Wright v. College and Association of Registered Nurses (Alta.), (2012) 536 A.R. 349

• Judge: Berger, Ritter and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 18, 2012
• Citations: (2012), 536 A.R. 349;2012 ABCA 267

Wright v. College & Registered Nurses (2012), 536 A.R. 349; 559 W.A.C. 349 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. SE.058

Genevieve Wright (appellant/appellant) v. The College and Association of Registered Nurses of Alberta (respondent/respondent)

(1003-0319-AC)

Mona Helmer (appellant/appellant) v. The College and Association of Registered Nurses of Alberta (respondent/respondent)

(1003-0287-AC; 2012 ABCA 267)

Indexed As: Wright v. College and Association of Registered Nurses (Alta.)

Alberta Court of Appeal

Berger, Ritter and Slatter, JJ.A.

September 18, 2012.

Summary:

Two drug-addicted nurses stole narcotics from the hospitals where they worked and falsified records to avoid detection. The nurses' addictions did not prevent them from discharging their duties. Both were disciplined by the Hearing Committee of the College and Association of Registered Nurses for "unprofessional conduct". The nurses argued that although non-addicted nurses could be disciplined for theft of narcotics and falsification of records, addicted nurses could not be disciplined for the same misconduct, as that would constitute discrimination based on disability (addiction). The disciplinary sanctions were, inter alia, reprimands, registration suspension pending successful treatment of the addictions and partial costs of the disciplinary hearings. The Hearing Committees' decisions were affirmed on appeal by the Appeals Committee. The nurses appealed under s. 90 of the Health Professions Act.

The Alberta Court of Appeal, Berger, J.A., dissenting, dismissed the appeal. The College's decision to proceed to the disciplinary process did not discriminate against the nurses on the basis of disability. Alternatively, if there had been discrimination, the rehabilitative sanctions imposed met the duty to accommodate the disability. There was no basis to interfere with the decision to award costs to the College.

Civil Rights - Topic 989

Discrimination - Employment - On basis of physical or mental disability - Two drug-addicted nurses stole narcotics from the hospitals where they worked and falsified records to avoid detection - The nurses' addictions did not prevent them from discharging their duties - Both were disciplined by the Hearing Committee of the College and Association of Registered Nurses for "unprofessional conduct" - An Appeals Committee affirmed the decisions - The nurses argued that although non-addicted nurses could be disciplined for stealing narcotics and falsifying records, addicted nurses could not be disciplined for the same misconduct, as that would constitute adverse effect discrimination based on disability (addiction) where their misconduct was triggered or caused by their disabilities - They argued that the College should have proceeded under the Alternative Complaints Resolution Process or, alternatively, dealt with the matter on the basis of "incapacity" as opposed to professional misconduct - The Alberta Court of Appeal dismissed an appeal under s. 90 of the Health Professions Act - The findings of the Hearing Committee and the Appeals Committee that disciplinary proceedings were not prima face discriminatory were reasonable - The court stated that "both of the Hearing Tribunals found as a fact that the [nurses] were not being disciplined for their disability, but rather for their conduct. The finding was that the [nurses'] disability did not play any role in the decision to proceed with prosecutions. Further, the Hearing Tribunals rejected any argument that the thefts were solely caused by addiction. These findings were upheld by the Appeals Committee and they demonstrate no reviewable error. ... While the [nurses'] addiction is something that distinguishes them from other members of the College who are subject to disciplinary proceedings, the distinction does not amount to discrimination. ... There are a great many addicts who do not commit criminal acts, and it is not discriminatory to hold those who do accountable for their actions. The decision to lay professional disciplinary charges, and the subsequent finding of misconduct, were not motivated by the [nurses'] addiction, but rather by their conduct." - Although unnecessary to decide, had disciplinary proceedings been discriminatory, the College's obligation to accommodate the nurses' disability would have been met by the rehabilitative sanctions meted out - Accommodation did not equate to exemption from the disciplinary process - Such an exemption would constitute undue hardship on the College - See paragraphs 50 to 74.

Civil Rights - Topic 992.1

Discrimination - Employment - Adverse effect discrimination - Duty of employer or union to accommodate employee - [See Civil Rights - Topic 989 ].

Civil Rights - Topic 7108

Federal, provincial or territorial legislation - Practice - Costs (incl. on appeal) - Two drug-addicted nurses stole narcotics from the hospitals where they worked and falsified records to avoid detection - The nurses' addictions did not prevent them from discharging their duties - Both were disciplined by the Hearing Committee of the College and Association of Registered Nurses for "unprofessional conduct" - The disciplinary sanctions were, inter alia, reprimands, registration suspension pending successful treatment of the addictions, and partial costs of the disciplinary hearings - The nurses appealed the award of costs against them - The Alberta Court of Appeal stated that "professional disciplinary bodies have a wide discretion over costs, and so long as the decision is justifiable, transparent and intelligible, judicial intervention is not warranted. The tribunals below were aware that they were not required to award the College any costs, although they did have the jurisdiction under the Health Professions Act to award full indemnity costs. They gave consideration to, but rejected, the argument that because these were test cases, the general membership should bear the expense. They were sensitive to the fact that a costs award should not be crushing. The costs awards were reasonable, and variation is not warranted." - See paragraph 75.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - Two drug-addicted nurses stole narcotics from the hospitals where they worked and falsified records to avoid detection - The nurses' addictions did not prevent them from discharging their duties - Both were disciplined by the Hearing Committee of the College and Association of Registered Nurses for "unprofessional conduct" - An Appeals Committee affirmed the decisions - The nurses argued that although non-addicted nurses could be disciplined for stealing narcotics and falsifying records, addicted nurses could not be disciplined for the same misconduct, as that would constitute adverse effect discrimination based on disability (addiction) where their misconduct was triggered or caused by their disabilities - A medical expert testified that addiction was the sole cause of the criminal misconduct - On appeal, the nurses argued that Appeals Committee erred in not finding itself bound by that decision, especially where the opinion was included in the agreed statement of facts - The Alberta Court of Appeal disagreed - The opinion was "attached" to the agreed statement of facts - There was no indication that the College admitted it for the truth of its contents or agreed to be bound by the opinion - The court stated that "a trier of fact is not bound by the opinion of any expert, even if that opinion is uncontradicted" - See paragraphs 59 to 60.

Medicine - Topic 6949

Nurses - Discipline - Hearing - Evidence - [See Evidence - Topic 7002 ].

Medicine - Topic 6952

Nurses - Discipline - Professional misconduct - What constitutes - [See Civil Rights - Topic 989 ].

Medicine - Topic 6956

Nurses - Discipline - Judicial review - Scope of (incl. standard of review) - Two drug-addicted nurses stole narcotics from the hospitals where they worked and falsified records to avoid detection - The nurses' addictions did not prevent them from discharging their duties - Both were disciplined by the Hearing Committee of the College and Association of Registered Nurses for "unprofessional conduct" - The nurses argued that although non-addicted nurses could be disciplined for stealing narcotics and falsifying records, addicted nurses could not be disciplined for the same misconduct, as that would constitute discrimination based on disability (addiction) - They argued that the College should have proceeded under the Alternative Complaints Resolution Process or, alternatively, dealt with the matter on the basis of "incapacity" as opposed to professional misconduct - The Alberta Court of Appeal stated that "the power of a professional organization to invoke and manage its professional disciplinary regime is analogous to 'prosecutorial discretion' and the grounds of review of any decisions made are very narrow. ... There are obviously some differences between criminal prosecutions and professional discipline. Nevertheless, the decision of a professional organization to invoke its disciplinary process is not reviewable for mere unreasonableness; any error must likely approach an abuse of process to invite judicial intervention." - See paragraphs 47 to 48.

Cases Noticed:

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 12].

British Columbia v. British Columbia Government and Service Employees' Union (2008), 259 B.C.A.C. 204; 436 W.A.C. 204; 2008 BCCA 357, leave to appeal denied (2008), 395 N.R. 389; 282 B.C.A.C. 320; 476 W.A.C. 320 (S.C.C.), refd to. [para. 13].

Hennig v. Institute of Chartered Accountants (Alta.) (2008), 433 A.R. 221; 429 W.A.C. 221; 95 Alta. L.R.(4th) 1; 2008 ABCA 241, refd to. [para. 31].

Armstrong v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. 146 et al. (2010), 493 A.R. 259; 502 W.A.C. 259; 35 Alta. L.R. (5th) 238; 2010 ABCA 326, refd to. [para. 31].

Tartaglia v. Workers' Compensation Board Appeals Commission (Alta.) (2012), 533 A.R. 138; 557 W.A.C. 138; 2012 ABCA 186, refd to. [para. 32].

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 33].

R. v. Pires - see R. v. Lising (R.) et al.

Robertson v. Edmonton Chief of Police et al. (2004), 355 A.R. 281; 39 Alta. L.R.(4th) 239; 2004 ABQB 243, refd to. [para. 33].

Maitland Capital Ltd. et al. v. Alberta Securities Commission (2009), 457 A.R. 153; 2009 ABCA 186, refd to. [para. 33].

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. 34].

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. 34].

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. 34].

K.C. v. College of Physical Therapists (Alta.) (1999), 244 A.R. 28; 209 W.A.C. 28; 72 Alta. L.R.(3d) 77; 1999 ABCA 253, refd to. [para. 35].

Friends of the Oldman River Society et al. v. Association of Professional Engineers, Geologists and Geophysicists (Alta.) et al. (2008), 277 A.R. 378; 242 W.A.C. 378; 93 Alta. L.R.(3d) 27; 2001 ABCA 107, leave to appeal denied [2001] 3 S.C.R. vii; 284 N.R. 193, refd to. [para. 47].

PHS Community Services Society et al. v. Canada (Attorney General), [2011] 3 S.C.R. 134; 421 N.R. 1; 310 B.C.A.C. 1; 526 W.A.C. 1; 2011 SCC 44, refd to. [para. 51].

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, refd to. [para. 54].

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. 55].

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. 55].

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. 56].

R. v. Molodowic (A.J.), [2000] 1 S.C.R. 420; 252 N.R. 250; 145 Man.R.(2d) 201; 218 W.A.C. 201; 2000 SCC 16, refd to. [para. 60].

Osepchuk v. Courchene et al., [2008] A.R. Uned. 354; 2008 ABCA 402, refd to. [para. 60].

Lee v. British Columbia (Attorney General) et al. (2004), 204 B.C.A.C. 113; 333 W.A.C. 113; 32 B.C.L.R.(4th) 1; 2004 BCCA 457, refd to. [para. 61].

Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703; 253 N.R. 329, refd to. [para. 64].

Alberta (Minister of Human Resources and Employment) v. Director of the Human Rights, Citizenship and Multiculturalism Commission (Alta.) et al. (2006), 391 A.R. 31; 377 W.A.C. 31; 62 Alta. L.R.(4th) 209; 2006 ABCA 235, leave to appeal denied [2007] 1 S.C.R. viii; 369 N.R. 395, refd to. [para. 64].

Armstrong v. British Columbia (Minister of Health) (2010), 283 B.C.A.C. 167; 480 W.A.C. 167; 2 B.C.L.R.(5th) 290; 2010 BCCA 56, leave to appeal denied [2010] 2 S.C.R. v; 410 N.R. 383, refd to. [para. 65].

Tranchemontagne et al. v. Disability Support Program (Ont.) (2010), 269 O.A.C. 137; 102 O.R.(3d) 97; 2010 ONCA 593, refd to. [para. 65].

R. v. Roberts (R.N.) (2005), 361 A.R. 149; 339 W.A.C. 149; 2005 ABCA 11, refd to. [para. 66].

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 67].

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia, [2007] 2 S.C.R. 391; 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1; 2007 SCC 27, refd to. [para. 67].

Burgess et al. v. Huk (Stephen W.) Professional Corp. (2010), 500 A.R. 314 (Q.B.), refd to. [para. 94].

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. 95].

Lamontagne v. Law Society of Saskatchewan, [1991] 4 W.W.R. 481; 89 Sask.R. 219 (C.A.), refd to. [para. 97].

Berner v. College of Physicians and Surgeons of Ontario (1984), 4 O.A.C. 153 (Div. Ct.), refd to. [para. 97].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 107].

Superintendent of Motor Vehicles (B.C.) et al. v. Council of Human Rights (B.C.), [1999] 3 S.C.R. 868; 249 N.R. 45; 131 B.C.A.C. 280; 214 W.A.C. 280, refd to. [para. 108].

Chapdelaine v. Air Canada (1987), 9 C.H.H.R. No. 698, refd to. [para. 108].

United Steelworkers of America, Local 5885 v. Sealy Canada Ltd., [2006] A.G.A.A. No. 8, refd to. [para. 108].

Collingwood General & Marine Hospital v. Ontario Nurses Association, [2010] O.L.A.A. No. 196, refd to. [para. 109].

Direct Energy v. Communications, Energy and Paperworkers Union of Canada, Local 975 (2009), 184 L.A.C.(4th) 7, refd to. [para. 110].

Van Leening v. College of Physical Therapists (B.C.), [2006] B.C.H.R.T.D. No. 357, refd to. [para. 112].

Gichuru v. Law Society of British Columbia, [2009] B.C.H.R.T.D. No. 360, refd to. [para. 112].

Baum et al. v. Calgary (City) (2008), 465 A.R. 335 (Q.B.), refd to. [para. 117].

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; 264 D.L.R.(4th) 478; 2006 BCCA 57, refd to. [para. 118].

Entrop et al. v. Imperial Oil Ltd. (2000), 137 O.A.C. 15; 50 O.R.(3d) 18 (C.A.), refd to. [para. 118].

Kemess Mines Ltd. v. International Union of Operating Engineers, Local 115 (2006), 222 B.C.A.C. 213; 368 W.A.C. 213; 264 D.L.R.(4th) 495; 2006 BCCA 58, refd to. [para. 121].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 121].

Statutes Noticed:

Alberta Human Rights Act, R.S.A. 2000, c. A-25.5, sect. 11 [para. 50].

Health Professions Act, R.S.A. 2000, c. H-7, sect. 1(1)(s) [para. 44]; sect. 58(1) [para. 42]; sect. 118(1) [para. 44].

Authors and Works Noticed:

Brown, D.J.M., and Beatty, D.M., Canadian Labour Arbitration (4th Ed.) (2010 looseleaf), para. 7;6150 [para. 111].

MacKenzie, G., Lawyers and Ethics: Professional Responsibility and Discipline (4th Ed. 2006), p. 26-44 [para. 74].

Zinn, R., The Law of Human Rights in Canada (2009 looseleaf), p. 1-16 [para. 121].

Counsel:

R. Khullar and V.A. Cosco, for the appellants;

J.T. Casey, Q.C., and A.L.G. Côté, for the respondent.

These appeals were heard on June 7, 2012, before Berger, Ritter and Slatter, JJ.A., of the Alberta Court of Appeal.

On September 18, 2012, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Slatter, J.A. (Ritter, J.A., concurring) - see paragraphs 1 to 76;

Berger, J.A., dissenting - see paragraphs 77 to 134.