BETWEEN:

COMINCO LTD. (the ‘Employer’)

AND:

UNITED STEELWORKERS OF AMERICA,

LOCAL 9705 and UNITED STEELWORKERS OF

AMERICA, LOCAL 480

(the ‘Union’)

 

Smoking Policy

ARBITRATOR: Dalton L. Larson

COUNSEL FOR THE EMPLOYER: Bruce R. Grist

COUNSEL FOR THE UNION: Mark Rowlinson

PLACE OF HEARINGS: Trail, British Columbia

DATES OF HEARINGS: October 19, 20, 21, 22

and 23, 1998

March 2, 3, 4, 1999

May 4, 5, 6, 1999

June17 & 18, 1999

1. Introduction

At issue in this arbitration is a smoking policy that prohibits the use and personal possession of tobacco in any form anywhere on Company property. The policy was implemented on February 1, 1998. It was said to apply to anyone coming onto the property including, but not limited to, all employees and visitors such as truckers, vendors, clients, consultants, and contractors. Prior to that time there had been restrictions against smoking inside office buildings and other enclosed areas.

It is also worth noting, at this point, that in 1996 a total smoking ban had been implemented within the boundaries of the lead operations, which included all outside areas. Although there was initially some resistance, the policy eventually received the support of the Union based upon a peculiar health concern posed by the potential ingestion of lead by smokers. That is to say, that within the defined boundaries of the lead operations there is a relatively higher level of lead contamination in the form of dust in the atmosphere, which is deposited literally everywhere, so that there is a risk that lead will be ingested, particularly by smokers, when cigarettes are transferred from hand to mouth.

That situation is to be distinguished from the policy that is the subject of this dispute, which is directed at contamination from the cigarette smoke itself. The cigarette smoke is the hazard. In that case, the risk extends not only to the smoker but to non-smokers who breathe the smoke and the hazard is highest in enclosed areas where the smoke tends to concentrate. Obviously, there is relatively less risk that non-smokers will be contaminated by environmental tobacco smoke in outside areas.

Prior to the total ban, smoking had also been prohibited in specified areas where there were known safety risks, such as in the fertilizer plant where there is a risk of explosion from high dust concentrations. But with the total ban, the more limited restrictions were made redundant because it is expressly stated to apply to all areas within the boundaries of the Trail Operations including offices and plants, indoors and outdoors, parking lots and private vehicles and to Company vehicles both on and off the property.

The magnitude of the edict becomes more clear from the sheer size of the property. The evidence was that the Trail Operations exceed 450 acres; and there is another large area at Warfield where a fertilizer plant and other smaller industrial plants are located.

The policy applies to over 1900 employees of which almost 1600 belong to the two local unions which are party to this dispute.

The Union concedes that smoking involves significant health risks both to smokers and to persons who may be exposed to environmental tobacco smoke. Further, Mr. Rowlinson, Counsel for the Union, stipulated that the smoking ban in the lead areas of the plant is reasonable. However, he took the position that to the extent that it applies to outdoor areas, it is overly expansive in that it intrudes upon personal life style choices made by employees who are smokers which, he says, is not an interest that the Employer is entitled to protect. He argued that while the Employer may well be entitled to restrict smoking where the health or safety of other persons may be affected, to prohibit smoking in outside areas unduly encroaches upon the rights of employees who wish to smoke.

The risks of smoking have been well documented. Dr. Stanley M. Pier, an environmental toxicologist, summarized them in a report that he submitted to this board @ pp.2-3 as follows:

‘Smoking has been shown to result in significant increases in risks for the development of diseases, including lung cancer, throat cancer, cancers of the lip, tongue and oral cavity, bladder cancer, kidney cancer, myelogenous leukemias, both acute and chronic, various cardiovascular conditions and nonmalignant lung diseases including emphysema, bronchitis and chronic airways obstruction. There is also strong evidence for the causation of respiratory diseases in children living in smoking households, as well as an increased risk for low birth weights in children born to smoking mothers; low birth weight itself is associated with a number of pediatric problems.

Estimates have been made for the proportion of lung cancer deaths that can be attributed to smoking. In Canada, in 1978 there were 6435 lung cancer deaths in men, of which 90% were attributed to smoking. There were 1681 deaths among women, of which 71% were ascribed to smoking. For the United States in 1979, there were 72,803 cancer deaths among men, 92% attributable to smoking and 25,648 lung cancer deaths in women, 78% due to smoking.

Recent studies have shown that a two pack per day smoker has a risk for the development of myelogenous leukemia two to three times that of a nonsmoker.

The smoking of tobacco provides a chemical factory generating more than 2000 derivative compounds, all of which are intentionally being drawn into the respiratory system of the smoker. This represents what is probably the most intimate form of contact with airborne pollutants, having a greater diversity than almost any conceivable polluted atmosphere, with many of the pollutants at higher concentrations than would be found in the ambient environment.’

Indeed, it would appear that the statistical evidence is overwhelmingly to the effect that smoking is harmful to the health of the smoker. Nonetheless, one cannot predict at the onset of the habit who will die from smoking; nor will all smokers contract a disease attributable to smoking; and some persons who do not smoke will die from the same diseases. However, what one can say is that the risks that smokers take are considerably higher than persons who do not smoke.

The evidence relating to environmental tobacco smoke is less compelling. Yet as Dr. Pier said in his report @ p.5:

‘It is highly likely that exposure to ETS at a sufficient, but not clearly known level, does increase the risk for the development of lung cancer. It is less certain that a realistic estimation of the magnitude of the effect or the number of cases attributable to the effect can be made.’

 

Nevertheless, it is probably safe to say that the potential contamination of other persons by environmental tobacco smoke has become the major driving force behind the public policy affecting smokers. It recognizes that smoking is a legal activity but that it should not be carried out in places where the smoke might contaminate the air of third parties. The policy has most recently been given expression in this province in the form of Occupational Health & Safety Regulations issued by the Workers Compensation Board, which requires employers to protect all employees from being exposed to such smoke. The regulation was made effective on April 15, 1998 and reads as follows:

‘Environmental Tobacco Smoke

4.81 The employer must control the exposure of workers at any workplace to environmental tobacco smoke by:

 

(a) prohibiting smoking in the workplace, or

(2) restricting smoking to designated smoking areas or by other equally effective means.

4.82 (1) A designated smoking area provided under section 4.81(b) must be clearly identified to the workforce by signs or other effective means and be a

(1) safe outdoor location, or

(2) room structurally separated from other work or break areas.

(2) If necessary to prevent tobacco smoke from entering a workplace, the designated smoking room must be provided with a separate, non-recirculating exhaust ventilation system which

(1) meets the requirements for a smoking lounge specified in ASHRAE Standard 62-1989, Ventilation for Acceptable Indoor Air Quality or other standard acceptable to the board,

(2) is designed in accordance with expected occupancy rates,

(3) maintains adequate air flows from non-smoking areas, and

(4) discharges directly to the outdoors.

(3) Except in an emergency, an employer must not require a worker to enter an indoor area where smoking is permitted under section 4.81 until the tobacco smoke has been effectively removed.’

Counsel for the Company argued that, on the issue put by the Union, the onus is not on the Company to demonstrate that the policy imposing a total ban is reasonable, but rather the Union must demonstrate that it is invalid which, he asserted, could only be done by showing that a right has been negotiated in the collective agreement, either expressly or implicitly, for employees to engage in such an activity on company property.

It is not disputed that no such express right has been negotiated into the agreement, but the Union says that the issue is not whether it can be found in the agreement but rather whether employees derive the right to smoke from other sources. It was the position of Mr. Rowlinson that smoking is a personal right similar to the right of an employee to bring his lunch onto company property and that, in perspective, what the Employer is really seeking to do is regulate the personal habits of its employees. According to Counsel, the policy goes well beyond protecting other employees from environmental tobacco smoke which, he says, is obvious from the approach taken by the Company to justify the policy by attempting to show that it will likely improve the overall health of employees in the bargaining unit.

Beyond that, Mr. Rowlinson argues that nicotine addiction and the related effects of nicotine withdrawal constitute a disability within the meaning of the British Columbia Human Rights Code. He says the consequence is that the policy discriminates against smokers because if they cannot control their addiction, the end result of the policy is that they will be discharged. At the very least, he says that the legislation requires that addicted smokers must be accommodated in ways that would permit them to continue to work and that the best way to do that is to permit them to smoke in outside areas, provided always that steps are taken to ensure that their exhaled smoke does not contaminate the environment of other employees.

2. Background

The current expansive operations of the Company had humble beginnings. Gold and copper were discovered in the Rossland area with Joe Moris and Joe Bourgeois staking the first successful mining claim on July 2, 1890. The ore was originally carried on horseback to Trail Landing for smelting in the United States. Five years later a copper smelter was constructed on the present site which began production on February 1, 1896.

When the Rossland mines started showing signs of depletion the Company, then called the Canadian Smelting Works, started looking for ore in the Slocan district and convinced the Canadian Pacific Railway to back a lead smelter for Trail. The first lead furnace was installed in 1898.

In 1906 five companies operating in the area merged to become the Consolidated Mining and Smelting Company of Canada Ltd., which subsequently purchased the Sullivan mine at Kimberley, B.C. in 1913, one of the largest zinc-lead deposits in the world. Over the years the operations were modernized and expanded, particularly during the war years. In 1966 CM&S restructured its corporate organization and became officially known as Cominco.

The production of zinc has come to predominate the operations. The zinc plant was modified and expanded to its current capacity of 290,000 tons while the production of lead had fallen to 100,000 tons annually. To increase that production, the Company invested $150 million to build the Kivcet plant, the world’s most modern lead smelter, which was put on stream in the second quarter of 1997. It uses an oxygen flash smelting process and has a design capacity of 120,000 tons.

Environmental performance has been a major driver in the decision to upgrade both the zinc and lead plants. Goals were established to reduce particulate air emissions by better than 90%, and to reduce metals and sulphur dioxide emissions by 75%. A comprehensive year around monitoring and assessment program was introduced for that purpose, as will be discussed.

Part of the concern over environmental performance has been an intense focus by both the Company and the Union on the health and safety of employees. That became increasingly important as the workforce got older. The current average age of all employees is 47 with service averaging 23 years.

For that purpose, an Environmental Department was established to deal with such things as stack emissions, sewer outfalls and effluent treatment. A separate Hygiene Department deals more specifically with employee issues, such as exposure to toxic substances. That program is operated primarily through a system of monitoring. Regular blood samples are taken of all employees who are exposed to known hazards. Depending upon the extent of their exposure, the frequency of the sample may vary from every two months to once per year. Or an employee may request a sample at any time. In addition, atmospheric testing is regularly done not only on Company property but at various locations within the City of Trail and the surrounding area. Personal protection equipment including respirators and other breathing apparatus are required to be worn in certain areas. Finally, permissible concentrations, threshold limit values, and exposure standards have been established in conjunction with the Workers Compensation Board.

The Company has not always met the legislated standards and, in fact, commencing around 1977 it entered a lengthy period in which it was regularly fined $28,500 per month because it was unable to meet the Workers Compensation Board exposure limits for lead. In 1978 the permissible level of leads in the blood was set at 80 micrograms per decilitre. If an employee were determined to exceed that limit he was required to be moved out of the lead hazard area, called the ‘move level’. However, while there was a lot of discussion about what could be done to decrease exposure limits in that period, employee blood lead levels did not generally decline.

The situation started to change in the early part of the new decade when tri-partite meetings were initiated with the Unions and the Workers Compensation Board, all of whom participated in the establishment of a Lead Task Force to develop a comprehensive hygiene program, including a rather ambitious goal of moving the acceptable tolerance level for blood/lead down to 50 micrograms/ decilitre. The work of the Task Force took more than ten years to complete but eventually resulted in the ‘Health Protection Program’, which was officially put into place in 1996.

In the meantime, the Company initiated many changes designed to improve the quality of life and the health of employees. Some of the changes were made independently of the Task Force while others were initiated as a direct result of their work. The overall plant hygiene improvements made in that period included:

(1) lunchrooms upgraded,

(2) clean air stations,

(3) full face respirators,

(4) hired full-time permanent technician,

(5) doubled sampling routine,

(6) all vent systems investigated, redesigned, repaired and improved,

(7) production cuts to improve hygiene,

(8) Dracco bag house upgraded, and

(9) more efficient fans and motors were installed.

 

The reference to production cuts refers to the fact that monitors were mounted on the smoke stacks and when they indicated that discharges into the atmosphere were excessive, production would be curtailed to bring the stack emissions back into line. The total of those costs was estimated to be in excess of $10 million.

Other costs associated with the hygiene program included such things as shower time at a cost of $163,000/ year. A new change room with shower facilities and separate lockers cost around $3 million. Also, because concentrate is moved partly by truck, the roads were identified as a source of contamination. Not only were the trucks tracking toxic residues throughout the property but they were taking them outside. A program was, therefore, initiated to clean the roads regularly and a truck washing facility was built to wash down vehicles before they leave the work site. The road cleaning itself costs $200,000/ year. More expenses were incurred for laundry and purchasing clothing. The Lead Task Force itself cost $2 million.

It is important to understand that part of the reason for the development of the Health Protection Program was a recognition that the permissible concentrations of blood leads prescribed by the Workers Compensation Board may not be practicable in a primary lead smelter. It is to be remembered that the Company was being regularly fined because it was not able to meet the standards but the WCB undertook to exempt the Company from the regulations on condition that the HPP would be implemented. The statutory authority for enabling the HPP to serve as an alternative to compliance with the permissible concentration for lead was provided by a Board authorization under Reg.2.10, as an interim measure, which was subsequently superceded by an amendment to section 36 of the WCB regulations.

The general policy objective of the HPP is that each of the Company, the Union and the employees will work together to provide the direction, the controls and procedures necessary to maintain blood leads and air lead concentrations as low as may be reasonably achievable. Under the program, employee exposure to hazardous contaminants is to be minimized, partly by training them to comply with established procedures, in order to ensure a healthy working environment. Amongst other things, the plan requires exposure/ risk hazard assessment, primarily in the form of ambient air monitoring to determine the general air quality in the area and personal sampling to establish an actual exposure value for specific jobs; there are also requirements for process, engineering, administrative and housekeeping controls, hygiene facilities, instruction and training, reporting and, most importantly, biological monitoring and medical surveillance.

The actual details of the HPP are not important for our purposes here. The point of that evidence is only to demonstrate the joint commitment of the parties to make every effort to improve the health of employees. That commitment has also been imported into the collective agreement. In the case of Local 9705, Article 8.01 provides:

‘The Company and the Union, recognizing the benefits to be gained from a safe and healthy place of employment agree that they shall cooperate in continuing and improving the measures now in effect for the prevention of accidents and the elimination of health hazards.’

An identical provision also appears in the Local 480 agreement. In addition, there is a requirement in both collective agreements to establish a Joint Safety and Health Committee to (a) make regular inspections, (b) meet regularly to discuss safety and health issues, (c) investigate all accidents and make recommendations for remedial or preventative action, and (d) provide suggestions on the operation of the Safety Program. There is also a provision that is unique to the Local 480 agreement, which expresses a commitment of the parties to attempt to achieve a pollution-free environment. That provision reads as follows:

10.01 The Company and the Union affirm their joint objective of achieving a work environment in the Company’s operations, and a general environment in the communities which these operations affect, which is pollution-free to the extent practical, recognizing the nature of the Company’s industrial operations.

 

3. History of Smoking Policies

The Company has issued a progression of smoking policies over the years. The first was in 1987. It purported to prohibit smoking where it might affect others, or where it might involve safety issues or cause production problems. It even permitted employees who worked in a particular location to designate their area as a non-smoking area, which would have to be respected by all visitors to the area. In particular, it prohibited smoking:

1. where process conditions presented a recognized risk of fire and/ or explosion and which were designated and posted as no smoking areas;

 

2. where necessary to control toxic exposures such as in lead hazard areas, except in locations and under conditions specified in each plant;

 

3. where product contamination and degradation could otherwise result; or

 

4. in specific areas designated by employee agreement or as a consequence of a management decision, failing such an agreement.

 

According to John Owens, Superintendent, Occupational Health & Safety, that policy was primarily an attempt to control the interactions of smokers with non-smokers because it permitted the workers to vote to protect their work area. However, he said that it caused considerable problems relating to enforcement. For example, in certain instances it ended up concentrating the smokers into confined areas, such as the lunchrooms which, amongst other things, caused sanitation problems because cigarette butts were left all over. The Company even tried to stagger lunch breaks but that caused operational problems.

One positive outcome of the policy was that various employee groups sought to protect their work areas from environmental tobacco smoke. On July 1, 1988, the following areas were designated smoke-free: (a) the 2nd floor of the Trail Operations Building, (b) the Information Systems area on the main floor of the Trail Operations Building, and (c) the 4^{th floor of the Cominco Building. The latter is a location off the property in downtown Trail. It is to be noted, however, that the smoking ban was only effective in the public parts of the designated areas. Employees in private offices were permitted to continue to smoke.}

The next development was that, at the urging of a number of employees, a survey was taken of the entire Trail Operations Building with the result that a majority voted to restrict smoking throughout the building. As a consequence, the entire building was designated as a non-smoking area effective April 16, 1990 including the washrooms, all private offices, the vault, hallways and common areas. In addition, the Company elected to discontinue smoke breaks because it considered them to be an ineffective utilization of time. Employees who wished to stop smoking were given access to a program sponsored by the Company, at cost.

Because the Trail Operations Building is an office building, it affected primarily members of Local 9705. However, one advantage that they enjoyed derived from the fact that they had an unpaid lunch break, which meant that the smokers could use that time to go outside and have a smoke. No employee was permitted to use paid breaks to smoke. In fact, Local 9705 filed a grievance claiming that the policy was unreasonable and that employees should be permitted to take a modest number of smoke breaks during the day, but it ended up dropping the grievance after Dawn McKessock, Senior Industrial Relations Officer, outlined the reasons for the policy and, in addition, agreed to make temporary arrangements to permit addicted smokers to briefly leave the building to have a smoke. But she emphasized that it was ‘a temporary arrangement as it results in lost production.’

In the course of the dispute, Jim Saare, President of Local 9705, wrote an article in the May 1990 edition of the Union magazine called, ‘The Picket’, in which he stated that the Union concurred with a clean air policy in the workplace but he said that it should be applied consistently and fairly to all Cominco employees. In particular, he complained that managers in the Administration Building, just across the street from the Trail Operations Building, were able to smoke. He urged tolerance of employees who smoke and urged that the situation be handled, as was being done in other industries, by providing designated smoking areas.

One year later, on November 18, 1991 the Control Systems Building was designated as a non-smoking building following a vote by the employees. That was followed in the spring of 1992 by a By-law passed by the City of Trail, called the ‘Smoking Control By-law No. 2194, 1992', which prohibits smoking in all ‘places of employment’ except a smoking area designated by the proprietor. It was not disputed that the jurisdiction of the City of Trail extends to the Cominco Trail Operations. It is important, however, that the By-law defines ‘place of employment’ as an ‘indoor place of work’, with certain exceptions that do not apply to the circumstances of this case.

The result of the definition is that the prohibition against smoking in a place of employment in the City of Trail does not extend to outside areas. It is expressly made to apply only to ^{interior spaces.}

It also contains some interesting provisions relating to the accommodation of smokers as follows:

8.1 No person shall smoke in a place of employment, except that a person may smoke in a smoking area designated by the proprietor.

 

 

8.2 The proprietor shall take all reasonable steps to ensure that no person shall be involuntarily exposed to smoking in the workplace.

 

8.3 Any worker may object to the proprietor about smoking in his or her workplace. The proprietor shall attempt to reach a reasonable accommodation, insofar as is possible, between preferences of smoking workers and those workers who do not smoke.

 

8.4 If an accommodation cannot be reached which is satisfactory to all of the workers in any given workplace, then the preference of non-smoking workers shall prevail and the proprietor shall prohibit smoking in the workplace of such workers, to the end that those workers will work in a smoking free environment.

 

8.5 The areas in which smoking is prohibited shall be clearly marked with signs as prescribed by section 10.4 of the By-law.

 

The evidence does not disclose that any action was taken to enforce the By-law against the Company property although it clearly went well beyond the Company policy then in existence, which, as we have seen, was to permit employees to elect to designate non-smoking areas. The effect of the By-law was just the opposite. It prohibited smoking inside any workplace unless the employer designated smoking areas.

It was not until almost two years later that Mr. Owens issued an Employee Bulletin dated February 17, 1994 where he said that in order to be more consistent with the By-law, smoking would be prohibited in the following locations:

1. lunchrooms

2. change rooms

3. meeting rooms, and

4. washrooms.

 

He also reiterated the original 1987 policy that smoking was prohibited where it might cause operational or safety problems or in specific areas designated by employee agreement or as a consequence of a management decision, failing that agreement. On the other hand, he stated that smoking would be permitted where the above conditions did not apply except that in close quarters, the decision would have to be made with the agreement of all the people affected on a shift-by-shift basis, provided that adequate ventilation was in place and proper housekeeping standards were ensured. The policy also included a complaint procedure where employees could identify any alleged departure from the policy.

Perhaps the most significant smoking policy to be issued prior to the one in dispute in this case, referred to earlier, was the total ban on smoking in all lead operations, implemented effective September 1, 1996. The boundaries of the lead area were defined and employees were notified as early as the spring that not only would smoking not be permitted in that area but, in addition, the possession of tobacco products would be forbidden, and any infractions would be subject to disciplinary action, up to and including dismissal. As part of the policy, the Company offered several different smoking cessation programs to both employees and their spouses, at no cost.

Around the same time, there were a couple of instances when employees working in areas where smoking was permitted, refused to work on the grounds that it was unsafe. In the case of D. Mitchell, who worked in the Zinc Melting Plant, the dispute was settled on the basis that the WCB policy at that time on the enforcement of Reg.13.01, dealing with hazardous contaminants, explicitly exempted offensive odours, germs, tobacco or tobacco smoke. However, the Company undertook to make efforts to bring about a restriction on smoking in his immediate area and advised him that plans were under way to institute a total smoking ban for Cominco operations.

Following the implementation of the ban on smoking in the lead operations, Mr. Owens testified that he assembled a committee to review the Company’s existing smoking policies with a view to imposing a total ban on the entire property. Representatives from the Unions were invited to participate but they refused. Tom Wynn, the Chair of the Health & Safety Committee, Local 480, testified that he told Mr. Owens, ‘You know my position. We support the ban in hazard areas or where other employees are working but otherwise it should be a matter of choice.’

Mr. Owens remembered the conversation differently but no point would be served in attempting to reconcile the differences. In his testimony, Mr. Wynn further asserted that, the Health Protection Program does not require such a ban. Rather, it requires only that smoking be considered in relation to other occupational health issues. He said that the bigger problem is that where a total ban has been implemented in other places it has had a seriously detrimental effect on addicted employees who have a very tough time with it. He expressed the view that, particularly employees required to work 12 hour shifts without a cigarette, would likely find it to be an almost impossible thing to do. Further, he said that the ban would be difficult, if not impossible, to enforce.

The position taken by Mr. Owens was that a smoking ban in the hazard areas is a fundamental requirement of the Health Protection Program and that while individual employees working in lead operations initially experienced problems in going without smoking during their shifts, they were able to adjust. He said that around that same time the WCB started to develop a much stronger position on smoking in the workplace and the committee discovered that there were other employers in the industry, such as Sheritt-Gordon and Brunswick Mining & Smelting, that had imposed comprehensive smoking bans. He said that the Company decided to retain consultants, at that point, to advise them and, in the end, decided that a total ban would be appropriate, provided that it were properly implemented.

Accordingly, on November 6, 1997 he issued an Employee Bulletin outlining the manner in which the ban would be put into place. The effective date for enforcement was set for February 1, 1998 with the official implementation date being January 1. The Bulletin not only set out the scope of the ban but also discussed certain things that would be done to facilitate implementation and some of the factors considered by the Company in concluding that the ban should be total.

If for no other reason the document is important because it sets out a fundamental disclaimer that it was the intention of the Company to ban the use of tobacco products while people are at work but not to direct anyone to quit using them altogether. He said that a smoking management program would be offered to all tobacco-using employees and their spouses to teach them how to control their tobacco habits while at work.

Following the bulletin, the Company hired Addiction Management Systems Inc. (AMS) to assist smokers to manage their addiction. Every smoker was required to take the program. Spouses of employees were given the option of attending. Approximately 450 employees were put through the program at no cost to them. The cost to the Company was $90,000. In addition, a counsellor was retained, Gordon DeRosa, to provide individual assistance following completion of the AMS program.

It is critical to understand, however, as Mr. Owens explained, that it was never an objective of the ban to get employees to stop smoking. Nonetheless, to the extent that a number of employees might quit, it would be considered to be a bonus. Indeed, in its promotional presentation to the Company to get the contract, AMS projected a savings of $285,000 after training costs based on the assumption that: (1) the total annual cost of a smoker to an employer is $2500 more than an employee who does not smoke (based on Labour Canada estimates); and (2) the typical quit rate is 20% of employees who take the program. It was even estimated that break-even would be achieved at a very modest 7% quit rate.

Mr. Owens was unable to say how many employees quit smoking as a result of the program or how many smokers continue to be employed because, as he said, that was not the focus of the program and they did not keep track of those numbers.

He testified that other factors, not related to health, considered by the committee in deciding on a total ban were: (1) that smoking takes time that often encroaches on productivity; (2) that a partial ban would discriminate against those who are able to leave the job site; and (3) it would be difficult to identify a completely clean or safe location on the property because of the nature of the operation and the types of contaminants produced.

^{4. Arbitral Jurisdiction of Review}

^{5. Justification of the Policy}

I have already observed that when Mr. Owens published his memorandum dated November 6, 1997 announcing the total ban on tobacco products, he indicated that there were several reasons why the Company decided to take that action. While the Union did not dispute the validity of the reasons, in a general sense, Mr. Rowlinson argued that they could not be seen to apply since the declared objective of the policy was not to get employees to quit smoking.

The first set of reasons that Mr. Owens gave related to hygiene. Firstly, he said that hand-to-tobacco-to-mouth contact transmits industrial contaminants. That was not disputed by the Union insofar as it applies to the lead hazard area. Secondly, he said there was an ever increasing intolerance of non-smokers to, what he called, second-hand smoke which equally was not disputed. Mr. Rowlinson said that was why they were advocating an outdoor smoking policy. The Union agrees that no smoking should be allowed indoors. Thirdly, Mr. Owens said that the Health Protection Program requires a smoking ban in the lead-hazard areas and minimal exposure to all contaminants. The position taken by the Union was that the program does not actually require a smoking ban but they still have no trouble accepting it for that area.

The second set of reasons related to costs. Mr. Owens recited certain estimates given by Labour Canada that a smoking employee costs between $2300 to $2600 more per year to employ than a non-smoker as the result of higher absenteeism, increased health and life insurance premiums and lost productivity. The position taken by the Union on this issue was two-fold. Firstly, it argued that no direct evidence was put to the board that smokers in this workplace have greater levels of absenteeism, or that premiums are higher for smoking employees, or that they have lower rates of productivity. Secondly, it said that since the declared purpose of the policy was not to get employees to quit smoking altogether but only while at work, the Company could hardly rely on cost savings as a reason to buttress the policy. The second alleged item of cost to the Company associated with smoking related to the construction and maintenance of designated smoking facilities but, once again, the Union says it does not advocate any special facilities. It seeks only the right to smoke outside. Indeed, Mr. Rowlinson concedes that the Unions would not have a right to compel the Company to construct and maintain such facilities precisely because it would require the expenditure of considerable amounts of money.

The third set of reasons for the policy outlined by Mr. Owens related to regulatory requirements. He cited the regulations of the Workers Compensation Board on environmental tobacco smoke and the City of Trail Smoking By-law. The problem for the Company is that neither of those statutes require that employers impose a ban on smoking in outside areas. What they require is that employees be protected from environmental tobacco smoke. Both permit employers to construct specially ventilated areas separated from other places of work where employees can smoke in circumstances where they do not impose a health hazard on other employees. In neither case is it required that employers provide separate facilities for smokers but it is equally possible to accommodate them without construction and maintenance expenses by permitting them to smoke outside in an area where environmental tobacco smoke cannot infiltrate into an enclosed area or otherwise contaminate the air of other persons.

Other reasons for the ban were advanced at the hearings. The most important was that there really are no safe areas on the property on which to smoke. This proposition was based on the fact that the operations involve the handling and production of toxic materials. Dr. Pier described the toxicity of those materials. While I do not intend to discuss all of his evidence on this point, I think that it would be helpful to outline some of the more important health risks associated with the major metals produced at the smelter:

(1) Lead. The target organs for lead toxicity are comprised primarily of the gastrointestinal system, the central and peripheral nervous systems, the kidneys, blood and gums. Lead exposure occurs most frequently through ingestion. Inhalation of particulates occurs as well but this has been significantly reduced in the general population by the elimination of lead from gasoline used in automobiles. There are no significant exposures to lead as vapours because there are very few volatile lead compounds. It is cumulative in the body. Ingestion can result in cramping and nausea. It can affect the development of the neurophysiologic system, especially in children resulting in developmental delays and learning disabilities. It can interfere with the formation of blood haemoglobin and result in anaemia, and finally, it can produce motor abnormalities, hypertension and gum disease.

(2) Zinc. This metal is both a micronutrient and a toxic agent. The target organs for zinc toxicity are the respiratory system, the skin and the eyes. Ingestion can produce severe gastrointestinal distress resulting in abdominal cramping, nausea and vomiting. Inhalation of zinc fume is associated with ‘metal fume fever’ which is manifested by shivering, fever, profuse sweating, nausea, headache and pain in the limbs. It is not cumulative in the body.

(3) Thallium. Although it is not produced in large quantities, thallium has a long history of use in consumer products including rat poisons and depilatories. It affects the central nervous and gastrointestinal systems, the liver, kidney, eyes and hair. Early symptoms of thallium intoxication is hair loss. The neurologic impact can result in emotional disturbances to the point of psychosis, loss of balance and impacts on motor performance. Gastrointestinal symptoms can be cramping, nausea and vomiting. It is cumulative in the body. In general, it is considered to have a greater toxicity than lead, similar to the toxicity of arsenic.

(4) Germanium. Although the toxicity of germanium is not well-documented, it would appear that compounds can produce irritation to skin and eyes, as well as liver and kidney damage. Inhalation produces irritation to the upper respiratory tract which can result in bronchitis and pneumoconiotic disease.

(5) Mercury. The toxicity of mercury is dependent on the form in which it is encountered. The free metal is highly toxic by inhalation. Organic mercurial such as methyl mercury are the most toxic of all. It affects the respiratory and central nervous systems, kidneys, eyes and skin. The most serious effects of over-exposure are to the central nervous system and the brain. It can produce severe learning disabilities, personality changes, irritability and affects the system controlling the muscles. The syndrome is called ‘Minimata Disease’ stemming from a severe outbreak resulting from the ingestion of organic mercurials in food. It can also affect the kidneys resulting in impairment of the organ and can produce nausea and vomiting.

(6) Silver. The adverse effects of exposure to silver involve the skin, eyes and nasal septum but overwhelmingly the concern relates to the skin. When silver is absorbed, it deposits in the skin. When the skin is then exposed to light, there is a phenomenon similar to what happens in the development of photographic film. It results in the skin becoming grayish-blue, a condition called, ‘argyria’. It is not toxic and the problem is considered to be primarily cosmetic, although silver compounds can cause shortness of breath and there are reports of lesions in the lungs and kidneys.

(7) Antimony. This metal is in the same chemical family as arsenic. Target organs are the respiratory, cardiovascular, gastrointestinal, the central nervous systems, and the skin and eyes. Compounds are highly irritating to nasal and respiratory mucosa. Dust in the lungs can produce antimonosis which is exacerbated by silica. Over-exposure can also affect the heart which can result in cardiac failure.

(8) Arsenic. This metal is an essential micronutrient but is also both toxic and carcinogenic. Target organs are the liver, kidneys, skin, lungs, lymphatic system, neurologic system and the respiratory system. It can produce gastrointestinal disturbances, a decrease in the production of both red and white blood cells and nervous system toxicity manifested by ‘pins and needles’ in the hands and feet. It can cause darkening of the skin, which can transform into skin lesions that may ultimately become malignant. Arsenic exposures have also been associated with cancers of the liver, bladder and kidney. It has also been shown to cause adverse effects in blood vessels, resulting in a circulatory condition known as ‘Blackfoot Disease’.

(9) Cadmium. Target organs are the respiratory system, kidney, blood, prostate and gastrointestinal system. Inhalation of cadmium fume can produce serious pulmonary problems; a single exposure to a sufficiently high concentration can cause death. Depending on the dose, it can produce chemical pneumonitis, emphysema and pulmonary edema. There are some suggestions that it can produce lung cancer but the data on that issue are equivocal. It has a very long half-life in the human body in the order of 20 to 30 years.

In the ordinary course of events, that evidence would not be relevant to the issue of whether a total ban on smoking could be justified. Without more, the fact that the operation produces toxic metals or that the site is contaminated neither advances nor detracts from the issue whether the Company has an interest in preventing employees from smoking while they are at work. However, that brings us to the most critical aspect of the evidence of Dr. Pier, who testified that the medical evidence is that smoking impairs the mucociliary clearance system so that a smoker who works in a dirty environment is more likely to suffer from disease associated with the inhalation of a contaminant because he will be less able to expel it.

Dr. Pier testified that a pulmonary protective system exists in the lungs from the trachea, through the major and minor bronchi and into the bronchioles. These airways are lined with two highly specialized types of cells, the cilial cells and the mucus cells. The cilial cells have microscopic hairs in each cell. The mucus cells produce a mucus blanket that flows over the layer of ciliated cells. It is that combination that is referred to as the mucociliary clearance system. At p.19 of his report he explained how the system works:

‘When a particle in the size range of 1-5 um diameter reaches the trachea, bronchi or bronchioles in which the mucociliary system is functioning normally, it will become embedded in and retained by the mucus blanket. The microscopic hairs in the cilial cells are in synchronous motion, moving the mucus blanket upward so that it flows toward the throat. The mucus thereby carries the captured particles toward the throat where they will be expectorated or swallowed.

 

It has been established that smoking can paralyse he mucociliary clearance system and render it non-functional. The extent of the impact is a function of the extent to which the respiratory system is assaulted by cigarette smoke, and the impairment can be transient, with recovery, or in extreme cases, permanent.

 

In cases where the mucociliary clearance system is not functional, particles reaching the trachea, bronchi or bronchioles will not be captured in a mucus blanket and there will be no cilial action to carry the particles away from the lung. In these circumstances, particles can intrude into the most critical area of the lungs, the alveoli, where toxic impacts can occur.’

 

 

He testified that studies had been done with smokers exposed to lead which demonstrate that their blood lead concentration is higher than persons who do not smoke. While he did not assert that a causal link had been empirically established, he said that it was his view that the higher blood lead levels in smokers was likely attributable to residual damage to the mucociliary clearance system. He said that a person who smoked one to 20 cigarettes a day on average had a blood lead content 24% greater than that of a non-smoker, and a person smoking more than 20 cigarettes a day showed a blood lead level 45% greater than that of a nonsmoker on average.

Other research has shown that cigarette smoking is a source of cadmium which, as we have seen, is highly toxic and can cause immediate death. The data also demonstrate that smokers who are occupationally exposed to cadmium have higher blood levels of cadmium than nonsmokers.

For purposes of his report, Dr. Pier also reviewed the results of research done by the Company of the ambient air and dust both on the property and in the adjacent community. He said that, in his view, those studies reveal that there is no site that is free of metal-containing particulates either within the boundary of the plant or within the general community, although particulate loadings vary over the area.

His conclusions are found at pp.27-28 of his report as follows:

‘Based on this review, it is entirely reasonable to conclude that smoking imposes an increased risk to Cominco workers, proportional to the extent of smoking, on at least two counts beyond the obvious fact that smoking is inherently a hazard to health, these being:

 

1. the effects of smoking on the mucociliary clearance system makes smokers more likely to have particulates penetrate more deeply into the respiratory system and to suffer toxic impacts both within the respiratory system and in other organ systems within the body; and

 

2. exposures of nonsmokers to environmental tobacco smoke presents some risk for the development of diseases, both nonmalignant and malignant.

 

Though the incremental risk in either case cannot be calculated with any precision, it is eminently clear that toxic exposures will be reduced by the prohibition of smoking and the net effect is certain to be beneficial.’

 

The position taken by the Union is that the evidence is to the contrary, that there are safe areas to smoke on the property. In the first place, Mr. Rowlinson pointed to the fact that the research conducted by the Company did not include monitoring in locations where there was no known occupational hazard. Gerry Saunders, a Registered Occupational Hygienist, employed by the Company, testified that monitoring was done only in areas considered to be a hazard. Counsel went on to assert, correctly I might add, that there was no evidence that anyone who worked outside the lead hazard area had ever been moved because their blood lead was too high; similarly no one working outside of the cadmium plant has ever been moved because their blood cadmium levels were too high. Within those areas, however, the Union supports a total ban on smoking and, in fact, Mr. Rowlinson emphasized that it was the employees in the cadmium plant who took the initiative to conduct a vote some three years ago, which resulted in a ban in that area.

Mr. Rowlinson acknowledged that the air and dust samples demonstrate that metal levels are higher in and around the plant than in the surrounding area but he points out that none of the samples taken even approach an occupational level of concern. By that he means that while metal levels in the air and soil are elevated, they do not exceed the exposure limits set by the Workers Compensation Board. He acknowledged that one sample was close to the limit but it was taken in the middle of the lead hazard area.

Based on those data, Tom Wynn identified six outdoor areas where he thought there would be absolutely no environmental hazard whatsoever for smokers. They are:

1. the Warfield parking lot,

2. the E & M parking lot,

3. the main parking lot,

4. the green house parking lot,

5. an area near the 270 changing room, and

6. outside the Trail Operations Building.

 

As for the evidence of Dr. Pier, Mr. Rowlinson took a position similar to that taken with respect to other reasons advanced by the Company for the policy, that it was relevant only if one assumes that the policy is intended to get employees to quit smoking. He said that since the policy is not directed at getting employees to quit smoking, for most employees the damage, if any, will persist because they will smoke at home with the result that their mucociliary clearance systems will continue to be impaired. He admitted that to the extent that some employees quit smoking voluntarily, they would be less vulnerable. In fact, Dr. Piers testified that one could expect that 20% of the employees who smoke will have quit after one year. More importantly, Mr. Rowlinson challenged the validity of Dr. Piers thesis saying that the two studies that Dr. Piers cited did not support his conclusions.

The problem with those arguments is that they do not account for the essential fact conceded by the Union at the outset of these hearings, which is that smoking is hazardous to health. It is entirely possible, for example, that in the ordinary course of events, the paralysis of the cilial cells referred to by Dr. Piers, is transitory and persists only during the time the person is actually smoking. That would account for the fact that there is no direct evidence that it is the failure of the mucociliary clearance system that is the primary contributor of disease caused by smoking. But that does not get us anywhere. The fact remains that, regardless of how it happens, smoking is a primary cause of disease and disability. It follows, therefore, that to the extent that some employees are persuaded to stop smoking it would be a valuable contribution to the overall health of employees even if it is only an incidental outcome of a policy which is directed primarily at controlling smoking at work.

The matter of the enforceability of the policy I do not see to be a real issue because, in the first place, it is universal and applies to all employees equally. Mr. Rowlinson said that employees will continue to smoke in secret places and in circumstances that would make it far more dangerous than if it were done out in the open. The Union points to the resentment that was generated when workers in the lead hazard area were unable to smoke while those outside the area could smoke. Mr. Wynn also testified that a main concern was that supervisors were able to leave the area while the workers were not.

The problem is that while all of that may be true, it does not support the argument that the ban is unenforceable. I accept it to be likely that some employees have continued to smoke, but there was no evidence that it is a significant problem, precisely because no one really knows whether it is happening. More to the point, there was no evidence that the Company had ever become aware that an employee was smoking and had failed to take action. Indeed, it is committed to enforcing the policy. In the circumstances, it seems to me that the ban is more likely to result in less resentment than more. Nor am I prepared to find that it is unenforceable in any general sense.

It still leaves the issue whether a ban on smoking during work is invalid as encroaching on the personal rights of employees who smoke and, in the first instance, that must depend on a determination of fact whether a smoker can leave his addiction at the plant gate, the issue to which I now turn.

6. Ability of Smokers to Abstain

As distinguished from other cases in the jurisprudence, a great deal of effort and resources were invested by both parties in this arbitration. Virtually no fact was left open to be presumed. The latest cutting-edge scientific and medical evidence was presented to this board by which to evaluate the policy.

Dr. Ray Baker is probably the most pre-eminent expert in this province on addiction medicine. He is a Clinical Assistant Professor at the Faculty of Medicine, University of British Columbia; he is the Regional Director (Canada) of the American Society of Addiction Medicine; he is a member of the Canadian and British Columbia Medical Associations, serving on a number of committees of the College of Physicians and Surgeons including the Opiate Advisory Committee, the Pain Management Committee and the Addiction Medicine Credentialling Committee; he has written numerous articles and given many public presentations on addiction and substance abuse; and has testified in several provincial and supreme court actions and before labour arbitration boards in the area of addiction medicine.

While he testified about the health impacts of smoking, I do not intend to review that evidence in detail, although it is probably worth noting that he said that not only does smoking affect the respiratory system but also cardiovascular, neoplastic (lung, mouth, throat, stomach, kidney, pancreas, bladder, uterus, cervix), immune, haematological, musculoskeletal, perinatal, neurological and psychological systems. With specific reference to a question about the ability of smokers to abstain from smoking in the workplace, he said:

‘In the nicotine dependent person, conscious awareness of the symptoms of nicotine withdrawal onsets within several hours of the last cigarette. In all but the heaviest and most severely addicted smokers it is possible to remain abstinent for 8-12 hours without significant discomfort. They do so every night when they sleep. The phenomenon of craving has been studied and is thought to be due to environmental cues, triggering a conditioned release of neurotransmitters in the mesolimibic area of the brain. In an environment where there is no possibility of obtaining and using the drug, there is less likelihood of craving and the associated discomfort. As well as craving, withdrawal is associated with irritability, anxiety, muscle tension and reduced concentration. Significant withdrawal syndrome is not likely to be seen in a person who is able to use nicotine periodically during each 24 hour period. The withdrawal syndrome will last from several days to two weeks following abstinence from the drug.’

 

Dr. Frederic Bass testified for the Union. He is also a highly qualified expert in addiction medicine except that he specializes almost exclusively in nicotine addiction. He developed an interest in cigarette smoking while doing a PhD. in hygiene at Johns Hopkins University after receiving his medical training from Case-Western Reserve University and a Master of Science in epidemiology from the Harvard School of Public Health. While he does not currently maintain a clinical practice, he is a Clinical Associate Professor, Department of Health Care & Epidemiology, and research associate, Faculty of Medicine, U.B.C.; he is also a member of the American Society of Addiction Medicine and has written extensively on controlling smoking.

He disagreed with Dr. Baker on the rapidity with which nicotine withdrawal takes effect and the extent of nicotine withdrawal symptoms. They also disagreed, to a certain extent, on the effectiveness of nicotine withdrawal treatment, and most particularly on the efficacy of Cominco’s property wide smoking ban in maximizing the number of employees who quit smoking.

What Dr. Bass said is that nicotine addiction is equally as compulsive as heroin and cocaine but, in addition, responds to conditioning by reference to social and environmental factors, which he called, ‘pairing’. He explained that the pairing of the powerful chemical reinforcement of the nicotine with hundreds of specific stimuli which are acquired over time, such as the morning alarm clock, finishing the evening meal, an upsetting event such as a car accident, or a friend offering a cigarette, combine to create the addiction. In other words, nicotine addiction is not just a chemical dependency but that every smoker also develops ‘triggers’ that stimulate the desire to smoke. And to extinguish the addiction, it is necessary not only to stop the chemical dependancy but also to eliminate the many conditioned responses that have been acquired by the smoker. Dr. Baker referred to them as, ‘cues’.

It is the conditioned response that is the most difficult to control since, as Dr. Baker testified, the nicotine patch and gum and bupropion (Zyban), in adequate dosage for persons ready to stop smoking, will relieve most of the symptoms of tobacco withdrawal, with the exception of thoughts about smoking. In other words, nicotine replacement is effective to eliminate many of the ordinary features of withdrawal but it will not as readily reduce thoughts, urges, desires or cravings for cigarettes.

Dr. Bass testified that there are several ways to classify a smoking addiction but four of the main ones are: (1) the Fagerstrom test, (2) the Diagnostic and Statistical Manual of Mental Disorders used by psychiatrists and physicians to diagnose addiction, (3) the ‘hard core’ test of Seidman and Covey used to define the number of smokers who have great difficulty stopping, and (4) the COMMIT (community-based smoking cessation) trial which uses a limit of 25+ cigarettes/ day as an effective predictor of those who will have difficulty stopping.

The social group in which the smoker is located will have a major influence on that person’s smoking. If family, friends and co-workers have a high proportion of smokers, the person is more likely to smoke. Age is also important. Dr. Bass said that only persons between the ages of 9 and 25 start to smoke. The number of years of education also tends to be a factor, which is inversely related to smoking prevalence. Blue and pink collar workers smoke more than white collar workers. A Canadian survey of occupations in 1994 showed that 55% of those employed in mining, amongst other industries, are smokers compared with an overall rate of 29%. A B.C. Ministry of Health survey in 1997 showed that 23% of the population were smokers but in the interior and northern regions, smokers outnumber nonsmokers in a ratio of 3:2.

A 1998 B.C. survey indicated that 16% of smokers were preparing to stop within the next month, 47% were thinking about stopping in two to six months and 33% were not thinking about stopping at all. Using those numbers, Dr. Bass surmised that since only 16% of smokers are currently engaged in stopping smoking, that leaves 84% who are not stopping. Thus, a major component of any strategy to help all smokers stop smoking must involve reaching and motivating those who are not engaged in stopping which, he says, requires effective, sensitive communication. For that reason, he said that it was his experience that the most effective smoking control programs involve co-option of the smokers through the active involvement of both the union and management simultaneously. He said that the social aspects of smoking are so important that a program that does not have the full support of the employees is not likely to succeed.

Dr. Bass was of the opinion that a heavy smoker who was previously able to take smoke breaks at work, who is not ready to stop smoking and is not receiving well-supervised stop-smoking medication would likely be in great distress if he/ she could not smoke for an eight hour period. He felt that a small portion of that population would be able to survive but that most would not. He said they would find their concentration impaired; they would be easily distracted; and their cognitive function would be impaired. In some cases, he said that the symptoms could be disabling.

At p.14 of his report he graphically described the physiology of smoking as follows:

‘The initial surge of nicotine from one puff on a cigarette can reach 150 to 250 ng/ml as compared to 25 to 40 ng/ml twenty to thirty minutes later when the blood is mixed. Further, the liver clears nicotine so rapidly that the half life of nicotine in the body is 90 to 120 minutes. In other words, the smoker who smokes one cigarette an hour experiences dramatic variation in nicotine concentration while smoking and during the course of the day. Suddenly going from self-administered, inhaled nicotine to no nicotine at all is an impossible task for most heavy smokers. Therefore, most addicted smokers will feel substantial withdrawal within a few hours of not being able to smoke at a time when they are used to smoking. Many are likely to be handicapped by the symptoms of withdrawal within 3 to 4 hours.’

 

 

He explained the reason why smokers are able to go through a lengthy period of sleep and other activities without smoking by reference to what he described as a ‘zone of comfort’ where each smoker develops an upper and lower limit for blood nicotine that is specific to each hour of the day. Just as thermostats can be programmed to keep the temperature of a room within a certain range, according to the time of day, so the brain adjusts the level of nicotine for each smoker. In fact, the term ‘nicostat’ has been used to describe this phenomenon. On that theory, he said that the addicted smoker is accustomed to a low nicotine level at night but must be relieved the next morning with the first cigarette of the day.

He related that theory to the situation of underground miners who must work for long periods without smoking and yet have the highest rate of smoking of all Canadian occupational groups. He suggested that the wide divergence between smoking and non-smoking may lead them to smoke more rather than fewer cigarettes per day.

Finally, he commented on the statement of Dr. Baker that one of the most effective components of the Cominco policy was their decision to make the entire property a tobacco-free zone, by saying that while it was comprehensive, well-announced, included spouses, and did not expect all employees to stop smoking, it did not meet the fourth component recommended by Health Canada that a sensitive and supportive environment be provided for quitting. He said that he did not know of any well-controlled experimental or observational study that provides evidence that a property-wide ban on smoking decreases overall cigarette smoking. He went on to say that the policy might help those who were ready to quit but they would not exceed one-third of the smoker population. For the two-thirds who continue to smoke, he thought it could only lead to anger, lack of cooperation and an undermining of some smokers’ sense of self-esteem. Further, he said that some smokers are likely to ‘stoke up’ to high levels prior to and on return from work which is likely to harden their addiction and cause more health problems

than might otherwise happen; and this ‘could occur even if the total number of cigarettes did not change or decreased slightly.’

He concluded his report at p.23 by saying:

‘We do not have good scientific evidence on:

 

1. The dynamics of resetting the zone of comfort for a smoker’s 24 hour nicotine curve,

2. The range of time required for this readjustment process over a population of smokers,

3. The extent to which an extended no-smoking restriction (4-8 hours, ie., several half-lives of nicotine), reduces or worsens nicotine withdrawal.

 

Judging from my clinical and workshop experience with smokers, I estimate that at least half of heavy smokers (25+ cigs/day) and a quarter of smokers of 10 to 24 cigarettes would have seriously bothersome or disabling nicotine withdrawal if they were not permitted to smoke at least every 2.5 hours. If such smokers used nicotine replacement or bupropion, I would estimate that bothersome/disabling withdrawal would be halved.

 

With a good support system for smoking cessation in place [over the] long term, I believe the optimum strategy for minimizing the negative effects of withdrawal and maximizing the rate at which people quit smoking would be to permit smoking in places where tobacco smoke will not create a risk for non-smokers and where the environment does not materially increase the already substantial risks of smoking for the smoker.’

 

Based on that evidence, it would appear on a superficial level, that the two experts are in fundamental disagreement on the main issue in dispute, which is whether addicted smokers could be expected to be able go through a shift without smoking. However, on a close analysis, I am not convinced that they are that far apart. Both of them agree that heavily addicted smokers would probably experience difficulties.

Dr. Bass estimates that at least 50% of ‘heavy smokers’ and 25% of ordinary smokers would experience seriously bothersome or even disabling nicotine withdrawal if not permitted to smoke every 2.5 hours although that estimate does not appear to be supported by his earlier analysis. At p.12 of his report he says that a ‘heavy smoker ... would likely be in great distress if he or she could not smoke for an eight hour period’, while at p.14 he says that most addicted smokers would experience ‘substantial withdrawal within a few hours of not being able to smoke’ and that many are likely to be ‘handicapped’ within 3 to 4 hours.

While Dr. Baker obviously does not agree with the lower estimate of Dr. Bass that serious withdrawal symptoms could normally be expected within 2.5 hours of stopping, he concedes that the heaviest and most addicted smokers will not be able to go 8 to 12 hours without significant discomfort.

In both cases, their estimates were based on an assumption that the heavily addicted smoker would not be under treatment and, in that respect, it is important that the clear evidence is that nicotine replacement therapy is effective to reduce or eliminate withdrawal and that it is the social and behavioural conditioning that is associated with craving. Under the Cominco policy, employees have access to a nicotine patch and/ or Zyban to help them manage withdrawal. On the other hand, while I accept the evidence of Dr. Baker that a total ban would assist in managing the behavioural conditioning because it eliminates the ‘cue’ of other persons smoking, I do not take that to mean that it would significantly eliminate discomfort because obviously there are many other cues that trigger craving.

Not unimportantly, there is also the anecdotal evidence relating to the ban that has been in place in the lead hazard area for many years. No evidence was led that even one smoker in that area was unable to go without smoking for up to 12 hours. There were two employees called as witnesses, who clearly suffered severe withdrawal symptoms as a result of the total ban but both of them are members of Local 9705 being from the office and technical side of the operations. I will discuss their evidence shortly but it seems to me that the experience with the ban in the lead area must be seen to be some of the very best evidence that smokers can generally be expected to be able to tolerate lengthy periods of abstinence. Dr. Bass said that there is not currently any good scientific evidence that the ‘nicostat’ of smokers can be easily reset to permit them to adjust to imposed bans of this nature but the experience in the lead hazard area certainly cannot be ignored on that point.

Clearly, the consensus of the experts is that some of the most heavily addicted smokers can be expected to experience problems with the ban. Many of those will be able to manage their addiction with medical and other forms of assistance. Some probably will not be able to cope, particularly those who have to work the longer shifts and who are not able to take intermittent unpaid breaks sufficient to permit them to leave the property to have a smoke. Other smokers who are less heavily addicted and who work shorter shifts or who have longer breaks will not experience undue discomfort. Yet, as Dr. Bass stated, there will be some, even from that group, who can be expected to experience severe withdrawal symptoms sufficient to impair their productivity.

Sharon Sadler would appear to be one such person, although it is difficult to come to grips with the etiology of her symptoms since many of them derive from causes unrelated to smoking. She is currently a Cost Analyst working in the Trail Operations Building on an eight hour shift with an unpaid one half hour lunch break. She said that until 1989 she was a fairly heavy smoker at around 20 cigarettes per day but by the time of the ban she had reduced her consumption to about 13 per day. She testified that she tried to quit on a couple of occasions but experienced severe symptoms from insomnia, weight gain and anxiety to heart arythmia. On one occasion she tried the patch for a period of 2 ½ weeks but she said that she had such a strong reaction to it that it was ‘scarey’. She also said that she experienced fever and even delirium but she added that within 2 hours of her taking the patch off the symptoms disappeared.

Prior to the smoking ban she attended the AMS lectures, along with all other smokers, but she said she did not attempt to follow the program because she didn’t think she would be able to quit ‘cold turkey’.

On the first day of the ban, February 1, 1998 she managed to get through her shift not ‘too badly’ but the next day she said she fell apart. She experienced a sudden onset of depression which caused her to start crying; she shook uncontrollably; finally, she was asked if she wanted to go home, which she did. On the third day she went to see her family physician, Dr. Elizabeth McCoid, who prescribed ‘lorazepam’, normally used to treat depression, but it did not work. It put her to sleep. She couldn’t concentrate so she ended up going to work without medication. Dr. McCoid did not prescribe a nicotine substitute because Ms. Sadler had reacted to it in the past.

She said almost immediately that she started work, she experienced tension and anxiety which got worse as the morning progressed. Her neck muscles cramped; she said that she felt like she was going crazy. She could not concentrate; and it only got worse in the afternoon even though she was able to walk to the edge of the property during her lunch break and have a cigarette. She took some time off work but generally worked full time until May 19 when she said that she was near a nervous breakdown. She said that in that period she experienced stress, including angina, as well as pain in her stomach and back. Her legs came to be covered with scabs. She said that she made so many mistakes that there was no point being at work.

In the result, her doctor told her to take time off work, which stretched into two months. During that time, of course, she was able to smoke normally although she said she reduced her use to about 5 cigarettes per day. Within three days her angina stopped but her stomach pain continued. She started taking St. Johns Wort, which is a mild herbal treatment for depression.

When she came back to work in August she started to be able to get through her shift without great discomfort but she only works four days per week. That regimen was continued through the rest of the year. Nonetheless, she said that she continues to experience withdrawal within 1 ½ hours of the start of her shift. She says she sometimes looks at a spread sheet and it doesn’t mean anything to her. By 2:30 in the afternoon she said that she starts to lose it; she is not productive in the last hour of the day.

A medical report written by Dr. McCoid on October 3, 1998 became a subject of considerable controversy on the basis that the medications that she prescribed were not appropriate for the symptoms described by Ms. Sadler and, further that those symptoms were not typical of withdrawal. It was the position taken by Mr. Grist, therefore, that the evidence of Ms. Sadler was of little assistance because what she experienced really derived from other pre-existing medical problems and not from the smoking ban.

The diagnosis of Dr. McCoid was that Ms. Sadler was suffering from increased anxiety and nicotine withdrawal because she was physically and psychologically addicted to nicotine. For that she prescribed ‘lorazepam’ but not a nicotine substitute. Dr. McCoid described a number of symptoms suffered by Ms. Sadler, which she attributed to her addiction to nicotine: she confirmed that in the early period following the ban, Ms. Sadler had eczema which spread and worsened; and she had a recurrence of palpitations, reflux oesophagitis, headaches and insomnia. For those conditions Dr. McCoid prescribed ‘alprazolam’ and recommended time off work. Ms. Sadler was also given ‘cimetidine’ for her stomach pain. Finally,

Dr. McCoid concluded that Ms. Sadler was clinically depressed. For that she prescribed ‘clonazepam’.

Dr. McCoid then concluded her report by saying:

‘I believe that Sharon’s medical problems, dating back to February ‘98 are directly related to the smoking ban on Cominco property and to her having to withdraw from nicotine during her working hours. She has been through extreme anxiety, depression and even suicidal ideations because of this edict. She also developed further somatic symptoms of insomnia, palpitations, chest pain, reflux oesophagitis, back pain and dermatitis due to the pressures of trying to conform to the new smoking ban.’

 

Although Dr. Baker stated that it was not his intention to impugn her professional qualifications, he testified that some of the therapies provided by Dr. McCoid were not appropriate to the condition of her patient. Firstly, he said that lorazepam is a benzodiazepine which is not a recognized treatment for nicotine withdrawal but rather is used as a short term therapy for anxiety. He said that clonazepam is another version of the same family of drugs which is not used to treat depression.

Dr. Baker further observed that it appeared that it was the patient who was driving the therapy because, in first place, Dr. McCoid did not prescribe a nicotine substitute ‘as she had reacted to this in the past’ and, in the second place, Dr. McCoid stated, ‘I also felt she was clinically depressed but past experience of antidepressants made Sharon leery of any antidepressants’.

Dr. Baker then went on to deal with the series of symptoms that Dr. McCoid appeared to attribute to withdrawal. What he said about them was that they were complaints that were clearly documented as part of her medical history prior to any change in the workplace smoking policy which, therefore, had to have other causes. He said that the record showed that Ms. Sadler had a history of ‘emotional dysphoria, anxiety and depression with a variety of somatic complaints’. He concluded by saying that he did not think that Dr. McCoid had established a causative relationship between her patient not smoking during a portion of the day and those particular symptoms and that it appeared to him that what Dr. McCoid was doing was endorsing the patient’s attempt to blame her ‘chronic stress-related problems’ on the new smoking policy when it really had other causes. He was particularly critical of her conclusion that her ‘suicidal ideations’ were a direct result of the ban. He concluded by saying:

It appears that Ms. Sadler has chosen this change in policy by her employer as the focus upon which to blame all of her considerable angst. There may well be environmental stressors in this woman’s life, both at home and at work, which are exacerbating all of her stress-related somatic and psychological complaints. However, based upon my review of the chronology of her medical and psychological symptoms and my knowledge of nicotine addiction and withdrawal, I do not believe the workplace ban on smoking is a significant contributing factor to her medical or psychological problems. In fact, I believe, because of the great risk to her health with continued smoking, the total ban on smoking may ultimately increase her chances of success in quitting smoking and extend her life.’

 

The situation of Darcy Ashby is less complicated. She is a Process Information Support Analyst, which she said involves designing and programming the display screens that monitor and control the plant. For our purposes, it means that she sits at a computer terminal all day. She has worked for the Company for over 20 years and has been in her current position since 1993.

She testified that she started smoking 30 years ago when she was 16 years old but that she managed to quit after seven years. In fact, she remained abstinent for 13 years but in 1988 she went through a stressful divorce and started smoking again. Once having started, she said that it was like she had never stopped. She said that she has tried to quit several times since then but only managed to stop for two or three weeks at a time.

When the smoking ban was announced by the Company she said that she thought that it was inhumane. She said that it made her angry and frustrated but mostly she was scared that she would not be able make it through the day. She attended the AMS program ^{because, as she said, she was forced to go but she thought it was a waste of money. She was not ready to quit.}

Once the ban was implemented on February 1, 1998 she said that she experienced considerable stress and anxiety. At first she got headaches, which she described as being like migraines with heavy pressure under her eyes. She was unable to concentrate. In the end, she said that what she did was go to the Land Department where she discovered that there was a small piece of property at the south end of the Trail Operations that the Company does not own. She said that once she was able to get the word out, she and several other employees started to go there at their lunch break where they are able to smoke.

She said that in January of this year she tried to stop smoking with Zyban and found that it helped alleviate some of the symptoms of withdrawal but she experienced side effects and has not been able to quit. Nevertheless, it would appear that her ability to cope has improved over the two years that the ban has been in effect. She only gets headaches, anxiety and stress on occasion. It is not constant.

^{7. The Right to Smoke}

As one might expect, there are a lot of cases on smoking but there are only a few that involve the scope of the ban at the Trail Operations. In a certain sense, one must admire the tremendous commitment of the Company to attempt to pioneer a new direction in to improve the health of its employees. I have no doubts that the policy is a bona fide effort to achieve one of the goals set out in the collective agreements, which is the elimination of health hazards in the workplace.

The Union equally asserts that it is committed to the safety and health of the employees. Mr. Rowlinson said that is why they recognized the need for a lead hazard area smoking ban. It is also why they have recognized the need for employees to be protected from environmental tobacco smoke. He said that both of those situations have an occupational connection and, therefore, go beyond a mere matter of personal choice. But he says that where smoking does not present a risk to other employees, there is no justifiable commercial reason why smoking should not be permitted on Company property.

That was the effect of the decision in Lee Manor Home for the Aged and Christian Labour Association of Canada (1998) 14 LAC (4th) 201 (MacLean) where the grievor was given a three day suspension for violating the employer’s no-smoking policy. With certain exceptions, the policy prohibited all smoking on the property except in designated outside areas. The smoking infraction occurred on a second floor balcony roof garden while the grievor was off shift. Under the policy residents and guests were entitled to smoke in that location but not employees.

In finding the suspension improper, the arbitrator held that a rule which is unconnected to the protection of non-smokers or is unduly broad in its objectives or is unnecessarily intrusive or discriminatory and which cannot be justified on the grounds of efficiency is beyond the power of the employer. He acknowledged that an employer always has an interest in promoting the general health of employees by maintaining a smoke-free environment and is therefore entitled to prohibit smoking where it will endanger the health of others or adversely affect its property or business. However, at p.220 he found that there were limits on an employer’s right to regulate behaviour when the employee is off-shift even though the activity might take place on employer property:

‘Its right to regulate the personal choices of its employees to smoke or not to smoke, however, is limited to its legitimate business objectives. While it is open to an employer, in the interests of improving the health of its smoking employees, to seek to assist them in refraining from smoking or in kicking the habit, the right of the employee, however ill-conceived from a health perspective, to smoke on her own time when off duty, where such action does not endanger the health of others is, in our society, still a matter of the employee’s freedom of choice.’

 

There are many other cases where arbitrators have dealt with the right of employees to smoke on a wide variety of grounds, many of which would no longer be considered to be appropriate. For example, in Re I.O.O.F. Senior Citizen Homes Inc. and Christian Labour Association of Canada (1995) 45 LAC (4th) 423 (Marcotte) the arbitrator struck down a policy which prohibited smoking by employees anywhere inside the building, because no evidence had been put to demonstrate that smoking in that room interfered with the employer’s legitimate interests in safety, production or efficiency; or in Re Thames Valley Beverages Ltd. (Pathfinder Beverages Ltd.) and United Food & Commercial Workers, Soft Drink Workers Joint Local Executive Board of Ontario (1988) 3 LAC (4th) 430 where arbitrator Ted Jolliffe held that a policy which prohibited smoking in ‘our enclosed premises’ was unduly broad, although he noted that new regulations were then being considered by the Workers Compensation Board in Ontario for the protection of ‘co-worker rights’, which he characterized as ‘vague concerns’; but primarily his decision was based upon the fact that no evidence had been presented that indicated that an area previously designated as a smoking area for the warehouse workers was required for any other purpose or that the rights of non-smokers ‘at least in that area of the operation present a problem’. He went on, however, to distinguish the situation of the service and office sections where he felt that non-smokers’ rights might be more compelling.

In some cases, the implementation of a smoking ban has been determined to be a breach of certain procedural or substantive rights in the collective agreement. In Re Ottawa General Hospital and Ontario Nurses’ Association, Local 083 (1986) 27 LAC (3d) 64 (Frankel) a total smoking ban within the hospital, while not discriminatory, was determined to have been improperly implemented because the union had not been consulted prior to implementation of the policy; or in Re Corporation of City of London and Canadian Union of Public Employees, Local 107 (1992) 31 LAC (4th) 224 (Dissanayake) a smoking ban in all city buildings and vehicles was found to be in breach of a collective agreement which contained a status quo clause that purported to preserve existing benefits and privileges. See also: Northern Telecom Canada Limited and National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (C.A.W.) and its Local 1915, unreported, November 28, 1998 (O’Shea).

However, in Board of Education for City of Toronto and Canadian Union of Public Employees, Local 1325 (1988) 33 LAC (3d) 149 (Knopf) the arbitrator held that a provision that purported to vest existing ‘rights, benefits, privileges or working conditions’ could not operate to preclude the imposition of a smoking ban in all facilities operated by the school board because smoking had previously been done only by the leave or permission of the employer and could not be seen to be protected by the collective agreement. Even more importantly, given the employer’s particular identity as an educational institution, the arbitrator found that the ban on smoking was ‘very reasonable’.

Re Fleet Industries and International Association of Machinists & Aerospace Workers, Local 171 (1992) 30 LAC (4th) 368 (Briggs) is almost unique in the annals of arbitral jurisprudence on this subject because the collective agreement contained express provisions that permitted smoking throughout the plant, except in areas prohibited by the fire marshal. It is one of very few cases that I have been able to find where the parties actually negotiated an express contractual right to smoke. Nonetheless, the arbitrator held the provisions to be inconsistent with the requirements of the Smoking in the Workplace Act, R.S.O. 1990 which prohibits indoor smoking in all workplaces except where the employer designates a smoking area. The board interpreted the Act as giving a discretion to employers in Ontario to either ban smoking entirely or designate a certain portion of the workplace, not greater than 25%, as a place to smoke. In fact, the arbitrator went very much further and held that the effect of the statute is that an election by an employer to ban smoking is not subject to review by an arbitrator as to whether it is reasonable.

But in the Women’s Christian Association of London (Parkwood Hospital and McCormick Home, London, Ont.) and London and District Service Workers’ Union, Local 220, unreported, April 6, 1994 (Welling) a total smoking ban against employees was held to be unreasonable because the hospital had designated smoking areas for patients and visitors. In the circumstances, the arbitrator held that the employer had effectively elected to designate smoking areas; moreover, he held that second-hand smoke would not endanger other staff, precisely because the smoke would be isolated to a ventilated smoking area.

By contrast, in the Alberta Cancer Board and Alberta Union of Provincial Employees, Local 56, unreported, June 21, 1988 (Jones) the employer imposed a smoking ban in all indoor spaces, as well as parking areas and the grounds surrounding the institution. At first an exception was made for patients on the written orders of a physician but the policy was subsequently amended to delete the exception. At the hearing the parties agreed that smoking is dangerous to one’s health and that nicotine is a drug and smoking is an addiction. The evidence was that an assistance program was provided to help employees quit smoking but, in any event, a physician employed by the Cancer Board testified that the 7 3/4 hour working day was not an unfair or impossible length of time for employees to remain abstinent. The Union argued that the policy was unreasonable because it forced staff not only to go outside but off the employer’s property and that smoking outside would not be a health problem for other people. Further, it questioned the propriety of imposing discipline on an addicted smoker who breaches the policy.

Nevertheless, the arbitration board held the policy to have been justified on five grounds: firstly on the basis of safety and health; secondly because the policy conformed to the statutory and scientific mandate of the Alberta Cancer Board to prevent cancer and, therefore, fell within the business interest test set out in Re Thameswood Lodge and London and District Service Workers’ Union, Local 220 (1984) 15 LAC (3d) 228 (Verity); thirdly, that other hospitals generally prohibit smoking; fourthly, an employer cannot be compelled to construct separately ventilated smoking rooms for those addicted to nicotine although that may be a benefit obtained through collective bargaining; and finally, the policy was not unreasonable just because it extended to the edge of the property because, as the board said, while it is arguable that the danger from second-hand smoke is reduced, the policy was justified, in any event, because the employer had a particular interest in promoting health.

While that case involved a total smoking ban, the property was not large, as at Cominco, such that it would have been a relatively easy thing to go off the property to smoke, but in Re Denison Mines Ltd. and United Steelworkers of America, Local 5762 (1989) 7 LAC (4th) 124 (Brunner) a prohibition ‘within the boundaries of the Company’s property’ was still upheld based on statistical evidence that uranium miners who smoke cigarettes are much more likely to experience lung cancer than non-smoking miners. There was also evidence that its workers compensation premiums had escalated from $1800 per annum for each employee to $3600 over the period of six years, and even though there was no evidence that the increase had been substantially attributable to smoking, the arbitrator held that any policy which attempts to diminish a risk, particularly in a sensitive and hazardous work environment, is reasonable by definition.

In the Denison case, the award does not disclose the size of the property, but in Re Dussek Campbell Ltd. and Communications, Energy and Paperworkers Union of Canada, Local 599 (1997) 68 LAC (4th) 432 (Thorne) a total ban on 7.5 acres was held to be reasonable notwithstanding the earlier case of Falconbridge Ltd. and Sudbury Mine, Mill & Smelter Workers Union, Local 598 (1992) 27 LAC (4th) 339 (Mitchnick) where the board had concluded a total ban to be unreasonable, particularly in view of the inclusion of large areas of open space, although it should be noted that in that case the employer elected not to call any evidence to either explain or justify the policy. In Re Toronto Transit Commission and A.T.U., Local 113 (1989) 5 LAC (4th) 156 (Samuels) the board had held that a total ban affecting 135 work locations was too extensive and that there were many areas in which smoking would have no effect on non-smokers. In Dussek the primary issue had been whether it was unreasonable to require employees to remain on the property during breaks, given the size of the property, but the board held that an employer who is obliged to pay an employee for a break is entitled to require him to remain on-site.

In some cases, arbitrators have considered a smoking ban in the workplace to have been justified solely for reasons of health, safety and public policy without regard to whether it applies only to interior areas, as in Re John Deere Welland Works of John Deere Ltd. and Canadian Automobile Workers, Local 275 (1993) 37 LAC (4th) 93 where smoking was permitted outside the building; or whether the ban is total and extends to outside areas as in Re Guardsman Products Ltd. (Iroquois Chemicals Coating Division) and United Steelworkers, Local 13292 (1989) 9 LAC (4th) 303 (Finley). In Re Petro-Canada Products, Division of Petro-Canada Inc., Clarkson Refinery and Energy & Chemical Workers Union, Local 593 (1989) 5 LAC (4th) 316 (Burkett) the arbitrator held that a policy that had previously permitted smoking in ‘smoke shacks’ that was changed to confine smoking to ‘smoke circles’ was justifiable based on health and public policy reasons. Indeed, the arbitrator in that case went so far as to say at p.323:

‘....I take administrative notice of the fact that smoking is both harmful to one’s immediate health and is life-threatening over the longer term. I also take administrative notice that it is an object of public policy in this jurisdiction that smoking be reduced, if not eliminated, in the workplace. These are facts ‘capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy’: Sopinka and Lederman, The Law of Evidence in Civil Cases (1974), at p.357. I accept that a ban upon smoking in the work place, coupled with employee counselling is likely to improve the immediate health of employees and to lessen their risk of heart disease and cancers over the longer term. Whereas the reported cases relied upon by the company cite such factors as reduced risk of fire or explosion or reduced risk to patients of an institution, I am of the view that the health and public policy reasons relied upon by the company in this case, standing alone, are sufficient to establish the reasonableness of any ban upon smoking in the work place.’

 

In Re Maritime Paper Products Ltd. and Communication, Energy and Paperworkers Union, Local 1520 (1996) 55 LAC (4th) 320 (Veniot) a total smoking ban was determined to be reasonable because it was demonstrably linked to the economic interests of the employer. The evidence accepted by the arbitrator to demonstrate that link was provided by expert medical testimony to the effect that smoking either causes or contributes substantially to the incidence of many chronic and/ or fatal diseases which affects most smokers over time in that they have significantly more illness and accidents than non-smokers and substantially elevated levels of absenteeism. The doctor testified that smokers in Canada are 50% more likely to require hospitalization and have created costs for their employers in the order of $4600 a year more than non-smokers.

In this case, there was evidence of a similar nature that an employee who smokes generally costs an employer more than an employee who does not. For example, Dr. Baker gave evidence to the effect that smokers experience significantly more time lost due to illness and cost their drug plans almost twice as much as non-smokers. He also estimated a productivity loss of 10% resulting from the amount of time that it normally takes to smoke at the rate of one cigarette per hour for 10 minutes each time.

Indeed, that is a conservative estimate because if a person were to take 10 minutes to smoke a cigarette each hour of an eight hour shift, it would amount to 16% of the employee’s available work time. The problem is that such an estimate can have no relevance to the policy here because, even if the ban were to be modified as a result of these proceedings, it is no part of the Union case that

employees should be given additional breaks in which to smoke or otherwise be allowed to smoke during their shifts or paid breaks.

Similarly, Mr. Rowlinson takes the position that the Company cannot assert an interest that the ban will improve the health and safety of employees because it was not directed at getting employees to quit smoking, and there was no direct evidence that it costs Cominco more to employ a smoker. His argument was that if it was not to get them to stop, the Company must justify the policy on grounds that do not involve employees quitting. More specifically, he says that the ban is far too intrusive into a personal life style choice made by the employees who wish to smoke, as was held in the Lee Manor case, particularly when one considers that smoking can be done outside without any risk to non-smokers from environmental tobacco smoke.

My view is that while I accept that the declared purpose of the smoking ban fell short of requiring employees to quit smoking, I do not agree that the Company cannot claim an interest in attempting to persuade employees to stop smoking. John Owens conceded that they didn’t want just a cessation program and, that they didn’t think it was their ‘mandate’ to require employees to stop. But he said they felt that it was their responsibility to help employees who wanted to stop or to assist them to manage their habit while at work.

What that indicates is, consistently with the advice given by its consultants, including the promotional material relating to the AMS program, that while it was not a goal of the ban to get employees to quit smoking, it was nonetheless contemplated that a certain percentage of employees would stop smoking. While it is probably correct that it would be unduly intrusive for an employer to require employees to quit smoking altogether except, perhaps in the most unusual circumstances, it is well within the legitimate interests of an employer to attempt to better manage the smoking habits of its employees because the clear evidence is that, to the extent that some employees quit smoking, it will improve both the productivity and the health and safety of employees generally.

To my mind, the question in the circumstances is not whether Cominco can define a legitimate business interest, which it has done, but whether the Union can demonstrate a paramount right of employees to smoke based on the claim that they are incapable of going through a shift without smoking. If employees can go without smoking for the duration of their shifts, whatever those may be, ipso facto the smoking ban would not affect any right they might otherwise have because it would not pre-empt the choice they already made to smoke as a personal lifestyle choice. Of course, the longer the shift and the heavier the addiction, the more difficult one might expect it will be for a smoker to go without smoking.

In that respect, Mr. Owens testified that there are approximately 1350 bargaining unit employees in Local 480 and about another 208 such employees in Local 9705.

Most of those in Local 480 work shifts although some 40% are on steady days. The balance primarily work a 4x4 shift of 12 hours where they work two day shifts followed by two night shifts and then four days off. Protective Services employees also work a 4x4 shift but that involves 2 shifts of 10 hour days and 2 shifts of 14 hour nights followed by 4 days off. Many of those on steady days also work 12 hour shifts but most work 5 days on with 2 days off of 8 hours from 07:00 am. to 3:30 pm. A few work a steady 8 hour afternoon shift from 03:00 pm. to 11:00 pm. Only those working steady day shifts have a ½ hour unpaid break for lunch. The other 60% who work rotating shifts or shifts longer than 8 hours get two paid 20 minute lunch breaks. The reason they are paid is ostensibly so that they will be available in the event of an emergency. Employees who work in contaminated areas also get 15 paid minutes at the end of their shift for clean-up or shower time.

By contrast, Mr. Owens said that 85% of those in Local 9705 work steady 5x2 8 hour day shifts. They get a 30 minute unpaid lunch break. The balance work in a variety of areas, such as the Assay Office who work 4x4 shifts similar to Local 480. They get paid breaks.

The average age of employees in the workforce is 47. The average employee has worked 23 years for the company with a minimum service of 18 years. About 440 were smokers at the time that the AMS course was given in 1997. Of those, 429 took the course. Those who did not take the course at that time were on extended absences. An additional 8 employees took the course at a later time.

The principle of law inherent in that evidence is that in the absence of a provision in a collective agreement to the contrary, one cannot say that there is a right to smoke in the workplace. Such a right can arise only inferentially from the right of employees to live their personal lives without interference from their employer. Prima facie an employer cannot make rules that reach into its employees’ personal lives except that it is entitled to make rules that affect its legitimate business interests. Those interests are subject to arbitral review and whether a rule is reasonable must be measured against the extent to which it is actually required to meet the employer’s business objectives.

In Lee Manor the validity of a no-smoking rule was discussed at p.219 in terms of whether a requirement to abstain is:

‘....unconnected to the protection of non-smokers, or is arbitrary, or unduly over-broad of its objectives, or is unnecessarily intrusive or discriminatory of the rights of some employees, and which cannot be reasonably justified on the grounds of efficiency will likely, to that extent, be held to lack authority under the collective agreement.’

 

 

While I think that is an entirely accurate reflection of the law, what must be remembered is that in that case the application of the smoking ban was found to be discriminatory because residents and visitors were entitled to smoke on an outside balcony but employees were not. That kind of discrimination obviously cannot occur where the ban is total and applies to an entire property and to everyone who comes onto the property. More importantly, the employee was disciplined for smoking at a time when he was off shift and had come into the facility to visit a resident.

I should also like to address another statement made by the arbitrator in that case that a no smoking rule imposed by an employer cannot be justified by reason only that it is directed at improving the general health and welfare of its employees, a proposition with which I do not disagree. By that I mean that an employer cannot assert an interest in the general health of its employees unless there is some business interest to be served by improving their health and it can be done in a way that is not unduly intrusive into their personal lives. If an employer were to impose a rule designed to improve employee health without any demonstrable business objective, it obviously would be unduly intrusive but if the objective is to improve employee health in order to reduce costs from absenteeism and illness and to improve employee efficiency and productivity, it would certainly be valid because that is a legitimate business interest. On the other hand, if the purpose of the rule is to safeguard the health and safety of other employees on the worksite, as for example, to protect them from environmental tobacco smoke, it would be valid without demonstrating a business interest because that is required by statute.

That brings me to the argument made by Mr. Grist that Reg.4.81 of the Occupational Health & Safety Regulations permits employers in this province to impose a total smoking ban on their property. That provision reads as follows:

‘The employer must control the exposure of workers at any workplace to environmental tobacco smoke by:

 

(1) prohibiting smoking in the workplace, or

(2) restricting smoking to designated smoking areas or by other equally effective means.’

 

Counsel says that creates a choice and a right in the employer to prohibit smoking in the workplace. He said that was the effect of the decision of the arbitration board in Fleet Industries which was based upon similar provisions in the Smoking in the Workplace Act (Ont). It is to be recalled that, quite apart from the statute, the unique feature of that case was that the collective agreement expressly permitted smoking throughout the plant except in areas restricted by the Fire Marshall. Nonetheless, the arbitrator considered those provisions to conflict with the statute because, in his view the act gives employers in Ontario a choice to either designate a smoking area or require that the entire workplace be non-smoking.

Whether that is a correct interpretation of the statute in Ontario is not for me to decide, although it is worth noting that the operative provision, being sec.2(1), only prohibits smoking in an ‘enclosed workplace’. By comparison, the definition section of the Occupational Health & Safety Regulations in this province, the word ‘workplace’ is defined broadly to mean a ‘place of employment’ or a ‘place of work’, which obviously could include outdoors areas. Without more, therefore, Reg.4.81 could be taken to permit employers to prohibit smoking even in outdoors areas but the fact is that it must be read in the context of the particular hazard that it is purporting to control, which is to say, environmental tobacco smoke. In that context, what it must be taken to say is not that employers are entitled to prohibit smoking as a general right but that they must control exposure to environmental tobacco smoke, wherever that might occur in the workplace. It does not permit employers to prohibit smoking, save to prevent the exposure of non-smokers to environmental tobacco smoke. Except in the most extraordinary circumstances, that could not ordinarily occur in outdoors areas.

In the result, I do not interpret Reg.4.81 to give statutory authority to employers in this province to prohibit smoking in outdoors areas where there is no substantial risk of exposure to environmental tobacco smoke. Whether an employer has a right to impose a total smoking ban, even where there is no risk of exposure to environmental tobacco smoke must turn, in every case, on the general law which, as I have already said, requires the employer to demonstrate a substantial business interest that will justify the intrusion into the personal life style choices of its employees.

At the same time, a union cannot negotiate provisions into a collective agreement, which require an employer to improve the health and safety of its employees and, particularly, to provide health and welfare benefits which indemnify employees against a loss of wages in times of sickness and accident, wholly paid by the employer, and then take the position that employers have no business interest in such matters based on the proposition that these are solely matters of personal choice and lifestyle. In the circumstances, it is not so much a matter of whether the employer has a business interest in the health and safety of its employees or whether the employee has a right to chose a particular life style without interference from the employer, but which of those interests is paramount in the peculiar circumstances of any particular case.

In this case, what is critical is that Cominco has not purported to prohibit smoking by employees away from work. The smoking ban only applies to times when they are at work and on Company property which, in turn, is based on the premise that even heavy smokers will be able go through their shifts, even as long as 12 hours, without suffering significant symptoms of withdrawal. The problem is that, even on the evidence of Dr. Baker, some heavily addicted smokers could be expected to experience serious withdrawal symptoms. It may well be that, over a period of time, those individuals can be expected to adjust to the lengthy work periods of abstinence and to reset their ‘zone of comfort’ but I accept the evidence of both of the medical experts that some employees will have problems and, in fact, that is precisely what happened with Sharon Sadler and Darcy Ashby although, as has been seen, both of them now appear to have managed to arrange their schedules to accommodate their addictions.

I am persuaded that, except for the most heavily addicted employees, the total smoking ban is not an unreasonable intrusion into the personal lives of the employees of Cominco. I do not accept that most smokers would be in ‘great distress’, as was suggested by Dr. Bass, which is not to say that I do not accept that such employees would experience discomfort, but the anecdotal evidence, which is of fundamental importance, is that the great majority of employees have been able to adapt and only a few have experienced essentially disabling symptoms that impaired their ability to work without smoking, and even then, the symptoms were transient and temporary, for the most part.

In the circumstances, the fact that the Employer has both a business interest and contractual obligation to improve the health and safety of its employees and that a significant portion of employees could be expected to quit smoking voluntarily, is sufficient to justify the ban, particularly since most of those who do not stop smoking will be able to adapt and sustain the discomfort of periodic withdrawal while at work without significant impairment. It is of no consequence that the Company has not demonstrated that the policy will result in less absenteeism or greater productivity from the group of employees who continue to smoke. Even Dr. Bass estimated that up to 1/3 of smokers could be expected to quit as a result of the policy. Based on government estimates, significant cost savings can be expected from that group. Prima facie, therefore, there is no basis upon which I can find that employees have a paramount right to require the Company to permit them to smoke while at work, subject only to considerations of whether the smoking ban is discriminatory within the meaning of the Human Rights Code, the issue to which I now turn.

^{8. Discrimination on the Basis of Disability}

Counsel for the Company argues that this should not be an issue because, as a matter of law, addiction to nicotine or smoking does not constitute a disability. He says that is so because addiction to nicotine is a temporary condition, which many people voluntarily overcome, albeit with varying degrees of difficulty; and it does not interfere with a person’s effective physical, social and psychological functioning. He then takes the argument to its ultimate final step which, is that symptoms of withdrawal do not constitute a mental or physical disability within the meaning of the human rights legislation based on the decision of the Ontario Court of Justice in McNeill v. Ontario (Ministry of the Solicitor General & Correctional Services [1998] O.J. No.2288.

In that case a smoking ban was instituted in the Wellington Detention Centre. The plaintiff was an inmate, a condition which O’Connor J. described at para.1 of his judgement with considerable humour as follows:

‘Peter McNeill wants to smoke in jail where he often resides. The government says it’s bad for his health. And the health of other prisoners and jail staff. The Wellington Detention Centre made all inmates butt out for good in 1997. Mr. McNeil claims the ban is cruel and unusual treatment and discriminates against him because he is dependant on nicotine. It violates his rights guaranteed by sections 12 and 15(1) of the Canadian Charter of Rights and Freedoms.’

 

The evidence was that the facility is a small environmentally sealed building with a common air conditioning system and no separately ventilated areas. The widows do not open. Renovations to accommodate a segregated smoking room would be prohibitively expensive. Permitting smoking during the inmates’ twenty minute exercise breaks outside would not be feasible because the inmates would secrete and hoard cigarettes requiring intrusive strip searches and other intensive staff enforcement measures.

There is no need, for our purposes here, to discuss the issue whether the ban constituted cruel and unusual punishment, although it should be noted in passing, that the court held essentially that it was not intended to be nor was it punishment but rather was a necessary precaution to protect non-smoking employees and inmates from the effects of environmental tobacco smoke.

On the issue of discriminatory treatment, the court commenced its analysis by saying that the mental or physical disability enumerated as a ground for protection in the Charter should not be trivialized or minimized. It said that addiction to nicotine is a temporary condition which many people voluntarily overcome, albeit with varying degrees of difficulty related to the strength of their will to discontinue smoking and that it could hardly be compared with a disability such as deafness. Nor are smokers part of a group ‘suffering social, political and legal disadvantage in our society, a criterion for a s.15 claim as described by Wilson J. at page 1333 of R. v. Turpin [1989] 1 S.C.R. 1296. O’Connor J. concluded by saying that smokers have not been discriminated against historically based on their addiction and, finally that the ban was not based on the stereotype of Mr. McNeill as a smoker but that he was in a position to do something about the discrimination of which he complained: ‘He could forego his frequent attendances at the Wellington Detention Centre’.

The problem with that decision is that it clearly was not based upon the kind of scientific evidence that was provided to me, or at all. Moreover, it was decided under the Canadian Charter of Rights and Freedoms.

As to addictive nature of nicotine, the evidence in this case was not controverted that it is equally, if not more addictive than cocaine or heroin. Dr. Bass testified that inhaling a puff of cigarette smoke is a more direct delivery of nicotine to the brain than is injecting it into a vein in the arm. Inhaling takes 7 seconds and injecting into a vein takes 20 seconds to reach the brain. Further, he said that with the entire surface area of the lung absorbing a small but concentrated cloud of nicotine, the blood rushing to the brain (the ‘bolus’) of nicotine contains five to ten times the level of nicotine that will be found in the blood a few minutes later, once the blood has been mixed thoroughly with the remaining blood in the body. He said that inhalation is by far the most potent way to deliver nicotine to the brain. Further, it has been recognized in the Diagnostic and Statistical Manual of Mental Disorders where both nicotine dependence and tobacco withdrawal are classified by reference a number of behaviours and symptoms that characterize the condition.

Quite apart from the evidence, it seems to me that it is inappropriate to determine whether a person may be disabled by reference to whether the condition is temporary or permanent. As a pure matter of principle, a person can be disabled for even a relatively short period of time and then fully recover. Subject to issues of substance, the issue should turn, not on whether the disablement is temporary or permanent, but the degree to which normal function is impaired. If one were to accept that any condition that is temporary could not constitute a disability, even drug addiction and alcoholism would not meet the test, because a person can equally recover from those conditions. Yet it has long been settled that drug addiction and alcoholism are disabilities protected by the human rights legislation. They are no less ephemeral than an addiction to tobacco. The same can be said of many diseases and illnesses which are curable. There are even some diseases such as diabetes or arthritis which, while not curable, are susceptible of treatment which enables the sufferer to function relatively normally as long as treatment persists but they are still conditions that impair function and are disabilities, even in their controlled state.

That issue was dealt with by an Ontario Board of Inquiry (Human Rights Code) in Martin Entrop and Imperial Oil Limited, Decision No. 95-030-I (Backhouse), affd. [1998] O.J. No.422 (Ont.Div.Ct) where the company adopted a policy that required persons in safety-sensitive positions to disclose to management whether they had experienced a problem with alcohol or drugs at present or in the past. The complainant, Mr. Entrop, had suffered from a drinking problem in the past but had been abstinent for several years. The board accepted the evidence of Dr. Harold Kalant, that alcoholism is a chronic disease which persists even where the person has succeeded in remaining abstinent for many years, a conclusion that has generally been accepted in this province since Canadian Union of Distillery Workers v. Hiram Walker & Sons Ltd. 77 CLLC 16087 (BCLRB).

More specifically, on the issue of whether a ‘handicap’ (the term used in the Ontario legislation) can include a temporary condition, the board referred to two decisions of previous boards of inquiry: Ouimette v. Lily Cups Ltd. (1990) 12 C.H.R.R. D/19 which involved a person who had influenza causing only a ‘few days illness’; and Ontario (Human Rights Commission) v. Vogue Shoes (1991) 14 C.H.R.R. D/425 where the board had concluded that the complainant’s obesity did not constitute a handicap. The adjudicator concluded that those decisions should be confined to their own peculiar facts and that, in any event, they do not support the proposition that a ‘handicap’ must be permanent. In point of fact, she observed that in Ouimette the board defined a physical disability as a condition that requires ‘substantial ongoing limits on one’s activities’ or ‘an ongoing material source of impairment’ while in Vogue Shoes it simply held that the condition must be ‘ongoing’.

Similarly, in Roseanne De Jong and Horlacher Holdings Ltd. doing business as ‘Family Tree Restaurant’ [1984] 10 C.H.R.R. D/628, the B.C. Human Rights Council held that acne was a physical disability which protected the complainant from discharge; in Kevin McKenzie v. Quintette Coal Limited [1987] C.H.R.R. D/3762 the Council held that it was discriminatory to decline to employ insulin dependent miners; in Rosemary L. Wilson v. Douglas Care Manor Ltd. [1991] 21 C.H.R.R. D/74 the complainant was found to be disabled by ‘irritable bowel syndrome’ followed by surgery in the form of a hysterectomy; and in Pamela Morrison v. O’Leary Associates and Tom O’Leary [1990] 15 C.H.R.R. D/237, a Nova Scotia board of inquiry prohibited the termination of the complainant who suffered from a chronic thyroid condition which could be controlled or regulated with medication except for short periods which would cause her to miss work on occasion.

It is true that nicotine addiction differs from other forms of addiction in that a smoker is normally able to function reasonably satisfactorily while under the influence of nicotine whereas the performance of a person addicted to alcohol or drugs is usually impaired by those substances. Indeed, Mr. Rowlinson called nicotine a ‘wonderful drug’ for people because it provides them with pleasure; it helps them do their job; and it relieves anxiety. However, the evidence is that the longer term effects of nicotine addiction are that it results in much higher rates of absenteeism and illness, and certainly in the disease phase of the addiction, the detriment can be disabling. Where the distinction between nicotine addiction and other forms of addiction becomes almost non-existent is in withdrawal. Depending on the strength of the addiction, the symptoms of withdrawal from all forms of drugs, including nicotine, can significantly impair normal function.

Accordingly, I simply cannot accept that nicotine addiction, as a pure matter of principle, is not a disability in the same manner as an addiction to alcohol or heroin and cocaine. It is true that some individuals are able to go through withdrawal from a nicotine addiction better than others but certainly those who are heavily addicted must be seen to suffer from a disability no less than someone with diabetes or arthritis. It may be true that in the benign stages of nicotine addiction smokers ordinarily do not exhibit the persistent social and economic disadvantages which underlie the fundamental basis for human rights protection but in its chronic stages where persons experience severe symptoms of withdrawal or they actually contract disease and illness or otherwise suffer significant impairment of function, they fall precisely within the class of persons entitled to protection, which is to say, persons who suffer from a physical or mental disability.

That protection is mandated by sec. 13(1)(b) of the Human Rights Code which prohibits discrimination against a person ‘regarding employment or any term or condition of employment based on a number of enumerated factors including ‘physical or mental disability’. However, subsection (4) then goes on to provide that:

‘Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.’

 

Mr. Grist argues that even if nicotine addiction were a disability, the policy does not discriminate against employees based upon their addiction. He says that employees who smoke are able to tolerate their addiction, even during 12 hour shifts, without smoking. Most importantly, he says that the authorities do not require an employer to accommodate a nicotine addiction by permitting them to smoke. He asserts that the appropriate accommodation, lies in such actions as the Company took to assist employees to deal with their addiction, including the AMS course, counselling, and the ongoing employee assistance program. The Union argues that the only effective accommodation would be to permit employees to smoke in designated safe outside areas where no other persons would be exposed to any significant environmental tobacco smoke.

Mr. Rowlinson says that the disputed policy in this case discriminates against employees in two ways. Firstly, he says that addicted smokers face the prospect of disabling withdrawal symptoms on a daily basis. He says that is a burden because notwithstanding their best efforts, they can’t quit; yet they are required to come to work and abstain from smoking. Secondly, he says that some employees can’t leave the property during breaks to smoke while others who have unpaid breaks have that option, should they so chose. In any case, addicted employees are faced with a choice, which is to suffer the effects of withdrawal or get disciplined up to and including discharge. He says that places a disadvantage on those individuals because they have a disability.

More to the point, he argues that it constitutes direct discrimination which gives rise to a requirement in the Company to demonstrate that it is a bona fide occupational requirement that employees not smoke: Ontario Human Rights Commission et al v. Borough of Etobicoke (1982) 132 DLR (3d) 14 (SCC). In the alternative, he says that if it is adverse effect discrimination, the employer has failed to accommodate based on the tests established by the Supreme Court of Canada in Re Ontario Human Rights Commission et al and Simpsons-Sears Ltd.(1985) 23 DLR (4th) 321 (generally known as the ‘O’Malley Case’).

The bifurcated approach or analysis that underlies that argument was first mandated by the Supreme Court of Canada in Alberta Human Rights Commission v. Central Alberta Dairy Pool; Canadian Human Rights Commission et al., Interveners (1990)72 DLR (4th) 417 where the court held that an employer may have several defences to a charge of discrimination depending on the nature of the discrimination. If the discrimination is intentional or direct the court said that the only defence is to demonstrate that the choice or decision was based on a bona fide occupational requirement. On the other hand, where a rule is not intentionally discriminatory but still has a discriminatory effect, the employer must show that it could not have accommodated the employee affected without undue hardship.

In O’Malley, McIntyre J. explained the difference between direct and adverse effect discrimination at p.332 by reference to examples. He said that direct discrimination would occur if an employer were to adopt a practice or rule that no Catholics, women or blacks would be hired. But adverse effect discrimination would be where an employer, for genuine business reasons, adopts a rule or standard which, on its face is neutral and will apply equally to all employees, but which has a discriminatory effect upon one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties or restrictive conditions not imposed on other members of the workforce.

In the result, an employment policy may be honestly made; it may be based strictly on sound economic and business reasons; and it may purport to apply equally to all employees, yet it will be discriminatory if it affects a protected person or group of persons differently from others to whom it may apply.

Since the Central Alberta Dairy Pool case there have been literally hundreds of court, labour arbitration, and human rights decisions across the country that have used that method of analysis. While the courts have added to and modified the rules relating to discrimination over the years, until very recently the basic concepts have remained essentially the same.

One of the better discussions on the application of those principles was by arbitrator Blasina in Re Canadian Forest Products Ltd. (Polar Division) and I.W.A.-Canada, Local 1-424 (1995) 50 LAC (4th) 164, although it did not involve discrimination based on disability. In that case, the grievor had bid successfully into an apprentice saw fitter position. In the past he had been exempted from working on Saturdays which, as a Seventh Day Adventist, he considered to be the sabbath, but the employer felt that same accommodation could not be made in his new position since it was critical to the operation of the plant. When he then declined to work on Saturdays he was returned to his former position, which was grieved on the basis of religious discrimination.

Arbitrator Blasina explained that direct discrimination is offensive by its nature and, for that reason it is treated very much more strictly. He said that in such a case, because the impugned rule or condition is fundamentally contrary to law, it is usually struck down unless it can be shown to be a bona fide occupational requirement. But in the case of adverse effect discrimination the impugned rule or condition is not fundamentally contrary to law. Indeed, as he said at p.173, ‘It may be beneficial to the business’s organization, productivity and competitiveness. It may promote order as between the employees of a business’. Therefore, in those cases, the courts do not require that the rule or condition be struck down but rather have raised an obligation to search for an accommodation so that the rule may be continued to govern the enterprise and the affected employee may continue to work without undue interference from the rule or condition.

He explained that on that view of the law, the requirement to accommodate does not mean if the employer is unable reach some compromise that it has committed an offence. The employer may justify the rule if it can show undue hardship. What that means is that the employer is obliged to do something or make some change

only if it can be done without unreasonable interference or undue hardship to its enterprise.

The problem is that while the distinction between the two forms of discrimination is relatively clear in principle, the application has often been difficult in practice. One of the better examples of that problem can be found in Toronto Dominion Bank v. Human Rights Commission (1998) 163 DLR (4th) 193 (FCA) where the bank had adopted a policy of mandatory drug testing as a condition of employment of all new and returning employees. Employees who tested positive and were drug dependent were offered rehabilitation but were subject to termination if they refused the services or if they refused the test.

The Canadian Civil Liberties Association filed a complaint with the Canadian Human Rights Commission alleging that the policy discriminated on the prohibited ground of disability. The human rights tribunal found that a case for discrimination had not been made out because, on the face of it, no one had been denied employment under the policy on the basis of drug dependence. Rather, it found that dismissal was for failure to comply with a condition of employment. By way of obiter, the tribunal held that if the policy were discriminatory it would be adverse effect discrimination and that the rehabilitation offered to drug-dependent employees would have constituted reasonable accommodation short of undue hardship. It also ventured the opinion that if it had been direct discrimination then the complaint would have been well-founded because the bank had failed to establish a defence of a bona fide occupational qualification because it had tendered no evidence that the policy was reasonably necessary.

On appeal, a motions judge held that the policy constituted indirect discrimination but that the tribunal had failed to make all the findings necessary to determine whether the bank had provided reasonable accommodation. The judge referred the matter back to the tribunal. The bank then appealed the motion judge’s order to the Federal Court of Appeal.

It is at this stage that one can see the difficulties of the bifurcated approach. Chief justice Isaac found that the policy was not discriminatory but if it were, it constituted adverse effect discrimination and the bank had discharged its obligation to accommodate affected employees by providing a rehabilitation program. Mr. Justice Robertson found that the policy constituted a prima facie discriminatory practice because the policy, aimed at ensuring a work environment free from illegal drugs, necessarily impacted on those who were drug dependent. Further, he held that it was direct discrimination and the bank did not satisfy the objective component of the BFOR test, which is to say that it failed to establish that its policy was reasonably necessary and that there were no other viable alternatives which would be less burdensome. McDonald J.A. found that the policy constituted adverse effect discrimination since it was designed to catch all drug users and not just drug-dependent users so that while it negatively impacted drug-dependent users, it did not just discriminate against them. However, he held that it was not rationally connected to its objective which was to ensure work performance. He said that if the policy were really concerned with work performance then random testing of all employees ought to have been adopted. In the result, he concurred with Robertson J.A. that the decision of the tribunal should be set aside and remitted back to a different panel on the question of necessity.

The same kind of analytical problem is present in this case. On the one hand, one might say that the policy adopted by Cominco could not be discriminatory because it applies to everyone. The dilemma is that it has an adverse effect on smokers. In fact, the affected group is smaller than that because a substantial number of smokers will be able to go without smoking through their shifts without suffering significant symptoms of withdrawal. The discriminated group is, therefore, comprised of those who are heavily addicted to nicotine. They are unable to work a whole shift without experiencing serious problems. They may also be subject to discipline, including discharge in the event that they breach the policy.

To digress slightly, I do not accept that a finding that the policy is prima facie discriminatory, means that persons have a right to smoke under the Human Rights Code, or that the legislation panders to them, as was suggested by Muldoon J. of the Federal Court in Edwards et al v. Canada et al (1991) 45 F.T.R. 145 where he opined at p.149 that ‘....The smoking habit is far from a legal or constitutional right to which the state must pander’. The action of smoking is essentially irrelevant in the equation. The law neither sanctions nor condemns the activity any more than it does drug addiction or alcoholism. But it recognizes that people become addicted to the point that they become physically and mentally disabled. They are unable to control their addiction. It is the state of disablement that is protected by the human rights legislation, not the behaviours that may have led to the addiction.

Returning to the issue of the type of discrimination that is represented by the policy, using the reasoning of Robertson J. in the Toronto Dominion Bank case, one would conclude that although the smoking ban appears on its face to have been implemented for a proper purpose, it cannot meet the criterion of neutrality, which is an essential element of a defence to direct discrimination. The reason is that the ban is effectively directed at addicted smokers. It is tantamount to telling them that they will not continue to be employed at Cominco because the inevitable result is that they will be terminated.

As he explained, a policy that can only affect a defined minority group can be no more neutral than one which requires all prospective employees to submit to a pregnancy test. He said that in a certain perverted sense one could conclude that such a rule is neutral because it applies to both men and women and yet it necessarily only impacts on pregnant women. He then asked rhetorically whether such a policy is any less discriminatory than one which provides that no pregnant women should apply.

As a result of that kind of problem, the Supreme Court of Canada has more recently revisited the issue and has issued two new decisions, both originating in British Columbia, which virtually eliminate the analytical distinction between direct and indirect discrimination in favour of a single unified test. It causes certain problems of due process in this case because the bifurcated approach was the prescribed method of analysis at the time of the hearings and it was on that basis that it was argued by both Counsel. However, because of the conclusion that I have already reached that the policy discriminates against heavily addicted smokers, the real effect of the new cases must necessarily be on the remedies available to the parties, which I intend to reserve in order to give the parties an opportunity to address the new law in that manner.

In British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. 99 CLLC 230-028, the issue was whether a fitness test introduced by the Ministry of Forests, ostensibly to improve safety, discriminated against female firefighters. In that case, Tawney Meiorin had been a member of a three-person ‘Initial Attack Forest Firefighting Crew’ in the Golden Forest District for three years. The crew’s job was to attack and suppress forest fires while they were small and could be contained. Although she did her work well, she lost her job when the government introduced a new series of fitness tests for firefighter.

The tests were developed in response to a 1991 Coroner’s Inquest Report that recommended that only physically fit employees be assigned to front-line firefighting for reasons of safety. She was able to pass three of the tests but failed the fourth one, which required candidates to run 2.5 kilometres in 11 minutes, as a measure of the rate at which the body can take up oxygen, transport it to the muscles and use it to produce energy. She was unable to do better than 11 minutes and 49.4 seconds and, as a result was terminated.

At first instance, arbitrator Chertkow held that the tests were prima facie discriminatory because they had a disproportionately negative effect on women as a group. He also held that the government had presented no credible evidence that just because Ms. Meiorin could not meet the aerobic standard that she constituted a safety risk and, therefore, had not discharged its burden of showing that it had accommodated her to the point of undue hardship.

The matter was then appealed to the B.C. Court of Appeal which overturned the arbitration award, saying that so long as the standard is necessary to the safe and efficient performance of the work and is applied uniformly through individualized testing, there could be no discrimination. The court did not purport to distinguish between direct and adverse effect discrimination.

However, when the matter came before the Supreme Court of Canada, it reviewed the many problems with the bifurcated approach and concluded that it could no longer be justified. Speaking for the court, Madam Justice McLaughlin (as she then was) observed firstly, that the British Columbia Human Rights Code does not contemplate different types of discrimination. Section 13(1) prohibits discriminating against a person ‘regarding employment or any term or condition of employment’ and subsection (4) provides a singular defence based upon a bona fide occupational requirement. The Court concluded that there was nothing in the Code that purported to permit a discriminatory rule to stand just because the group being discriminated against could be accommodated.

It then went on to say that whatever may have been the benefit of the conventional analysis, there is much to be said for now adopting a ‘unified approach’ that: (1) avoids the problematic distinction between direct and adverse effect discrimination, (2) requires employers to accommodate as much as reasonably possible the characteristics of individual employees when setting a workplace standard, and (3) takes a strict approach to exemptions from the duty not to discriminate while permitting exemptions where they are reasonably necessary to the achievement of legitimate work-related objectives.

McLaughlin J. then adopted a three step test for determining whether an employer has established, on a balance of probabilities, that a prima facie discriminatory standard is a bona fide occupational requirement as follows:

(1) First, the employer must show that it adopted the standard for a purpose that it is rationally connected to the performance of the job. The focus at the first step is not on the validity of the particular standard but rather on the validity of its more general purpose;

(2) Second, the employer must establish that it that it adopted the particular standard in an honest and good faith belief that it was necessary for the fulfilment of that legitimate work-related purpose; and

(3) Third, the employer must establish that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate the individual employees being discriminated against without imposing undue hardship on the employer.

At p.145,226 the court explained how the new rules are to operate as follows:

‘If the prima facie discriminatory standard is not reasonably necessary for the employer to accomplish its legitimate purpose, or to put it another way, if individual differences may be accommodated without imposing undue hardship on the employer, then the standard is not a BFOR. The employer has failed to establish a defence to the charge of discrimination. Although not at issue in this case, as it arose as a grievor before a labour arbitrator, when the standard is not a BFOR, the appropriate remedy will be chosen with reference to the remedies provided in the applicable human rights legislation. Conversely, if the general purpose of the standard is rationally connected to the performance of the particular job, the particular standard was imposed with an honest, good faith belief in its necessity, and its application in its existing form is reasonably necessary for the employer to accomplish its legitimate purpose without experiencing undue hardship, the standard is a BFOR. If all of these criteria are established, the employer has brought itself within an exception to the general prohibition of discrimination.’

 

On the facts of that case, the Court found that the government met the first two tests but that it did not show that the impugned tests were reasonably necessary. It accepted arbitrator Chertkow’s finding of fact that it had presented no cogent evidence that Ms. Meiorin posed a serious safety risk to herself, her colleagues or to the general public just because she failed the test.

The second case decided by the Court is really an example of how the new unified approach is to be applied and, in particular, what is required to demonstrate that a standard is required. In British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) [1999] SCC File No.26481 the claimant, Terry Grismer, a mining truck driver suffered a stroke at the age of 40. The stroke resulted in a condition called homonymous hemianopia which eliminated almost all of his left-side peripheral vision in both eyes. The B.C. Motor Vehicle Branch then cancelled his drivers licence on the ground that his vision no longer met the established standard for safe driving.

Over a period of seven years he tried four times to be reconsidered for a licence but each time he was refused because he did not have a minimum field of vision of 120 degrees as compared to the average which ranges between 200 to 220 degrees. Although his licence was cancelled, he was not actually prohibited from driving. He continued to drive without a licence and had two minor accidents, neither of which was caused by his visual impairment.

After his fourth licence refusal, Mr. Grismer filed a complaint with the British Columbia Council of Human Rights which found in his favour. The Supreme Court then rejected an application to review brought by the Superintendent of Motor Vehicles but the Court of Appeal allowed the appeal and overturned the original decision of the Council.

Once again Madam Justice McLachlin spoke for the court. She observed at the outset that the case was not about whether unsafe drivers must be allowed to drive, but rather if the complainant should have been given a chance to prove that he could drive through an individualized assessment. On the evidence, one problem was that some persons in British Columbia are allowed to drive with less than a 120 degree field of vision if they can demonstrate that they are able to compensate for their disability but those with homonymous hemianopia are not permitted to drive, based on standards developed by the B.C. Medical Association.

Applying the Meiorin test, the court went through its prescribed analysis. Firstly, it determined that the standard was discriminatory because the decision was made on the basis of physical disability. Secondly, the court held that the onus shifted, at that point, to the Superintendent to show that, on a balance of probabilities, the discriminatory standard had a bona fide and reasonable justification. Thirdly, in order to do that, the Superintendent had to show that the purpose of the standard was rationally connected to the function of issuing drivers licences, that it was adopted in good faith and that it was reasonably necessary to achieve the goal in the sense that accommodation was impossible without undue hardship.

The court had no difficulty in finding that the Superintendent had discharged the onus on the first two issues. But when it came to the matter of whether the standard was necessary to achieve reasonable highway safety, McLachlin J. said that there are two common indicia of unreasonableness: (1) a standard that excludes members of a particular group on impressionistic assumptions is generally suspect, and (2) evidence that a particular group is being treated more harshly than others without apparent justification may indicate that the standard is not reasonably necessary. In that respect, she noted that the Superintendent permitted some people with less than a 120 degree field of vision to undergo tests to see if they could compensate for their disability but refused any such tests to persons with homonymous hemianopia even though there was evidence that there were such tests available. At para.32 she then stated:

‘Against this background, I come to the question of whether the Superintendent met the burden of showing that the standard he applied to people with H.H. - an absolute denial of a drivers licence - was reasonably necessary to achieve the goal of moderate highway safety. In order to prove that its standard is ‘reasonably necessary’, the defendant always bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship, whether that hardship takes the form of impossibility, serious risk or excessive cost.’

 

On that analysis, the Court found that the Superintendent was unable to show: (1) that no one with the particular disability could ever meet the desired objective of reasonable highway safety, or (2) that accommodation was unreasonable because testing for exceptional individuals who can drive safely despite their disability was impossible without undue hardship.

In the end, it decided that the Superintendent had not done enough to accommodate Mr. Grismer and that he should have been assessed on an individual basis for a licence. However, it expressly emphasized that the decision was not that he was entitled to a drivers licence. Rather, it established only that he had a right to be assessed. The discrimination did not lie in the refusal to give him a licence but in the failure to permit him to demonstrate that he could meet the goal of reasonable road safety. It concluded at para.44 by saying:

‘This decision stands for the proposition that those who provide services subject to the Human Rights Code must adopt standards that accommodate people with disabilities where this can be done without sacrificing their legitimate objectives and without incurring undue hardship. This does not suggest that agencies like the Motor Vehicle Branch must lower their safety standards or engage in accommodation efforts that amount to undue hardship.’

^{9. Conclusion}

On the evidence available to me in this case, I find that the no smoking policy, which came into effect on February 1, 1998 has a discriminatory effect because the burden of the policy falls disproportionately on heavily addicted smokers. They are in a class of persons protected by section 13(b) of the Human Rights Code as having a mental or physical disability.

On the unified test prescribed by the Supreme Court of Canada in the Meiorin case, the first question to be considered is whether the policy was adopted for a purpose rationally connected to the performance of the job. Although Mr. Rowlinson did not have the benefit of that case, the effect of his argument is that it would fail on this ground alone, even though the objective of the policy is to improve the health, safety and productivity of employees. That is because, from his perspective, those goals would only be achievable if the policy were to require that all employees stop smoking altogether which, of course, he does not advocate.

Because Counsel have not had the opportunity to address the new authorities, my approach must necessarily be limited to making a few comments of a directory nature. Without specifically deciding the issue at this stage, it seems to me that the policy was adopted for a purpose rationally connected to job performance, which is to say, to improve the health, safety and productivity of employees. It is true that no evidence was tendered by the Company to show that it costs more to employ a smoker at Cominco than a non-smoker but there was evidence of a general nature to that effect and, in any event, there was evidence that a significant number of employees could be expected to stop smoking voluntarily as a result of the ban.

That is probably sufficient, in my view, for the purposes of the first step under Meiorin. While the policy was not designed to compel employees to quit smoking, it clearly contemplated that a significant number of employees would quit as a result of the implementation of the policy. Therefore, it is doubtful that one could conclude that the purpose has no rational connection to the job by reason that it is an unachievable objective.

As was said by the court in the Meiorin case at p.145,225:

‘....Where the general purpose of the standard is to ensure the safe and efficient performance of the job - essential elements of all occupations - it will likely not be necessary to spend much time at this stage. Where the purpose is narrower, it may well be an important part of the analysis.

The focus at the first step is not on the validity of the particular standard that is at issue, but rather on the validity of its more general purpose. This inquiry is necessarily more general than determining whether there is a rational connection between the performance of the job and the particular standard that has been selected, as may have been the case on the conventional approach. The distinction is important. If there is no rational relationship between the general purpose of the standard and the tasks properly required of the employee, then there is of course no need to continue to assess the legitimacy of the particular standard itself. Without a legitimate general purpose underlying it, the standard cannot be a BFOR.’

 

The second element to be considered is whether the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose. This requirement addresses the subjective motivation of an employer in adopting a policy because, as the court explained, if the employer does not, in point of fact, consider the policy to be reasonably necessary or it is motived by discriminatory animus, then it cannot be a BFOR. None of that was present in this case. Nor was it suggested that the Company was not motivated by the best of intentions. The Union merely takes the position that it is an excessive response to the problem, which is the issue addressed by the next element of the analysis mandated by the court.

The third element is that the standard must be reasonably necessary to the accomplishment of the legitimate work-related purpose. As the court said, to show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees, in this case heavily addicted smokers, without imposing undue hardship on the employer.

As we have already seen, Mr. Grist urged me not to conclude that the policy has a discriminatory effect based upon his argument that smoking is not a disability. While I sympathise with his concern that a finding that the policy has a discriminatory effect will result in an inevitable entanglement in complex considerations of accommodation, it cannot be avoided. In the circumstances, the real question that one must decide is not whether the policy is discriminatory, which it clearly is, but whether the Company has already satisfied the requirements of accommodation by providing the AMS course, nicotine replacement therapy and, where necessary, on-going counselling. It is important to note that one problem with that argument is that at the time of the hearing the state of the law was that an employer was required to provide reasonable accommodation but under the new Meiorin rules, every possible accommodation must be made, subject to undue hardship.

I should also like to comment on the argument by the Union that the only appropriate accommodation would be to permit employees to smoke in an outside area. Mr. Grist replied that no one would suggest that a suitable accommodation of an alcoholic employee would be to permit the employee to drink. The reply of Mr. Rowlinson was then that smoking should not be compared to other forms of addiction because it is a legal activity and it does not impair function.

The fact is, however, that drinking alcohol is no more an illegal activity, if done in proper circumstances than is smoking. Undertaking certain activities while impaired by alcohol is illegal but the act of drinking is not illegal. By contrast, taking narcotic drugs is an illegal activity per se. Nor do I accept that smoking does not impair function. That is only true in the initial stages of addiction. In its more chronic phases, smokers suffer significantly higher rates of absenteeism, illness and disease no less than a person addicted to alcohol.

On the other hand, I have concerns about the published discipline policy by which the smoking ban is to be enforced. It was issued a few months after the notice by the Company that a total ban was going to be implemented. On January 26, 1998 the General Manager, D.H. Magoon stated that the policy would be implemented in two stages. He said that the first stage would be a ‘Butt Out Month’ effective February 1 to 28, 1998 where employees caught smoking would simply be instructed to stop. But in stage two, commencing March 1, 1998 employees would be disciplined on a five step procedure as follows:

(1) First offence - written notice of non-compliance;

(2) Second offence - as above plus employee required to take AMS training;

(1) Third offence - as above plus counselling by a representative of Occupational Health & Safety group;

(2) Fourth offence - as above plus a 24 hour suspension without pay (2x12 hour shifts on 4x4 or 3x8 hour shifts on 5x2);

(3) Fifth Offence - written notice plus indefinite suspension which may result in termination of employment.

Although the Company agreed to implement one additional step at the urging of the Union, the problem with the policy is that it is almost wholly based on a disciplinary model. Certainly, this is one area that could be properly reviewed as to whether it complies with the requirement to accommodate. It assumes that addicted smokers will be able to control their habit through the normal coercive effect of discipline. Certainly, the Company should, as a pure matter of principle, be entitled to terminate employees who do not comply with a valid policy but I am not convinced that it would be appropriate to conclude that the limit of the requirement to accommodate would be reached in every case with a fifth or even a sixth offence.

In fact, there may be any number of suitable ways to accommodate heavily addicted employees which might include, as in the case of Sharon Sadler, a program of gradual adaptation with perhaps a lighter schedule - essentially the kind of thing that is done for employees who are injured and are brought back to work with lighter duties.

All that being said, given the fact that the Supreme Court of Canada has now changed the rules relating to accommodation, I consider that the only appropriate thing to do is to refer the matter back to the parties for further discussion on that issue.

Accordingly, I reserve jurisdiction to decide the issue of accommodation within the principles laid down by the Supreme Court of Canada in the Meiorin case, in the event that the parties are unable to agree, and to deal with any other issue relating to the implementation of this award, either of a general or specific nature, including any dispute about whether any particular employee is heavily addicted to nicotine.

Dated this 29th day of February, 2000 at Tsawwassen, British Columbia.

Dalton L. Larson

Arbitrator

Appendices: List of Authorities

Bibliography

1. Lumber & Sawmill Workers’ Union, Local 2537 - and - KVP Co. Ltd. (1965) 16 LAC 73 (Robinson);

 

2. Simon Fraser University - and - Association of University and College Employees, Local 6 Teaching Support Staff Union (1983) 2 CLRBR (NS) 329 (BCLRB);

 

3. Alberta Cancer Board - and - The Alberta Union of Provincial Employees, Local 56 (Smoking Policy Grievance), unreported, June 21, 1998 (Jones);

 

4. Ben’s Ltd. - and - Bakery, Confectionery & Tobacco Workers’ International Union, Local 466 (1993) 38 LAC (4th) 274 (Slone);

5. Board of Education for City of Toronto - and - Canadian Union of Public Employees, Local 1325 (1988) 33 LAC (3d) 149 (Knopf);

 

6. Canadian Forest Products Ltd. (Polar Division) - and - IWA-Canada, Local 1-424 (1995) 50 LAC (4th) 164 (Blasina);

 

7. Denison Mines Ltd. - and - United Steelworkers of America, Local 5762) (1989) 7 LAC (4th) 124 (Brunner);

 

8. Dussek Campbell Ltd. - and - Communication, Energy and Paperworkers Union of Canada, Local 599 (1997) 68 LAC (4th) 432 (Thorne);

 

9. Edgell v. Board of School trustees, District No. 11 (1997), 97 CLLC 230-009 (BCCHR);

 

10. Fleet Industries - and - International Association of Machinist & Aerospace Workers, Local 171 (1992) 30 LAC (4th) 368 (Briggs);

 

11. Guardsman Products Ltd. (Iroquois Chemical Coating Division) - and - United Steelworkers, Local 13292 (1989) 9 LAC (4th) 303;

 

12. John Deer Welland Works of John Deere Ltd. - and - Canadian Automobile Workers, Local 275 (1993) 37 LAC (4th) 93 (Finley);

 

13. Maritime Paper Products Ltd. - and - Communication, Energy and Paperworkers Union, Local 1520 (1996) 55 LAC (4th) 320 (Whitehead);

 

14. Petro-Canada Products, Division of Petro-Canada Inc., Clarkson Refinery - and - Energy & Chemical Workers Union, Local 593 (1989) 5 LAC (4th) 316 (Veniot);

 

15. Wire Rope Industries Ltd. - and - United Steelworkers of America, Local 3910 (1982) 4 LAC (3d) 323 (Burkett);

 

16. Cominco Ltd. - and - United Steelworkers of America, Local 651 (Levels of Productivity Arbitration), unreported, March 14, 1990 (Chertkow);

 

17. Plainfield Childrens Home - and - Service Employees Union, Local 183 (1985) 18 LAC (3d) 267 (England);

 

18. Law Society of British Columbia et al v. Andrews et al (1989) 56 DLR (4th) 1 (SCC);

 

19. McNeill v. Ontario (Ministry of the Solicitor General & Correctional Services) [1998] O.J. No. 2288 Ontario Court of Justice (General Division);

 

20. Large et al - and - City of Stratford et al (1995) 128 DLR (4th) 193 (SCC);

 

21. Re Council of Printing Industries of Canada - and - Toronto Printing Pressmen & Assistants’ Union No. 10 et al (1983) 149 DLR (3d) 53 (Ont. CA);

 

22. Municipality of Metropolitan Toronto v. Canadian Union of Public Employees, Local 43 (1990) 69 DLR (4th) 268 (Ont. CA);

 

23. St. Joseph’s General Hospital North Bay - and - Service Employees International Union, Local 478 (1988) 34 LAC (3d) 237 (Dissanayake);

 

24. Re Toronto Transit Commission - and - Amalgamated Transit Union, Local 113 (1989) 5 LAC (4th) 156 (Samuels);

 

25. Re Falconbridge Ltd. - and - Sudbury Mine, Mill & Smelter Workers Union, Local 598 (1992) 27 LAC (4th) 338 (Mitchnick);

 

26. Re Lee Manor Home for the Aged - and - Christian Labour Association of Canada (1998) 74 LAC (4th) 200 (MacLean);

 

27. Re I.O.O.F. Senior Citizen Homes Inc. - and - Christian Labour Association of Canada (1995) 45 LAC (4th) 422 (Marcotte);

 

28. Re Thames Valley Beverages Ltd. (Pathfinder Beverages Ltd.) - and - United Food and Commercial Workers, Soft Drink Workers Joint Local Executive Board of Ontario (1988) 3 LAC (4th) 430 (Jolliffe);

 

29. Re Ottawa General Hospital - and - Ontario Nurses’ Association, Local 083 (1986) 27 LAC (3d) 64 (Frankel);

 

30. Re Corporation of City of London - and - Canadian Union of Public Employees, Local 107 (1992) 31 LAC (4th) 224 (Dissanayake);

 

31. The Women’s College Christian Association of London as the owner and operator of Parkwood Hospital and McCormick Home, London, Ontario - and - London and District Service Workers’ Union, Local 220, unreported, March 10, 1994 (Welling);

 

32. Northern Telecom Canada Limited - and - National Automobile, Aerospace and Agricultural Implement Workers Union of Canada and it’s Local 1915, unreported, November 28, 1988 (O’Shea);

 

33. Nicolet Industries Incorporation - and - Amalgamated Clothing & Textile Workers Union (1978) 79-2 ARB 4690 (Rock);

 

34. Glass Molders, Pottery, Plastics & Allied Workers, Local No. 24 - and Sterling China Company (1990) 90-2 ARB 5954 (Wolk);

 

35. Martin Entrop - and - Imperial Oil Limited Interim Decision, [1995] OHRBID Decision No.: 95-030-I;

 

36. Entrop v. Imperial Oil Ltd. Interim Decision [1996] OHRBID No. 30 Decision No. 96-030-I;

 

37. Imperial Oil Limited v. Ontario (Human rights Commission (re Entrop) [1998] O.J. No. 422 Ontario Court of Justice (General Division);

 

38. Handfield v. Board of School Trustees, School District #26 (1995) 95 CLLC 145, 147 (BCHRC);

 

39. Rosanne De Jong v. Horlacher Holdings Ltd. doing business as “Family Tree Restaurant” (1989) 10 CHRR Decision 934;

 

40. Kevin McKenzie v. Quintette Coal Limited (1989) CHRR 8 Decision 601;

 

41. Rosemary L. Wilson v. Douglas Care Manor Ltd. (1991) CHRR 21 Vol 11;

 

42. Norman G. Brimascome v. Northland Road Services Ltd. (1980) 33 CHRR Decision 53 (BCCHR);

 

43. Pamela Morrison v. O’Leary Associates and Tom O’Leary (1992) 15 CHRR Decision 18;

 

44. Ontario Human Rights Commission et al v. Borough of Etobicoke (1982) 132 DLR (3d) 14 (SCC);

 

45. Re Ontario Human Rights Commission et al - and - Simpsons-Sears Ltd. (1985) 23 DLR (4th) 321 (SCC);

 

46. Alberta Human Rights Commission v. Central Alberta Dairy Pool; Canadian Human Rights Commission et al, Interveners (1990) 72 DLR (4th) 417 (SCC);

 

47. Toronto Dominion Bank v. Canadian Human Rights Commission et al (1998) 163 DLR (4th) 193 (Fed CA);

 

48. British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. 99 CLLC 230-028 (SCC);

 

49. British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) [1999] SCC File No.: 26481.

 

 

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