CITATION: Bell Canada v. Unifor Local 43, 2016 ONSC 3350
DIVISIONAL COURT FILE NO.: 5/16 DATE: 20160629
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
A.C.J.S.C. MARROCCO, C. HORKINS and M. VARPIO JJ.
BETWEEN:
BELL CANADA Applicant
– and –
UNIFOR LOCAL 43 Respondent
Frank Cesario, for the Applicant
Douglas Wray, Respondent
HEARD at Toronto: May 18, 2016
M. VARPIO J.
OVERVIEW
[1] The Applicant seeks judicial review of an Arbitrator’s decision that mitigated the discipline meted out by the employer. The discipline – termination – flowed from the Grievor’s job-related thefts. The Arbitrator mitigated that discipline as a result of the Grievor’s illness which “clouded” the thefts. As will be seen below, we are of the opinion that the Arbitrator’s description of the evidence is contradictory such that his decision is not reasonable. Accordingly, the Application is allowed and the Arbitrator’s award is hereby quashed.
FACTS
[2] The Grievor was employed by Bell Canada (“Bell”) for over 30 years. He collected money from pay phones. By all accounts, he was a model employee until 2011. In fact, he worked as part of Bell’s volunteer ambassador program wherein he won a national award for his service.
[3] In 2011, however, three things happened to change the Grievor’s life. First, his sister passed away from MS. Second, his wife was involved in car accident which left her with serious side-effects. Third, while travelling between job sites, the Grievor witnessed an individual jump off the Niagara Skyway in a tragic suicide. The Grievor did not seek counselling at the time of the incidents, believing he could handle his problems on his own.
[4] Commencing in 2012, the Grievor began engaging in a series of thefts. The specifics of the scheme are not relevant to this decision except to say it was a sophisticated enterprise designed to deflect attention away from the Grievor to the Grievor’s partner. The theft netted the Grievor approximately $3500.00.
[5] On May 14, 2014, the Grievor was called into a meeting with management and confronted with the theft allegations. The Grievor admitted to same and went to see his doctor on that same date. The doctor recommended the Grievor see a counsellor. Ultimately, the Grievor was diagnosed as having Post-Traumatic Stress Disorder (“PTSD”), the specifics of which will be discussed below.
[6] On May 15, 2014, the Grievor was terminated and his union, Unifor Local 43 (the “Union”), grieved the discipline.
[7] Articles 13.01 and 15.08 of the Collective Agreement state:
13.01 No employee shall, for disciplinary or non-disciplinary reasons, receive a written reprimand or a written warning, be suspended, demoted or dismissed, except for just cause.
15.08 Where the matter at issue is one relating to the alleged violation of section 13.01, the Arbitrator, subject to the terms of this Agreement, has the power to:
(c) modify the penalty in a just and reasonable manner based on the evidence before him.
[8] During the course of the arbitration, the Arbitrator had the benefit of hearing from the Grievor’s psychiatrist, Dr. Naqvi. Dr. Naqvi’s initial report stated that the patient’s life began to unravel after 2011 as he “went into a state of deep depression… he was involved in self-destructive behaviour, started to drink more and more”. Accordingly, Dr. Naqvi’s report stated that the Grievor had “post-traumatic stress disorder-chronic” and “Major depressive disorder – currently in partial remission”.
[9] Dr. Naqvi’s evidence, however, became more nuanced during the course of his testimony. The Arbitrator noted the following as regards Dr. Naqvi’s:
During the course of his testimony at the hearing, Dr. Naqvi confirmed the diagnosis reflected in his report of April 18, 2015, reproduced in part above. Dr. Naqvi confirmed his diagnosis of post-traumatic stress disorder (PTSD), noting that the grievor’s PTSD symptoms, such as recurring dreams, flashbacks, anxiety and concentration problems continue to the present. He further observed, more generally, that PTSD can affect judgment, although he could not say that Employee B did not know right from wrong. Dr. Naqvi noted that the grievor is presently unable to return to work, and that his prognosis “… is not very good.”
While Dr. Naqvi expressed the view that theft can be related to depression and PTSD, he clarified in cross-examination that PTSD would normally be associated with theft that is compulsive in nature, such as shoplifting. He stated his opinion that if a theft is planned it is unlikely to be the result of PTSD. When specifically asked about the scheme to conceal and use coin receptacle box seals in a plan that might span some three weeks, Dr. Naqvi responded that that kind of conduct would probably not be associated with PTSD. He likewise commented that a scheme to shift the blame onto another employee for theft would not, in the normal case, be explainable by PTSD. Dr. Naqvi further explained, however, that he could not form any particular opinion in relation to the grievor as regards theft and PTSD stating: “I didn’t see him … it is difficult to give an opinion.” His final comment under cross-examination was that PTSD is generally viewed as an impulse control problem, dealing with actions on the spur of the moment, and not events which are planned out [emphasis added].
In a covering letter to counsel for the Union dated July 17, 2015, enclosing his report dated April 18, 2015, Dr. Naqvi stated, in part, the following:
The above named patient was seen in our weekend office on April 18, 2015. … He is presenting with chronic symptoms of PTSD related to an incident in 2011 when he witnessed a man jump off the skyway in St. Catharines while [Employee B] was driving to his work, please see consultation report for details. I am unable to make a direct link between his symptoms in 2011 and [the] theft charge because I did not see him at that time. I will add that definitely theft may have been related to [Employee B’s] symptoms at that time. [Emphasis in origina.l]
[10] Subsequently, the Arbitrator examines the nuanced evidence provided by the Doctor as well as the parties’ characterization thereof:
I turn to consider the competing submissions of the parties. At the outset I must give substantial credence to the initial position of the Company which stresses that the grievor’s conduct, involving systematic and repeated theft by an employee who handles money while working in an unsupervised environment, runs against the reinstatement of that individual into a position which involves a substantial degree of trust. Against that factor, however, I must balance the alternative reality. Firstly, I accept the expert evidence from Dr. Naqvi which establishes that the grievor did suffer post-traumatic stress disorder and major depressive disorder by reason of having witnessed a suicide. I further accept the evidence of Dr. Naqvi that the PTSD condition can and did impact the grievor’s judgment and conduct, which, I am satisfied must be seen as mitigating the degree of culpability which should attach to him. Where do these considerations lead? Firstly, accepting, as I do, that the grievor did suffer post-traumatic stress disorder and depression, I consider that it would be critical to have compelling evidence that the grievor’s conditions of PTSD and major depressive disorder have been treated and resolved so as to ensure that seriously inappropriate conduct lacking in sound judgment would not recur. However, the material before me is devoid of any such evidence. To put it simply, I am without compelling testimony which would confirm that it is safe and appropriate to return the grievor to work in a position which involves the unsupervised handling of the Company’s money.
While much of the factual evidence is undisputed, the impact that Employee B’s PTSD had on the long term, repeated instances of premeditated theft from the Company’s coin boxes from its payphones between 2012 and 2014 is very much in dispute. Interestingly, both parties rely on Dr. Naqvi’s evidence to support their respective and contrary positions. Counsel for the Company maintains that while the evidence does indicate that post-traumatic stress disorder can lead to impulsive actions of theft, the evidence from Dr. Naqvi does not support the view that PTSD would be related to a planned scheme of theft carried out over a substantial period of time, as is the case here.
Counsel for the Union, on the other hand, highlights that in his covering letter to him of July 17, 2015, Dr. Naqvi stated, “I will add that definitely theft may have been related to [Employee B’s] symptoms at that time.” It must be observed, however, that this comment from Dr. Naqvi follows directly upon his statement that, “I am unable to make a direct link between his symptoms in 2011 and [the] theft charge because I did not see him at that time.”
Counsel for the Union further highlights that Dr. Naqvi commented in his evidence-in-chief that PTSD and depression can affect judgment. It must be noted, though, that this statement was made in the course of Dr. Naqvi generally describing the symptoms that Employee B was experiencing with his PTSD. I cannot conclude that Dr. Naqvi directly linked the bad judgment that can flow from PTSD as the motivating factor for the whole scheme of premeditated theft over a 24 month period between 2012 to 2014.
Counsel for the Union further emphasizes that Dr. Naqvi stated in his evidence-in-chief that theft can be related to depression and PTSD. Of importance to the evaluation of this statement, however, I note that Dr. Naqvi clarified in his cross-examination that the type of theft that would normally be associated with PTSD is compulsive in nature, such as shoplifting. [Emphasis added.]
[11] The Arbitrator then reviewed the impact of Dr. Naqvi’s evidence:
Upon a careful review of Dr. Naqvi’s evidence, I cannot conclude that Dr. Naqvi’s testimony supports the Union’s assertion that Dr. Naqvi concluded that Employee B’s systematic, repeated theft spanning more than 24 months was caused by his PTSD. In fact his evidence, reviewed in its entirety, strongly suggests the contrary conclusion. While in his evidence-in-chief, Dr. Naqvi stated that theft can be related to depression and PTSD, he made abundantly clear in his cross-examination that PTSD would normally be associated with theft that is compulsive in nature, such as shoplifting. Dr. Naqvi explained at some length that theft that is planned, theft that might span an extended period of time or theft that involves a scheme to shift the blame to a fellow employee would not, in the normal course, be explainable by PTSD. While Dr. Naqvi noted with care that it was difficult to give an opinion on the impact of Employee B’s PTSD on his systematic scheme of theft because he did not see him at that time, he further emphasized that PTSD is generally viewed as an impulse control problem, dealing with actions on the spur of the moment and not events that are planned out.
While I do not accept that the evidence before me establishes that the pre-meditated scheme of systematic theft spanning more than 24 months for which the grievor was discharged was directly and fully prompted by his PTSD and depression, I must agree with counsel for the Union that Employee B’s condition must be viewed as mitigating to some extent the grievor’s culpability. He is not, in my view, in the same position as an employee without any disability who wantonly steals from his or her employer.
Standing back, it appears to me that it could be credibly posited that but for the events of 2011, inclusive of the suicide he witnessed, his sister’s death and his wife’s accident, the systematic scheme of theft engaged in by the grievor would not have occurred. It is undisputed that Employee B was a fine employee prior to these events of 2011. He was a 30 year employee who had never been disciplined. At one point prior to 2011, he was even named as Ambassador of the Year for Canada in respect of his participation in a volunteer program within the Company known as the “Ambassador Program” which involved in public relations promotions.
Accordingly, between 2011 and his discharge in 2014, while Employee B was developing serious symptoms that would ultimately be diagnosed as PTSD and major depressive disorder linked directly to the events of 2011, the grievor’s disability went both undiagnosed and untreated. One of the events that occurred during this time of struggle for Employee B was the systematic theft of coins from payphones for which he was terminated.
In his covering letter to counsel for the Union dated July 17, 2015, Dr. Naqvi stated, “I will add that definitely theft may have been related to [Employee B’s] symptoms at that time.” Yet in the immediately preceding sentence he had stated, “I am unable to make a direct link between his symptoms in 2011 and [the] theft charge because I did not see him at that time.” While Dr. Naqvi was clear and definitive that in the normal course, PTSD might lie at the root of instances of impulsive theft, like shoplifting, it is not normally associated with premeditated theft of the nature engaged in by Employee B. Even so, Dr. Naqvi was careful l to observe that he could not be definitive about Employee B because he did not treat him at the time of the thefts. Dr. Naqvi does say that PTSD can spawn bad judgment. Dr. Jones did say in his report that Employee B during this time was “not himself”. [Emphasis added.]
[12] Ultimately, the Arbitrator found as follows:
On the other hand, a series of devastating events befell the grievor in 2011, which led to his PTSD and major depressive disorder which, I am prepared to find on the evidence, undermined his mental stability and sense of good judgment at the time he engaged in the series of thefts for which he was discharged. While I am unable to conclude from the evidence that the PTSD and depression were the cause of the thefts, I am satisfied that they colour them. In my opinion, the systematic scheme of theft for which Employee B was discharged cannot properly be evaluated in the absence of an acknowledgement of the undiagnosed and untreated PTSD and major depressive disorder that were affecting Employee B at the same time. [Emphasis added.]
[13] Finally, the Arbitrator mitigated the discipline stating that the Grievor was to be “reinstated effective immediately, without compensation or benefits, for the sole and only purpose of his filing an application for long-term benefits”. The Grievor had ninety days to apply for same, failing which his employment status would cease.
COURT’S JURISDICTION
[14] The court’s jurisdiction to judicially review an Arbitrator’s decision flows from ss. 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Pursuant to those provisions, the Divisional Court has jurisdiction to grant any relief that an applicant would be entitled to in:
proceedings by way of an application for an order in the nature of mandamus, prohibition or certiorari; or
proceedings by way of an action for a declaration or for an injunction or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
STANDARD OF REVIEW
[15] The parties agree that the appropriate standard of review is reasonableness. This requires a review of the award with respect to the underlying decision-making process reflected in both the reasons and the outcome. Bell and the Union both refer to Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47:
A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[16] Deference requires respectful attention to the reasons which could be offered in support of a decision. The Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 12, that “the notion of deference to administrative tribunal decision-making requires ‘a respectful attention to the reasons offered or which could be offered in support of a decision.”
THE NEED TO PROVE LINKAGE TO THE DISCIPLINE-WORTHY CONDUCT
[17] In order for an illness to be considered as a mitigating factor when an arbitrator decides to mitigate discipline, the illness must be linked to the grounds that give rise to the discipline. Failure to prove a nexus could lead to the situation where an employee could have discipline mitigated even though her illness had nothing to do with her conduct. Absent special circumstances, such a position appears to run afoul of common sense.
[18] The respondent’s factum quotes the following passage from Toronto (City) v. Canadian Union of Public Employees, Local 79 (Villar Grievance), [2014] O.L.A.A. No. 16 at para 23 which supports this proposition:
A review of the cases reveals that questions of causality and the need for medical evidence can arise in two contexts. The first is in relation to an argument that behaviour that would otherwise be disciplinable is rendered non-disciplinable because of a disability. The second is in connection with a mitigation argument.
[19] Accordingly, for an arbitrator to mitigate discipline on the basis of an illness, a grieving employee must show that the illness somehow affected the impugned conduct, even if its effect does not necessarily rise to the level of causality.[^1]
WAS THE AWARD REASONABLE?
[20] The Applicant questions the reasonability of the award on three grounds, but only one ground need be discussed: the Applicant argued that a distinction must be drawn between bad judgment resulting from the PTSD, and bad judgment unrelated to the PTSD. In the Applicant’s view, Dr. Naqvi’s evidence negated the possibility that the Grievor’s PTSD and depression contributed to the Grievor’s commission of the theft. There was no evidential nexus between the PTSD and the conduct to be disciplined. Accordingly, the conditions imposed by the Arbitrator were not based on the evidence accepted by him. As such, the Grievor’s illness could not reasonably “colour” or “mitigate” the misconduct.
[21] The Union submitted that the Arbitrator’s reasons, read as a whole, make clear that the Arbitrator accepted Dr. Naqvi’s evidence that the PTSD affected the Grievor’s impugned conduct, but not to the level of direct causation. The Arbitrator’s analytical approach was therefore consistent with how other arbitrators have dealt with a grievor’s medical condition in a discharge context (i.e Agropur Division Natrel v. Teamsters Local 647, 2012 ONLA 69477)[^2]. The Arbitrator’s conclusion was not therefore unreasonable, nor was his decision to consider the Grievor’s disability as a mitigating factor.
[22] As indicated above, an Arbitrator must be given considerable deference when that Arbitrator interprets his or her home statute. Nonetheless, an arbitrator’s decision must be reasonable in that her or his decisions must be based upon evidence capable of supporting a given decision. In the case before us, therefore, the Arbitrator’s decision must be based upon evidence (or an evidence-based inference) that there was a nexus between the Grievor’s PTSD and the decision to engage in the theft.
[23] Upon reading the whole of the decision and after according all due deference, we find that the Arbitrator failed to adequately describe Dr. Naqvi’s evidence with the result that his decision cannot be seen to be reasonable.
[24] A review of Arbitrator finding’s is determinative of the issue. On the one hand, the Arbitrator appears to accept that Dr. Naqvi stated that he cannot provide any opinion as to whether the PTSD contributed to the thefts. Specifically, the Arbitrator stated:
“While Dr. Naqvi expressed the view that theft can be related to depression and PTSD, he clarified in cross-examination that PTSD would normally be associated with theft that is compulsive in nature, such as shoplifting. He stated his opinion that if a theft is planned it is unlikely to be the result of PTSD”;
“Dr. Naqvi further explained, however, that he could not form any particular opinion in relation to the grievor as regards theft and PTSD stating: “I didn’t see him … it is difficult to give an opinion”; and
“Counsel for the Union, on the other hand, highlights that in his covering letter to him of July 17, 2015, Dr. Naqvi stated, “I will add that definitely theft may have been related to [Employee B’s] symptoms at that time.” It must be observed, however, that this comment from Dr. Naqvi follows directly upon his statement that, “I am unable to make a direct link between his symptoms in 2011 and [the] theft charge because I did not see him at that time.” [Emphasis added.]
[25] These statements appear to suggest that Dr. Naqvi could not link the PTSD and the theft. This position is consistent with the view that PTSD-related thefts are typically impulse-related thefts as opposed to sophisticated, intricate matters. As such, the Arbitrator could not mitigate the discipline imposed as there was no evidence that the Grievor’s PTSD was related to the theft.
[26] On the other hand, the Arbitrator described Dr. Naqvi’s evidence as follows:
“Counsel for the Union, on the other hand, highlights that in his covering letter to him of July 17, 2015, Dr. Naqvi stated, “I will add that definitely theft may have been related to [Employee B’s] symptoms at that time.” It must be observed, however, that this comment from Dr. Naqvi follows directly upon his statement that, “I am unable to make a direct link between his symptoms in 2011 and [the] theft charge because I did not see him at that time.”;
“Standing back, it appears to me that it could be credibly posited that but for the events of 2011, inclusive of the suicide he witnessed, his sister’s death and his wife’s accident, the systematic scheme of theft engaged in by the grievor would not have occurred. It is undisputed that Employee B was a fine employee prior to these events of 2011. He was a 30 year employee who had never been disciplined. At one point prior to 2011, he was even named as Ambassador of the Year for Canada in respect of his participation in a volunteer program within the Company known as the “Ambassador Program” which involved in public relations promotions.”; and
“I further accept the evidence of Dr. Naqvi that the PTSD condition can and did impact the grievor’s judgment and conduct, which, I am satisfied must be seen as mitigating the degree of culpability which should attach to him.” [Emphasis added]
[27] The effect of these three latter points – especially the statement that the “PTSD condition can and did impact the grievor’s… conduct” – leads the reader to believe that the Arbitrator accepts that Dr, Naqvi offered the opinion that the Grievor’s PTSD was linked to the thefts. This position is belied by the aforementioned three statements where the Arbitrator appears to indicate that Dr. Naqvi posited that the PTSD was not linked to the theft. Effectively, the Arbitrator appears to be accepting both versions of contradictory evidence. Given that labour arbitration boards do not take transcripts of the evidence heard, we cannot reconcile this crucial evidential finding. It is possible that Dr. Naqvi testified that a linkage between PTSD and the thefts may have existed, which may be sufficient to satisfy the nexus requirement. On the other hand, Dr. Naqvi may have offered no such opinion.
[28] Our inability to resolve this apparent inconsistency in the Arbitrator’s decision is such that we cannot state that the decision was reasonable. Accordingly, we hereby quash the Arbitrator’s award.
[29] The matter is hereby remitted to a new Arbitrator for reconsideration.
COSTS
[30] The parties agreed that the unsuccessful party would owe the successful party $5000.00 in costs. Therefore, we order that the Respondent pay the Applicant $5000.00 (all inclusive) within 30 days of today.
___________________________ M. Varpio J.
Marrocco, A.C.J.S.C.
C. Horkins J.
Released:
CITATION: Bell Canada v. Unifor Local 43, 2016 ONSC 3350
DIVISIONAL COURT FILE NO.: 5/16 DATE: 20160629
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J.S.C. MARROCCO, C. HORKINS and M. VARPIO JJ.
BETWEEN:
BELL CANADA Applicant
– and –
UNIFOR LOCAL 43 Respondent
REASONS FOR JUDGMENT
M. Varpio J.
Released: 20160629
[^1]: We leave the discussion of the necessary level of causation for another day as it is immaterial to our analysis.
[^2]: It is important to note that the grievor’s illness in Agropur was directly linked to the conduct which gave rise to the discipline.