No human rights defence to professional discipline for stealing narcotics and falsifying records
Wednesday, September 19, 2012
Susan Precious

The Alberta Court of Appeal released its decision today in Wright v College and Association of Registered Nurses of Alberta (Appeals Committee), 2012 ABCA 267. The appellant nurses were disciplined by the respondent College and Association of Registered Nurses of Alberta for stealing narcotics, and for falsifying related records. The issue on appeal was whether the Alberta Human Rights Act, RSA 2000, c. A-25.5 is a bar to disciplinary proceedings under the Health Professions Act, RSA 2000, c. H-7, because of the appellants’ addiction.

The appellants argued that discipline in this context will result in adverse effect discrimination where as their conduct is triggered or caused by a disability, in this case an addiction.

The Court of Appeal found that while the appellants’ addiction is something that distinguishes them from other members of the College who are subject to disciplinary proceedings, the distinction does not amount to discrimination as the differential treatment based on personal characteristics was absent. 

 The Court of Appeal noted that there are a great many addicts who do not commit criminal acts, and it is not discriminatory to hold those who do accountable for their actions. The decision to lay professional disciplinary charges, and the subsequent finding of misconduct, were not motivated by the appellants’ addiction, but rather by their conduct.  While there may be a connection between the appellants’ actions and their disability, there was an insufficient connection to make the College’s actions discriminatory. The fact that the appellants’ conduct was motivated or caused at some level by the addiction did not raise the College’s proceedings to the level of discrimination in law.

With respect to costs, the Court of Appeal confirmed that professional disciplinary bodies have a wide discretion over costs, and so long as the decision is justifiable, transparent and intelligible, judicial intervention is not warranted. The tribunals below were aware that they were not required to award the College any costs, although they did have the jurisdiction under the Health Professions Act to award full indemnity costs. They gave consideration to, but rejected, the argument that because these were test cases, the general membership should bear the expense. They were sensitive to the fact that a costs award should not be crushing. Accordingly, The Court of Appeal found the costs awards were reasonable, and variation was not warranted

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