In British Columbia Crown Counsel Assn. (2012), 220 L.A.C. (4th) 56 (Germaine), the employee (a Crown Counsel) was terminated following having been arrested for possession of cocaine. It was not disputed that the employee “suffered from disabilities, including addiction to alcohol.” Nor was “it disputed that his alcoholism addiction factored into [his purchase of cocaine].” However, the employer asserted that “neither this addiction nor any other disability played a role in response to the grievor’s conduct.” Relying on the “Gooding decision” in British Columbia (2007), 177 L.A.C. (4th) 193 (B.C.C.A.), the employer contended that the union had “not met the onus of establishing a prima facie case of discrimination. In the alternative, the employer [contended that] it applied a bona fide occupational requirement, based on its accommodation of the grievor’s disability to the point of undue hardship.”
The arbitrator characterized the grievor as “an individual of quality who is afflicted by a pernicious disability, with tragic consequences for his personal, family and professional life.”
Given that this case emanated from British Columbia, both parties submitted that the issues must be considered utilizing what has been accepted in that province as the “hybrid approach.”
The arbitrator stated that the Fraser Lake Sawmills decision (the basis for the hybrid approach having been mandated in British Columbia):
separated the non-culpable aspects of the just cause hybrid test from the human rights analysis which is almost inevitably part of the dispute in these cases. This separation is important. Although the human rights analysis is obviously concerned with issues which do not reflect any culpability on the part of the grievor, the purpose of the two non-culpable analyses are distinctly different.
The just cause hybrid test is concerned with the extent to which the grievor’s misconduct is attributable to an illness or disability which diminishes self control and for which the grievor therefore should not be held accountable in a disciplinary sense. Thus, the question is whether there is a nexus between the disability and the misconduct. The question under the Human Rights Code is whether the grievor is the victim of discrimination on the basis of a disability. The question, as I will clarify below, entails more than a nexus between the addiction and the misconduct. Further, since the complainant must establish a prima facie case of discrimination, the equation of the non-culpable branch of the hybrid test with a human rights analysis would impose a burden of proof on the grieving employee which is inconsistent with the just cause standard. Such an equation would also ignore the broader scope of the Human Rights Code and create the potential for the human rights analysis in the collective bargaining arena to depart from the parallel analysis in relation to common law employment relationships. … If I am correct, the two non-culpable analyses must be pursued separately. Indeed. as Arbitrator Lanyon noted in the Gooding remittal award, the Court of Appeal has directed this separation … For the foregoing reasons, I conclude the non-culpable aspects of this hybrid case must be examined separately from the Human Rights Code analysis, even though the latter is also a non-culpable analysis.
An expert’s report, entered by consent, stated that
the employee “suffers from “several concurrent mental conditions.” The first is a long-standing major depressive disorder, the symptoms of which are worse when [the employee] uses alcohol or other drugs. The second is a “substance use disorder in the form of cocaine abuse and alcohol dependence.” [The expert] testified that [the employee] meets the criteria outlined in the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition … (the “DSM IV”) for these diagnoses. … Third, [the expert] also diagnosed a complex anxiety disorder, which includes symptoms consistent with post traumatic stress syndrome … [The expert also] expressed the opinion that [the employee] would meet the DSM-IV-TR criteria for an Anxiety Disorder NOS (Not Otherwise Specified).
… there is no question that [the grievor] was disabled [at the time of the incident]. He was addicted to alcohol and cocaine, and he suffered from disorders of depression and anxiety.”
The arbitrator accepted the expert’s opinion that the grievor’s addictions so eroded his self control that “he engaged in criminal misconduct which can only be described as extremely and even absurdly irrational.” The expert opined that “although he was conscious of his decision to acquire cocaine it is very probable that he was unable to inhibit subsequent drug seeking behaviour that facilitated the use of cocaine.”
In considering the application of the hybrid test, the arbitrator concluded that the misconduct had culpable dimensions, in that the employee has, since the date of the incident, “exercised the control necessary to maintain rational and responsible behaviour.” [This] confirms the misconduct had culpable dimensions.”
Given “the overwhelmingly non-culpable explanation for his misconduct, it is impossible to disagree [with the suggestion] … that anything more severe than a seven week suspension would have been an excessive disciplinary response.”
In considering an appropriate response to the non-culpable elements, the arbitrator stated that “the range of potential awards would include a rehabilitative reinstatement at one extreme to confirmation of the dismissal at the other …” He noted that in Fraser Lake Sawmills, the two questions basic to the non-culpable analysis were “has the employer been deprived of the benefit of the bargain and is the employer likely to receive the benefit of the bargain in the future.” He commented that “the bargain, in this context is the contractual relationship with the employee. If the employer has been deprived of the benefit of this bargain and is unlikely to receive the benefit in the reasonably foreseeable future, it is settled that the employer has just and reasonable cause to effect a non-disciplinary dismissal.”
The arbitrator accepted the employer’s submission that its decision to terminate was not influenced by the employee’s addiction to alcohol or by the fact that he was suffering from a disability. Rather, the decision to terminate was dominated by the estimation of the incurable impact on the employee’s employment as Crown Counsel.
The arbitrator noted that the employer had attempted to assist the employee with his addiction issues during the course of his employment. This included long leaves of absence, the evaluation and advice of specialists, tangible support and assistance in the form of a monitored Recovery Management Agreement, followed by a three-cornered Recovery Maintenance Agreement. “In human rights terms, these efforts would constitute accommodation measures.”
The arbitrator stated that the integrity of the Crown Counsel’s office was a “real and valid consideration.” “Quite simply, a Crown Counsel who has committed conduct of a criminal nature would undermine the integrity of the Crown Counsel office in question, regardless of whether it was due to disciplinary misconduct or a non-culpable disability.”
The arbitrator also focused on the risk of a relapse. He commented that the employee’s history “over the last four years does not allow a confident projection of continued success.” The employee’s admission that “he was stressed by the adversarial aspects of Crown Counsel work means that reinstatement would enhance the risk of relapse … Given the nature of the position and the public interest in it, a sustained period of absence will be necessary to demonstrate sufficient reliability. And this is a matter of years, not months … Unfortunately, it is not now possible to predict when this period of rehabilitation will come to a successful conclusion and, in fact, it is uncertain that it ever will.”
The arbitrator concluded that the employee’s disability met “the onerous requirements for termination on non-culpable grounds.” Given that it was not possible to anticipate the employee becoming available to resume his duties as Crown Counsel in the reasonably foreseeable future, the case, as contemplated by the Fraser Lake decision, was one where “the addiction and its consequences are the “dominant factor.” Subject to the human rights analysis which was to follow, “the Employer has established just and reasonable cause to dismiss.”
In terms of the impact of the Human Rights Code, the only means of retaining the employee’s employment was by way of further accommodation. However, the arbitrator commented:
No accommodation remedy is available, however, unless section 13(1) of the Human Rights Code is engaged because “… the duty to accommodate is not a freestanding duty but arises only as part of a defence to a case of prima facie discrimination” (Kemess Mines [Ltd. (2006), 147 L.A.C.(4th) 129 (B.C.C.A.)). Further, there is no question the onus is on the [union] to establish prima facie discrimination: Xstrata Nickel … (2011), 209 L.A.C. (4th) 206 (Sheehan), at page 212, citing O’Malley …  2 S.C.R. 536 … Nor is there an issue respecting the correct formulation of the test for prima facie discrimination. In Kemess Mines, the Court of Appeal approved of this statement of the test by the arbitrator in a similar hybrid case concerned with the dismissal of an employee who suffered from an addiction disability:
The dismissal must be found to be prima facie discriminatory if the grievor had a physical or mental disability; if the company treated the grievor adversely; and if it is reasonable on the evidence to infer that the disability was a factor (not necessarily the sole or overriding factor) in the adverse treatment. (paragraph 30)
The specific issue between the parties concerns the third of these criteria only. As I have said, the employer accepts that [the employee] was disabled by his addiction to alcohol and does not take issue with his other diagnosed illnesses. His dismissal constituted adverse treatment. With respect to the disputed third element of the test, in Armstrong v. British Columbia (Ministry of Health), 2010 BCCA 56 (B.C.C.A.), the Court of Appeal stated [this element] in the form of a question: [is] it reasonable to infer that the protected characteristic played a role in the adverse treatment? (paragraph 10)
The union cited a number of authorities that supported the position that the employee’s addiction played a role in his termination, including Kemess Mines, where “the Court of Appeal upheld an award which found prima facie discrimination on the basis that the grievor was fired because: he smoked marijuana at the workplace; he did so because of his addiction; and the employer was aware of the addiction.”
The arbitrator commented that:
The Employer takes issue with this view of the prima facie discrimination test. In the submission of the Employer, the third element of the test is informed by the statutory language of s 13(1) of the Human Rights Code, which prohibits adverse treatment “because of a physical or mental disability or other protected characteristic. Thus, it is submitted, a causal link between the disability and the decision to dismiss is necessary. The Employer concedes it is not necessary to prove an intention to discriminate but says “certain evidentiary judgments” are required; the third element cannot be inferred from the existence of the first two elements. The most pronounced example of this reasoning is the Gooding decision, a majority judgment which quoted from the judgment of Abella J. in Syndicat des employes de l’Hopital general de Montreal c. Sexton,  1 S.C.R. 161 (S.C.C.):
 At the heart of these definitions [of “discrimination”] is the understanding that a workplace practice, standard or requirement cannot disadvantage an individual by attributing stereotypical or arbitrary characteristics. The goal of preventing arbitrary barriers is inclusion. It is achieved by preventing the exclusion of individuals from opportunities and amenities that are based not on their actual abilities but on attributed ones. The essence of discrimination is in the arbitrariness of its negative impact, that is, the arbitrariness of the barriers imposed, whether intentionally or unwittingly.
 What flows from this is that there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn employer’s conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.
 If such a link is made, a prima facie case of discrimination has been shown. It is at this stage that the Meiorin test is engaged and the onus shifts to the employer to justify the prima facie discriminatory conduct. If the conduct is justified, there is no discrimination.
As the Court of Appeal noted in both Gooding, at paragraph 14, and Armstrong, at paragraph 25, the essence of these comments was approved by the majority of the Supreme Court of Canada in Keays v. Honda Canada Inc.  2 S.C.R. 362 (S.C.C.), at paragraph 71.
The Gooding decision set aside an award in which the prima facie discrimination determination was based on a finding that the grievor’s theft of alcohol was related to his alcohol addiction. Writing for the majority, Huddart JA said:
 I can find no suggestion that Mr Gooding’s alcohol dependency played any role in the employer’s decision to terminate him or in its refusal to accede to his subsequent request for the imposition of a lesser penalty. He was terminated, like any other employee would have been on the same facts, for theft. The fact that alcohol dependent persons may demonstrate “deterioration in ethical or moral behaviour”, and may have a greater temptation to steal alcohol from their workplace if exposed to it, does not permit an inference that the employer’s conduct in terminating the employee was based on or influenced by his alcohol dependency.
 I can find no suggestion in the evidence that Mr Gooding’s termination was arbitrary and based on preconceived ideas concerning his alcohol dependency. It was based on misconduct that rose to the level of crime. That his conduct may have been influenced by his alcohol dependency is irrelevant if that admitted dependency played no part in the employer’s decision to terminate his employment and he suffered no impact for his conduct greater than that another employee would have suffered for the same misconduct..
Leave to appeal was denied: [British Columbia Public Service Agency v. B.C.G.E.U.] (2009),  S.C.C.A. No. 460 (S.C.C.). The decision stands as a recent and important precedent in the law applicable to this dispute.
Arbitrator Germaine then commented that arbitrator Sheehan had stated, in Xstrata Nickel, that
“there can be little doubt that the jurisprudence regarding the issue of the appropriate test for the establishment of a prima facie case of discrimination has become somewhat unsettled. Recently, the Courts, Human Rights Tribunals and Arbitrators have tackled this issue; with the end result being a lack of consistent articulation as to the appropriate test. (page 213). I will endeavour to make sense of this unsettled and inconsistent landscape one point at a time.
After having considered a good many decisions, arbitrator Germaine focused on the B.C.C.A. decision rendered in Kemess Mines Ltd. That decision, rendered on February 14, 2006, predated that same court’s decision in Gooding (rendered on April 2008) and the Supreme Court of Canada’ denial of leave to appeal (the Gooding decision) delivered on February 5, 2009. In his opinion, the dissenting judgment of Kirkpatrick JA in Gooding was to be preferred. In her view, “The final step in the formulation is to determine whether the addiction was a factor in the termination.” (paragraph 54). She stated that it is a vital aspect of the onus on the complainant to establish prima facie discrimination:
… the employee must adduce evidence establishing a nexus between the addiction and the misconduct – the stated reason for termination. This evidentiary burden is significant, for it cannot be assumed that addiction is always a causal factor in an addicted employee’s misconduct. In its factum, the employer submitted “[g]iven the prevailing view of addiction experts that addiction can result in a lowering of moral and ethical conduct on the part of the addicted person, it will be a rare case where some connection between the addiction and the misconduct cannot be established. (emphasis of the appellant). This view undervalues the importance of evidence in cases of this kind, and the necessity for a contextual inquiry that considers the nature of the disability and the misconduct, and the connection between the two. (paragraph 55)
The arbitrator concluded that he was obligated to apply the Gooding decision because the similarities between that case and this were too great to distinguish:
Were I in a position to follow Kemess Mines, I would have found that it is reasonable to infer that [the employee’s] addiction played a role in his termination on the basis that [his] misconduct was largely attributable to his addiction: [the employee] was terminated for this misconduct so there was no reason given for his termination unrelated to his addiction; and the Employer was aware of the addiction before the termination recommendation was made. Given the nexus between [the employee’s] disability and his termination, I would have found prima facie discrimination had been established. With respect to the duty to accommodate, I would have held that, despite the accommodations already extended to [the employee], the Employer’s failure to consider any accommodation after [the date of the incident] prevents a finding that a further accommodation would have imposed undue hardship. On this basis, I would have been persuaded by [the union’s] contention that the parties should have been returned to the position they were in … and directed to address the the possibilities of a restructured position in the Criminal Justice Branch or another position elsewhere in the Ministry or other Ministries.
By way of concluding comments, arbitrator Germaine stated:
Having regard to the authorities, I am unable to reconcile the decisions of the Court of Appeal in Kemess Mines and Gooding. While I would prefer to follow the former, I am unable to distinguish the Gooding decision on the facts. Applying Gooding, I am forced to conclude [that the union] has not established prima facie discrimination. The duty to accommodate is therefore not an issue because the Human Rights Code has no application.
The grievances were therefore dismissed.