FPSLREB Decisions
Decision Information
The grievor is a correctional officer who held a dog handler position at a penitentiary – the employer terminated him for purchasing and using cannabis, using one of its vehicles to transport cannabis for personal purposes, and exposing the detector dog to the odour of cannabis, which could have harmed its abilities – the grievor alleged that his termination constituted a discriminatory measure under the Canadian Human Rights Act – the adjudicator found that the grievor was suffering from a cannabis addiction and that his termination partially constituted a discriminatory measure in that respect – however, the adjudicator found that using one of the employer’s vehicles to transport cannabis for personal purposes and exposing the detector dog to the odour of cannabis, which could have harmed its abilities, were not connected to the grievor’s disability and that they justified discipline – the adjudicator found that the termination was excessive and that a suspension without pay for six months was fair and equitable under the circumstances – he ordered the grievor reinstated at the CX-02 group and level – he also ordered the deputy head to offer the grievor a position for which he is qualified, at the same group and level, while appropriately accommodating him if necessary on the basis of medical information to be provided by the grievor.
Grievance allowed in part.
Decision Content
Date: 20180413
Citation: 2018 FPSLREB 28
| Public Service Labour Relations Act
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Before an adjudicator
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Between
MARTIN NADEAU
Grievor
and
DEPUTY HEAD
(Correctional Service of Canada)
Indexed as
Nadeau v. Deputy Head (Correctional Service of Canada)
In the matter of an individual grievance referred to adjudication
Before: Steven B. Katkin, adjudicator
For the Grievor: Mathilde Baril-Jannard, counsel
For the Respondent: Léa Bou Karam, counsel
For the Canadian Human Rights Commission: Jonathan Bujeau, counsel
October 15 to 17, 2014, and June 2, 3, and 5, 2015,
and at Ottawa, Ontario,
July 24, 2015.
REASONS FOR DECISION
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(FPSLREB TRANSLATION)
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I.
Individual grievance referred to adjudication
[1]
Martin Nadeau (“the grievor”) was a dog handler at the maximum-security Donnacona Institution (“the institution”). His position was classified at the CX-02 group and level with the Correctional Service of Canada (“the employer” or CSC). In a letter dated November 22, 2013, the employer terminated him for disciplinary reasons under s. 12(1)(c) of the Financial Administration Act (R.S.C., 1985, c. F-11).
[2] The termination letter (Exhibit E-14) reads in part as follows:
[Translation]
...
...
This situation is likely to discredit the employer. This situation and your conduct directly contradict the very nature of the Correctional Service of Canada’s operations and mission, your dog handler duties, and your peace officer status. After analyzing this, I noted that you have breached the Values and Ethics Code for the Public Sector and the Correctional Service of Canada’s Code of Discipline.
...
Code of Discipline (8c): “acts, while on or off-duty, in a manner likely to discredit the Service”.
Also based on the same things, the committee considers that Mr. Nadeau deviated from the Values and Ethics Code for the Public Sector with respect to the values of integrity: “Public servants shall serve the public interest by acting at all times with integrity and in a manner that will bear the closest public scrutiny, an obligation that may not be fully satisfied by simply acting within the law.” (3.1). In 3.4: “[they act] in such a way as to maintain their employer’s trust.”
As established in the earlier “Analysis” section, the committee considers that using narcotics, procuring them (the amount purchased), transporting this substance in a CSC vehicle, and exposing a detector dog to it constitute behaviours that are serious breaches of the rules set out earlier. Mr. Nadeau acknowledges those behaviours. Given his peace officer status, his correctional officer role, and especially his dog handler position, he is likely to tarnish the CSC’s image. The employee’s conduct also compromised his authority role toward the CSC’s clientele.
[4] On November 22, 2013, the grievor filed a grievance contesting his termination. It was worded as follows: “[Translation] I contest the employer’s decision to terminate me, which was done discriminatorily on November 22, 2013.” As corrective measures, he asked to be reinstated to his dog handler position or in the alternative to different functions, to receive all lost pay and benefits, and to be compensated for all actual and non-material damages or to receive punitive damages. His grievance was referred to adjudication on January 9, 2014, under s. 209(1)(b) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA). The applicable collective agreement is that between the Treasury Board and his bargaining agent, the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN, which expired on May 31, 2014 (“the collective agreement”).
[5] On January 14, 2014, the Public Service Labour Relations Board (PSLRB) received a copy of the notice that the grievor had given to the Canadian Human Rights Commission (CHRC) under s. 210 of the PSLRA, which alleged that the grievance raised an issue concerning the interpretation or application of the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA), namely that the employer had not accommodated his drug addiction. In a letter dated January 24, 2014, the CHRC informed the PSLRB that it intended to make submissions in this matter. It filed its submissions on October 10, 2014.
[6] On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board to replace the former PSLRB as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to s. 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the PSLRA as that Act read immediately before that day.
II.
Summary of the evidence
[10] For its rebuttal, the employer called Dr. Juan Carlos Negrete, a psychiatrist.
[12] The grievor began his career with the employer in February 2007 at Cowansville Institution as a correctional officer classified at the CX-01 group and level. A few years later, he applied for a dog handler position and was admitted to the program. After 10 weeks of training at the Canada Border Services Agency’s training centre in Rigaud, Quebec, he was appointed to a detector-dog handler/search specialist position at the institution in May 2011 (Exhibit E-16).
[13] Mr. Bisson offered to house the grievor while he searched for a residence, and the grievor lived with him for four or five weeks. In 2012, the grievor confided certain things to Mr. Bisson, to the effect that he had used “[translation] pot and hash” and that he still occasionally used some when off-duty.
[14] The grievor and Mr. Bisson had a few work-related disputes, and on two occasions, Mr. Bisson threatened him, telling him he would “[translation] give [him] a beating”. The second dispute took place in June 2013; the grievor had an arrogant attitude toward Mr. Bisson, who told the grievor to change it if he did not want to lose his job.
[15] On June 5, 2013, fearing that Mr. Bisson would report him for his drug use, the grievor went to the SIO office, where he met with Mr. Deschênes and Lucie Blais, an SIO. He told them that he had shared secrets with Mr. Bisson and that Mr. Bisson had told him that he could get him fired. He told them that he smoked joints when he played guitar and that a friend in the Cowansville area sold him drugs.
[16] Mr. Deschênes explained to him that his drug use was at odds with his dog handler position and advised him to immediately see the AWO, Mr. Poulin, to share this information with him, failing which he would report him. Ms. Blais added that surely, the detector dog had been impacted by being exposed to the odour of cannabis.
[17] Later that same day, the grievor met with Mr. Poulin. At the meeting, Mr. Poulin explained to him that his behaviour was illegal, that it brought him into contact with organized crime, that it exposed him to blackmail, and that it was at odds with his peace officer and dog handler duties. The grievor stated that a friend supplied him with drugs.
[19] The grievor was called to a meeting on July 18, 2013. The grievor’s union representative and the Warden, Mr. Lanoie, attended. The grievor was informed that he was suspended with pay for the time being, that his detector-dog handler vehicle was confiscated, and that his detector dog would be returned to the Rigaud training centre. Also confiscated were the narcotics kit for training the dog and the memo authorizing the grievor to transport those narcotics. Mr. Lanoie informed the grievor that a disciplinary investigation would launch the following week.
[21] On July 19, 2013, Mr. Lanoie convened a disciplinary investigation committee, and the grievor was sent a notice informing him of the investigation (Exhibit E-6). The committee was composed of Ms. Brunelle, as the chairperson, and Julie Dion, a manager at the institution.
[22] The investigation committee met with the grievor on July 24, 2013. At the meeting, he informed the committee of how he purchased drugs. During his time off, he travelled to his parents’ residence via his personal vehicle; they live on Montreal’s south shore. Occasionally, when he used the CSC’s vehicle, his parents looked after his detector dog. He ordered drugs over the phone and used his parents’ vehicle to go to Cowansville, where he bought 14 or 28 grams of cannabis. The grievor stated that his supplier, who was a friend of his, knew that the grievor worked for the CSC. He acknowledged that when he returned to his home after his days off, he transported drugs in the CSC vehicle when he was using it.
[23] The disciplinary investigation report (Exhibit E-7) was filed on September 9, 2013. The investigation committee concluded that the grievor’s drug use was incompatible with his peace officer role and his dog handler position and that he had breached paragraph 8(c) of the CSC’s Code of Discipline (Commissioner’s Directive (CD) 060; Exhibit E-8) and paragraphs 3.1 and 3.4 of the Values and Ethics Code for the Public Sector (Exhibit E-9). Paragraph 8(c) of the Code of Discipline, under the heading “Standards of Professional Conduct”, reads as follows:
...
c. acts, while on or off-duty, in a manner likely to discredit the Service ....
7. Behaviour both on and off-duty, shall reflect positively on the Correctional Service of Canada and on the Public Service generally. All staff are expected to present themselves in a manner that promotes a professional image, both in their words and in their actions. Employees [sic] dress and appearance while on duty must similarly convey professionalism, and must be consistent with employee health and safety.
[25] Paragraphs 3.1 and 3.4 of the Value and Ethics Code for the Public Sector read as follows:
...
3.4 Acting in such a way as to maintain their employer’s trust.
[26] The grievor received a redacted copy of the investigation report on October 1, 2013. He responded in writing on October 8, 2013 (Exhibit E-12), the date of his disciplinary hearing. He was terminated for disciplinary reasons on November 22, 2013.
A.
For the employer
1.
Mr. Bisson
[27] Mr. Bisson has been working for the CSC since May 1995. He became a detector-dog handler/search specialist in May 2005. According to him, the cost of training a dog-handler and detector-dog team ranges from $35 000 to $40 000, which includes the correctional officer’s salary, the accommodations at the Rigaud training centre, and the cost of the dog.
...
d. ensure, pursuant to the Detector Dog Program Operations and Procedures Manual:
...
[30] The CSC provides dog handlers with a vehicle that is adapted to accommodate the detector dog in a cage, in addition to the handler’s tools. Furthermore, the CSC provides two kennels, one for the handler’s office at the institution and the other for the handler’s residence. Mr. Bisson said that although it is preferred that the dog be kept in the kennel, according to him, most handlers have the dogs enter their homes.
[31] Mr. Bisson explained that one of the handler’s tools is a narcotics kit that Health Canada provides to train the detector dog, which contains four substances that the dog detects, which are heroin, cocaine, cannabis, and chemical drugs. The substances are weighed, and for training purposes, they are divided into small (1 gram), medium (5 grams), and large (the rest of the substance) quantities. After weighing them, the weights are noted on a paper that remains at all times in the narcotics kit, and a copy is sent to Health Canada.
[32] The narcotics are stored in two separate lockboxes, and only the handler knows the combinations. The first lockbox contains the heroin, the cocaine, and the chemical drugs, while the other contains all the cannabis derivatives, namely, marijuana, hashish, and two vials of liquid hashish. To prevent the odours from diffusing, the substances are first placed in a plastic bag, then placed in a second plastic bag, and then in a Mason jar. The CSC provides dog handlers with an explanatory letter that authorizes them to transport the substances in case they are stopped by police.
[33] The detector dog searches visitors, their personal effects, and all boxes that enter the institution via the different departments. At the institution, the inmates’ cells and all other areas of the building are searched.
[34] Mr. Bisson started working with the grievor in May 2011. The grievor lived with Mr. Bisson for four or five weeks while he looked for a place to live. In the meantime, the grievor’s detector dog stayed in his vehicle to avoid encounters with Mr. Bisson’s detector dog.
[35] According to Mr. Bisson, his working relationship with the grievor went well at first. After four or five weeks, they argued about the daily duties of the dog handlers. The tasks involved three main areas: performing searches with the detector dog, performing extensive searches, and writing search reports. The grievor informed Mr. Bisson that he did not want to perform extensive searches or write reports. Mr. Bisson told the grievor that he expected him to do 50% of the work. They had a discussion, and the grievor agreed to do his share of the work. According to Mr. Bisson, everything went well between them for a year after that.
[36] A year later, the two dog handlers’ relationship began to deteriorate. In March 2013, Mr. Bisson did not understand why, after two years of service, the grievor still had to be supervised when he wrote reports. In March or April 2013, Mr. Bisson wrote many reports. Regional management had asked for a new report on individual dog searches rather than on group searches. Before March 2013, only one report had been made for all the statistics of and the searches performed by the two dog handlers.
[37] Mr. Bisson realized that he was doing most of the work and argued with the grievor, which degenerated to the point that he told him the following: “[translation] I’m going to punch your teeth out.” During the same argument, he told the grievor that he would get him fired. Mr. Poulin reprimanded Mr. Bisson and told him to apologize to the grievor.
[38] In May or June 2013, Mr. Bisson met with Lionel Chicoine, a correctional manager. He told him that the grievor had made a statement to Mr. Poulin about his drug use because he was afraid that Mr. Bisson would report him. Mr. Bisson said that he had been very surprised by the grievor’s statement and that he did not understand what he could report him for.
[39] Asked whether the grievor had spoken to him about drugs, Mr. Bisson answered that about a year before the argument, the grievor had shown interest in a position with the institution’s emergency response team. The grievor told Mr. Bisson that when he was at Cowansville Institution, he had applied to the same kind of position but that he had withdrawn from the process because he wanted to deal with his use problem before being able to join the team (see the observation report, Exhibit E-2). The grievor told Mr. Bisson that the team leader had told him that doing that had been to his credit. The grievor told Mr. Bisson that it was no big deal because he now had “[translation] a good job”. Mr. Bisson inferred that the grievor had dealt with his drug-use problem and that he had a good job.
[42] When asked whether he would ever work with the grievor again, Mr. Bisson answered, “[translation] Never.” He stated that he had done everything to help the grievor and that he could never trust him again. He added that if the grievor were reinstated to his position, he would resign as a dog handler, because he had only five years left in his career.
[43] In cross-examination, Mr. Bisson acknowledged the importance of isolating a detector dog by keeping it in a kennel, to prevent it from acquiring bad habits. However, he acknowledged that his dog was not always in the kennel and that he allowed it to enter his house.
[44] When asked whether it would have been preferable for him to report his disagreements with the grievor to their supervisor, Mr. Chicoine, Mr. Bisson answered that he had done so. He also affirmed that he apologized to the grievor when he bumped into him shortly after the argument.
2.
Mr. Deschênes
[47] Mr. Deschênes testified that since the institution is at maximum security, the inmate population includes those serving life sentences and those deemed to represent an escape or a public-safety risk. According to him, one out of three inmates there is connected to organized crime.
[48]
When asked for an example of people who expose themselves to organized crime, Mr. Deschênes answered that it would be those who make themselves vulnerable to pressure or to blackmail for introducing firearms, drugs, or mail that is not ordinarily inspected.
...
A safe, drug-free penitentiary is necessary for the successful reintegration of inmates into the community.
The presence of drugs helps create violence within institutions and prevents offenders from following their correctional plans.
...
[50] Mr. Deschênes stated that using drugs involves inherent risks, such as high doses. Four overdoses happened in the two years before the hearing, which caused among other things three deaths. Furthermore, drug users have unpredictable behaviour, which makes intervening difficult.
[51] Another point that must be considered is that inmates who are users can go into debt, which if they are not able to repay means that they can be forced to do things, such as asking their visitors to smuggle narcotics into the institution, for example. They could also go as far as assaulting other inmates or staff.
[52] According to Mr. Deschênes, the SIOs share information with the dog handlers that they do not necessarily share with other correctional officers. Since the information is often provided by an inmate, one must act carefully.
[53] On June 5, 2013, while Mr. Deschênes was eating with his colleague, Ms. Blais, the grievor showed up at his office and told them that Mr. Bisson knew something about him and that he was afraid that Mr. Bisson would use it against him. The grievor told them that he smoked joints while playing guitar because it made him more creative. He tried to reassure them by saying that it was not serious and that it did not cause him problems. He added that he bought drugs through a friend. Mr. Deschênes told him that he was working in a drug-fighting field and that using them is a criminal activity. The grievor told them that it was a “[translation] generational issue” and that they could not understand. Mr. Deschênes told him to see Mr. Poulin, which he did.
[54] Mr. Deschênes testified that he had always trusted the grievor and that he was under the impression that the grievor had stabbed him in the back. When asked whether he could work with the grievor again, even if he stopped using drugs, Mr. Deschênes answered, “No,” because he could no longer trust him. The grievor was a peace officer who had done business with a criminal and had said it was no big deal. That was a risk, and the grievor had to be protected from the criminal world. According to Mr. Deschênes, it represented an imminent workplace danger under the Canada Labour Code (R.S.C., 1985, c. L-2).
[55] In cross-examination, Mr. Deschênes was asked why he wrote his observation report only on July 29, 2013 (Exhibit E-4), which was after his interview with the investigation committee on July 24, 2013, if the incident took place at the beginning of June. He answered that reports were not usually written about other employees and that that kind of information was normally shared orally with supervisors. He said that he had seen Mr. Poulin on June 5, 2013, to ensure that the grievor had in fact met with him, and he described his discussion with the grievor.
[57] When asked whether the grievor had compromised the institution’s security, Mr. Deschênes answered that he had no information on that subject. He answered the same when it was suggested to him that no allegations had been made that the grievor had allowed drugs to enter the institution. Mr. Deschênes acknowledged that no other employees had complained that the grievor had compromised the institution’s security.
3.
Mr. Poulin
[58] Mr. Poulin has been working for the CSC since 1998. He has held CX-01 and CX-02, parole officer, and correctional manager positions. He testified that his AWO responsibilities include directly supervising 18 correctional managers and indirectly supervising 300 correctional officers, including the tactical team, the dog handlers, and the personal effects officer; managing the inmate population; applying national training standards; and managing a budget.
[59] Mr. Poulin testified that the grievor met with him in his office on June 5, 2013, after an argument with Mr. Bisson. Without detailing the argument, the grievor said that they were not from the same generation and that they did not think or work in the same way. He met with Mr. Poulin because in the past he had confided in Mr. Bisson, who could have used the information against the grievor to harm him, so he wanted to take the initiative.
[60] The grievor informed Mr. Poulin of two events from his past. First, while at CEGEP, the grievor was approached about buying a stolen credit card, but the transaction never took place. While he was a correctional officer at Cowansville, the grievor bumped into an inmate who he believed had been the person with whom he had been involved with the credit card, but he was not sure whether the inmate recognized him.
[61] Second, from age 16 to 18 or 19, the grievor sold drugs with a friend. He stopped when he received a call telling him to leave the territory.
[62] The grievor told Mr. Poulin that he was a “[translation] guitar scratcher” and that he smoked a joint occasionally while playing guitar. When he said that he bought drugs through a friend, Mr. Poulin told him that as a peace officer, he had important responsibilities. He added that the dealer was probably linked to organized crime in one way or another and that the grievor’s use put him in a position of being exposed to blackmail, and it could tarnish the CSC’s image. He told the grievor that the risks were inconsistent with his responsibilities. The grievor answered that he was aware that he had “[translation] put his balls on the line”, and said the following: “[translation] Do what you must.” Mr. Poulin never sensed that the grievor was distressed or afraid that he would lose his job.
[63] On the same day, Mr. Poulin met with Ms. Tremblay, the acting warden in Mr. Lanoie’s absence, to inform her of his discussion with the grievor. They called in Mr. Chicoine to inform him of the situation, and they agreed to have the grievor’s vehicle narcotics kit checked. Mr. Poulin testified that the grievor had told him that he did not use hard drugs and that he had never taken drugs from his kit. In fact, nothing was missing from it. At that time, they did not have information suggesting that the grievor was compromising the institution’s security.
[64] It was decided to wait until Mr. Lanoie returned. In the meantime, the grievor was to maintain his position, with some restrictions. The order was given that should a police force request the dog handlers’ help, the grievor would not be allowed to carry out that work to avoid tarnishing the CSC’s image in the eyes of its police partners. A manager was already monitoring the grievor’s work, for other reasons.
[65] Mr. Lanoie’s return coincided with Mr. Poulin’s last day of work before his vacation. He informed Mr. Lanoie of the events and was not involved in subsequent developments.
[66] Mr. Poulin testified that he was surprised and appalled by the grievor’s statement because of his peace officer status and because the grievor’s detector dog could have been affected by the grievor’s drug use. According to him, the bond of trust had been broken, and he asked himself what the grievor could do in the future. He was exposing himself to blackmail, which could compromise his safety and that of the staff.
[67] In cross-examination, Mr. Poulin stated that he had never dealt with the Centre de thérapie CASA and that he had never received documents from it. He stated that the EAP not only deals with drug and alcohol problems but also problems with inmates or those that arise after major incidents. According to him, he could not ask the EAP to meet with an employee.
[68] Mr. Poulin reiterated that a correctional officer’s drug use would be at odds with that officer’s duties. When asked whether correctional officers had been treated for drug use at the institution in the past, Mr. Poulin answered that he did not know and that he did not have to deal with such cases.
[69] When he was asked to explain the delay between his discussion with the grievor on June 5, 2013, and writing his observation report on August 12, 2013 (Exhibit E-5), Mr. Poulin answered that there was no deadline to write such a report. The grievor was an employee, not an inmate, and his conversation with the grievor did not represent an incident. His first reflex is not to make a written report about an employee. When the grievor informed him of his argument with Mr. Bisson, Mr. Poulin suggested that he intervene with his manager; the grievor refused.
[70] When asked why he had not recommended the EAP to the grievor, Mr. Poulin answered that the grievor had never told him that he suffered from an addiction, that he was under stress, or that he even needed help. The grievor had never told him that he was dependent or addicted or that he had tried to stop using drugs. According to the grievor, his use was recreational.
[71] With respect to testifying that the bond of trust was broken, Mr. Poulin said that during his conversation with the grievor, he had been unaware of the gravity of the situation and that since the disciplinary investigation had not yet taken place, he did not have enough information to suspend the grievor with pay. However, he took it seriously and discussed it with Ms. Tremblay.
4.
Ms. Brunelle
[72] Ms. Brunelle chaired the investigation committee. In addition to what was described earlier in this decision, she said that during the committee’s meeting with the grievor on July 24, 2013, he maintained that his use was recreational because he had about one joint per week, even though his use increased after his conflict with Mr. Bisson. Ms. Brunelle testified that at the meeting, the grievor acknowledged that he had a drug-addiction problem. He said that during the weekend before the meeting, he had thought it over and had contacted the EAP, asking for help.
[73] As for the potential impact of his use on his detector dog’s skills, the grievor denied it at first, stating that he did not smoke in the dog’s presence. When confronted with certain facts, including the fact that the odour of drugs could linger on his clothes, the grievor admitted that it could have impacted the dog.
5.
Mr. Lanoie
[77] Mr. Lanoie has worked for the CSC since 1987. Before his current position, he held CX-01, CX-02, parole officer, unit manager, and deputy warden and acting warden positions at Drummond Institution.
[78] On his return from vacation in July 2013, Mr. Lanoie was apprised of the grievor’s situation. He wanted to meet with the grievor to confirm the information and then make a decision after that. The meeting took place on July 18, 2013 (Exhibit E-10 — a summary of the events of July 17 to 23, 2013).
[80] Mr. Lanoie told the grievor that he was a peace officer and a dog handler and that his work consisted of detecting drugs in the institution. He added that buying narcotics from a supplier was a criminal act and that his supplier was possibly connected to organized crime. In addition, he had purchased significant quantities of narcotics and had transported them in a CSC vehicle while carrying a letter of authorization to transport narcotics. Mr. Lanoie informed the grievor that a disciplinary investigation would be carried out, that he would be placed on leave with pay, that he no longer had access to the CSC’s vehicle, and that the detector dog would be returned to the Rigaud training centre.
[82] Mr. Lanoie testified that he had concerns about grievor’s vulnerability given that most of the inmates at the institution were heavy drug users or were involved in drug trafficking. The grievor had exposed himself to blackmail by buying drugs.
[83] Mr. Lanoie stated that he was disappointed by the grievor’s behaviour and that the grievor might have exposed the detector dog to cannabis odours. Furthermore, the CSC’s relationship with police could have been affected because the grievor transported drugs that he had bought in his work vehicle.
[84] According to Mr. Lanoie, the CSC’s mandate requires deeply entrenched positive values. A peace officer must respect the rules, which are not to use narcotics, not to buy them, and not to transport them in a CSC vehicle. Otherwise, the officer exposes himself or herself and all co-workers to problems at the institution.
[85] As for the grievor’s therapy record, which the Centre de thérapie CASA issued on October 4, 2013 (Exhibit E-13) and that he received on October 8, 2013, Mr. Lanoie said that he understood that the grievor had participated in the therapy. At the October 8, 2013, disciplinary hearing, the grievor told him that he had benefitted from the therapy, and Mr. Lanoie encouraged him to continue it.
[86] Mr. Lanoie clarified the termination letter. It refers to everything management found out about the grievor before and after the disciplinary investigation with respect to using narcotics, to their acquisition, to transporting drugs in a CSC vehicle, and to exposing the detector dog to drugs.
[87] The termination letter refers to the aggravating and mitigating factors. According to Mr. Lanoie, the aggravating factors were buying significant quantities of narcotics, transporting drugs in a CSC vehicle, and exposing the detector dog to drugs, along with the time frame, which spanned months. He stated that the mitigating factors were the grievor’s level of transparency, his cooperation during the disciplinary investigation, his answers to questions, and his willingness to accept help.
[88] Mr. Lanoie testified that he considered the mitigating factors insufficient to outweigh the grievor’s serious offences. He had a permit to transport drugs, and his dog handler role was dedicated to eliminating drugs from the institution. His supplier surely had links to the criminal world, and the grievor exposed himself to blackmail. As a dog handler, he had access to privileged information about drugs entering the institution, on which he worked with the SIOs.
[89] In explaining why he had concluded that the bond of trust between the CSC and the grievor had been broken, Mr. Lanoie said that most employees at the institution are peace officers and that when recruiting them, greater emphasis is placed on the values of integrity and transparency. By his actions, the grievor demonstrated that he did not share those values. Management must be able to trust all its employees.
[90] When asked if he knew that the grievor had a dependency, Mr. Lanoie answered that at the beginning, the grievor told him that he used recreationally and that he did not need therapy. Only later did management become aware that the grievor had been to the Centre de thérapie CASA. Mr. Lanoie was somewhat surprised by the grievor’s situation because he carried out his duties, was not absent repeatedly, did not have red eyes, and did not show up to work intoxicated. So, he believed the grievor when he told Mr. Lanoie that his use was only recreational.
[91] When he was asked about the impact on the institution if the grievor were reinstated to his position, Mr. Lanoie answered that given that a large proportion of the institution’s population is from the crime world, pressure from that world must not be exerted on employees. They must be able to trust each other, and reinstating the grievor to his position would impact other employees.
[92] In cross-examination, Mr. Lanoie said that trust is very important due to the employees’ vulnerability and the inmates’ proximity. Although not all employees are vulnerable, an inmate can search for vulnerabilities, for example, if employees are mixed up in such situations or if they buy narcotics. Mr. Lanoie added that before he left for his vacation, Mr. Poulin had informed him of the known facts about the grievor as of that date.
[93] In re-examination, Mr. Lanoie said that he had provided training in Ottawa on June 5, 2013, as part of the regional management committee. The training can last three to four days. He returned to the institution for a day before leaving on vacation. The date was July 17, 2013.
B.
For the grievor
1.
The grievor
[94] The grievor began his correctional officer training in fall 2006 and started working for the CSC as a CX-01 at Cowansville Institution. He stayed in that position for five years. His application for a dog handler position was accepted, and once his training was complete, he was assigned to the dog handler/search specialist position at the institution on May 25, 2011.
[95] The grievor’s duties consisted of preventing drugs from entering the institution and of eliminating contraband from it by searching visitors, inmates, and food, among other things. He had to conduct two intensive searches monthly and any other requested searches. Before a search, he had to prepare an outline and a search plan. He had to write monthly reports, some of which dog handlers at other institutions did not have to write, such as a compilation of items seized. A dog handler and the detector dog are assessed annually for their performance, and the grievor and his dog met the established performance standards in October 2011 and November 2012 (Exhibits S-3 and S-4).
[96] As for his relationship with Mr. Bisson, the grievor said that it was good at the start. He appreciated that Mr. Bisson invited him to stay with him, and he appreciated Mr. Bisson’s work advice.
[97] After a year, Mr. Bisson and the grievor argued over compiling the files and reports that had to be sent in the region. Mr. Bisson complained that he always had to write the reports. They argued, and Mr. Bisson threatened to “[translation] give [him] a beating” in the institution’s parking lot.
[98] In June 2013, about one year after that first argument, Mr. Bisson once again threatened the grievor when he told him he would “[translation] give [him] a beating”. To avoid adding fuel to the fire, the grievor laughed, but that enraged Mr. Bisson. The grievor said that he had only wanted Mr. Bisson to explain to him how to deal with files so that he could do it in his absence.
[99] The grievor testified that he was fed up with being told that he was no good. That was the second time that Mr. Bisson had threatened to fight him. On the same day, June 5, 2013, he went to see the SIOs. According to him, they did not react as he had hoped they would. When he started to talk about using drugs, the SIOs told him that a dog handler could not do that.
[100]
The grievor told Mr. Poulin that his use was not considered a problem, that he used once a week, and that he could control it. After the meeting, he continued working for a month.
[101]
The grievor was called to the office of the institution’s warden on July 18, 2013. Mr. Lanoie told the grievor that his behaviour was unacceptable and that he would order a disciplinary investigation. The detector dog was taken away from the grievor, and he was suspended. The meeting surprised him because he had worked for a month before being called to it.
[103]
The grievor provided an overview of his use. From the age of 17 until he completed his CEGEP studies in 2005, he smoked 4 joints per day. When he became a CSC employee, he smoked one to four joints per week. During his training, he stopped using. He restarted after the first argument with Mr. Bisson, and his use increased significantly in his second year, when he was a dog handler.
[104]
After Mr. Bisson threatened to come to blows the second time, the grievor would smoke up to 10 joints per day. He smoked less on some days, while on other days, he smoked more. According to him, he smoked about 15 per week. His use increased after the meeting with Mr. Lanoie and when his drug dog was taken away.
[105]
The grievor then decided to participate in a closed 28-day therapy session at the Centre de thérapie CASA. He paid $600, and Mr. Lanoie paid the remainder, $3000. The grievor agreed to prolong the therapy; the EAP covered the fees. According to the therapy results (Exhibit E-13), the grievor stayed at the Centre de thérapie CASA from July 25 to August 22, 2013, for the 28-day therapy. Additional stays took place on August 27 and 28; September 3 and 4; September 10, 17, and 24; and October 1 and 4, 2013.
[106]
The grievor then spoke about the treatments that he underwent after he was terminated. The employer raised an objection to this evidence because it was not relevant to deciding whether it had had a valid and sufficient reason to terminate the grievor’s employment. I allowed the evidence, subject to the objection.
[107]
The grievor testified that he relapsed during the 2013 holiday season. He returned to the Centre de thérapie CASA in 2014 for one week. He also attended individual and group meetings at the Centre de réadaptation en dépendance Le Virage from May to October 2014 (Exhibit S-5). According to him, his last use was in April 2014.
[108]
The grievor admitted that transporting purchased drugs in a CSC vehicle was not a good idea and that he could have harmed the detector dog by exposing it to the narcotics. In his response to the investigation report, he wrote that during the investigation, he could have lied about using the CSC’s vehicle, but that he preferred to be honest.
[109]
In cross-examination, the grievor was referred to his job offer letter for the dog handler position. He acknowledged that he had access to both the Values and Ethics Code for the Public Sector and the CSC’s Code of Discipline.
[111]
When asked whether he thought that his behaviour had not affected the CSC, the grievor did not give a direct answer. Instead, he answered that he was not proud of the situation and that his use enabled him to relax. When working at Cowansville, he did not realize that using drugs conflicted with his peace officer status. He really did not think about his status because he wanted to end his suffering.
[112]
According to the grievor’s medical certificates of incapacity for duty (Exhibit E-17), he was off work from July 19 to November 18, 2013, including his stay at the Centre de thérapie CASA. Apart from the medical certificate for that stay, the three other medical certificates indicate an “[translation] adjustment disorder” as the reason for not working.
[113]
When asked whether he had told his treating physician that he used drugs, the grievor answered that he had not. However, he added that he had told the doctor that he would undergo therapy for his drug use.
[114]
The grievor was referred to his response to the investigation report (Exhibit E-12), in which he wrote the following at the bottom of the first page: “[translation] ... I realized that my actions were incompatible with my profession ...”. He acknowledged that he wrote it before the therapy. In the next sentence, he wrote that he was afraid of the potential consequences, namely, losing his detector dog and his employment. However, he mentioned that before June 5, 2013, he had not been afraid of the consequences of his use.
[115]
The grievor stated that he had wished to trivialize his situation following the SIOs’ reactions. Nevertheless, he knew that using drugs was serious given that he was a dog handler. He did not turn to his union at the time because, according to him, the CSC teaches its employees to resolve issues at the lowest possible level.
[117]
In his response to the investigation report, the grievor wrote that he was rehabilitated. He explained that he now has the tools to no longer use cannabis as a solution to his problems.
2.
Dr. Marsan
[118]
Dr. Marsan’s main specialty is family medicine. She has many years of experience in addiction treatment, and since 2006, she has worked for the Service de médecine des toxicomanies at the L’hôpital Saint-Luc of the Centre hospitalier de l’Université de Montréal (Exhibit S-6, her résumé). I recognized her as an expert in drug addiction.
[119]
Dr. Marsan filed an expert medical report on the grievor dated September 20, 2014 (Exhibit S-7), and an additional note dated October 2, 2014 (Exhibit S-8). The employer did not object to adducing them as evidence. Dr. Marsan examined the grievor on March 31 and August 29, 2014. The report indicates that all the information about the grievor’s situation and his state of health at the time was obtained through a direct interview, that Dr. Marsan did not have access to other documentation, and that no other documents were amended.
[120]
To define “dependency”, the expert report refers to the Manuel diagnostique et statistique des troubles mentaux, which is the French version of the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association. In her report, Dr. Marsan refers to the DSM-5 of May 2013 and mentions the 11 diagnostic criteria for a substance-use disorder. She affirmed that the seriousness of the disorder is determined by the number of criteria met and that all the criteria are equal.
[121]
When asked whether she had diagnosed the grievor with a dependency, Dr. Marsan answered that she had applied the DSM-5’s 11 criteria to his situation. Her conclusion reads as follows:
[Translation]
...
According to the DSM-V criteria, Mr. Nadeau has a serious cannabis-use disorder, he has had a recent remission, and he is in maintenance therapy. Evidently, the disorder has been present since 2012. However, I suspect that he already had a slight cannabis-use disorder while at CEGEP.
...
[122]
Dr. Marsan stated that the objective of the second meeting with the grievor, on August 29, 2014, was to confirm the facts that he had provided to her. She asked him the same questions as at the first meeting, and she received the same answers. Therefore, she did not doubt his credibility.
[123]
In her report, Dr. Marsan indicates that the period for a recent (or early) remission of a disorder is defined as consisting of at least 3 months but no longer than 12 months without meeting any of the criteria of the disorder, except that of a craving to use. The period for a lasting (or prolonged) remission consists of at least 12 months without meeting any of the criteria of the disorder, except that of a craving to use. Dr. Marsan testified that as of the second meeting, the grievor had been in remission for four months.
[124]
In her additional note dated October 2, 2014 (Exhibit S-8), Dr. Marsan addressed the issue of whether the extent of someone’s ability to recognize his or her situation is affected by his or her dependency on substance use. In this document, Dr. Marsan refers to DiClemente and Prochaska’s transtheoretical model of change, according to which a person suffering from a dependency problem apparently goes through the following stages of change: precontemplation, contemplation, preparation, action, maintenance, and relapse.
[125]
After describing the characteristics of each stage of change, Dr. Marsan added the following:
[Translation]
...
... these stages must be gone through in that order to ensure that the change is fully integrated because omitting one or more leaves the individual vulnerable to relapsing. However, moving to higher levels is reversible, and moving backward is frequent. That is to say that the patient can reach his or her objective and maintain it for a certain amount of time and then relapse, become discouraged, and renounce change for the time being. What we want to observe is that the patient has gained significant knowledge each time he or she engages in a cycle of change and that it enables him or her to advance further in his or her next attempt.
[126]
Dr. Marsan testified that a relapse can last for months, even years. She said that the grievor had done what he needed to do because, when he felt vulnerable, he went to the Centre de thérapie CASA. She could not comment on his status in June 2015, but according to her, in August 2014, he was at the maintenance stage.
[127]
When asked whether drug addiction and personality disorders are connected, Dr. Marsan answered that people with personality disorders are often more likely to develop a use problem. She added that a personality disorder is not necessary to develop a use problem. However, a person with a use problem can develop a personality disorder.
[128]
When asked to what extent it could have been relevant to have been aware of the grievor’s history of behavioural disorders or antisocial conduct, Dr. Marsan answered that although she is not a psychiatrist, she relied on the DSM-5 criteria, and that it is not necessary to carry out a psychiatric assessment to reach a diagnosis. Such information will help with understanding the person for assessment and diagnosis purposes.
[129]
When asked about the impact of depression combined with a use problem, Dr. Marsan answered that the grievor had been prescribed medication as part of treatment for major depression. The entire situation has to be considered because if the depression is not treated, then that does not help with treating the use, and vice versa.
[130]
Dr. Marsan testified that the DSM-5 criteria do not require laboratory tests. At her clinic, screening tests (through urine) are rarely conducted because they are valid only for two to four days and do not provide an accurate picture of use. Furthermore, many drugs are not detected through screening, and screening via urine can produce false positives. Dr. Marsan does not regularly conduct screenings.
[131]
As for the relevance of immunological tests for detecting the presence of complications such as viral hepatitis or an HIV infection, Dr. Marsan said that they are optional and that extensive psychological re-education must be provided before carrying them out. She said that she would have been forced to develop a therapeutic relationship with the grievor. She added that tests would not have aided the diagnosis.
[132]
When she was asked to comment on Dr. Negrete’s expert report, Dr. Marsan said that some observations were very general and did not consider the grievor’s context. She added that the report did not provide conclusions.
[135]
Dr. Marsan could not affirm that the grievor would not relapse. She said that if a person in remission is regularly in the presence of cannabis, he or she can be influenced and relapse. To decrease the risk of relapsing, the person must protect himself or herself by being supervised.
3.
Ms. Tremblay
[137]
Ms. Tremblay, the institution’s acting warden, has worked for the CSC for 23 years. She was the acting warden from June 4 to 16, 2013, replacing Mr. Lanoie.
[138]
Ms. Tremblay testified that she was very little involved in managing the grievor’s file. On June 5 or 6, 2013, Mr. Poulin informed her that the grievor had told him that he smoked a joint when he played guitar and that he did not have a use problem because, according to him, he smoked only occasionally.
[139]
Ms. Tremblay and Mr. Poulin discussed the situation to determine whether, based on the information they had at the time, the grievor posed an imminent risk to the institution. They had his vehicle narcotics kit checked, and it was complete. Given the information available to them, they determined that he did not pose an imminent risk, and they decided to keep him in his position while waiting for Mr. Lanoie to return from vacation. Ms. Tremblay stated that she would have decided differently had she had the information revealed afterward.
[140]
Ms. Tremblay met with Mr. Lanoie when he returned to work on July 17, 2013. However, she did not participate in his meeting the next day with the grievor, which was held to determine whether he had additional information because until July 18, 2013, no one had received new information about him.
4.
Mr. Garneau
[142]
Mr. Garneau was apprised of the grievor’s situation on the same morning that the grievor was notified that he would be the subject of a disciplinary investigation. He recalled that Mr. Lanoie and Mr. Chicoine attended the July 18, 2013, meeting.
[145]
According to Mr. Lanoie, the disciplinary investigation was to be conducted quickly. He told Mr. Garneau that he had chosen two people to conduct it. It took place over the following weeks.
5.
Mr. Fiset
[148]
Mr. Fiset has been a correctional officer at the institution since June 2011. Before that, he worked at Cowansville Institution for seven years. He met the grievor at work and has known him for nine years. According to Mr. Fiset, the grievor worked very independently, his work was appreciated, and he was easy to work with.
[150]
In cross-examination, Mr. Fiset said that he had been a union steward since February 2011. He had worked with the grievor at Cowansville for at least five years, and he stayed in touch with him after the grievor was transferred to the institution. He considers the grievor a close friend.
6.
Mr. Fréchette
[151]
The employer raised an objection as to the relevance of Mr. Fréchette’s testimony. I allowed it, subject to the objection and its probative value.
[152]
Mr. Fréchette, who is now retired, explained his main duties as a regional manager of the EAP for the CSC in Québec from 1992 to 2014. Among other things, he supported the EAP’s local committees; he advised local management, the union, and labour relations on problems with employees’ well-being; he promoted employees’ health and well-being; and he compiled certain statistics, including the EAP’s regional overview for 2011-2012 (Exhibit S-11), which he prepared for the EAP’s regional advisory committee.
[153]
Much of Mr. Fréchette’s testimony addressed the EAP’s processes, including that which grants access to the Centre de thérapie CASA. He also described his participation in the return-to-work plans of employees admitted there. I consider that a more detailed summary of his testimony is not necessary to assist me in deciding this matter.
C.
The employer’s rebuttal
[154]
Dr. Negrete has been a doctor since 1961; he obtained a degree in psychiatry in 1967. His career has been dedicated to substance-use disorders (drug addictions). Among other things, he has been a full professor and the addiction psychiatry chief at the University of Toronto, a full professor in McGill University’s psychiatry department, and the founder and then the director of the Addictions Unit at McGill University’s Health Centre for 15 years (the Griffith Edwards Centre). Since 2009, he has been professor emeritus of medicine (psychiatry) at McGill. Dr. Negrete is the author or coauthor of many publications in his area of expertise (see his résumé, Exhibit E-18, pages 15 to 27) and possesses extensive clinical experience gained over 52 years. During that time, he treated 12 000 people with chemical addictions. I recognized Dr. Negrete as an expert in the fields of psychiatry and drug addiction.
[156]
In his report, Dr. Negrete noted that he was asked to provide an opinion based solely on a review of the file. He did not meet with the grievor; nor did he consult findings made during a clinical examination. He was given a file that contained the following documents: Dr. Marsan’s assessment report, her additional note, and her résumé; the grievor’s medical file from the Clinique d’urgence Brossard, with some of Dr. Kimlay Pou-Youthoan’s clinical notes and laboratory results; the grievor’s application for disability insurance benefits, with supporting statements signed by Dr. Pou-Youthoan, his treating physician; and certificates of medical incapacity to work, issued by Dr. Pou-Youthoan and Dr. G. St-Onge.
[158]
In his report, Dr. Negrete’s stated opinion was that Dr. Marsan had sufficient experience and knowledge to properly assess a disorder involving psychoactive-substance use. However, he noted that she did not have specialized training in psychiatry. Furthermore, although the grievor’s treating physician was not a psychiatrist, he had diagnosed the grievor with depression, an adjustment disorder, and then with major depression.
[159]
Dr. Negrete explained that when depression is associated with a drug addiction, it is necessary to differentiate between a disorder brought on by the drugs and independent depression that can exist alongside the drug addiction. Has the affective disorder existed for a long time, or is it a temporary depression, caused by an occasional problem? Three possibilities exist, which are determined through psychoanalysis.
[160]
When asked whether one had to be a psychiatrist to diagnose a use disorder, Dr. Negrete answered in the negative. The grievor’s treating physician was not a psychiatrist, but he made the diagnosis. A general practitioner can link depression to drug addiction.
[161]
Dr. Negrete said that generally, people with drug addictions behave impulsively (for example, they can be reckless). This is very common with drug addicts, and it often develops before the addiction begins. The person has to be interviewed to find a hint of the pre-existing personality.
[162]
When asked about the difference between will and judgment, Dr. Negrete answered that judgment is the ability to make a decision while will is the ability to act according to one’s desires. When people with drug addictions suffer from major depression, they use more than they want to.
[163]
According to Dr. Negrete, smoking a joint produces an effect that lasts from 1.5 to 2 hours. People rarely smoke 10 joints a day. For example, when a person smokes after work, it is virtually impossible to smoke 10 joints from 16:30 to 23:00.
[164]
In his report, Dr. Negrete noted some deficiencies in Dr. Marsan’s assessment. According to him, the fact that the grievor is a “black sheep” in his family’s eyes should have been considered via a psychiatric assessment, to make a prognosis on his future psychosocial adjustment and on the risk of his drug addiction recurring. Even though there was no evidence of pathology with antisocial features, a more complete exam would have made it possible to rule out such a diagnosis. Furthermore, the grievor’s general practitioner diagnosed a psychiatric disorder. It was diagnosed at first as an “[translation] adjustment disorder” and then as “[translation] major depression”. Dr. Negrete wondered whether it was an independent affective disorder, a drug-induced mood disorder, or simply a temporary state of distress caused by the grievor’s circumstances in 2013. Furthermore, he wondered about the state of that condition in March and in August 2014, when Dr. Marsan assessed the grievor.
[165]
According to Dr. Negrete, Dr. Marsan’s findings were not based on objective data because all the information was drawn from the statements the grievor made during the interviews, without any objective tests. Dr. Negrete affirmed that normally, a clinical drug-addiction assessment must include a toxicological screening test using a urine sample, to objectively determine all drug consumption during the preceding 48 to 72 hours. According to him, cannabis is detectable in urine for 10 to 14 days.
[166]
Dr. Negrete noted that Dr. Marsan did not provide a prognosis on the grievor’s relapse risk.
[167]
As for the credibility of the answers the grievor gave to Dr. Marsan during the two interviews, Dr. Negrete stated that if a person wants to bias answers, he or she can do so twice. According to him, that test can be reliable, but it is not valid.
[168]
In cross-examination, Dr. Negrete was asked whether his expertise was related to treating someone with substance and personality disorders. He answered that studies have shown that 50% of those with a dependency have a psychiatric disorder. At the clinic, he always carries out a psychiatric assessment. He also examines people who have only a substance problem and no psychiatric issues.
[172]
When asked whether a personality disorder can be caused by drug use, Dr. Negrete answered that he disagreed with the word “caused”. He explained that if a person does not use, some of his or her personality traits do not display themselves with such magnitude. Drug use makes all psychological disturbances more serious, and they do not necessarily begin with drugs. Dr. Negrete added that a depressive disorder does not change a diagnosis of a substance-related disorder.
[173]
Dr. Negrete was then questioned about the DSM-5’s criterion of a strong desire or a strong craving to use a specific substance (cravings). According to him, it is more of an impulse than a desire. The person has control over the impulse, and the intensity of the cravings changes over time. If the stimuli are absent, the cravings decrease.
[175]
As for his testimony that it is virtually impossible to smoke 10 joints from 16:30 to 23:00, Dr. Negrete said that that was based on his clinical experience with patients. It is not impossible, but it is very rare.
[176]
In his report, Dr. Negrete said that it could not be affirmed that the grievor was not at risk of relapsing or that the risk was low because he used again after the first interview with Dr. Marsan in March 2014. According to Dr. Negrete, the fact that the grievor started using again proves that there is a risk of relapsing.
[177]
As for the two interviews Dr. Marsan conducted to determine whether the grievor would answer the same questions the same way, Dr. Negrete stated that it was a test of the questions as opposed to the person replying and that it did not mean that the answers were valid. A lie can be repeated. According to Dr. Negrete, it is important to know whether the answer is true. The validity aspect was missing from Dr. Marsan’s method. Dr. Negrete provided as an example asking someone with a drug addiction about how much he or she uses and then asking the same question of his or her spouse to check whether the spouse confirms the answer because then, the interviewer would be more confident in the answer from the drug-addicted person.
[178]
When asked whether it is possible that the grievor told the truth, Dr. Negrete replied in the affirmative but added that truthfulness should have been tested. In Dr. Pou-Youthoan’s notes, during his visits from July 2013 to January 2014, the grievor occasionally denied having use problems, although in reality he was using.
III.
Summary of the arguments
A.
For the employer
[180]
The employer argued that it had substantiated the facts it relied on to terminate the grievor. It also argued that during the disciplinary investigation, he acknowledged that he had bought and used drugs. During the interview, he also eventually acknowledged that he had used the CSC’s vehicle to transport the drugs he had bought for his personal use and that he had risked the detector dog’s abilities. He confirmed those admissions in his testimony.
[181]
According to the employer, when considered separately, each of those actions was fundamentally incompatible with a correctional officer’s duties and justified the grievor’s termination (see Nicolas v. Deputy Head (Department of Fisheries and Oceans), 2014 PSLRB 40). The function of the grievor’s position and one of the objectives of CD 566-13 (Detector Dog Program) is to prevent drugs from being introduced into the institution, as confirmed by the testimonies of Mr. Bisson and the grievor.
[183]
As for paragraph 8(c) of the CSC’s Code of Discipline, the employer argued that Mr. Lanoie and Mr. Poulin testified that the grievor’s conduct had tarnished the CSC’s image. In support of that argument, the employer referred to Dionne v. Treasury Board (Solicitor General of Canada - Correctional Service), 2003 PSLRB 69, and Richer v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 10. In Dionne, the adjudicator upheld a correctional officer’s termination for possessing 0.2 grams of cocaine outside the workplace. The media had released information about that offence. In Richer, a correctional officer’s termination for possessing narcotics outside the workplace was upheld. Although the incident had not received media coverage, the adjudicator found that it was reasonable for the employer not to have to wait until such an incident was disclosed to the general public before concluding that its image had been tarnished. In that respect, Richer referred to the Federal Court of Appeal’s judgment in Tobin v. Canada (Attorney General), 2009 FCA 254.
[184]
The employer argued that correctional officers must behave in a manner that shows integrity and that is exemplary in the performance of their duties and in their personal lives. They must be able to contribute to offenders’ reinsertion into society. The investigation report indicates that the grievor smoked cannabis at the residences of friends and that his drug supplier, who was a friend, knew that he worked for the CSC. Regardless of whether or not the supplier was a friend, selling drugs is illegal.
[185]
Mr. Lanoie affirmed that most of the inmates at the institution were heavy drug users or were involved in narcotics trafficking. Therefore, the grievor’s conduct made him vulnerable and exposed him to pressure or blackmail, which therefore risked the safety of the institution and of the other employees.
[186]
The employer submitted that the public expects the CSC’s employees to comply with the law to maintain its confidence in the correctional system. The employer asked how the public would react if it became aware of the grievor’s behaviour and that he had been reinstated to his position.
[189]
The employer then argued that through his actions, the grievor had severed their bond of trust. It noted what it identified as contradictions in his testimony, and it argued that they demonstrated a lack of transparency and that he is not trustworthy.
[190]
The first contradiction the employer raised concerned the quantity of cannabis the grievor used. He testified that he had visited the SIOs because he was “[translation] tired of keeping his mouth shut” and of being told that he was no good. In his response to the investigation report (Exhibit E-12), he said that he was “[translation] at the end of his rope”. The employer noted that therefore, it was not due to dependency.
[191]
After giving his statement to the SIOs, and due to their reaction, the grievor said that he decreased his use to a single joint. He told Mr. Poulin that he occasionally smoked a joint (Exhibit E-5). He told the investigators that he smoked approximately one joint per week. In her report, Dr. Marsan indicated that he had told her that he had smoked three to four joints per week and that he had stopped in 2010 because he had received the dog handler job offer. He told Dr. Marsan that in April 2012, he resumed smoking up to 10 joints per day as a result of his dispute with Mr. Bisson. The grievor also testified that he smoked on average 15 joints per week.
[192]
The employer referred to Mr. Lanoie’s testimony, according to which the grievor did not have problems with performance or conduct at work, and he was never under the influence of drugs in the workplace. In addition, the grievor said that he did not use drugs when everything went well. According to the employer, this is inconsistent with someone suffering from a dependency.
[193]
Another contradiction the employer raised was the grievor’s testimony in cross-examination that he did not tell his treating physician that he used drugs. However, after pausing, he stated that he told his doctor that he would undergo withdrawal treatment. The employer argued that the grievor did not answer questions directly in cross-examination and that as a result, I should draw an adverse inference (see Gjergo v. Canada (Minister of Citizenship and Immigration), 2004 FC 303).
[196]
As for the aggravating factors, the employer noted the following: the grievor had peace officer status, which demanded a high level of integrity; the nature of a dog handler’s work is to ban drugs from institutions; he maintained a friendly relationship with his drug supplier, which was incompatible with his peace officer status (the supplier was his friend and knew that he was a correctional officer (see Lapostolle v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 138, upheld in 2013 FC 895)); and his lack of judgment with respect to using the CSC’s vehicle to transport drugs for personal use while carrying a CSC letter of authorization to transport them to train the detector dog, which therefore exposed the dog to the odour of cannabis, in turn potentially affecting its ability to perform its duties. The grievor acknowledged that those facts were serious and that he had transported drugs for personal use in the CSC’s vehicle at least three times. Therefore, it was not an isolated act of misconduct. His misconduct was fundamentally contrary to the laws that he had to apply and was incompatible with a peace officer’s duties (see Flewwelling v. Canada, [1985] F.C.J. No. 1129 (C.A.)(QL)). Confidence and integrity are cornerstones of a peace officer position. In addition, the integrity of the employer’s anti-drug program is affected when a dog handler carries and uses drugs. Finally, the grievor had worked for the employer only for a few years.
[197]
The employer argued that the grievor had the burden of proof with respect to the medical defence. According to the employer, he did not submit evidence of an illness. The four doctor’s notes from the relevant time (Exhibit E-17), one of which was from the Centre de thérapie CASA, indicated that he had an adjustment problem but did not indicate a drug dependency. The employer emphasized that in his conversations with the SIOs and the AWO, the grievor claimed that he used purely recreationally. The employer argued that for an expert’s testimony to have probative value, it is first necessary to prove the existence of the facts on which the opinion is based; see Sanders v. Canada (Attorney General), 2015 FC 556, and Randhawa v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 7830 (FC).
[198]
The employer claimed that Dr. Marsan’s report was deficient because her opinion was based on incomplete information and a lack of objective evidence. According to it, her opinion was based on what the grievor had been willing to tell her. She said that the information he gave her was credible because he gave it two different times over five months. Dr. Negrete said that repeating the same answers twice does not make them true; it means that the questions were understood in the same way. The employer also referred to some of the DSM-5 criteria in Dr. Marsan’s report and claimed that the evidence did not support her statements. As an example that a medical opinion may not be determinative, the employer cited Mallette v. Treasury Board (Revenue Canada, Customs and Excise), PSLRB File No. 166-02-10203 (19820505).
[199]
As for a connection between personality disorders and drug addiction, Dr. Marsan stated that many people with drug addictions have personality disorders and that they are more likely to develop use disorders. The employer argued that Dr. Marsan said that personality disorders and drug addictions could be connected. According to her, the fact that another doctor had treated the grievor sufficed to avoid addressing the issue of his personality disorder as part of her assessment. However, Dr. Negrete explained the importance of establishing the connection to the grievor’s situation in its entirety, especially when a diagnosis had been made. According to Dr. Negrete, a “[translation] silo” diagnosis must not be made, which he claims Dr. Marsan did.
[200]
The employer raised an objection to the admissibility of the evidence of the treatments that the grievor underwent following his termination because it was not relevant to determining whether the employer had had just and sufficient cause to terminate him. To support its objection, it cited Cie minière Québec Cartier v. Quebec (Grievances arbitrator), [1995] 2 S.C.R. 1095 (“Cie minière”). The employer argued that there was no cogent evidence that the grievor suffered from an illness when it terminated him because Dr. Marsan’s report had little weight, and at the time, the medical notes reflected a different situation for the grievor.
[202]
As for criteria 2 and 3 of DSM-5, which are related to the connection between illness and misconduct, the employer submitted that the evidence and Dr. Negrete’s report must be preferred to Dr. Marsan’s report. The employer referred to the following excerpt from Dr. Negrete’s report: “[translation] The loss of control that characterizes the behaviour of someone with a drug addiction results as much from the type of person he or she is as from the neurotoxic effects of the substance he or she uses.”
[203]
The employer argued that a drug addiction does not explain an individual’s lack of judgment and that not all the grievor’s actions were caused by a drug addiction. According to the employer, he was not under the influence of drugs when he transported drugs for personal use in a CSC vehicle, which was instead a serious error in judgment irrespective of drug use. Furthermore, his carelessness with respect to the impact on the detector dog was not due to a drug dependency.
[204]
The employer cited the Alberta Human Rights Tribunal’s decision in Bish v. Elk Valley Coal Corporation, 2012 AHRC 7, which was about a miner who used cocaine outside work. After an accident occurred, a screening revealed the presence of cocaine. The employee was terminated for breaching the mine’s policy, which required that dependencies be disclosed, for safety reasons. By applying the test for a prima facie case of discrimination under the applicable legislation, the tribunal found that the employee had a drug dependency, which was a disability protected by the law, but that his termination had not been prejudicial treatment because his disability was not one of the reasons for the termination. The Supreme Court of Canada affirmed this decision (see Stewart v. Elk Valley Coal Corp., 2017 SCC 30).
[205]
The employer argued that it was under no obligation to accommodate the grievor due to a dependency because he did not make such a request, and there was no related evidence. At their meeting, Mr. Lanoie did not notice any signs that the grievor was intoxicated, and he believed the grievor when he said that he used drugs recreationally and that he did not need help. Moreover, no doctor’s notes indicated a dependency problem. The employer had no information suggesting that it had to do something about him. The evidence did not support his claim that the fact that Mr. Lanoie had agreed that he was to go to the Centre de thérapie CASA represented an acknowledgment that the grievor had a problem.
B.
For the grievor
[208]
The grievor argued that he would not have done the things he did without a disability, namely, a cannabis-use disorder. He added that his termination was discriminatory because the grounds for it resulted from his disability. According to him, the employer should have accommodated him because it was or should have been aware of his disability, and it should have set up a trial period to see whether he was rehabilitated before terminating him.
[209]
On the aspects of the relevant law, the grievor acknowledged that the burden of providing evidence of a handicap was on him. If that was established, the employer had to present a defence. As for the concept of “handicap”, he cited Mellon v. Canada (Human Resources Development), 2006 CHRT 3.
[211]
The employer failed to establish undue hardship, as defined in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R 489. There was merely a statement of facts or opinion by Mr. Lanoie and Mr. Poulin indicating that drugs are prohibited at the institution.
[212]
The grievor also cited the following decisions: Ontario Nurses’ Association v. London Health Sciences Centre, 2013 CanLII 143 (ON LA); Domtar Inc. v. Communications, Energy and Paperworkers Union of Canada, Local 74, [2011] O.L.A.A. No. 394 (QL); Fearman’s Pork Inc. v. United Food and Commercial Workers International Union, Local 175, [2011] O.L.A.A. No. 388 (QL); Gunderson v. Treasury Board (Revenue Canada - Customs and Excise), PSSRB File Nos. 166-02-26327 and 26328 (19950912); and British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”). According to him, the employer did not establish a bona fide occupational requirement, so it did not satisfy the third test in Meiorin. With respect to Cie minière, he argued that the medical assessment made after the termination brought to light facts that existed when the employer decided to terminate him.
[213]
The grievor referred to Hydro-Québec v. Tremblay, 2007 QCCS 4477, which dismissed an application for the judicial review of a decision in which an arbitrator allowed into evidence a medical assessment filed 13 months after the employee was terminated. According to the grievor, for certain adjudicators, this evidence is admissible as proof that rehabilitation and modifying discipline are possible. He also cited Dupuis v. Treasury Board (Revenue Canada, Customs and Excise), PSSRB File Nos. 166-02-18883 and 18893 (19891201); Cape Breton (Regional Municipality) v. Canadian Union of Public Employees, Local 933, 2014 NSSC 97; Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536 (“O’Malley”); and McKinley v. BC Tel, 2001 SCC 38. With respect to further authority, the grievor cited many excerpts from Brown and Beatty, Canadian Labour Arbitration, 4th edition.
[214]
As for the facts, the grievor argued that there was no evidence that he had not prevented narcotics from entering the institution when he was a dog handler. He did his work well, as reported in his assessments (Exhibits S-3 and S-4), and there is no evidence that his use impacted the detector dog. Furthermore, there is no concrete evidence that the CSC’s image was affected.
[215]
According to the grievor, his interpersonal difficulties with Mr. Bisson exacerbated his problem, and he coped with his work-related problems by taking drugs. He questioned Mr. Bisson’s credibility because there was tension between them, and Mr. Bisson did not want him to return to work.
[217]
According to the grievor, Mr. Deschênes’s testimony that the grievor made himself vulnerable to pressure and blackmail from organized crime was merely a statement. He argued that if it is accepted that he has a disability, then he cannot be blamed for his actions because the events in question would not have taken place had he not had the disability. According to him, the events cannot be disassociated from the disability. Thus, exposing the detector dog to cannabis and using the CSC’s vehicle were due to his use. He added that he would not have breached the CSC’s Code of Discipline and the Values and Ethics Code for the Public Sector had he not used.
[218]
The grievor argued that he had been authorized to work from June 5 to July 10, 2013, and that according to Ms. Tremblay’s testimony, which was based on the information that management had at the time, he did not represent a risk to the institution’s security. In addition, she did not receive any further information about him from June 5 to the initiation of the disciplinary investigation, which was on July 18, 2013.
[219]
The grievor submitted that the employer claimed it had been unaware of his problem. According to him, it denied that he had a problem due to the SIOs’ reaction, and it should have accommodated him. He argued that he realized the seriousness of the situation when his detector dog was taken from him.
[221]
According to the grievor, the employer discriminated against him because it never considered his rehabilitation. Relapsing is part of the rehabilitation process. According to Dr. Marsan, it is necessary to consider the periods of relapse and of no consumption, and according to Dr. Negrete, if a relapse took place, then a change took place.
[223]
As for Dr. Marsan’s report, the grievor argued that her mandate solely involved substance-use disorders, not developing a therapeutic relationship. With respect to collecting data, which she did with him, she did that for everyone she met with, to analyze the facts in light of the DSM-5. According to Dr. Marsan, those are the only criteria for establishing a substance-related disorder.
[224]
The grievor submitted that Dr. Negrete said that a personality disorder did not change a diagnosis but instead that it changed the comorbidity and the treatment. According to Dr. Marsan, some tests could have been altered due to the grievor’s condition. She did not regularly carry out such tests.
[226]
The grievor then responded to some of the employer’s arguments. On Richer, he argued that the employee said that he did not have a drug-use problem, while in this case, the grievor has a disability.
[227]
With respect to the employer’s argument that Dr. Marsan’s report did not rely on any objective evidence, the grievor submitted that it is difficult to establish objective evidence because this case involves a personal story that one person experienced and told. This case does not involve a scientific experiment.
[229]
The grievor requested that his grievance be allowed and that he be reinstated in his position and receive compensation for his lost salary. In the alternative, he requested that he be accommodated and that I reserve jurisdiction over the amounts to be awarded.
C.
The CHRC’s submissions
[230]
The CHRC’s submissions are based on the allegations in the grievance rather than on evidence. The observations are related to certain concepts, namely, prima facie proof of discrimination, statutory defences, legislative provisions, and applicable case law.
[231]
According to the CHRC, the human rights questions raised in this case are the following:
[Translation]
a. Can Mr. Nadeau prove a prima facie case of discrimination under sections 7 and 10 of the CHRA? To accomplish that, he will have to demonstrate the following:
i. that there is a real or perceived disability, which is protected under the CHRA;
ii. that he was subjected to adverse differential treatment (including termination), as part of his employment, according to a policy or practice;
iii. that the adverse treatment and the termination were entirely or partly based on his real or perceived disability (according to section 7 of the CHRA) and that those actions were also based on a discriminatory policy or practice (according to section 10 of the CHRA).
b. If there was a prima facie case of discrimination, can the employer fulfil its obligation of proving a defence for its conduct? Among other things, can it meet the burden of proving that its conduct was based on bona fide occupational requirements according to sections 15(1)(a) and 15(2) of the CHRA?
c. If the employer is unable to rebut the prima facie case of discrimination, then what are the appropriate remedies?
[232]
The CHRC summarized its comments as follows in its conclusion:
[Translation]
...
37. A drug dependency is a ground of discrimination protected under the CHRA. Therefore, the employer is obligated to accommodate an employee with such a disability, to the point of undue hardship. The case law is clear that this is so even at workplaces in which employees hold security-sensitive positions. If Mr. Nadeau can demonstrate that he has or had a disability and that the employer’s actions were at least partially based on the disability, he will establish his prima facie case of discrimination. Then, the employer must prove that it attempted to accommodate Mr. Nadeau to the point of undue hardship following his detoxification therapy and before terminating his employment. If not, the PSLRB can rule in favour of Mr. Nadeau.
...
D.
The employer’s reply
[234]
The employer argued that during the disciplinary investigation, the grievor said that he had a problem, although his medical notes indicated an adjustment disorder. This does not mean that he had a drug-use problem. The employer referred to the following excerpt from Mellon, at para. 82:
[82] A disability may exist even without proof of physical limitations or the presence of an ailment. Although the Supreme Court is reminding us that an overreliance on medical information is not necessary in order to establish that a disability does or does not exist, there needs to be more that [sic] just a bare statement that one suffers from a disability to meet the test. There has to be evidence that the disability is there. This evidence can be drawn from the medical information and from the context in which the impugned act occurred.
[235]
With respect to the observation reports, the employer argued that they were confirmed by their authors’ testimonies. Therefore, these are not the dates of writing the reports that should be retained.
[236]
The employer claimed that the grievor had submitted that he was prone to use due to his disputes, not because he could have access to drugs. According to the employer, this is contrary to the grievor’s position that he had a drug dependency.
[237]
The employer argued that there is a difference between an incompatibility with an employee’s duties and incompetence. This case is not about an unsatisfactory performance assessment.
IV.
Reasons
[238]
The role of an adjudicator seized of a grievance referred to adjudication about a disciplinary measure consists of answering the following three questions. Was the employee’s behaviour established, and was it grounds for the employer to impose discipline? If so, was the discipline imposed excessive, given all the circumstances of the case? If so, what discipline would be fair and equitable? See Wm. Scott & Company Ltd. v. Canadian Food and Allied Workers Union, Local P-162, [1977] 1 C.L.R.B.R. 1 (“Wm. Scott”).
A.
Was the grievor’s alleged behaviour established?
[Translation]
...
...
This situation is likely to discredit the employer. This situation and your conduct directly contradict the very nature of the Correctional Service of Canada’s operations and mission, your dog handler duties, and your peace officer status. After analyzing this, I noted that you have breached the Values and Ethics Code for the Public Sector and the Correctional Service of Canada’s Code of Discipline.
...
In light of the information gathered during this investigation, the committee’s view is that Mr. Martin Nadeau breached the following rules:
Code of discipline (8c): “acts, while on or off-duty, in a manner likely to discredit the Service”.
Also based on the same things, the committee considers that Mr. Nadeau deviated from the Values and Ethics Code for the Public Sector with respect to the values of integrity: “Public servants shall serve the public interest by acting at all times with integrity and in a manner that will bear the closest public scrutiny, an obligation that may not be fully satisfied by simply acting within the law.” (3.1). In 3.4: “[they act] in such a way as to maintain their employer’s trust.”
As established in the earlier “Analysis” section, the committee considers that using narcotics, procuring them (the amount purchased), transporting this substance in a CSC vehicle, and exposing a detector dog to it constitute behaviours that are serious breaches of the rules set out earlier. Mr. Nadeau acknowledges those behaviours. Given his peace officer status, his correctional officer role, and especially his dog handler position, he is likely to tarnish the CSC’s image. The employee’s conduct also compromised his authority role toward the CSC’s clientele.
[241]
The evidence showed that the grievor admitted that he used drugs; that he purchased it in quantities of 14 or 28 grams; that at least 3 times, he transported drugs for personal use in a CSC vehicle while carrying a letter authorizing him to transport drugs for training the detector dog; and that the dog was exposed to the odour of cannabis, endangering its abilities. In his reply to the investigation report (Exhibit E-12) and in cross-examination, the grievor acknowledged that using drugs was incompatible with his peace officer status and with being a dog handler. In light of the evidence and his admissions, I accept that the employer proved the grievor’s alleged conduct.
B.
Was the grievor’s alleged behaviour grounds for the employer to impose discipline? If so, was it excessive?
[243]
In this case, the employer disciplined the grievor for four instances of alleged conduct. Based on my assessment of the evidence, they consisted of both conduct related to and not related to his disability. Therefore, I will deal with them in turn.
1.
Conduct related to the grievor’s disability
[244]
I consider that the grievor’s behaviours related to his disability were using and procuring narcotics. Therefore, I will first analyze that behaviour.
226 (1) An adjudicator may, in relation to any matter referred to adjudication,
...
(g) interpret and apply the Canadian Human Rights Act and any other Act of Parliament relating to employment matters, other than the provisions of the Canadian Human Rights Act related to the right to equal pay for work of equal value, whether or not there is a conflict between the Act being interpreted and applied and the collective agreement, if any;
(h) give relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act ....
[250]
Discriminatory considerations do not necessarily have to be the only reasons for which the disciplinary action was taken for an allegation of discrimination to be justified. The discrimination need only be a factor in the employer’s decision (see Holden v. Canadian National Railway Co. (1990), 112 N.R. 395 (F.C.A.)). The standard of proof in discrimination cases is the ordinary civil standard of the balance of probabilities (see Public Service Alliance of Canada v. Canada (Department of National Defence), [1996] 3 F.C. 789 (C.A.) at para. 33; and Canada (Attorney General) v. Montreuil, 2009 FC 60 at para. 22).
[251]
The employer must reply to a prima facie case of discrimination to avoid an adverse finding by submitting evidence that demonstrates either that the alleged discrimination did not take place or that its actions were not discriminatory. Furthermore, the employer can rely on a statutory defence that justifies its discriminatory act (see A.B. v. Eazy Express Inc., 2014 TCDP 35). In this case, the relevant provision is s. 15 of the CHRA, which reads in part as follows:
[252]
In Meiorin, the Supreme Court of Canada indicated at paragraph 54 how to determine whether a standard imposed by the employer was indeed a bona fide occupational requirement. The employer must demonstrate the following, on a balance of probabilities:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
[253]
In British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (“Grismer”), the Supreme Court of Canada indicated that the employer must demonstrate that it provided accommodation up to the point of undue hardship.
[255]
With respect to the first element of a prima facie case of discrimination, I consider that the evidence demonstrated that at the relevant time, the grievor had a disability, namely, a drug dependency. As the therapy results from the Centre de thérapie CASA indicated, he completed a closed treatment program from July 25 to August 22, 2013, with an extension on August 27 to 28, on September 3, 4, 10, 17, and 24, and on October 1 and 4, 2013. I believe that those therapy results satisfy the first element of a prima facie case of discrimination.
[256]
In addition, in her expert medical report dated September 20, 2014, Dr. Marsan found that based on the DSM-5 criteria 5, the grievor had had a serious disorder related to cannabis use since 2012. She met with him twice, in March and August 2014.
[257]
In his report, Dr. Negrete agreed with Dr. Marsan’s finding. In his expert report, Dr. Negrete wrote the following: “[translation] If we rely on the history of use that Dr. Marsan referred to in her report, there can be no doubt about that diagnostic finding.” In the absence of evidence to the contrary, I do not have any reason to doubt the veracity of the information that the grievor provided to Dr. Marsan, especially given the candour he displayed during the disciplinary investigation. I note that neither party raised an objection to filing in evidence the expert reports prepared after the termination.
[260]
The termination letter refers to the investigation report. In its report, the investigation committee was of the view that in light of the information collected, the grievor had breached paragraph 8(c) of the CSC’s Code of Discipline and paragraphs 3.1 and 3.4 of the Values and Ethics Code for the Public Sector. The investigation report identifies these breaches as follows: using narcotics, procuring them (and the amount purchased), transporting it in a CSC vehicle, and exposing the detector dog to its odour. I consider that based on the evidence, the first two are related to the grievor’s drug dependency.
[261]
The grievor argued that the employer was aware of his disability or should have been aware of it on the termination date. During his interview with the investigators on July 24, 2013, he told them that he had a problem. The investigation report states as follows: “[Translation] At this point in the interview, Mr. Nadeau said that he was aware that he had a drug addiction problem.” It also states the following: “[Translation] He says that he is a proud man and that he finds it is difficult to admit that he has a problem, but he says that he wants to recover.” The report confirms as follows: “[Translation] Mr. Nadeau asked the EAP for help following the suspension and agreed to undertake a closed treatment at a specialized facility.” In addition, according to the grievor’s uncontested testimony, the employer covered most of the expenses of his closed therapy at the Centre de thérapie CASA. Therefore, on July 24, 2013, the employer knew that he had a drug-use problem for which he undertook closed treatment on the following day, July 25, 2013.
[262]
Furthermore, Mr. Lanoie acknowledged that during the grievor’s disciplinary hearing on October 8, 2013, the grievor gave him his therapy results from the CASA centre. Mr. Lanoie testified that at that point, he realized that the grievor had participated in therapy.
[263]
The evidence clearly demonstrates that the employer knew that as of July 24, 2013, and unequivocally on October 8, 2013, the grievor had a drug dependency before terminating him on November 22, 2013. Therefore, I find that the grievor’s disability, which was related to him using and purchasing a narcotic, was a factor in his termination and that he has established a prima facie case of discrimination.
[265]
The employer did not submit any evidence that the discrimination did not take place or that its actions were not discriminatory. Since it did not rebut the prima facie case of discrimination on the grievor’s conduct related to his disability, it remains to be determined whether it established a defence under s. 15 of the CHRA, which is that there was a bona fide occupational requirement.
[266]
As explained earlier in this decision, the employer had to establish on a balance of probabilities the following three elements (Meiorin): (1) it adopted the rule prohibiting cannabis use for a purpose rationally connected to carrying out work; (2) when it adopted that rule, it sincerely believed that it was necessary to accomplishing that legitimate work-related purpose; and (3) the rule was reasonably necessary to accomplishing the legitimate work-related purpose, meaning that it is impossible to accommodate a cannabis dependency without the employer incurring undue hardship. The employer did not address these issues in this matter.
[267]
The employer did not submit any evidence of a bona fide occupational requirement concerning cannabis use or that it had considered providing reasonable accommodation for the grievor’s disability. Undue hardship was never alleged. In its arguments, the employer submitted that it was under no obligation to accommodate the grievor for a disability because he did not make such a request. I am not convinced that such an obligation was incumbent upon the grievor when the employer knew that he had cannabis dependency problems before terminating him.
[268]
According to the employer, the evidence does not support the grievor’s claim that the fact that Mr. Lanoie had agreed to him entering the Centre de thérapie CASA represented an acknowledgment that the grievor had a dependency problem. To support this argument, the employer cited Ahmad to support its claim that when it makes a decision for an employee’s well-being, it does not mean that it acknowledges that the employee has an issue.
[269]
In Ahmad, the adjudicator found that the employee had failed to demonstrate that he had a disability (a physical disability) that prevented him from performing the duties of his position. However, unlike the employer in this case, the employer in Ahmad offered the employee many forms of accommodation so that he could perform his duties. The adjudicator found that the employee had failed in his duty to cooperate in the accommodation process that the employer had initiated.
[270]
I find that the employer neither rebutted the prima facie case of discrimination with respect to the grievor’s conduct related to his disability nor established a bona fide occupational-requirement defence in this respect. In addition, by failing to consider his disability and by refusing to consider accommodation, the employer discriminated against him. Therefore, his conduct related to his disability did not justify the employer taking disciplinary action for it.
2.
Conduct not related to the grievor’s disability
[272]
In his written response to the investigation report, the grievor stated that he used the CSC’s vehicle for this purpose only three times. In cross-examination, he acknowledged that he often went to his parents’ residence during his time off, but he said that he used the CSC’s vehicle for that only a few times.
[273]
The evidence before me indicates that at the relevant time, the grievor disregarded the possibility that by transporting drugs for personal use in the CSC’s vehicle containing the detector dog, he could have adversely affected the dog’s abilities. However, the evidence clearly demonstrates that the dog is an important tool in banning drugs from the institution. The dog underwent rigorous training, which incurred substantial costs. The grievor’s actions could have endangered the dog’s abilities, which is a valuable resource to the employer.
[274]
The grievor submitted that if it is accepted that he had a disability, then he cannot be blamed for his actions. In other words, the events cannot be disassociated from his disability. However, he did not adduce any evidence that using the CSC’s vehicle to transport narcotics for his personal use or exposing the detector dog to the odour of them were related to his disability.
[Translation]
...
...
[276]
In answering that question, Dr. Marsan referred to the DiClemente and Prochaska transtheoretical model of change. However, she did not apply it to the grievor’s situation. In his expert report, Dr. Negrete identified the following as a flaw in Dr. Marsan’s report:
[Translation]
...
Dr. Marsan answered the additional question on the tendency of a person with a drug addiction to deny or not to realize he or she has a problem with a detailed description of the stages of the process of change based on Prochaska and DiClemente’s proposed transtheoretical model. It is generally accepted as a useful approach to fully understanding the attitude and motivation of a person with a drug addiction towards his or her rehabilitation, and through the quality of her statement, Dr. Marsan demonstrates that she possesses sound knowledge of it. However, she did so in broad and theoretical terms, without any specific links to Mr. Nadeau’s situation at the time of his assessment and in such a way that after reading this text, we remain in the dark as to the stage of the process of change she would place the grievor in at the time of the assessment....
...
[277]
Dr. Marsan’s expert report does not indicate that the grievor’s disability would have eliminated all control he would have had over his actions. Neither the grievor’s testimony nor any other evidence demonstrated that he was not in control of his actions when he used the CSC’s vehicle to transport narcotics for his personal use. Furthermore, no evidence was provided to explain why he used the CSC’s vehicle on those occasions instead of using his personal vehicle as usual. Therefore, I find that he failed to prove on a balance of probabilities that this use would not have taken place had he not had a disability. Thus, I find that he did not meet his onus of establishing a prima facie case of discrimination with respect to using the CSC’s vehicle to transport narcotics for his personal use and exposing the detector dog to its odour. I must now determine whether the employer’s disciplinary measure was justified.
[278]
The grievor was aware of the employer’s rules. His job offer letter for the dog handler position, which he accepted by signing it, stipulated that he had to comply with the Values and Ethics Code for the Public Sector and the Code of Discipline. The grievor testified that he acknowledged that he had access to those documents.
[281]
The grievor was terminated for breaching paragraph 8(c) of the CSC’s Code of Discipline (CD 060) and paragraphs 3.1 and 3.4 of the Values and Ethics Code for the Public Sector. Paragraph 8(c) provides that an employee commits an offence if he or she “... acts, while on or off-duty, in a manner likely to discredit the Service ...”. As indicated, the offences listed in paragraph 8 of the Code of Discipline relate to the standard of conduct found in paragraph 7 on employees’ conduct and appearance, which sets out the following:
7. Behaviour, both on and off-duty, shall reflect positively on the Correctional Service of Canada and on the Public Service generally. All staff are expected to present themselves in a manner that promotes a professional image, both in their words and in their actions. Employees [sic] dress and appearance while on duty must similarly convey professionalism, and must be consistent with employee health and safety.
[282]
The grievor used a CSC vehicle to transport narcotics for his personal use outside work hours. His conduct must be assessed in the light of the rules established in the Code of Discipline (see Tobin, at para. 47 and those that follow).
[284]
Among the grounds that the employer alleged in the letter of termination was that the grievor’s conduct was likely to discredit it, in violation of paragraph 8(c) of the Code of Discipline. In Tobin, at paras. 60 to 62, the Federal Court of Appeal determined the type of evidence required to support this ground. Paragraph 62 reads as follows:
[62] The same is true of the question of whether certain conduct brings the CSC into discredit. The question is one which calls for the application of common sense and measured judgment. The adjudicator erred when he reduced it to a question of empirical evidence.
[285]
The grievor’s actions were not an isolated instance because he acknowledged that he used the CSC’s vehicle at least three times to transport narcotics he had purchased for his personal use. I consider that to be a serious lack of judgment. Common sense dictates that the employer was not required to wait for the police to intercept the grievor to conclude that such conduct was likely to discredit it. Common sense also dictates that the public expects a correctional officer, who has peace officer status, to behave in accordance with the law. Furthermore, I believe that the grievor’s conduct could not “... bear the closest public scrutiny ...”, which is set out in paragraph 3.1 of the Values and Ethics Code for the Public Sector.
[286]
It is appropriate to reiterate the nature of the grievor’s duties. He was a correctional officer who had peace officer status. Furthermore, he was a dog handler, responsible for banning drugs from a correctional institution. Therefore, he held a position requiring a high level of integrity. Case law developed under the PSLRA requires correctional officers to comply with standards of conduct higher than those that other public servants must comply with. In McKenzie v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 26, the following is stated at paragraph 80:
80 It is trite law that trust and honesty are the cornerstones of a viable employer-employee relationship, particularly when the employee occupies a position of trust. Correctional officers are held to a higher standard of conduct than other public service employees. They are inextricably linked to the integrity and safety of the laws of Canada, the correctional institution, the inmates and the staff. Any loss of trust or confidence will impair the system and have an adverse effect on those who rely on it ....
106 As general context for considering what is misconduct among correctional officers, the authorities are clear that correctional officers are to be held to a higher standard of conduct than employees who do other work (McKenzie v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 26, at para 80). The reason for this higher standard is because “[p]ersons who join the corrections service know that more is expected of them by their employer than would be expected of employees in other occupations” (Re Govt. of the Province of British Columbia v. B.C. Government Employees’ Union (Larry Williams Grievance), [1985] B.C.C.A.A.A. No. 26 (Chertkow) (QL); cited in Government of British Columbia v. British Columbia Government and Service Employees’ Union (Jaye Grievance), [1997] B.C.C.A.A.A. No. 813 (Hope), at para 28 (QL)).
[288]
In Lapostolle, the adjudicator expressed himself as follows at paragraph 71:
71 Holders of public office, with duties that include exercising the government’s authority in the penitentiary system, require the personal characteristics of fairness and integrity. Those who accept the job of correctional officer also accept the personal constraints that come with it, that is, to favour the interests of the employer and to act at all times with integrity, even outside work hours. Such a constraint applies not only to correctional officers but also to any person holding a job that includes peace officer duties. Those principles are set out in Flewwelling and Dionne, with which I agree. Accordingly, I dismiss the grievor’s objection that the employer does not have the right to monitor what he does in his private life.
[289]
I find that in the circumstances, the employer was justified taking disciplinary action against the grievor for using the CSC’s vehicle to transport narcotics for his personal use and for exposing the detector dog to the odour of the narcotics. The conduct he displayed that was not related to his disability was justification for the employer to take disciplinary action against him.
C.
Was the discipline excessive? If so, what discipline would be fair and equitable?
[291]
The employer terminated the grievor by relying on the four incidents of conduct that it alleged against him. As I have indicated, I found that that decision was in part discriminatory.
(a) Was the grievor experiencing an illness, condition, or situation?
(b) Was the illness, condition, or situation linked to the misconduct?
(c) If the illness, condition, or situation was linked to the misconduct, was a sufficient displacement of responsibility from the grievor present to render his conduct less culpable?
(d) If the first three elements are established, the tribunal still has to be satisfied that the grievor can be rehabilitated.
[293]
That decision concerned an employee who held a cashier position and who was terminated for theft. Among other things, she argued that her conduct was due to personal and psychological problems. Even in the absence of medical or psychological evidence, the arbitration board accepted solely on the basis of her testimony that her issues and her conduct were connected. However, it found that she was responsible for her conduct.
[294]
First, no human rights issue was raised in Canada Safeway. Furthermore, that decision, which was issued in January 1999, preceded the Supreme Court of Canada’s judgments in Meiorin (September 1999) and Grismer (December 1999).
[295]
In addition, that decision preceded the coming into force of s. 210 of the PSLRA on April 1, 2005, which allows a party to an individual grievance, within the framework of referring the grievance to adjudication, to raise an issue related to interpreting or applying the CHRA. The grievor in this case did so.
[298]
To determine a proportional disciplinary action in the circumstances of this case, it is necessary to consider that the grievor displayed a serious lack of judgment by knowingly using a CSC vehicle to transport narcotics for his personal use while carrying a letter of authorization from the CSC to transport drugs for training the detector dog. In addition, he admitted that he used the CSC’s vehicle for these purposes at least three times.
[299]
The grievor testified that most of the time, he used his personal vehicle to transport narcotics for his personal use. However, he provided no explanation as to why he used the CSC’s vehicle instead of his personal vehicle.
[301]
The termination letter indicates that before making its decision, the employer considered the mitigating and aggravating factors surrounding all the conduct alleged against the grievor. Mr. Lanoie stated that he considered the following aggravating factors: purchasing significant quantities of narcotics, transporting drugs in a CSC vehicle, exposing the detector dog to the odour of those narcotics, and the time frame, which spanned months. With respect to purchasing narcotics over many months, these factors are about conduct related to the grievor’s disability, for which disciplinary action was not justified. The mitigating factors Mr. Lanoie said he considered were the grievor’s level of transparency, his cooperation during the investigation, the answers to the questions he was asked, and his willingness to accept help.
[302]
Mr. Lanoie stated that he considered that the mitigating factors were insufficient to outweigh the grievor’s serious infractions. However, this was based on all of the conduct the employer relied on as grounds for the termination, and I have already found that the grievor’s conduct related to his disability was not justification for the employer taking disciplinary action for it.
[303]
That being said, for the reasons that I have already set out, the grievor’s conduct related to using the CSC’s vehicle and his lack of concern toward the risk of adversely impacting the detector dog’s abilities justify severe discipline. I am acutely aware of the fact that the grievor’s use of the CSC’s vehicle to transport narcotics for his personal use was likely to discredit the CSC and the fact that exposing the detector dog to the odour of these narcotics could have had an adverse impact on its abilities; it had received intense training, the costs of which were substantial. I am also considering the Board’s consistent jurisprudence, which requires that correctional officers be subject to rules of conduct stricter than those with which other public servants must comply.
[304]
By considering only the grievor’s use of the CSC’s vehicle to transport narcotics for his personal use and exposing the detector dog to the odour of these narcotics, I find that termination was excessively severe discipline. I do not accept the employer’s claim that each incident of the grievor’s conduct considered separately was fundamentally incompatible with a correctional officer’s duties and in itself justified his termination. Rather, all of the aggravating and mitigating factors must be considered.
(d) the grievor acknowledged the seriousness of the conduct at the hearing before me.
[306]
I also believe that it is necessary to add to the mitigating factors the fact that the employer authorized the grievor to continue working at the institution from June 5 to July 10, 2013, because management had determined that he did not represent a risk to the institution’s security, based on the information available to it at the time. Ms. Tremblay testified that she did not receive any additional information about the grievor from June 5, 2013, to the disciplinary investigation’s launch, on July 18, 2013.
[307]
All of the mitigating factors show that contrary to what the employer claims in the circumstances of this matter, the employment bond has not been irreparably severed. Rather, I consider that substantial weight must be given to these mitigating factors, which clearly reflect the grievor’s rehabilitative potential for employment with the CSC.
[309]
One of the corrective measures the grievor requested in his grievance was to be reinstated to his dog handler position or alternatively to another position. He also argued that in the alternative, accommodation be provided.
[310]
Since the grievor’s disability existed on the date of his termination, and since his current state is unknown, a health professional should assess whether he has personal limitations for which the employer will have to provide accommodation to reinstate him to employment. Accordingly, it would be inappropriate for me to reinstate him to his dog handler position in these circumstances.
[311]
The grievance does not mention compensation under ss. 53(2)(e) and 53(3) of the CHRA. Nor did the grievor request such compensation at the hearing.
[312] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
Order
[313]
The grievance is allowed in part.
[317] I declare that the termination was an excessive disciplinary action.
(a) that the grievor’s termination be replaced by a six-month suspension without pay;
FPSLREB Translation
Steven B. Katkin,
adjudicator