2013 ONSC 4072, 2013 ONSC 4072

CITATION : Ottawa Carleton Public Employees Union (CUPE, Local 503) v. Ottawa (City), 2013 ONSC 4072 COURT FILE NO.: 12-1817 DATE: 20130612 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: Ottawa Carleton Public Employees Union (“CUPE”), Local 503, Applicant AND City of Ottawa, Respondent BEFORE: Valin, MacDougall and Rady JJ.

COUNSEL: David Jewitt, for the Applicant David Patacairk, for the Respondent HEARD: June 12, 2013 ENDORSEMENT (Correction) Corrected Endorsement: The text of the original Endorsement was corrected on June 13, 2013 and the description of the correction is appended. [ 1 ] This is an application for judicial review of a decision by Arbitrator Brian Keller dated December 7, 2011. Arbitrator Keller was appointed to adjudicate the propriety of the termination of Charles Lavoie’s employment with the respondent. Mr. Lavoie had purchased marijuana while on duty and in a City vehicle.

He was charged with offences under the Controlled Drugs and Substances Act and eventually pleaded guilty to possession of a controlled substance. During the arbitration, the union alleged that Mr. Lavoie was disabled due to his addiction to marijuana and that his employer was obliged to accommodate him as required by the Ontario Human Rights Code , R.S.O. 1990, c. H.19. [ 2 ] The hearing lasted twelve days during which several witnesses testified including Mr. Lavoie’s co-workers, his union representative and supervisors, an addictions counsellor and a doctor with a specialty in addiction medicine.

The respondent also called a forensic psychiatrist. Arbitrator Keller released a twenty page decision which contains a thorough review of the evidence. He concluded that the Union had not discharged its onus to prove that Mr. Lavoie suffered from a disability at the time of his dismissal. [ 3 ] The standard of review on a question of law is correctness. The standard of review for findings of fact is reasonableness. [ 4 ] In its factum, the appellant argued that the arbitrator erred in imposing on Mr. Lavoie the burden of proof on a balance of probabilities.

It submitted that a prima facie case of disability was made out. During oral argument, Mr. Jewitt conceded that the burden of proof rested on the appellant on a balance of probabilities. [ 5 ] The applicant submits that there was ample evidence to demonstrate that Mr. Lavoie suffered a disability as a result of his addiction to marijuana and that the arbitrator erred in rejecting Mr. Lavoie’s evidence as not credible. [ 6 ] We have concluded that the application must be dismissed. [ 7 ] The Union had the burden to demonstrate on a balance of probabilities that Mr.

Lavoie suffered from a disability arising from his drug addiction as of the date of dismissal. His credibility was a central issue for the arbitrator. [ 8 ] The arbitrator considered that Mr. Lavoie was not a credible witness for the following reasons: • He made contradictory statements. For example, during an investigatory meeting with his employer, he stated that he hid his drug use from co-workers by secretively going into the woods to smoke; • During the arbitration, he stated that his drug use was pervasive and longstanding and that everyone at work was aware of it.

None of the seven co-worker witnesses or any of the management or union witnesses, including a union representative who previously supervised him, could corroborate that claim. None noticed any signs of drug use notwithstanding Mr. Lavoie’s assertion that he smoked as many as five to ten marijuana cigarettes while at work. The arbitrator recognized that co-workers might be reluctant to testify about his drug use given that they might be exposed to disciplinary action, but nevertheless, there was a lack of corroboration. • Indeed, Mr.

Lavoie said he would call a retired employee to support his claim but failed to do so;

• He said he had been cautioned about his drug use by district foremen, but none were called to corroborate his evidence; • Mr. Lavoie’s evidence during the hearing was more advantageous to his claim than what he had said at the earlier disciplinary interview. The arbitrator noted that in cross-examination, Mr. Lavoie said he did not recall saying that no one knew he smoked and he never said he did not use drugs in front of other employees. He did not recall saying he never used drugs in his truck and if he had, he must have been lying.

He said that he did not remember saying that he would go into the woods to smoke and if he had, he would have been lying; • The evidence of the union’s witness, Ted Daniow, did not support Mr. Lavoie’s evidence. Six to eight weeks before his dismissal, Mr. Daniow had discovered drugs in a City vehicle being operated by Mr. Lavoie. When confronted, Mr. Lavoie said that it would not happen again and that he only used drugs on weekends. [ 9 ] Other evidence considered by the arbitrator included the following: • The first expert the union sought to rely upon to demonstrate Mr.

Lavoie’s alleged addiction could not be qualified as an expert both because she was an advocate for him and because her qualifications did not permit her to make diagnoses; • Dr. Steinman, who was accepted as an expert witness but did not assess Mr. Lavoie until two years after his termination, acknowledged that his diagnosis was based on self reporting, and that different information could lead to a different conclusion. In particular, he testified that the results would be “skewed” if Mr. Lavoie was not truthful; • The City’s expert, Dr.

Klassen, testified that collateral verification is an important element in determining the reliability of a self report, but it was not done. [ 10 ] The arbitrator concluded that the union had failed to discharge its burden. The decision is reasonable. The application is dismissed. The respondent is entitled to costs fixed at $5,000. Mr. Justice G. Valin Mr. Justice B. MacDougall Madam Justice H. Rady Date: June 12, 2013 Appendix The second sentence to paragraph [3] has been changed to the following: The standard of review for findings of fact is reasonableness.

CITATION : Ottawa Carleton Public Employees Union (“CUPE”) v. Ottawa (City) , 2013 ONSC 4072 COURT FILE NO.: 12-1817 DATE: 20130612

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT RE: Ottawa Carleton Public Employees Union (“CUPE”), Local 503, Applicant AND City of Ottawa, Respondent BEFORE: Valin, MacDougall and Rady JJ. COUNSEL: David Jewitt, for the Applicant David Patacairk, for the Respondent ENDORSEMENT (Correction) By the Court Released: June 12, 2013