Authors: Megan Forward

Re SUN and Regina Qu’Appelle Regional Health Authority (2017 CanLII 87132 (SK LA)) is a cautionary tale for any employer who has ever relied upon circumstantial evidence to make a finding against an employee.

In this case, the Grievor, a Registered Nurse with a history of substance abuse, was alleged to have stolen morphine from the hospital. Following an investigation into the matter, the Grievor was suspended without pay and subsequently placed on administrative leave so that he could search for a new position that would limit his access to narcotics. This outcome was subsequently challenged by the Union.

According to the facts, the Grievor was one of several nurses assigned to the post-operative care of a particular patient, which included morphine treatment. On July 21, 2015, during the Grievor’s shift, the nursing team discontinued the drip and discovered that 14 mgs of morphine were unaccounted for.

Instead of reporting the missing morphine to the Charge Nurse on duty that day, the nurses who discovered the discrepancy waited until four days later on July 25, 2015, to submit a letter reporting the theft to the nursing manager. The Grievor did not receive a letter informing him of the allegation against him until September 9, 2015, when an investigation into the matter was initiated. Ultimately, this investigation resulted in the outcome described above.

Among other things, the Union argued that the Employer was not entitled to rely on circumstantial evidence alone to support its finding that the Grievor had stolen the medication. The Union cited a rule known in criminal law – called the “Rule in Hodge’s Case” – in support of its position.

According to this rule, “circumstantial evidence will not be proof of the fact to be established unless the evidence points conclusively to the inferences drawn and they are not capable of supporting any other rational inference which would exclude culpability.”

Indeed, there was no direct evidence that the morphine was stolen or that the Grievor stole it. No one saw the morphine disappear; no one saw the Grievor take the morphine or the morphine in the Grievor’s possession. Instead, the conclusion about the missing morphine’s whereabouts was inferred based on the fact that 14 mg of morphine were unaccounted for in the hospital records and the Grievor’s history of substance addiction, which was known to the Employer.

The Arbitration Board rejected the application of the “Rule in Hodge’s Case” to the grievance arbitration context. According to the Board, in arbitration cases:

“Circumstantial evidence may suffice. In this case, the question remains, has the Employer proved on a balance of probabilities, the evidence, circumstantial and direct, that the Grievor stole the morphine. Is the evidence sufficiently clear, convincing and cogent to satisfy us, on a balance of probabilities, that the Grievor stole the morphine?”

Based on the Arbitration Board’s decision with respect to the merits, it is clear that, from their perspective, the answer to the above question was “no.”

In particular, the Arbitration Board concluded that there were several inconsistencies in the evidence that could not be reconciled and that the case against the Grievor was premised on several assumptions that were not substantiated, including, assumptions about the accuracy of the hospital records. The Board also mused that the Employer would not have focused on the Grievor for the theft had it not been for his known history of substance abuse and that this may have caused them to overlook other nurses who would also have had the opportunity to take the morphine.

Ultimately, the Board ruled in favour of the Grievor and ordered his suspension and the work restrictions set aside.

Conclusion

Just because circumstantial evidence may suffice to prove an allegation in a workplace investigation, where the civil standard of proof applies, it does not mean that it always will or that it should. Where there is direct evidence that could support the complainant’s claim, the Employer and/or investigator should make every effort to ensure that this evidence is gathered and considered. And where an Employer seeks to rely exclusively on circumstantial evidence it will still have to be “clear, convincing and cogent” enough to satisfy the “balance of probabilities”. Conclusions based on assumption and conjecture alone will not meet this threshold.

Megan Forward


About the Author: Toronto Employment Lawyer Megan Forward develops and delivers training sessions for her clients and conducts investigations and workplace assessments to help employers resolve issues related to harassment, poisoned workplace environments and bullying.