In our last release we promised that we would blog about the recent decision of the Alberta Court of Appeal in Wright v. the College and Association of Registered Nurses of Alberta using a panel format. We believe this case warrants a great deal of consideration as it will have significant implications for professional regulatory bodies that need to address professional misconduct committed by registrants who suffer from drug or alcohol addictions, and we have provided a summary of the case here.
For this release, as the first part of our panel review of this case, we have asked Lindsay Waddell and Aleem Bharmal, both lawyers who are experts in human rights law to comment on the case. Aleem is the executive director of the Community Legal Assistance Society and Lindsay is a senior lawyer in its human rights program. Aleem and Clea Parfitt, a well established complainant-side human rights lawyer recently represented 19 Indo-Canadian veterinarians in their racial discrimination complaint against the College of Veterinarians of B.C. before the B.C. Human Rights Tribunal.
We asked Aleem and Lindsay:
“Was it discriminatory for the College and Association of Registered Nurses of Alberta to discipline two nurses who had been stealing narcotics from their places of work and falsifying documents to cover up these thefts considering the fact that the two nurses were addicted to the narcotics they stole and the evidence was that their addictions motivated these crimes?”
They provided us with the following response:
“The question of whether the College’s decision to discipline for addiction-related theft is discriminatory involves two stages of analysis. First, it is necessary to determine whether the decision to discipline constituted prima facie discrimination. Only if the answer to this question is “yes” does the second stage arise, which examines whether the decision can be justified. The majority of the Alberta Court of Appeal in Wright concluded that the College’s decision to discipline two nurses for addiction-related theft and dishonesty did not amount to prima facie discrimination. Having failed to find prima facie discrimination, the Court did not go on to perform a formal justification analysis.
We respectfully disagree with the majority’s analysis and conclusion. In our humble view, the majority ought to have concluded that the College’s decision to discipline the two complainants constituted prima facie discrimination and gone on to consider whether such discrimination could be justified or, at the very least, have sent the matter back down for a full and correct analysis to be conducted by the tribunal, as the dissenting judge suggested in this case.
While it is hard to provide a definitive answer on whether the College’s conduct would have ultimately been justified (as this issue was never fully and properly dealt with at any level in these proceedings), there were some obvious compelling arguments in the College’s favour with respect to “reasonable justification”, as the Court itself noted in passing.
Where did the Alberta Court of Appeal go wrong? We suggest that the majority fundamentally altered the well-established test for prima facie discrimination by importing elements of the justification analysis into the prima facie question. In doing so, they significantly raised the bar for the complainants to meet in order to establish a prima facie case of discrimination. Had they properly applied the correct prima facie test, the Court would almost certainly have made a finding of prima facie discrimination and moved on to examine the question of whether such discrimination could be justified.
The test for prima facie discrimination receives relatively little attention in the majority’s decision in Wright (notwithstanding that it is at the prima facie stage of the discrimination analysis that the Court dismisses the appeal). In the disability context (addiction being a form of disability) the test asks:
Whether the individual affected has or is perceived to have a disability (in this case, an addiction);
Whether the individual affected has been treated adversely; and
Whether the disability (or perceived disability) was a factor in that adverse treatment.
In Wright, the first two aspects of the prima facie test were admitted. It was on the third question of whether the addiction was a factor in the adverse treatment (namely, the discipline) that the majority, in my respectful view, tripped up. At paragraph 57, the majority notes that: “It can be accepted that the appellants’ conduct was to some degree caused or motivated by their disability, that is their addiction.” This finding, coupled with the fact that they were disciplined for their conduct, ought to have ended the inquiry into whether the College’s decision to discipline was prima facie discriminatory.
However, instead of reaching the conclusion that the College’s decision to discipline amounted to prima facie discrimination, the Court went on to consider a number of factors (at paragraph 58) many of which are irrelevant or ill-suited to the prima facie stage of the discrimination analysis and a number of which are more properly dealt with as defence arguments of “reasonable justification”.”
So what does this mean for professional regulatory bodies? The decision of the majority of the Alberta Court of Appeal in Wright, as it stands, may appear to largely foreclose the possibility of registrants raising addiction as a defence in professional discipline proceedings. If a professional proving that their addiction was a factor in committing the wrongdoing is not enough to prove prima facie discrimination then what is enough? Lindsay and Aleem argue persuasively that the majority in Wright erred in failing to find prima facie discrimination and move on to consider whether this discrimination was justified. The nurses will be applying for leave to the Supreme Court of Canada but it remains to be seen whether this decision will be revisited by the Supreme Court of Canada and, if so, whether they will endorse the approach of the majority or the minority in this case. In the meantime, a decision of Alberta’s Court of Appeal is persuasive but not binding on tribunals in other Canadian provinces. Under their analysis, disciplinary tribunals should remain cautious when considering discipline against registrants who suffer from addictions if there is a connection between their addictions and their alleged misconduct. Where such a connection exists, the tribunal may still need to conduct a full human rights analysis including the difficult question of whether the discipline is justified.
In our next blog release we will provide you with another perspective on Wright from a second panelist in response to Aleem’s and Lindsay’s views.