In the November 6, 2012 edition of
Perspectives for the Professions we
reported on the decision of the Court of Appeal referenced above.
In this case two registered nurses, on numerous occasions,
stole narcotics from their employer and falsified narcotic records
to cover-up the thefts. When they were caught, the nurses
indicated that they had become addicted to narcotics and said they
were prepared to undergo rehabilitation. For one of the
nurses, this was the second time that she had been caught stealing
narcotics. The matter was referred to CARNA which conducted
an investigation and referred the matter to a hearing before a
Hearing Tribunal. The nurses admitted the thefts and
falsification of records but argued that they could not be found to
have engaged in unprofessional conduct since their misconduct was
caused in whole or in part by their addiction which is a disability
under human rights law. The nurses took the position that in
order to accommodate them under human rights law, CARNA had to
utilize an informal resolution process or an incapacity assessment
rather than proceeding to a formal hearing. The Hearing
Tribunals rejected this argument and found that the thefts and
falsification of records constituted unprofessional conduct.
The Hearing Tribunals took the addictions into account in the
sanctions part of the hearing imposing an extensive remedial order
designed to ensure ongoing rehabilitation and protection of the
public while also providing full opportunities for the nurses to
return to work once safe to do so. Both the nurses ultimately
completed their rehabilitation and returned to work in accordance
with the orders of the Hearing Tribunals. The nurses appealed
the decision to CARNA's Appeals Committee which dismissed the
appeal. The nurses appealed that decision to the Court of
Appeal which upheld the decision of the Appeals Committee.
The majority of the Court of Appeal did not find any discrimination
against the nurses and concluded that any accommodation that might
be necessary could occur in the sanction phase of the
hearing. The nurses sought leave to appeal to the Supreme
Court of Canada. We indicated that we would keep our readers posted
on further developments in the case.
We are pleased to advise that on
March 28, 2013 the Supreme Court of Canada denied leave to appeal
with costs awarded against the nurses. This means that the
Court of Appeal decision in Wright is the law in Alberta
and will be an influential precedent across Canada. The
issues addressed in Wright are of critical importance to
regulators. Professional regulatory organizations take a
variety of approaches to professionals who engage in misconduct
caused in whole or in part by their addictions. Some
organizations address the issues through informal processes while
other organizations use the formal discipline process. In
this "traditional approach", there is a finding that the
thefts or other misconduct is unprofessional conduct. Then in
the sanction phase of the hearing, the addiction is taken into
account in crafting remedial sanctions designed to protect the
public while also recognizing that addiction is a treatable
illness. While there are advantages and disadvantages
to both informal resolution and the traditional approach, in our
view this is a policy choice best left to individual
regulators. If the nurses' challenge in Wright
had succeeded, then professional regulatory organizations would not
have been able to make this policy choice. In addition, some
of the most serious acts of unprofessional misconduct are caused in
whole or in part by addictions. While some professionals are
cooperative in seeking rehabilitation, others refuse to recognize
their problem and are not prepared to engage in
rehabilitation. If regulators were prohibited from using the
formal discipline process for these professionals, how would
regulators be able to fulfill their public protection mandate?
We are very pleased that this
matter is now finalized with the important precedent of Wright
v. CARNA. This case is the first Court decision in
Canada that squarely addresses whether human rights principles
provide a defence, as opposed to a mitigating factor, where
misconduct is caused in whole or in part by an addiction.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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