CITATION: Ontario Nurses’ Association v. Cambridge Memorial Hospital, 2019 ONSC 3951
DIVISIONAL COURT FILE NO.: 308/17
DATE: 2019/07/17
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Ellies R.S.J., Sachs and Backhouse JJ.
BETWEEN:
Ontario Nurses’ Association
Applicant
– and –
Cambridge Memorial Hospital and Arbitrator Dana Randall
Respondents
Kate Hughes, Danielle Bisnar and Tyler Boggs, for the Applicant
Jean-Paul Alexandrowicz and Sarah Iaconis, for the Respondents
HEARD at Toronto: June 6, 2019
H. sachs J.
Introduction
[1] This is an application for judicial review brought by the Applicant, the Ontario Nurses’ Association, seeking to quash and set aside the labour arbitration decision of Arbitrator Dana Randall (the “Arbitrator”) dated January 19, 2017 (the “Award”).
[2] The Respondent, Cambridge Memorial Hospital (the “Hospital”), terminated the employment of one of its nurses (the “Grievor”) after establishing that she had misappropriated narcotics. The Applicant filed a grievance against the Hospital alleging that its termination of the Grievor was contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) and without just cause.
[3] Despite finding that the Grievor was addicted to narcotics and that she would not have engaged in the misconduct that led to her termination “but for” her addiction, the Arbitrator dismissed the grievance and upheld the termination.
[4] For the reasons that follow, I would grant the application.
Factual Background
[5] As the Arbitrator found, the Grievor was a registered nurse “with more than 28 years of impeccable service at the Hospital.” At the time of her termination, she was the patient flow coordinator in the emergency room and about to be promoted to become the manager of the emergency department.
[6] On August 15, 2014, a colleague of the Grievor noticed that Percocet had been removed from the Hospital’s Omni Cell (a computerized drug vending machine) under suspicious circumstances. The colleague notified the Grievor’s manager, which triggered a three-day audit that led the Hospital to conclude that the Grievor had been taking Percocet out of the Omni Cell without authorization.
[7] On August 21, 2014, the Hospital confronted the Grievor, who admitted to taking Percocets and recognized that there was a problem. She had been prescribed narcotics (specifically, Percocets) for pain relief in the past, and stated that she became dependent on this narcotic following the death of her husband, when she suffered from depression. According to her, she “loved the euphoria and the relief she got from grief” while under their influence.
[8] The Hospital and the Grievor agreed that she should see a doctor and obtain medical help. The Grievor went on short-term disability leave, and then long-term disability leave from August of 2014 to August or September of 2015. While on leave, she attended Homewood Health Centre’s 35-day inpatient treatment programme for addicted individuals, participated in Homewood’s aftercare programme, attended Alcoholics Anonymous meetings for 90 consecutive days and continued to attend every other day afterwards.
[9] In August or September of 2015 the Grievor and the Hospital began discussing the possibility of her returning to work. At this time, the Hospital conducted a broader investigation that uncovered that the Grievor had been stealing Percocet since 2011. On October 22, 2015, the Hospital met with the Grievor to discuss these findings. The Grievor admitted that she stole Percocet from the Hospital since 2011 and that she had diverted them from patients.
[10] Following the meeting on October 22, 2015, the Hospital examined the Grievor’s pre-2011 records and discovered that she had been stealing pain medication since at least 2003. The records showed theft of Percocet dating back to 2006 and theft of Tylenol 3 dating back to 2003. The Grievor did not recall misappropriating any Tylenol 3s.
[11] On November 2, 2015, the Hospital terminated the Grievor’s employment. The termination letter stated that her employment was being terminated because she had admitted “to engaging in a pattern of theft of narcotics (stealing 2 to 6 Percocet tablets per shift), sometimes diverting them from patients and falsifying the MAR to conceal the theft.”
[12] After her treatment, the Grievor remained in the care of an addiction specialist, Dr. Veenman of Homewood. Dr. Veenman concluded on December 3, 2015 that the Grievor was in “excellent early sustained recovery” and recommended that she return to work as a nurse.
[13] The Grievor was subsequently assessed by a third party addiction specialist retained by her regulatory body, the College of Nurses of Ontario (“CNO”), to determine her fitness to practice nursing pursuant to its statutory duty to regulate the profession. As a result of this assessment, on January 28, 2016, the Grievor entered into an undertaking with the CNO, which permitted her to resume the practice of nursing subject to terms and conditions designed to monitor her and ensure supports were in place in relation to her disability such that she could practise nursing safely.
[14] The Grievor has not used narcotics since August 15, 2014, and has been permitted to return to the monitored practice of nursing since she entered into the undertaking with the CNO on January 28, 2016.
The Grievance
[15] The Grievor’s grievance was referred to arbitration. Between January and October 2016 there were six days of hearings, followed by supplementary submissions. The Arbitrator issued the Award on January 19, 2017 dismissing the grievance and upholding the termination.
The Award
[16] The Arbitrator begins his Award by noting that the Hospital and the Applicant Union relied on two different lines of authorities.
[17] The Applicant relied on what the Arbitrator referred to as the “arbitral consensus” in Ontario, which the Arbitrator summarized as follows at para. 12 of the Award:
…1) where there is an addiction, 2) which addiction has a nexus with the misconduct (stealing their drug of choice), and 3) where the RN has acknowledged her addiction, taken the cure, and come clean, it is discriminatory treatment for a hospital to then terminate the RN’s employment rather than accommodate her addiction.
[18] The Hospital argued that the arbitral consensus in Ontario was wrong; that “Ontario arbitrators conflated 2 levels of analysis” (Award, at para. 7). Instead, the Hospital submitted that the Arbitrator should be guided by the principles set out by the British Columbia Court of Appeal in British Columbia (Public Service Agency) v. BCGEU, 2008 BCCA 357, 83 B.C.L.R. (4th) 299, leave to appeal to S.C.C. refused, [2009] 1 S.C.R. vi (“Gooding”). According to Gooding, in order to establish discrimination, the Applicant must show that the Hospital treated the Applicant differently than it would have treated any other employee accused of the criminal offence of theft. As the Arbitrator put it, Gooding also eliminates
…the human rights defense of addiction to workplace misconduct, which is criminal in nature, on the basis of indirect or adverse treatment discrimination. Put simply, the Hospital argues that the Gooding line of authorities stands for the proposition that to hold an addict to the same standard of culpability as a non-addict for a criminal act is not prima facie discrimination, because there is nothing arbitrary about the norm being enforced. (Award, at para. 9)
[19] At paras. 79 to 80 the Arbitrator came to the following conclusion about which line of authority he was going to be guided by:
79….Without adopting Gooding full bore, I am guided by that line of authority. My view is that much of the arbitral case law has collapsed 2 steps of the legal analysis. Before turning to issues of accommodation, the first issue is whether an addiction to the drug is a defense to the criminal misconduct of stealing the drug from the Hospital and diverting same from patients. Obviously, the misconduct is serious employment conduct. It is hard to imagine more serious workplace misconduct. It is an absolute breach of the employment relationship, and a breach of an RN’s essential duties to her patients.
- In accordance with Gooding, I don’t accept that pleading an addiction to the drug being stolen, which is to say, establishing a nexus between the addiction and the misconduct, is in itself, a defense to termination. Put differently, it is not prima facie evidence of discrimination. There is not an iota of evidence before me of direct discrimination, to use old nomenclature, which is what the BCCA required in Gooding.
[20] At para. 77 of the Award, the Arbitrator stated that he found “that ‘but for’ her addiction, [the Grievor] would not have engaged in the serious misconduct which led to her termination.” At para. 81 he again stated “I have no doubt that [the Grievor] would not have conducted herself in the fashion she did, ‘but for’ her drug dependence” and at para. 82 he repeated that the Grievor is an employee “who ‘but for’ her addiction would not have misconducted herself.”
[21] The Arbitrator made findings regarding the Grievor’s case that he found distinguished it from the awards that “make up the arbitral consensus in Ontario”. Specifically, he found that she was “unable to own up to the full extent of her misconduct”, particularly her history of Tylenol 3 thefts, and her addiction was not “compulsive” as she did not use at work, did not use when she went on vacation and she testified that she did not go through withdrawal.
[22] Finally, the Arbitrator expressed a concern about general deterrence. In his view, it was important to send the message to health care professionals that “pleading addiction, only after being caught stealing one’s drug of choice, should be strongly deterred” (Award, at para. 84).
Standard of Review
[23] On the question of whether the Arbitrator applied the incorrect test for prima facie discrimination, the Applicant submitted that a standard of correctness applies. I disagree.
[24] In Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 46, the Supreme Court of Canada found that the reasonableness standard applied to the decision of the Quebec Human Rights Tribunal when it was acting within its specialized area of expertise, interpreting the Quebec Charter and applying the provisions of that charter to the facts before it to determine whether a complaint of discrimination could be sustained. The Applicant maintains that the Arbitrator, unlike the Quebec Human Rights Tribunal, was not acting within his specialized area of expertise when he determined which test for prima facie discrimination to apply and that this is a question of general importance over which the courts have concurrent jurisdiction.
[25] As the Supreme Court noted in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458, at para. 7, “[i]t cannot be seriously challenged, particularly since Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, that the applicable standard for reviewing the decision of a labour arbitrator is reasonableness.”
[26] Labour arbitrators, like human rights tribunals, have developed expertise in the area of human rights discrimination. While the question of what test to apply is of general importance, it is not outside their expertise. Thus, the presumption of reasonableness applies.
The Legal Test for Establishing Prima Facie Discrimination
[27] Both parties agree that the test for prima facie discrimination has been settled by the Supreme Court of Canada in Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591, at para. 24 (“Elk Valley”), a decision that was released after the Award. In that case the Supreme Court rejected the suggestion that a fourth requirement of a finding of stereotypical or arbitrary decision making should be added to the established three part test for establishing prima facie discrimination. That established test requires the complainant to establish:
that they have a characteristic that is protected from discrimination under the Code;
that they have experienced an adverse impact; and
that the protected characteristic was a factor in the adverse impact.
[28] As a result of Elk Valley, the Hospital agrees that Gooding is no longer good law. The Supreme Court also saw “no need to alter the settled view that the protected ground or characteristic need only be a ‘factor’ in the decision” (para. 46). The Court rejected the suggestion that the test would be improved by adding adjectives to it. Once prima facie discrimination is made out, the onus then shifts to the employer to establish that it had accommodated the complainant to the point of undue hardship.
The Position of the Parties
[29] According to the Applicant, the Arbitrator accepted the evidence of the Applicant’s addiction specialist (Dr. Veenman) that the Grievor was addicted (and the case law is clear that addiction is a characteristic that is protected from discrimination under the Code); the Grievor suffered an adverse impact as a result of her addiction (termination); and the Arbitrator also found that, but for her addiction, the Applicant would not have engaged in the misconduct that led to her termination. Given this, the Arbitrator’s finding that the Applicant had not established prima facie discrimination was unreasonable. To the extent that the Arbitrator’s finding turned on the failure of the Applicant to establish compulsion or on a concern for general deterrence, he also erred. These concepts are not part of the test for establishing prima facie discrimination.
[30] The Hospital denies that the Arbitrator adopted the Gooding line of authority in his Award and that the Arbitrator made a finding that, but for her addiction, the Applicant would not have engaged in the misconduct that led to her termination. According to the Hospital, while the Arbitrator considered the Gooding line of authority, that authority was not what drove his decision. What drove his decision was the failure of the Grievor to admit to the full extent of her misconduct, her failure to establish that her addiction commenced before she engaged in any misconduct and her failure to establish that she could not control her addiction.
Analysis
The Reasonableness Standard of Review
[31] In Dunsmuir, at para. 47, the Supreme Court of Canada explained the reasonableness standard of review as follows:
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 inquiries 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 a decision falls within a range of possible and acceptable outcomes which are defensible in respect of the facts and the law.
Is the Arbitrator’s Award Reasonable?
[32] In the Award, the Arbitrator refused to accept that the Applicant had established prima facie discrimination. He did so after (1) finding that he was not “in a position to call into question Dr. Veenman’s opinion that the Grievor was addicted” (Award, at para. 81); (2) accepting that the Grievor suffered an adverse impact as a result of her addiction (termination); and (3) finding that “but for” her addiction she would not have engaged in the serious misconduct that led to her termination (Award, at paras. 77, 81 and 82). The Applicant is right that these three findings are all that is necessary to establish prima facie discrimination under the governing test confirmed by the Supreme Court of Canada in Elk Valley.
[33] Paragraph 80 makes it clear why the Arbitrator did not accept that this was the case. For ease of reference I reproduce that paragraph again:
In accordance with Gooding, I don’t accept that pleading an addiction to the drug being stolen, which is to say, establishing a nexus between the addiction and the misconduct, is, in itself, a defense to termination. Put differently, it is not prima facie evidence of discrimination. There is not an iota of evidence before me of direct discrimination, to use old nomenclature, which is what the BCCA required in Gooding.
[34] From this paragraph it is clear that the Arbitrator did not accept that the Applicant had established prima facie discrimination because he was not applying the Elk Valley test, but the test in Gooding, which the Hospital agrees is no longer good law. As a result, he made a decision based on wrong principles and came to an unreasonable result, i.e. a result that does not fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[35] In coming to this conclusion, I do not accept the Hospital’s submission that the Arbitrator did not make a finding that “but for” her addiction the Grievor would not have engaged in the misconduct that led to her dismissal. According to the Hospital, when the Arbitrator made this comment he was not making a finding, he was simply expressing his sympathy for the Grievor. The Hospital makes this submission because, prior to the statement in para. 77 where the Arbitrator first states that he “finds that ‘but for’ her addiction, [the Grievor] would not have engaged in the serious misconduct which led to her termination”, the Arbitrator was expressing his sympathy for the Grievor and his belief that she was a good person.
[36] The problem with this submission is that the relevant finding in para. 77 is repeated in paras. 81 and 82, where the Arbitrator has moved on from expressing sympathy. Furthermore, in para. 81 he does not simply use the work “find” as he did in para. 77; he puts it even more strongly by stating “I have no doubt that [the Grievor] would not have conducted herself in the fashion she did, ‘but for’ her drug dependence.”
[37] I also do not accept the Hospital’s submission that the Arbitrator’s failure to find prima facie discrimination did not turn on his application of the test in Gooding. Most importantly, to accept this argument would be to ignore what the Arbitrator stated explicitly in his Award.
[38] I do accept that the Arbitrator did turn his mind to the question of why the Applicant had not established prima facie discrimination based on what he perceived to be the “arbitral consensus” in Ontario. In doing so he relied on issues such as failing to own up to the full extent of her conduct and failing to establish compulsion to distinguish the Grievor’s case from those where prima facie discrimination had been accepted. As Elk Valley made clear, there are no additional words or concepts that should be added to the test for prima facie discrimination. Establishing such things as “compulsion” is not part of the test. Thus, if these findings were why the Arbitrator did not find prima facie discrimination, his Award still does not “fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[39] In the end, the Hospital’s arguments about why the Arbitrator’s Award is reasonable require us to ignore what the Arbitrator said in his Award. By making this request, the Hospital is in effect admitting that the Arbitrator’s Award is neither transparent nor intelligible – two fundamental requirements of reasonableness.
Conclusion
[40] For these reasons, I would allow the application, set aside the Award and remit the grievance to a new mutually agreeable arbitrator for a fresh hearing and determination in accordance with these reasons. As agreed by the parties, the Applicant is entitled to its costs of this application fixed in the amount of $8,000, all inclusive.
H. Sachs J.
I agree _______________________________
Ellies R.S.J.
I agree _______________________________
Backhouse J.
Released: July 17, 2019
CITATION: Ontario Nurses’ Association v. Cambridge Memorial Hospital, 2019 ONSC 3951
DIVISIONAL COURT FILE NO.: 308/17
DATE: 2019/07/17
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Ellies R.S.J., Sachs and Backhouse JJ.
BETWEEN:
Ontario Nurses’ Association
Applicant
– and –
Cambridge Memorial Hospital and Arbitrator Dana Randall
Respondents
REASONS FOR JUDGMENT
Released: July 17, 2019