by Written on behalf of Wise Health Law July 11, 2019 5 min read

A recent decision considered whether a nurse fired for theft and use of opioid drugs at work had faced discrimination due to her addiction.

Background

A registered nurse (RN) was, unfortunately, addicted to opioids. Her employer, a public hospital, discovered empty narcotic vials, needles and syringes in a bathroom. The video cameras in the hallway showed RN as having spent almost forty minutes in the bathroom. At the end of RN’s shift, she was interviewed and admitted that:

  1. 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.

RN was suspended with pay pending a further investigation. At her second interview, RN admitted everything she had before but added that this had happened more than once. She admitted associating the narcotic withdrawals to her patients and to having stolen non-narcotic medication and other supplies related to her drug use.

At this second interview, a report from RN’s family doctor was made available to the hospital. It concluded that RN suffered from amongst other issues, a substance abuse disorder.

At the end of the interview, RN was dismissed for cause, the cause being “theft of drugs and breach of trust.” She also pled guilty to the criminal charge brought against her and was convicted of theft under $5,000.00

Two months later, RN sent a lengthy email to several hospital personnel. She explained her health problems and was remorseful of her actions. She likened her descent into an addiction to opiates as a spiral.

The Grievance

A grievance was filed by the Ontario Nurses Association (ONA) on RN’s behalf. It alleged that she was dismissed without cause, rendering the act wrongful. The essence of her position was that the hospital had unlawfully discriminated against her based on a disability contrary to the collective agreement and the Ontario Human Rights Code (OHRC). It had done so by failing to accommodate her disability.

The Arbitration

The arbitrator ran into opposing lines of authority as to the proper means of addressing the issue of discrimination. The hospital relied on two court of appeal decisions from British Columbia and Alberta, which held that in the absence of overt discrimination by the employer, that there was no human rights analysis to undertake. The ONA relied on a series of Ontario arbitration decisions. These held that in the presence of addiction, there should be an initial finding of prima facie discrimination. The next step would be a contextual analysis to determine whether there was a duty to accommodate the addiction. This analysis would entail a careful examination of the facts to determine the extent of the linkage between the illness and the conduct that led to the dismissal.

The arbitrator, in this case, dismissed the grievance. He did not prefer one line of cases over the other but stated that both views would have led him to the same result. He further distinguished the Ontario decisions because:

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

The Judicial Review

The ONA sought a judicial review of the arbitrator’s decision before the Divisional Court (ONSC). They submitted that the arbitrator had erred in failing to determine if the dismissal involved indirect discrimination, which would require the hospital to accommodate her disability to the point of undue hardship. The review by the court would be on a reasonableness standard.

Prima Facie Discrimination:

It was accepted that the Supreme Court of Canada (SCC), in Stewart v. Elk Valley Coal Corp., set out what the complainant must establish in order to make out a case of prima facie discrimination as follows:

  1. that they have a characteristic that is protected from discrimination under the relevant Code ;
  2. That they have experienced an adverse impact concerning the event; and
  3. That the protected characteristic was a factor in the adverse impact. The fact of the addiction caused or led to the behaviour that precipitated the dismissal or was a cause in part of the dismissal itself.

If the complainant was successful in establishing a prima facie case, then the onus switched to the respondent to demonstrate that it has accommodated the complainant up to the point of undue hardship.

Direct and Indirect Discrimination

Both forms of discrimination are prohibited. Here there was no evidence of any direct discrimination. The issue then was whether there was any evidence of indirect discrimination. The test was agreed to be whether, given the disability in question, the standard or rule being applied imposed a sanction not imposed on other employees. In other words, the standard or rule discriminates because it impacts the complainant differently from others to whom it may apply due to their disability.

The Result

The ONSC found that the arbitrator had not considered the test for indirect discrimination. RN suffered from a disability, being her addiction to drugs. Therefore the OHRC protected her from any discrimination by her employer based on her disability. Were her actions the result of her disability?

The evidence in her email, which the hospital agreed could be relied on for the truth of its content, and her medical report established that she suffered from the disability at the time of her acts which had led to her dismissal. Was the dismissal here then made in part, because of her protected disability? Has RN established that her addiction was the cause of her actions in committing the acts that led to her dismissal?

This required a factual determination on the part of the Arbitrator based on the particular facts of this case. As was stated in Stewart v. Elk Valley:

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.

The arbitration decision was found to be unreasonable as it equated her guilty plea in the criminal proceedings as being the same as voluntary behaviour in the human rights context. Having the intent to steal does not exclude the possibility that the addiction caused the intent. Had her addiction, at the time of her acts, progressed to the point where it effectively deprived RN of the ability to comply with the hospital’s rules? As Stewart v. Elk Valley demonstrates, there is a continuum of factual possibilities, and the arbitrator must examine the facts and determine where this case fits. The standard applied was too high when it required the complainant to establish her lack of control before causation could be established.

The grievance was remitted back to the arbitrator to address the issue of indirect discrimination.

At Wise Health Law, we rely on our significant experience before discipline panels of various regulatory Colleges to provide our clients with exceptional guidance and representation through the often-overwhelming discipline process. To find out more about how we can help, contact us online, or at 416-915-4234for a consultation.



Also in Blog

Judicial Review: New Time Limits and a Helpful Primer

by Mina Karabit September 17, 2020 4 min read

In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.

Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.

Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.

Recent Exemptions for Psychedelic Therapy in Canada

by Mina Karabit August 14, 2020 3 min read

In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.

Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.

Health Care Professionals in Ontario Begin the Restart

by Valerie Wise May 28, 2020 3 min read

The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province. 

Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.

The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.