The Supreme Court of Canada recently denied leave to appeal in the case of Wright v. College and Association of Registered Nurses of Alberta (Appeals Committee), 2012 ABCA 267, leave refused [2012] S.C.C.A. No. 486 (“Wright”) leaving some uncertainty surrounding the question of whether human rights legislation is a bar to professional disciplinary proceedings. Justice Slatter and Justice Ritter provided Reasons for Judgment with Justice Berger providing Dissenting Reasons for Judgment.

The Appeal addressed companion cases concerning the conduct of two Alberta Registered Nurses. Nurses Helmer and Wright, while in positions of responsibility, stole narcotics and falsified records to cover up the theft. Both nurses were diagnosed with opiate dependencies and addictions. Both were charged by the College and Association of Registered Nurses of Alberta (the “College”) with unprofessional conduct.

The matters went to separate Hearing Tribunals which considered the issue of whether the nurses’ addiction raised a human rights defence under the Alberta Human Rights Act, RSA 2000, c. A-25.5 to the charges laid by the nursing professional body. The Hearing Tribunal in both instances found that the nurse member was not being disciplined for her disability or addiction, but rather for the criminal conduct itself. Therefore, the College was justified in implementing the charges of professional misconduct and was not afoul of human rights legislation in doing so. The Hearing Tribunals reprimanded the nurses and provided entitlement to apply for permission to practice under supervision. The nurses appealed to the Appeals Committee of the College which found that the findings of the Hearing Tribunal were reasonable.

The nurses appealed directly to the Alberta Court of Appeal. Among other grounds of appeal, a central issue was whether the College had discriminated based on disability when it laid the charges of professional misconduct therefore placing it offside human rights legislation.

The Court of Appeal found it had not. It followed the British Columbia Court of Appeal in British Columbia (Public Service Agency) v. British Columbia Government and Service Employees’ Union, 2008 BCCA 357, leave refused [2012] S.C.C.A. No. 486 (the “Gooding” case) in concluding that: “The fact that [the] criminal conduct was motivated (or caused) by [the] addiction did not elevate the employer’s decision to the level of discrimination, because the decision to dismiss for theft was not arbitrary or based on preconceived stereotypes.” (para.63 of Wright) Discipline procedures for criminal conduct are based on objective and justifiable social criteria. “While the law recognizes that an addict cannot always control her addiction, the law does require that the addict control her conduct sufficiently to comply with the criminal law.” (para. 64 of Wright) The Court concluded that the consequences of excusing criminal behavior because of addictions would be far-reaching. In this case, the decision to lay professional disciplinary charges and the finding of misconduct was motivated by the conduct of theft and fraud, and not the addiction. The fact that there was a connection between the Appellants’ actions and their addiction was not sufficient enough to make the College’s actions discriminatory. The Court of Appeal found that the sanctions imposed on the nurses incorporated elements of rehabilitation and therefore accommodation of the disability was sufficiently addressed at that stage of the process.

Justice Berger fundamentally disagreed with the majority and issued Dissenting Reasons for Judgment. He found that the Hearing Tribunal had failed to appreciate the nature of adverse effect discrimination and that a prohibited ground of discrimination does not have to be the sole ground for the adverse treatment before a human rights analysis is engaged. He also found that the College failed to treat the Appellants’ addiction as a disability. The rule of imposing sanctions in this instance of criminal conduct discriminates because it affects the Appellants’ differently from others because of their disability. Justice Berger found that because both nurses had a disability and that the medical evidence proved a nexus between that disability and the theft of the narcotics, both tribunals erred in not conducting a human rights analysis. Justice Berger found that accommodation of the disability at the sanctioning phase of the process was too late and did not address the discrimination that occurred earlier.

The Alberta Court of Appeal appears to have fundamentally disagreed on how to address disability and addictions in this context. The majority chose to focus on the behaviour and only acknowledged the disability at the sanctioning stage. Justice Berger considered the addiction from the outset and frames his analysis accordingly. Unfortunately, as indicated above, the Supreme Court of Canada has declined to hear the appeal so we are left with a degree of uncertainty for professional bodies wanting to discipline members in similar circumstances.