Lethbridge Regional Police Service et al. v. Lethbridge Police Association, (2013) 542 A.R. 252

• Judge: Martin, Watson and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 12, 2013
• Citations: (2013), 542 A.R. 252;2013 ABCA 47

Lethbridge Regional Police v. Lethbridge Police Assoc. (2013), 542 A.R. 252; 566 W.A.C. 252 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. FE.061

Lethbridge Regional Police Service and the City of Lethbridge (respondents/applicants) v. Lethbridge Police Association (appellant/respondent)

(1201-0060-AC; 2013 ABCA 47)

Indexed As: Lethbridge Regional Police Service et al. v. Lethbridge Police Association

Alberta Court of Appeal

Martin, Watson and Slatter, JJ.A.

February 12, 2013.

Summary:

A probationary police officer, who suffered physical and mental health problems during the 18 month probation period, was terminated when the probationary period ended. The officer filed a grievance, arguing that the reason for termination was discrimination on account of his disability. An arbitrator ruled that the termination was motivated by subconscious stereotypical and discriminatory thinking. The employer sought judicial review.

The Alberta Court of Queen's Bench quashed the arbitrator's decision. The officer appealed.

The Alberta Court of Appeal dismissed the appeal.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - A police recruit was terminated at the conclusion of his probationary period - The recruit filed a grievance, alleging that the employer discriminated against him on the basis of disability - The Alberta Court of Appeal held that "the standard of review of the arbitrator's decision on the interpretation of the collective agreement and the Police Service Regulation is reasonableness. Labour arbitrators are sometimes required to consider human rights and discrimination issues, and in this case the human rights issues were specifically referred to the arbitrator. Human rights issues are unusual in that they may be decided by a number of tribunals: human rights commissions, labour arbitrators, professional disciplinary bodies, and the ordinary courts. ... Where a number of tribunals have concurrent jurisdiction over an issue, consistency requires that review be for correctness. ... Likewise, the nature of human rights issues are that they are questions of law of general importance to the legal system. In the circumstances, the appropriate standard of review is correctness ... However, the underlying factual findings of the arbitrator are still entitled to deference" - See paragraphs 27 to 28.

Civil Rights - Topic 989

Discrimination - Employment - On basis of physical or mental disability - [See Police - Topic 4109.1 ].

Labour Law - Topic 9159

Public service labour relations - Discipline and dismissal of civil or public servants - Dismissal or rejection of probationary employees - [See Police - Topic 4109.1 ].

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators or grievance appeals boards - Scope of review (incl. standard) - [See Administrative Law - Topic 3202 ].

Master and Servant - Topic 7515

Dismissal or discipline of employees - General principles - Probationary employees - The Alberta Court of Appeal stated that "(a) It is a legitimate decision for an employer to terminate a probationary employee who is prone to refusing work that he does not care for, or that he perceives is 'not what he was hired for'. An employer is entitled to prefer the willing employee who will take on all tasks that need completing. (b) It is also legitimate for an employer to terminate a probationary employee who has a general attitude of distrust of management. An employer is entitled to cultivate a cooperative and collegial workplace environment. That is clearly one of the important reasons for probationary employment. (c) The arbitrator found ... that the [employer] strongly subscribed to the view that disabled employees should return to work on modified duties whenever possible, but at the same time not return to full duties until they had medical clearance. There is nothing inappropriate or discriminatory about this approach. It is a legitimate and responsible human resources policy choice." - See paragraph 42.

Police - Topic 4109.1

Internal organization - Dismissal of members - Probationary members - Lester was hired as a police officer subject to an 18 month probationary term - He suffered a hernia - Lester declined modified desk duties, as he "was not interested in being behind a desk" - He stayed home to rehabilitate, admittedly a "bad decision" - When he did return, he injured his back - He met with the Employee Resource Centre to develop a plan to return to work for modified duties when cleared by a doctor - Lester ignored these instructions - He returned to work, without doctor's approval, to his original squad rather than for modified duties - Lester had told the centre that he was told "not to trust management" - Lester was cited for the disciplinary offence of insubordination - Subsequently, while performing modified duties a mention of depression led to a full psychological assessment - The expert concluded that Lester was "psychologically unable to manage the challenges of police work, from a risk management perspective, at the present time and for the foreseeable future" - A subsequent assessment, by another expert, found Lester psychologically fit to serve as a police officer - Lester's employment was terminated at the end of the probationary period on the grounds that he was not physically and mentally fit for police duties, had been charged with insubordination, failed to follow his return to work plan, and lacked the required integrity and respect for the organization - An arbitrator allowed Lester's grievance - The arbitrator disagreed with the decision on the merits, from which he inferred that the termination must have been motivated by subconscious stereotypical and discriminatory thinking (i.e., discriminated against on ground of disability) - The Alberta Court of Appeal affirmed the Court of Queen's Bench's quashing of the arbitrator's decision - The issue on appeal was whether Lester's treatment was based on his personal characteristics or merits, or whether discriminatory assumptions about injured workers as a group were being attributed to him - The arbitrator found no direct or intentional discrimination - The court stated that "there was ample credible evidence on the record to support the conclusion that there was a significant risk that Lester would be unable to perform the responsibilities of a police officer in the future. An individual assessment of the characteristics of a particular employee is what the law requires. ... It is not discrimination to find that a particular employee is unable to do a particular job." - Even if there was some element of discrimination in the decision-making process, that discriminatory conduct would not prevail where there were ample reasons to terminate Lester, because "human rights legislation is not designed to insulate those actually unable to perform a job" - The arbitrator "unreasonably concluded, contrary to the admitted facts and the record, that everything that happened was motivated by subconscious stereotypical and discriminatory thinking.

Police - Topic 4161

Internal organization - Discipline, appeals and judicial review - General (incl. standard of review) - [See Administrative Law - Topic 3202 ].

Cases Noticed:

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 21].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 22].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 25].

United Nurses of Alberta, Local 115 v. Calgary Health Authority (Foothills Medical Centre) (2004), 339 A.R. 265; 312 W.A.C. 265; 2004 ABCA 7, refd to. [para. 25].

Health Sciences Association (Alta.) et al. v. Provincial Health Authorities (Alta.) et al. (2004), 348 A.R. 361; 321 W.A.C. 361; 2004 ABCA 185, refd to. [para. 25].

Alberta Union of Provincial Employees et al. v. Lethbridge Community College, [2004] 1 S.C.R. 727; 319 N.R. 201; 348 A.R. 1; 321 W.A.C. 1; 2004 SCC 28, refd to. [para. 26].

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 488 v. Bantrel Construction Co. (2009), 448 A.R. 194; 447 W.A.C. 194; 2 Alta. L.R.(5th) 418; 2009 ABCA 84, refd to. [para. 26].

Alberta Health Services (Calgary Area) v. Health Sciences Association of Alberta (Paramedical Professional/Technical Unit) (2011), 515 A.R. 120; 532 W.A.C. 120; 2 Alta. L.R.(5th) 60; 2011 ABCA 306, refd to. [para. 26].

Bruse v. Board of Education of Calgary School District No. 19 (2011), 510 A.R. 125; 527 W.A.C. 125; 54 Alta. L.R.(5th) 200; 2011 ABCA 196, refd to. [para. 27].

Calgary (City) v. Scobie et al. (2011), 505 A.R. 115; 39 Alta. L.R.(5th) 104; 2011 ABCA 65, refd to. [para. 28].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al. (2012), 432 N.R. 1; 347 D.L.R.(4th) 235; 2012 SCC 35, refd to. [para. 28].

West Fraser Mills Ltd. v. United Steelworkers of America, Local I-1937 (2012), 316 B.C.A.C. 85; 537 W.A.C. 85; 29 B.C.L.R.(5th) 133; 2012 BCCA 50, refd to. [para. 28].

Irving Pulp and Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30 (2011), 375 N.B.R.(2d) 92; 969 A.P.R. 92; 2011 NBCA 58, refd to. [para. 28].

Lockerbie & Hole Industrial Inc. et al. v. Human Rights and Citizenship Commission (Alta.) et al. (2011), 493 A.R. 295; 502 W.A.C. 295; 39 Alta. L.R.(5th) 236; 2011 ABCA 3, refd to. [para. 28].

Walsh v. Mobil Oil Canada et al. (2008), 440 A.R. 199; 438 W.A.C. 199; 94 Alta. L.R.(4th) 209; 2008 ABCA 268, refd to. [para. 28].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 29].

Alberta v. Alberta Union of Provincial Employees (2008), 433 A.R. 159; 429 W.A.C. 159; 96 Alta. L.R.(4th) 207; 2008 ABCA 258, refd to. [para. 30].

Social Services Administration Board (Parry Sound District) v. Ontario Public Service Employees Union, Local 324 et al., [2003] 2 S.C.R. 157; 308 N.R. 271; 177 O.A.C. 235; 2003 SCC 42, refd to. [para. 30].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 32].

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. 33].

Quebec (Commission des droits de la personne et des droits de la juenesse) v. Montreal (Ville) et al., [2000] 1 S.C.R. 665; 253 N.R. 107, refd to. [para. 34].

Wright v. College and Association of Registered Nurses (Alta.) (2012), 536 A.R. 349; 559 W.A.C. 349; 2012 ABCA 267, refd to. [para. 35].

Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 44].

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. 66].

Counsel:

W.J. Armstrong, Q.C., for the respondents;

P. Nugent, for the appellant.

This appeal was heard on September 12, 2012, at Calgary, Alberta, before Martin, Watson and Slatter, JJ.A., of the Alberta Court of Appeal.

On February 12, 2013, the following memorandum of judgment was filed by the Court.