Court upholds permanent last chance agreement

In a decision issued on March 26, 2008 the Honourable Madam Justice Lynn Smith upheld the award of Arbitrator Blasina in CUPW -and- Canada Post to "suspend" an employee's termination so long as he complied with the terms of a last chance agreement that was to last during the rest of the grievor's employment.

The union sought judicial review of the decision arguing that making the last chance agreement permanent was contrary to the Canada Human Rights Code because it subjected the grievor to higher standard of conduct than other employees on the basis of his disability. In addition the union challenged the power of the arbitrator to take into account expert evidence he had heard in other cases about the nature of addiction.

The judge ruled against the union on both grounds. The most interesting ground, for the purpose of labour relations, is the human rights discussion, brief as it is, in the judgment. The judge found that the decision of the arbitrator was "intelligible and fell within the range of possible, acceptable outcomes which are defensible in this case".

The factual underpinnings of this conclusion are set out in paragraph 62:

"The Grievor had, over a five-year period, received accommodation for his disability and assistance in overcoming it. He had told the employer that he continued to have a problem with his addictions, and that he did better when he was subject to terms and conditions. The reasoning process of the arbitrator was sufficiently clear. There was evidence before him (without reference to the evidence from other hearings that he mentioned) upon which he could reasonably conclude that the remedy he fashioned amounted to reasonable accommodation as that concept is defined in human rights jurisprudence. There was evidence before the arbitrator upon which he could reasonably conclude that conditions of shorter duration would be ineffective and would impose undue hardship on the employer. "

The case is also important as it contains a good discussion of the impact of the recent Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9. In that case, the SCC eliminated the "patently unreasonable" test that had plagued legal minds for eons. Madame Justice Smith discusses how in the remaining "reasonableness test" there are gradations of deference and quotes from the relevant passage from the SCC decision:

"Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. 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."

The decision may be found at
http://www.courts.gov.bc.ca/Jdb-txt/SC/08/03/2008BCSC0338.htm