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In February 2012, Mr. Lister raised concerns with his employer and alleged the presence of asbestos on pipes in the nursing home. The Lodge brought in environmental consultants, but Mr. Lister questioned their qualifications and made statements challenging the accuracy of the expert advice they provided as to health and safety.

In March 2012, Mr. Lister attended a general staff meeting where he reportedly made inappropriate gestures and fell asleep. The employer then sent a warning letter to him, which was placed on his personnel file. A few months later, in the summer of 2012, Mr. Lister brought a tomahawk axe to work and, for this action, was suspended for 1.5 days as "progressive discipline." In

the Fall of 2012, Management called a meeting with Mr. Lister for which he declined union representation when offered. Mr. Lister was instructed by the Employer that he would not be permitted to return to work until he had a psychiatric evaluation. He was immediately suspended, indefinitely, without pay, and escorted from the property. Mr. Lister was ultimately assessed by a psychiatrist, who determined that he did not pose a danger to himself or others; however, he missed over twenty (20) days of work without pay before being cleared.

CUPE filed three (3) grievances, two of which were the subject of the judicial review, these were: (1) alleging that the employer violated the collective agreement by not having a union representative present at the suspension meeting; and (2) that the employer had violated the collective agreement by suspending the grievor pending a psychiatric evaluation, without valid reason and without pay. The (3) third grievance concerned the 1.5 day

suspension of Mr. Lister for bringing a tomahawk axe to work. On the third issue, the arbitrator concluded that the suspension was reasonable and the Lodge did not seek judicial review. The arbitrator held that the Lodge had violated the collective agreement by not ensuring a union representative had been in attendance at the meeting with Mr. Lister. He had been told that he did not need such representation, but he clearly did. The Lodge had also violated the collective agreement by suspending Mr. Lister without cause and for over 20 days, which was contrary to the collective agreement.

However, there was significant evidence that the suspension was, in fact, disciplinary. Letters had been issued by the employer previously warning Mr. Lister of further "disciplinary action", Mr. Lister was escorted from the premises and Union representation had been offered at the meeting. Further, the suspension resulted in the grievor suffering a financial penalty,

employer argued it did not intend to punish Mr. Lister and fully expected a psychiatrist would find him unfit to return to work; however, since Mr. Lister had no sick days left, he was simply "suspended" without pay, pending the evaluation.

The Decision On judicial review, the New Brunswick Court of Queen's Bench upheld the arbitrator's refusal to accept the employer's argument that the suspension, due to mental health concerns was a "medical leave", and not a disciplinary action. The

as he was unable to access sick benefits and received no pay. Ultimately, the Court of Queen's Bench concluded that the arbitrator was justified in finding that the employer had disciplined Mr. Lister by suspending him and prohibiting his return to work pending a clear psychiatric evaluation, and that this was a violation of the collective agreement.

What This Means For Employers With the exception of certain safety-sensitive industries where a bona fide occupational requirement can be established, employers cannot discipline, suspend or dismiss employees suffering from a mental illness or disability. Employers have a legal duty under human rights legislation and/or collective agreements to accommodate all disability, up to the point of undue hardship. Unions, where applicable, also have legal duties within the

accommodation process and can be of assistance in navigating "difficult" employee behaviour, including mental health issues where such employees may pose a risk not only to themselves, but the broader workplace. Occupational health and safety legislation also requires employers to provide a safe working environment for their

employees. Under certain conditions, with the proper evidence and context, employers may need to remove an employee with a confirmed mental illness to protect against harm to others or themselves. In such specific circumstances, an employer might be justified in preventing an employee from returning to the workplace until medical clearance is confirmed. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Ms Leah Ferguson

Cox & Palmer Suite 400 Phoenix Square 371 Queen Street Fredericton NB CANADA Tel: 902421 6262 Fax: 902421 3130 E-mail: kbehie@coxandpalmer.com URL: www.coxandpalmerlaw.com

She said a lot of work is already being done by Canadian physicians but the CMA "is committed to finding the best way to support efforts that are taking place from coast-to-coastto-coast." Dr. Orbinski presented delegates with a grim catalogue of the health impacts of climate change, including a rise in infectious disease, drought and rising water levels that cause mass displacement, and even violent conflict. But, worst of all, he said, "climate change is a threat that magnifies other threats." Dr. Orbinski cited the example of the Darfur region of Sudan, where tensions between farmers and herders over disappearing pasture and evaporating water holes have degenerated into violent clashes and civil war.

"You will do anything to feed your children, even if it means going to war," he said. Darfur is often described as the world's first climate-change war, but there could be many more to come, Dr. Orbinski warned. He noted that the world is in the midst of an unprecedented refugee crisis - with 60 million people worldwide displaced - and increasingly those mass movements are driven by drought and climate change. For example, 29 million people are now on food assistance in southern Africa. "The No. 1 health issue there is no longer AIDS; it's drought." Dr. Orbinski, who currently holds the research chair in global health at the Balsillie School of International Affairs in Waterloo, Ont., said that while climate change disproportionally affects developing countries, especially the poor and marginalized, even wealthy countries such as Canada are not immune from the devastation wrought by climate change.

The rate of increase in temperature in Canada is two times higher than the global average," he said, and that will have dramatic impacts, especially in the Far North and the country's coastal regions. "There are real questions about the viability of Vancouver as a city due to rising sea levels in the coming decades," Dr. Orbinski said. A study published in 2008 by the Canadian Medical Association estimated that 21,000 Canadians die prematurely each year due to air pollution. (Worldwide, there are eight million preventable deaths attributed to bad air.)

The rise of carbon dioxide emissions, caused largely by the burning of fossil fuels, is one of the principal drivers of climate change. With the global population increasing by one billion people every 13 years, "we're going to see massive increases in CO2 emissions unless we take radical action," Dr. Orbinski said. The Canadian Medical Association, which represents the country's 83,000 physicians, is holding its 149th annual general council meeting in Vancouver this week.