CITATION: Ontario Nurses’ Association v. Royal Victoria Regional Health Centre, 2019 ONSC 1268

DIVISIONAL COURT FILE NO.: 113/17 DATE: 20190610

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

DAMBROT, WILTON-SIEGEL and EMERY JJ.

BETWEEN:

ONTARIO NURSES’ ASSOCIATION

Sharan K. Basran and Nicole Butt, for the Applicant

Applicant

– and –

ROYAL VICTORIA REGIONAL HEALTH CENTRE and STEPHEN RAYMOND

Gerald G. Griffiths and Jeffrey Stewart, for the Respondent, Royal Victoria Regional Health Centre

Respondents

HEARD at Toronto: February 21, 2019

BY THE COURT:

[1] The Ontario Nurses’ Association (the “ONA”) brings this application for judicial review in respect of a labour arbitration award made by Stephen Raymond (the “Arbitrator”) dated September 23, 2016 (the “Decision”). The Arbitrator dismissed the grievance of its member, P.S., thereby upholding her termination from employment as a registered nurse by the Respondent, Royal Victoria Regional Health Centre (the “Hospital”). The ONA seeks an order setting aside the award, an order allowing the grievance, and an order reinstating P.S. to her employment at the Hospital, together with back pay. In the alternative, the ONA seeks an order remitting the underlying grievance to another arbitrator for a fresh hearing.

BACKGROUND

[2] P.S. is a registered nurse. She commenced employment with the Hospital in July, 2012 and obtained a permanent position at the Hospital on October 14, 2013. P.S.’s employment with the Hospital was terminated on February 13, 2014 for cause, after it discovered she was stealing drugs from the Hospital for personal use.

The Circumstances of the Termination of Employment

[3] The Hospital first became aware that P.S. was engaged in the theft of narcotics and associated activities on January 21, 2014. Empty narcotic vials, needles and syringes were found wrapped in one of the Hospital’s bathrooms that day. Video recordings of the hallway outside of the bathroom showed P.S. entering the washroom at approximately 2:05 a.m. and leaving at approximately 2:44 a.m.

[4] Based on the video, P.S. was interviewed at the end of her shift on January 21, 2014. She admitted to the following facts at that meeting:

1. that she had injected herself with morphine and fentanyl in the washroom;
2. that the drugs were Hospital property that she had removed from an automatic dispensing unit (the “ADU”) and sharps disposal bin; and
3. that after injecting the narcotics, she had returned to work.

[5] P.S. was suspended from her job with pay on January 21, 2014, pending a further investigation.

[6] On January 28, 2014, P.S. attended on a “drop-in basis” at the clinic of her family physician. The physician completed a Treating Professional’s Statement on the Hospital’s form that indicated that P.S. suffered from a “substance abuse disorder”, among other things. The Appellant says that the Treating Professional’s Statement was given to the Hospital shortly thereafter and, in any event, prior to a second interview between the Hospital and P.S. on February 10, 2014.

[7] At that second interview, P.S. confirmed that she had taken drugs from the Hospital and had injected them. P.S. admitted at this interview that she had taken the drugs by associating the various withdrawals from the ADU to various patients. She also admitted to stealing non-narcotic medication and paraphernalia related to drug use.

[8] In a letter dated February 13, 2014, the Hospital terminated P.S. as an employee for cause, specified as theft of drugs and breach of trust.

[9] On April 25, 2014, P.S. sent a five page e-mail to several representatives of the Hospital to explain her conduct, the state of her health, and to express remorse for her actions. In this email, P.S. admitted to stealing drugs from the Hospital since the commencement of her employment, and described her descent into addiction to opiates as a spiral.

[10] P.S. was charged with theft of medicine, being the property of the Hospital, contrary to s. 334(b) of the Criminal Code (theft of property under $5,000). On August 7, 2014, P.S. pleaded guilty to that charge in the Ontario Court of Justice.

The Arbitrator’s Decision

[11] P.S. filed her grievance against the Hospital on February 13, 2014 (the “Grievance”), the same day she was terminated. In the Grievance, she alleges that she was terminated without just cause and, therefore, that her termination from employment was wrongful. P.S. alleged that the Hospital unlawfully discriminated against her on the basis of a disability contrary to the Collective Agreement and the Human Rights Code, R.S.O. 1990, c. H.19 (the “OHRC”) by failing to accommodate her disability.

[12] In the Decision, the Arbitrator dismissed the Grievance and upheld the termination of P.S.’s employment. After reviewing the facts of the case and the position of each party, the Arbitrator concluded that there were two conflicting lines of jurisprudence that the parties had advanced. The first line of jurisprudence, advanced by the Hospital, relied primarily on the decision of the British Columbia Court of Appeal in British Columbia (Public Service Agency) v British Columbia Government and Service Employees' Union, 2008 BCCA 357, [2008] B.C.J. No 1760 (B.C.C.A.) ( “Gooding”) and the decision of the Alberta Court of Appeal in Wright v College and Assn of Registered Nurses of Alberta (Appeals Committee), [2012] A.J. No. 943 (“Wright”). These cases were cited as authority for the proposition that, in the absence of overt discriminatory conduct by the employer, there is no human rights analysis to undertake.

[13] The second line of jurisprudence, relied on by the ONA, consisted of a series of six Ontario arbitration decisions (the “LAC Decisions”). Each of these decisions begin with a finding of prima facie discrimination because of the presence of an addiction and then focus on a contextual analysis to determine whether there is a duty to accommodate. In these cases, careful attention is paid to the relevant facts to determine the extent of the linkage between the illness and the conduct that led to the termination.

[14] The Arbitrator held that the grievance should be dismissed, regardless of which line of decisions he applied as the law. He stated that it would be “easy” to find that there was no discrimination if he accepted the reasoning in Gooding and Wright. He went on to say that if he accepted the reasoning of the LAC Decisions, he would reach the same conclusion on the basis of three factors that distinguished this case from the LAC Decisions:

1. P.S. pleaded guilty to the criminal offence of theft and therefore the thefts were voluntary;
2. Her own treating physician has stated that the recovery of P.S. from her addiction would not be assisted by returning to the Hospital; and
3. Of particular importance to the Arbitrator, P.S. was gainfully employed in two other health care settings, including at a hospital, by the time the arbitration was held.

KEY ISSUES

[15] The ONA says the Arbitrator committed the following three main errors in the Decision:

1. the Arbitrator failed to identify and apply the correct test for prima facie discrimination and the duty to accommodate;
2. the Arbitrator erred in finding that there was no prima facie discrimination without considering whether there was any indirect discrimination; and
3. the Arbitrator unreasonably distinguished relevant Ontario arbitral jurisprudence by relying on irrelevant or improperly applied factors.

Essentially, the ONA’s three issues amount to a submission that the Arbitrator failed to consider whether the termination of P.S’s employment involved indirect discrimination, given her addiction, which required the Hospital to accommodate her disability to the point of undue hardship.

JURISDICTION OF THE COURT

[16] The Divisional Court has jurisdiction, pursuant to section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, Chap. J.1, to grant any relief that an applicant would be entitled to in (1) proceedings by way of an application for an order in the nature of mandamus, prohibition or certiorari, or (2) proceedings by way of an action for a declaration or for an injunction or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

STANDARD OF REVIEW

[17] The parties agree that it is well-established that labour arbitration decisions are generally reviewed on a reasonableness standard.

[18] In this case, the ONA submits that the standard of review is reasonableness with the exception of: (1) the articulation of the legal test for discrimination; and (2) the interpretation of criminal law and procedure, for which in each case it suggests the standard of review is correctness. It is unnecessary to address this issue for the reason that we would reach the same conclusion in this case regardless of whether the applicable standard of review in respect of these elements of the issue before the Court is reasonableness or correctness.

[19] Reasonableness as a standard of review requires the court to inquire into the process followed to make the decision under review, including the arbitrator’s articulation of the reasons for the decision and the outcome, to determine reasonableness. In this regard, the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 described reasonableness on judicial review as mostly concerned with “the existence of justification, transparency and intelligibility” in the process of making the decision. The Court in Dunsmuir also explained that the court must consider whether the decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” of the case.

applicable Law

[20] The parties agree that Stewart v. Elk Valley Coal Corp, 2017 SCC 30, [2017] S.C.J. No. 30 summarized the relevant principles from discrimination cases up to that point in time. To be fair, the Arbitrator did not have the benefit of hearing submissions on Stewart v. Elk Valley as it was released several months after the Decision. However, the parties agree that Stewart v. Elk Valley confirms that a complainant must demonstrate the following matters to make out a case of prima facie discrimination:

1. that he or she has a characteristic that is protected from discrimination under the relevant Code;
2. That he or she has experienced an adverse impact with respect to the event; and
3. That the protected characteristic was a factor in the adverse impact.

[21] The onus is on a complainant to establish a prima facie case of discrimination in order to assert a claim. If this burden is met, the onus shifts to the employer to demonstrate that it has accommodated the complainant up to the point of undue hardship. Accordingly, in this instance, the onus was on P.S. to establish a prima facie case of discrimination in respect of her termination.

[22] Discrimination can be either direct or indirect. In this case, both the ONA and the Hospital agree there was no evidentiary basis for the Arbitrator to find direct discrimination as the basis given for the termination of P.S. from her employment. The issue for the Arbitrator was whether there was any evidence for a finding of indirect discrimination.

[23] The test for indirect discrimination is reflected in the following statements in Wright at para. 123:

As a result of the Appellants' disability, the standard or rule being equally applied, imposes “penalties or restrictive conditions not imposed on other members”: O'Malley at para. 18. The standard or rule discriminates because it affects Ms. Wright and Ms. Helmer, persons with a disability of addiction “differently from others to whom it may apply”: O'Malley at para. 18. Treating all nurses the same creates serious inequality, and certain persons such as Ms. Wright and Ms. Helmer are likely “made to feel that ... they are less capable, or less worthy of recognition or value as human beings or as members of Canadian society, equally deserving of concern, respect and consideration” because of their disability: Egan v. Canada, 1995 98 (SCC), [1995] 2 S.C.R. 513 at para. 39.

[24] Accordingly, in the present circumstances, the issue for the Arbitrator was whether the termination of P.S. on the grounds of theft and breach of trust was discriminatory because it affected her differently as a person with an addiction than all other nurses who might be terminated on such grounds.

ANALYSIS

[25] The applicant’s principal issue is that the Arbitrator failed to identify and apply the correct test for prima facie discrimination and therefore failed to consider the relevant factors for such a determination as well as the duty to accommodate. We agree that the Arbitrator failed to consider the test for indirect discrimination on the termination of P.S.’s employment and therefore failed to consider whether P.S. had demonstrated that indirect discrimination had occurred in the particular circumstances of her termination. The following sets out the basis for this determination.

[26] There is no dispute on the facts before the Arbitrator that P.S. suffered at all material times from an addiction to narcotics that were readily available through her employment at the Hospital. It is understandable that the Hospital could take the position that P.S. breached the trust reposed in her as a registered nurse having access to controlled medication when she falsified patient records to steal drugs for her own use. However, that was not the issue at arbitration, and it is not the issue before this court.

[27] P.S. was a person with a disability because of her addiction to drugs. As a person with a disability, the provisions of the OHRC protected her from discrimination by her employer on the basis of her disability. This disability, and the question whether the Hospital discriminated against P.S. because of her actions as an addicted person, is raised by the facts to which the Hospital agreed at the arbitration.

[28] In particular, the Hospital expressly agreed that the email dated April 25, 2014 from P.S. to representatives at the Hospital could be relied upon for the truth of its contents. The facts in this email, combined with the opinion evidence given by Dr. Raymond Steinman, who diagnosed P.S. with Narcotic Dependency, established the fact that P.S. suffered from her addiction to opiates at the time of the theft and, accordingly, at the time of her termination.

[29] The Arbitrator was therefore required to determine if he found prima facie discrimination had occurred. In this case, the question was engaged in respect of the third part of the test for discrimination – that the protected characteristic, her addiction, was a factor in the adverse impact, being her termination.

[30] As mentioned, the parties agree that there was no basis for a finding of direct discrimination. The issue for the Arbitrator was therefore whether the actions of the Hospital constituted indirect discrimination in the circumstances. The effect of the Decision is that the complainant failed to demonstrate prima facie discrimination to the satisfaction of the Arbitrator. However, the basis for and scope of that determination were not made express.

[31] Effectively, the Arbitrator concluded that, to the extent that the LAC Decisions were relevant, they were distinguishable for the three reasons cited above. The first of those reasons addressed the voluntariness of P.S.’s actions and therefore was relevant to the issue of indirect discrimination from which it may be inferred that the Arbitrator considered that there was no indirect discrimination without stating this conclusion. The other two reasons for distinguishing the LAC Decisions are not relevant for present purposes.

[32] The issue of whether the Hospital engaged in indirect discrimination turns on whether the complainant has established that her addiction was the cause of her actions in stealing drugs from the Hospital.

[33] This requires a factual determination on the part of the Arbitrator based on the particular facts of this case, as was acknowledged in Elk Valley at para. 39:

In some cases, a person with an addiction may be fully capable of complying with workplace rules. In others, the addiction may effectively deprive a person of the capacity to comply, and the breach of the rule will be inextricably connected with the addiction. Many cases may exist somewhere between these two extremes. Whether a protected characteristic is a factor in the adverse impact will depend on the facts and must be assessed on a case-by-case basis. The connection between an addiction and adverse treatment cannot be assumed and must be based on evidence: Health Employers Assn. of British Columbia v. B.C.N.U., 2006 BCCA 57, 54 B.C.L.R. (4th) 113, at para. 41.

[34] Insofar as the Arbitrator addressed whether there was a causal connection between P.S.’s addiction and her termination in the context of indirect discrimination, he appears to have equated P.S.’s acknowledgement of mens rea for the purposes of the criminal proceeding with “voluntary” behaviour for the purpose of human rights jurisprudence. On the basis that P.S.’s actions in stealing drugs from the Hospital were “voluntary”, the Arbitrator concluded that there was no causal connection between P.S.’s disability and the adverse impact upon her, being her termination.

[35] This was an unreasonable finding for two related reasons.

[36] It is not disputed that P.S. intended to steal the drugs from the Hospital. However, the fact that P.S. had the necessary intention in stealing the drugs to establish mens rea does not exclude the possibility that her addiction caused her to take that action. The question is whether, in the context of human rights jurisprudence, her addiction had reached the point where it “effectively deprive[d] the complainant of her capacity to comply with the Hospital’s rules regarding the handling of drugs.” Capacity in the human rights law context is a very different concept from mens rea in the criminal law context.

[37] Moreover, in applying a standard of “culpable” versus “non-culpable” in a criminal law context, the Arbitrator appears to have required demonstration of an absence of control as the standard for a 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.

[38] 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. Given the foregoing determination, it is not necessary to address the other alleged errors of the Arbitrator raised by the ONA, which are, in any event, related and supplementary to the applicant’s principal issue.

[39] The Hospital argues, however, that the Decision was nevertheless reasonable, given other evidence before the Arbitrator upon which it submits he could have found that the ONA had failed to establish the necessary causation for indirect discrimination. The Hospital points to the absence of any compulsion to steal drugs on the part of P.S. at the time of her termination and the absence of any medical opinion expressing a compulsion on P.S.’s part.

[40] The Hospital argues that the Court should adopt the approach articulated by Abella J. in Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 at paras. 11 and 12 to find the Decision reasonable:

It is worth repeating the key passages in Dunsmuir that frame this analysis:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

... What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference ‘is rooted in part in respect for governmental decisions to create administrative bodies with delegated powers” ... . We agree with David Dyzenhaus where he states that the concept of “deference as respect” requires of the courts “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision”... . [Emphasis added; citations omitted; paras. 47-48.]

It is important to emphasize the Court's endorsement of Professor Dyzenhaus’s observation that the notion of deference to administrative tribunal decision-making requires “a respectful attention to the reasons offered or which could be offered in support of a decision”. In his cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows:

“Reasonable” means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them. For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal's proximity to the dispute, its expertise, etc, then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective. [Emphasis added.]

[41] In our view, the Hospital misreads the approach to reasonableness contemplated by the dicta of Abella J. The issue of the causal relationship between P.S.’s disability and her termination is disputed. The Hospital says that there was evidence upon which the Arbitrator should have found that P.S.’s addiction was causally connected to her termination and, therefore, that the Hospital had engaged in indirect discrimination by terminating her rather than accommodating her disability. Much of the evidence upon which the Hospital relies regarding the nature and extent of P.S.’s addiction post-dates the termination of P.S.’s employment and therefore was not available to it at that time. However, the ONA points to the Treating Professional’s Statement described above and P.S.’s acknowledgement in her second interview on February 10, 2014 that she was submitting to drug and alcohol testing at that time as sufficient evidence to establish the necessary causation.

[42] For present purposes, the important point is that the Arbitrator did not address the foregoing evidence and make a finding on the causal relationship between P.S.’s disability and her termination. In order for the Court to conclude that the Decision was reasonable, it would have to make its own determination of this question of mixed fact and law. This would require that the Court weigh the evidence, assess the credibility of the parties and make a finding on an issue that the Arbitrator failed to address.

[43] In effect, the Hospital is asking the Court to set aside the Decision, to make its own findings of fact after reviewing the evidence and then to substitute its own decision for that of the Arbitrator based on those new findings of fact. This approach exceeds the role of a court on a judicial review. It contemplates the Court acting as an appeal court rather than as a reviewer of the exercise of an administrative authority.

[44] Based on the foregoing, the application of the ONA is granted and the Decision is set aside. The usual remedy when a decision of an administrative decision maker is set aside on judicial review is to remit the matter to the decision maker for re-determination. This respects the legislative policy to leave such decisions to the administrative body. Often the Divisional Court will remit the matter to a different panel of the tribunal in question or, in the case of a labour arbitration, to a different arbitrator. However, there may be circumstances where it is more efficient to return the matter to a decision maker familiar with the facts, as in Greater Toronto Airports Authority v. Public Service Alliance Canada Local 0004, 2011 ONSC 487 (Div. Ct.) at para. 130. In our view, this is such a case. As there is no record of the proceeding before the Arbitrator, a new arbitrator would need to conduct a new hearing to receive the relevant evidence. The Arbitrator, however, need only address the issue of indirect discrimination in accordance with these reasons and the evidence that was presented to him.

[45] Accordingly, the Grievance is remitted to the Arbitrator who is directed to address whether the Hospital engaged in indirect discrimination in the termination of P.S.’s employment, based on the evidence in the record of the arbitration.

COSTS

[46] At the conclusion of the hearing of this application, the Court reserved judgment. The parties subsequently advised the Court, in writing, that they were in agreement that costs should be awarded to the successful party in the amount of $12,000, inclusive of taxes and disbursements. Accordingly, we order costs to ONA in the agreed upon amount.

DAMBROT J.

WILTON-SIEGEL J.

EMERY J.

Released: June 10, 2019

CITATION: Ontario Nurses’ Association v. Royal Victoria Regional Health Centre, 2019 ONSC 1268

DIVISIONAL COURT FILE NO.: 113/17 DATE: 201906010

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

DAMBROT, WILTON-SIEGEL and EMERY JJ.

BETWEEN:

ONTARIO NURSES’ ASSOCIATION Applicant

– and –

ROYAL VICTORIA REGIONAL HEALTH CENTRE and STEPHEN RAYMOND Respondents

REASONS FOR JUDGMENT

EMERY J.

Released: June 10, 2019