HR HealthCheck
Cases of Note: Dealing with Challenges in the Healthcare Workplace
Date: June 27, 2019
In this edition of HR HealthCheck, we discuss a recent decision of the Ontario Divisional Court which considered the challenging issue of a nurse who suffered from an addiction and whose employment was terminated for theft of narcotics from the workplace.
We then review a decision of the Ontario Superior Court which upheld a fine of $75,000 levied under the Occupational Health and Safety Act (OHSA) on a health centre for failure to ensure a workplace free of violence as a result of repeated assaults on staff by a patient.
Drugs, Theft and Addiction in a Healthcare Workplace
In Ontario Nurses’ Association v. Royal Victoria Regional Health Centre, the griever was a registered nurse whose employment was terminated by the Royal Victoria Regional Health Centre (Hospital) for cause after it was discovered that she had stolen drugs (including narcotics) from the Hospital for personal use.
The Ontario Nurses’ Association (ONA) filed a grievance asserting that the termination was without cause and that the Hospital unlawfully discriminated against the grievor on the basis of her disability because of addiction.
Arbitrator Raymond upheld the termination of the grievor’s employment and dismissed the grievance. He rejected ONA’s argument that the termination was discriminatory and made the following observations:
- the grievor had pled guilty to the criminal offence of theft which indicated that the theft was voluntary;
- the grievor’s treating physician had stated that her recovery from addiction would not be assisted by returning to the Hospital; and
- the grievor was already gainfully employed at another hospital at the time of the arbitration.
The Judicial Review Decision
The ONA brought an application for judicial review to the Divisional Court, seeking reinstatement of the grievor to her employment or alternatively a new hearing before a different arbitrator.
The Divisional Court stated that there was no doubt that the grievor suffered from a disability because of her addiction to drugs and, therefore, she was protected from discrimination by her employer pursuant to the Human Rights Code (Code). Given her disability, the Court held that the Arbitrator was tasked with determining whether the Hospital discriminated against her because of her actions as a person with an addiction.
The Court agreed there was no dispute that the grievor intended to steal the drugs from the Hospital. While this may have been relevant to establishing mens rea in the criminal proceeding, the Court held that it did not exclude the possibility that her addiction caused her to take that action – a relevant consideration in the context of human rights jurisprudence. It stated that the “question is whether […] her addiction had reached the point where it “effectively deprive[d] the complainant of her capacity to comply with the Hospital’s rules regarding handling of drugs.””
The Court held that in applying a standard of “culpable” versus “non-culpable” in a criminal law context, the Arbitrator required the “demonstration of absence of control as the standard for a determination that a causal connection existed” between the grievor’s actions and her termination. The Arbitrator had therefore unreasonably applied a higher standard of causation and failed to employ a contextual and fact-specific analysis of the case before him.
The Court agreed that there was no evidence of direct discrimination. However, it concluded that Arbitrator Raymond ultimately either failed to address the issues of indirect discrimination altogether or improperly took into consideration the grievor’s guilty plea in the criminal proceeding in implicitly finding that there was an absence of indirect discrimination:
[38] Given that the Arbitrator’s finding of an absence of a causal connection between [the grievor’s] actions and her termination was based solely on his unreasonable determination that her actions were “voluntary”, the Decision was unreasonable.
It remitted the issue of whether the Hospital engaged in indirect discrimination back to the Arbitrator to consider in accordance with its reason.
Hospital Fined for Failure to Provide Safe Workplace Under the OHSA
In Brockville Mental Health Centre v. The Ontario Ministry of Labour, the Ontario Superior Court dismissed an appeal by the Brockville Mental Health Centre (Hospital) from a $75,000 fine (plus victim surcharge) levied against it for “failing, as an employer, to reassess the risks of workplace violence and ensure the related policy and programs continued to protect workers from workplace violence as required by s. 32.0.3(4) of OHSA.” The fine resulted from a series of assaults on workers at the facility, all perpetrated by the same patient.
The Hospital argued that the trial judge imposed a demonstrably unfit fine and erred by finding that:
- there was a connection between the conviction and the harm caused;
- the multiple incidents of violence were an aggravating factor; and
- the fines imposed for convictions under the OHSA should not differ between public not-for-profit companies and private companies.
The Court reviewed the principles to be applied on an appeal from a sentence under the Provincial Offences Act and noted, among other things, that in determining the quantum of a fine, the court is expected “to find an amount that ‘without being harsh [is] substantial enough to warn others that the offence will not be tolerated. It must not appear to be a mere licence fee for illegal activity.’”
The Court upheld the fine and stated that when the assaults and the attempted assaults kept occurring by the patient, the Hospital should have engaged in a full risk reassessment of the unit where the patient was located, as opposed to simply developing a treatment plan for the patient. The Hospital also failed to reassess its policies in the face of an obvious need to do so. Finally, the Court agreed with the trial judge that the fact the hospital is a publicly-funded institution should be a neutral factor in determining whether or not to impose such fines.
Implications of These Decisions for Employers
A unique challenge faced by healthcare employers is the availability of narcotics in the workplace to employees who might suffer from addiction, and how to handle incidents of narcotics theft involving those employees. The Royal Victoria Hospital decision makes it clear that employers must be cautious in managing these employees and ensuring that any discipline imposed on the employees does not constitute prima facie discrimination (whether direct or indirect) under the Code.
Both of these decisions underscore how important it is for healthcare sector employers to understand and comply with their obligations under the Human Rights Code and the Occupational Health and Safety Act at all times when managing their employees and the workplace.
If you have any questions about these decisions or related issues, please contact Shivani Chopra at 416.864.7310 or your regular Hicks Morley lawyer.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
