. 177; 2007 SCC 4, refd to. [para. 12].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 12].

Keays v. Honda Canada Inc. (2008), 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 14].

Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP- FTQ) v. Hydro-Québec (2008), 377 N.R. 136; 2008 SCC 43, refd to. [para. 14].

Human Rights Commission (B.C.) v. Human Rights Tribunal (B.C.) et al. (2000), 143 B.C.A.C. 305; 235 W.A.C. 305; 38 C.H.R.R. 390; 81 B.C.L.R.(3d) 195; 2000 BCCA 584, affing. (1999), 21 B.C.T.C. 40; 178 D.L.R.(4th) 546; 35 C.H.R.R. 333 (S.C.), refd to. [para. 16].

Fraser Lake Saw Mills Ltd., Re, [2002] B.C.L.R.B.D. No. 390; BCLRB No. B213/2002, refd to. [para. 32].

Kemess Mines Ltd. v. International Union of Operating Engineers, Local 115 (2006), 222 B.C.A.C. 213; 368 W.A.C. 213; 54 B.C.L.R.(4th) 252; 2006 BCCA 58, leave to appeal denied [2006] 2 S.C.R. ix; 358 N.R. 395; 239 B.C.A.C. 322; 396 W.A.C. 322, refd to. [para. 36].

Scott (Wm.) & Co. v. Canadian Food and Allied Workers Union, Local P-162, [1977] 1 Can. L.R.B.R. 1; [1976] B.C.L.R.B.D. No. 98, refd to. [para. 38].

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 42].

Handfield v. North Thompson School District No. 26, [1995] B.C.H.R.D. No. 4, refd to. [para. 50].

Ryan v. Safeway Canada Ltd., [2008] B.C.H.R.T.D. No. 12; 2008 BCHRT 12, refd to. [para. 56].

Central Alberta Dairy Pool v. Human Rights Commission (Alta.), [1990] 2 S.C.R. 489; 113 N.R. 161; 111 A.R. 241, refd to. [para. 64].

Statutes Noticed:

Human Rights Code, R.S.B.C. 1996, c. 210, sect. 13(1), sect. 13(4) [para. 1].

Counsel:

P.A. Gall, Q.C., and N. Iyer, for the appellant;

K. Curry and C. Sullivan, for the respondent.

This appeal was heard on April 30, 2008, at Vancouver, B.C., before Huddart, Kirkpatrick and Tysoe, JJ.A., of the British Columbia Court of Appeal.

On September 18, 2008, the judgment of the Court was delivered and the following opinions were filed:

Huddart, J.A. (Tysoe, J.A., concurring) - see paragraphs 1 to 18;

Kirkpatrick, J.A., dissenting - see paragraphs 19 to 68.