Case Summary and analysis: Recent Divisional Court case in Ontario affirms the contextual approach in Ontario for accommodating addictions disabilities in the workplace
In Ontario Nurses’ Association v Royal Victoria Regional Health Centre, 2019 ONSC 1268, the Divisional Court confirms that a contextual, human rights analysis is required where a person with an addictions disability is terminated.
Leading up to and following the Supreme Court of Canada’s seminal decision, Stewart v Elk Valley Coal Corp (Elk Valley), there has been much discourse in courts and tribunals regarding accommodating employees with addictions disabilities in the workplace. The factual scenarios and circumstances of these cases are often similar, where an employee discloses their addictions disability upon being terminated from their employment (or facing the threat of termination) following a serious incident or allegation of improper misconduct. The legal debate in these cases centres on the issue of whether the termination was discriminatory.
The cases arising from British Columbia (see for example, British Columbia (Public Service Agency) v British Columbia Government and Service Employees’ Union, (Gooding)) and Alberta (see for example, Wright v College and Assn of Registered Nurses of Alberta (Appeals Committee), (Wright)) often apply a “culpability” lens to cases where an employee with an addictions disability has been accused of misconduct; types of misconduct in these cases have included theft, falsifying medical records, and violation of company policies to name a few. In applying a culpability lens, the adjudicator will often divorce the misconduct from the disability and weigh whether the employer terminated the employee for the misconduct or for the fact that the employee identifies as a person with an addictions disability. Part and parcel of this culpability analysis is the importation of “voluntariness”; in other words, an addictions disability has a “voluntary” component as opposed to other disabilities. Despite the fact that many of these cases were decided prior to Moore, it seems that the SCC’s clarification of the three-part prima facie test has not altered this approach to addictions disability cases in certain parts of the country.
Conversely, in Ontario, a number of labour arbitration decisions (the Labour Cases) urge a more contextual analysis to determine to what extent the individual’s disability was linked to the conduct for which they were terminated. These cases stand for the proposition that if the addictions disability was linked to the conduct, then the employer’s decision to terminate was discriminatory. This approach, it is argued, provides for a more true application of the prima facie test set out in Moore.
Earlier this year, a labour arbitration decision in Ontario canvased these cases and expressly endorsed the Labour Cases (to read ARCH’s previous blog post summarizing and analyzing that decision, click here). In that post, ARCH opined that, despite arbitration decisions not creating binding law, the decision suggested a preferred approach for the law with respect to accommodating addictions disability in the workplace in Ontario. More recently, the Divisional Court released Ontario Nurses’ Association v Royal Victoria Regional Health Centre (Royal Victoria), which provides a statement on the law from a higher court in this area and further confirmation about the direction of Ontario jurisprudence.
Arbitrator’s Decision in Royal Victoria
The facts of Royal Victoria are strikingly similar to previous labour arbitration cases on this issue (see, for example, Humber River Hospital v Ontario Nurses’ Association this case). The grievor, PS, engaged in theft and use of narcotics in the course of her work as a nurse employed by Royal Victoria Regional Health Centre (the Health Centre). When the Health Centre discovered her conduct, it terminated her for cause, on the basis of theft and breach of trust. PS admitted to and was remorseful for her actions. She disclosed to the Health Centre that at all material times she had an addictions disability, which was confirmed by her doctor. Following her termination, she filed a grievance alleging that she was wrongfully terminated and that the Health Centre had discriminated against her on the basis of disability.
In the decision of this matter, the Arbitrator appeared to apply a standard of “involuntariness” to the test for discrimination. He required PS to demonstrate that her addictions disability affected her in such a way that their actions were no longer voluntary or that she no longer had control over her conduct, in order to find that her addictions disability was linked to her conduct for the purposes of human rights protections. The Arbitrator found she failed to demonstrate this level of involuntariness because she pled guilty to criminal charges of theft. In this way, he found no causal connection between PS’ disability and her conduct. Therefore, on this basis, he found that the termination was not discriminatory.
The Ontario Nurses Association filed an application for judicial review, on behalf of PS, arguing that the Arbitrator failed to complete a fulsome analysis of whether PS’ addictions disability was linked to her conduct.
The Divisional Court found that the Arbitrator’s decision was unreasonable in two respects. One, the Arbitrator’s decision was flawed in that it held PS to an unreasonable standard of involuntariness in order to make out a finding of discrimination.
Two, the Divisional Court also found that it was unreasonable to accept a guilty plea in the criminal context as evidence of whether her conduct was linked to or caused by her addictions disability. Endorsing Elk Valley, the Divisional Court held,
Moreover, in applying a standard of “culpable” versus “non-culpable” in a criminal context, the Arbitrator appears to have required demonstration of an absence of control as the standard for determination of whether a causal connection existed between P.S.’s actions and her termination. This is also an unreasonable determination. As the passage cited above from Elk Valley demonstrates, there is a spectrum along which most cases will be found. Whether a disability is a factor in the adverse impact suffered by a complainant will depend on the facts and must be assessed on a case-by-case basis. Because he applied a higher standard of causation in the Decision, the Arbitrator failed to conduct such an analysis on the particular facts of this case. (para 37)
Given that the Arbitrator’s finding of an absence of a causal connection between P.S.’s actions and her termination was based solely on his unreasonable determination that her actions were “voluntary”, the Decision was unreasonable. The Arbitrator either failed to address the issue of indirect discrimination or improperly took into consideration P.S.’s guilty plea in the criminal proceedings in implicitly finding that there was an absence of indirect discrimination. (para 38)
The Divisional Court allowed ONA’s application for judicial review and sent the matter back to the same Arbitrator with the direction to address whether the conduct was linked to her disability, and accordingly whether the Health Centre discriminated against her on this basis.
Royal Victoria’s rejection of the Arbitrator’s perfunctory analysis sends a message that merely considering the “voluntariness” of the employee’s conduct is inconsistent with human rights principles. With the Divisional Court weighing in on the law in that area, Royal Victoria provides further confirmation that the preferred approach in Ontario is a contextual, case-by-case analysis when dealing with accommodating addictions disabilities in the workplace.