The Upward Trend Continues: A review of RR v. Vancouver Aboriginal Child and Family Services Society and K v. RMC Ready Mix Ltd.

Written by: Sara Hanson and Liam Turnbull

In two recent decisions, the BC Human Rights Tribunal has again stated that the trend in awards for compensation for injury to dignity, feelings and self-respect is upwards.

In RR v. Vancouver Aboriginal Child and Family Services Society (No. 6), 2022 BCHRT 116, the Tribunal awarded the complainant $150,000 – the Tribunal’s second highest injury to dignity award to date. RR identified as an Afro-Indigenous woman with disabilities related to inter-generational residential school trauma. The Tribunal determined that the Vancouver Aboriginal Child and Family Services Society (“VACFSS”) discriminated against her on the grounds of race, colour and mental disability contrary to section 8 of the BC Human Rights Code (the “Code”) when they took her children into custody and unjustifiably restricted access between them.  

The Tribunal concluded that a high injury to dignity award was justified for a number of reasons. First, the discrimination RR experienced was “profound” since “state removal of a child engages a parent’s right under the Charter of Rights and Freedoms to security of their person” (at para. 395). The fact that RR and her children were Indigenous was particularly important given the legacy of residential school systems and ongoing harms from child welfare. The Tribunal noted that RR was particularly at risk as an inter-generational survivor of residential schools who was subjected to racial and economic discrimination her entire life. Further, the discrimination RR experienced was extensive as it took place over the course of two years. Finally, the discrimination had a significant effect on RR’s life – it exacerbated her mental health conditions and even led to her becoming homeless for a period of time. Importantly, the Tribunal noted that RR did not need to submit expert evidence because she was an “expert in her own experience” of the emotional harm caused by VACFSS’s conduct (paragraph 408).

RR sought an award of $150,000, relying on Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16, where the Tribunal awarded the complainant $176,000 as compensation for injury to dignity (the highest award ever ordered by the Tribunal). In determining the appropriate award, the Tribunal in RR acknowledged that “there is no mathematical formula that calculates dignity” (at para. 416), and that it is not bound by awards from previous cases and any ‘range’ they purport to establish.

The Tribunal also observed that while most injury to dignity awards in BC are between $10,000 and $40,000, “the trend is upwards”, and in Ontario, damages for human rights complaints have been higher (at para. 422). Given the extreme impact of the discrimination on RR’s life, the Tribunal concluded that an award of $150,000 was appropriate.

In K v. RMC Ready Mix Ltd. and another (No. 4), 2022 BCHRT 108, the complainant was awarded $20,000 as compensation for injury to dignity associated with discrimination regarding their employment on the basis of a disability. While this amount was not nearly as high as the amount RR received, in making this award, the Tribunal also acknowledged the upward trend in damages. 

K was an employee at RMC with mental health conditions, including a substance use disorder. After disclosing this fact to his employer, RMC attempted to accommodate K by paying for his residential treatment program. However, in order for K to return to work, RMC also required him to sign a last chance agreement promising to abstain from drugs and alcohol and undergo mandatory random drug testing in accordance with their drug and alcohol policy. When K refused to sign the last chance agreement and participate in the drug testing, RMC terminated his employment.

The Tribunal determined that the Respondents discriminated against K on the basis of mental disability contrary to section 13 of the Code because K’s disability was a factor in RMC’s decision to terminate him. Moreover, RMC failed to establish that they provided a reasonable accommodation tailored to K’s particular circumstances. The Tribunal also determined that the return-to-work conditions RMC imposed on K were not reasonably necessary.

While K sought $60,000 as compensation for injury to dignity, the respondents argued that an appropriate award was between $1,000 and $3,000, relying on several prior decisions of the Tribunal where the damages awarded were within this range. In reply, K relied on Francis and University of British Columbia v. Kelly, 2016 BCCA 271, for the proposition that the Tribunal’s analysis should focus on the actual harm he suffered.

In awarding K $20,000, the Tribunal acknowledged the “inherent power imbalance” between K and his employer, as well as the damaging stereotypes facing persons with mental disabilities (at paras. 240-241). However, the Tribunal distinguished Francis, noting that the discrimination K experienced only spanned a couple of months as opposed to a number of years. Finally, the Tribunal noted that the cases relied upon by the Respondents were either older cases that did not reflect the Tribunal’s trend toward higher awards for injury to dignity or were easily distinguishable on the facts (at para. 249).

Both decisions explicitly reference the Tribunal’s continuing upward trend toward higher awards for compensation for injury to dignity. These decisions confirm that in light of this trend, the Tribunal’s older decisions will carry less weight in support of the appropriate amount for injury to dignity. Rather, the Tribunal’s analysis will focus on the unique facts of the case before it, as well as the impact of the discrimination on the complainant.

The decision in RR is particularly noteworthy because in addition to awarding the second highest award for injury to dignity, the decision sets an important precedent for complaints brought under s. 8 of the Code alleging discrimination in services where injury to dignity awards have historically been much lower than complaints brought under s. 13 of the Code alleging discrimination in employment.

Vancouver Shipyards Co. Ltd. v. Marine and Shipbuilders, Local 506: Positive urine test for cannabis does not support “residual impairment”

Written by: Scott Garoupa

Drug & Alcohol Policies, Cannabis Testing, and Employee Privacy Rights

Substance Use Policies, and alcohol/drug testing as part of those policies, are increasingly common in workplaces. These policies must balance an employee’s right to privacy with an employer’s obligation to maintain a safe working environment. With the legalization of cannabis, workplaces have had to grapple with the application of these policies in the absence of clear scientific evidence linking testing standards to impairment.

In a recent success, Moore Edgar Lyster LLP’s Tamara Ramusovic and Daniel McBain helped to clarify the law in this area and confirm that employee privacy rights must be given due weight when an employer applies its substance use policy.

In Vancouver Shipyards Co. Ltd. -and- Marine Shipbuilders, Local 506, the primary issue was whether the Employer was justified in requiring as a condition of return to work that the Grievor agree to attend an Independent Medical Examination (IME) with an employer-selected physician, and submit to random drug testing over the course of 12 months, in addition to the imposition of a 10-day suspension.

Following an incident at the workplace, the Employer required the Grievor submit to drug and alcohol testing, pursuant to its 2018 Substance Use Policy (the “Policy”), in forms of a breathalyzer, urine sample, and oral fluid sample. In a prior decision, the arbitrator determined that the Employer was justified in requiring testing, as impairment was a reasonable line of inquiry in the circumstances.

The Grievor complied with testing and, during a post-incident interview, candidly admitted that he had smoke marijuana at 8 pm the night prior to his shift. Under the Policy, only the urine test was positive.

Pursuant to standard practice, the Employer suspended the Grievor for 10 days without pay, required him to undergo an IME with a substance use specialist of its choosing, and required him to agree to random substance testing, at his cost, for a period of 12 months, in the form of a “monitoring agreement”. The IME provided had determined that the Grievor did not have a substance use disorder, and did not recommend a monitoring arrangement.

The Union asserted that, given that urine testing only establishes use sometime in prior weeks or months, the testing amounted to lifestyle monitoring with no workplace nexus, and that the Employer had failed to respect the grievor’s privacy rights. Ultimately, the arbitrator agreed with the Union’s submissions and held the none of the Employer’s actions following the drug and alcohol testing were justified. The arbitrator voided the discipline and ordered that the Grievor be made whole, including a significant award of $15,000 in damages for the violation of the Grievor’s privacy rights.

The arbitrator made four crucial rulings in this decision:

(1)   Arbitrator Peltz found that the Employer had failed to bring its unilateral practice following every positive urine test of requiring an IME, monitoring, and imposing a 10-day suspension, to the Grievor’s attention. On this basis, and applying the principles from KVP, the arbitrator held that the Employer’s practice could not be enforced against him.

He commended that the Employer had informed the Union of this practice, but held that such an action did not displace its KVP obligation “to notify employees of a rule that could result in interruption or even loss of their employment” (para. 206). Arbitrator Peltz confirmed that employers are obligated to provide “fulsome” notice of their substance use policies, and attendant practices, before those policies and practices can be enforced.

(2)   Arbitrator Peltz held that the application of the Policy to the Grievor was unreasonable, as the language of the Policy required an exercise of discretion tailored to the individual circumstances at hand. Here, the Employer ordered an IME automatically, without consideration of the Grievor’s circumstances.

In making this ruling, the arbitrator endorsed the arbitral principle that an employee’s right to privacy must be balanced against a need for an IME that is both “properly established and reasonably necessary” (para. 212). He confirmed that the use of an IME, by an employer’s unilaterally selected physician, is the most intrusive option available to employers, and emphasized that, in the case before him, the Grievor was not given any opportunity to suggest less intrusive options. This was particularly egregious given that the Grievor was well-known to be an excellent worker, had no history of impairment-related issues, and was cooperative throughout the Employer’s investigation.

Similarly, there must be an exercise of discretion when imposing monitoring. The sole circumstance considered by the Employer was the positive test, which did not establish workplace impairment. In finding that the requirement for monitoring was unreasonable, the arbitrator rejected the rationale in Re Suncor Energy Inc. and CEP, Local 707 (Woods Grievance), [2008] A.G.A.A. No. 11 (Abells) that monitoring was justified to “manage the risk of impairment” following a positive test and declined to follow the decision.

(3)   This decision also clarified the law regarding the use of urine testing in the context of so-called “residual impairment” from cannabis, with Arbitrator Peltz finding that the Employer’s expert evidence “d[id] not provide a reliable basis for assuming that employees who have used cannabis (as indicated by a positive urine test) are likely working under a residual impairment.”

Given that the Grievor had candidly admitted to smoking marijuana the night before the incident, prior use was not an issue and urine testing could only confirm what the Grievor had admitted to. “Without proof or some indicia of impairment,” Arbitrator Peltz emphasized, “it was a long leap from this to conducting a sweeping, invasive examination of the grievor’s personal life” (para. 218).

(4)   Finally, Arbitrator Peltz awarded significant damages as a result of the Employer’s unjustified violation of the Grievor’s policy rights, with $7,500 in damages stemming from the Employer’s IME referral and an additional $7,500 stemming from the imposition of random drug testing. In combination, this may be the largest award of privacy damages related to drug and alcohol matters in the unionized workplace to date.

Regarding the IME, the arbitrator characterized the impact on the Grievor’s privacy rights as “significant”, and emphasized that the Grievor was “forced to disclose many personal matters to a health professional he did not choose” (para. 242). Arbitrator Peltz found that the Employer’s good faith, albeit erroneous, actions and its careful restriction in the distribution of the Grievor’s personal information within the company were mitigating factors.

Regarding the random drug testing, Arbitrator Peltz concluded that the “burden and the affront to [the Grievor’s] personal dignity was significant” (para. 285), and underscored that the Grievor had been “subjected to a protracted series of tests involving removal of bodily fluids as well as interference with his personal life and activities of daily living” (para. 281). Such a violation demanded that the damages awarded be more than nominal.

The Union’s success in this decision confirms that the privacy rights of employees are not to be unreasonably trammelled in the pursuit of workplace safety. Employees have the right to be apprised of disciplinary rules in advance of their application, and their rights to privacy and bodily integrity must be reasonably balanced against an employer’s right to maintain a safe workplace. Further, this decision clarifies that the science linking positive urine tests to residual impairment in the context of cannabis use is inconclusive, and that such a test does not justify an automatic IME or course of random drug testing in every instance.

This blog contains general legal information and does not constitute legal advice. This area of the law is constantly evolving. Readers with questions about their particular situation should contact a lawyer. To speak to the lawyers at Moore Edgar Lyster LLP about Substance Use Policies and/or Drug and Alcohol Testing, you can reach us here.

What does September 19 mean for unionized workers in BC?

Written by: Diana Sepúlveda

The Federal government announced yesterday that September 19, 2022 will be a National Day of Mourning to mark the passing of Her Majesty Queen Elizabeth II. The day will be a designated holiday for Federal employees.

The BC government has chosen not to follow suit, but has advised provincial public-sector employers to honour the day in recognition of the obligations around federal holidays in the vast majority of provincial collective agreements.

In the private sector, there is no obligation for employers to honour this holiday subject to language in a collective agreement that requires employers to recognize newly declared Federal holidays. For this reason, unions should carefully review the holiday provisions of their collective agreements to consider whether employers are required to give employees September 19 off with pay, or whether employees who work are entitled to a holiday premium. 

Our firm has successfully represented unions in recent policy grievances arguing that National Day for Truth and Reconciliation should be recognized as a statutory holiday pursuant to several collective agreements. Most arbitrators in BC and Ontario have decided in favour of recognizing National Day for Truth and Reconciliation as a holiday for unionized employees. Summarized below is a brief review of the case law in BC so far:

In Earl's Industries v Marine Workers and Boilermakers Industrial Union, Local No. 1, Arbitrator Coleman agreed with the union’s that National Truth and Reconciliation Day satisfied the language in the Collective Agreement because the evidence established that the holiday was “generally celebrated in the area,” whether that area was the province, the lower mainland or the tri-cities area. As a result, employees who worked on that day were entitled to a paid day off, or premium pay. 

In Pacific Honda -and- International Association of Machinists and Aerospace Workers Local Lodge 1857, the collective agreement’s holiday provision listed a number of holidays and added "and any other day proclaimed by the provincial or federal government where the Company is forced by legislation to close down its operation”. Arbitrator Saunders found in favour of the Union and ordered the employer to make the employees whole for losses and to recognize the day as a holiday moving forward. 

In Olympic Motors (WC1) Corporation v International Association of Machinists and Aerospace Workers, Arbitrator Saunders similarly held that the phrase “or any other day proclaimed by the provincial or federal government” encompassed National Day for Truth and Reconciliation. Identical language was also interpreted in favour of the Union in Westminster Toyota and Jim Pattison Toyota – Downtown -and- International Association of Machinists and Aerospace Workers, (Matacheskie), and similar but not identical language was interpreted in favour of the Union in Johnson Controls (TYCO Integrated Fire & Security Canada) -and- International Brotherhood of Electrical Workers, Local 213 (Kandola). 

In Davis Wire Industries Ltd. v. United Steelworkers Union, Local 2009, [2022] B.C.C.A.A.A. No. 79, the Arbitrator Devine found that the language "and any other day declared a Statutory Holiday by the Provincial and/or Federal Government” supported the Union’s position that National Day for Truth and Reconciliation was a holiday under the collective agreement. 

In Terrapure Environmental (North Vancouver) v United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 2009, 2022 BCLRB 60 (CanLII), the BC Labour Relations Board reversed a decision of Arbitrator Sullivan where he found in favour of the employer. The case was remitted back to the arbitrator for reconsideration, but a new decision has yet to be issued.

Whether these decisions will provide a strong basis for arguing that the National Day of Mourning should be recognized for your members will depend in large part on the specific language of your collective agreement.  However, this area of law is evolving and the wording of your collective agreement is not the only factor to consider. The same language may, for example, be interpreted differently by arbitrators in different contexts:

In Mission Hill Vineyards and Mission Hill Wine Store v Service Employees’ International Union, Local 2, Branch 300, Arbitrator Matacheskie found that the phrase "plus all other Statutory Holidays as may be declared by the B.C. Provincial and Federal Governments” meant that both levels of government had to declare a holiday in order for it to be recognized as a holiday under the collective agreement.

Arbitrator Matacheskie also decided in favour of the employer in Collins Manufacturing v International Association of Machinists and Aerospace Workers on August 11, 2022 (unpublished). The Union has filed for review of the Collins decision with the Labour Relations Board.

If you have questions about what the National Day of Mourning announcement means for your members, please reach out to one of our lawyers who can review your specific collective agreement language.