The BC Labour Relations Board has ruled that evidence of drug dependency obtained after dismissal may be admitted in arbitration, although evidence of post dismissal rehabilitation may not. In Fraser Lake Sawmills Ltd., BCLRB No. B310/2000, the employer applied under section 99 of the Labour Relations Code for review of a preliminary arbitration award.
The grievor had been found smoking marijuana on the employer’s premises. It was alleged that upon being caught the grievor apologized and indicated that he had a drug problem. The grievor was subsequently dismissed by the employer and his dismissal was submitted to arbitration. At the arbitration hearing, the union sought to enter a physician’s report showing that the grievor suffered from a drug dependency. The employer objected to the admissibility of the report based on Quebec Cartier v. Quebec,  2 SCR 1095, arguing that the arbitrator was obliged to assess the decision to dismiss on the basis of evidence available at the time that decision was made. The arbitrator dismissed the objection.
The board found that the arbitrator had correctly held the physician’s report admissible. Quebec Cartier directs arbitrators to assess a decision to dismiss on the basis of the state of facts existing at the time the decision was made. The rule of admissibility set out in Quebec Cartier applies to exclude evidence of subsequent events (e.g., evidence that after termination an employee was successfully rehabilitated). However, evidence that becomes available subsequent to a dismissal may be relevant to a proper assessment of existing facts at the time the decision to dismiss was made. In this case, the expert evidence tendered went to a state of facts allegedly existing at the time of termination (i.e., the alleged drug addiction) and thus was admissible. The employer’s application was dismissed.
(Click here for copy of Decision)