Is it a discriminatory practice and potential breach of the Ontario Human Right Code for a nursing home to prohibit nurses from stealing narcotics?
In the case of Regional Municipality of Waterloo (Sunnyside Home) v Ontario Nurses’ Association, 2019 CanLII 433 (ON LA), a labour arbitrator ruled that it was. Moreover, the arbitrator ordered that the registered nurse, who conceded that her employment had been terminated for just cause, reinstated to her employment.
On September 29, 2016, the grievor, “DS”, who is a Registered Nurse, was terminated — for just cause — by her employer, a long-term care home, because, during the two-year period up to and including August 22, 2016, the grievor was misappropriating narcotics for her own use and falsifying medical records to cover up her actions. The grounds for termination were theft of drugs and gross misconduct relating to protocols.
The grievor was a member of the Ontario Nurses Association, the “union”. Both the union and the grievor acknowledged that the grievor’s actions were at the highest level of misconduct for someone in her position and amounted to just cause for termination.
But the parties accepted that, at all relevant times, the grievor was struggling with an addiction. She was diagnosed with severe opioid use disorder and mild to moderate sedative-hypnotic use disorder.
The grievor wished to return to work with the employer.
The union and the grievor argued that, on the facts of the case, prima facie discrimination had been established and that the employer has not demonstrated that the grievor could not be accommodated without causing the employer undue hardship.
The employer argued that the grievor has not demonstrated prima facie discrimination. In the alternative, the employer argued that the grievor could not fulfill the bona fide occupational requirements of the job. In the further alternative, the employer argued that it could not accommodate the grievor without undue hardship.
Decision of the arbitrator
The arbitrator, Larry Steinberg, was of the opinion that the union has established prima facie discrimination and that the employer had violated the procedural duty to accommodate and had not demonstrated that it could not accommodate the grievor without suffering undue hardship.
With respect to why and how prima facie discrimination was found, the arbitrator, after an extensive review of both the facts and jurisprudence, reasoned as follows:
 The parties agree that, at the relevant time, the grievor suffered from a substance use disorder which was a disability under the Code. The evidence shows beyond any doubt that there is a connection or nexus between the grievor’s substance use disorder and the adverse effect of termination of employment for violation of admittedly valid workplace rules. Compulsive behaviour and impaired judgment are symptoms of the mental illness of substance use disorder. They were manifested in this case, according to the weight of medical evidence, by either no capacity or diminished capacity on the part of the grievor to comply with workplace rules prohibiting diversion of narcotics and falsification of medical records. Moreover, the grievor testified that she needed opioids “to get through this shift…get through the evening…get through the next day and I won’t anymore; I am going to stop. But I couldn’t stop”. There was no evidence that the grievor diverted the drugs for any reason other than to satisfy her substance use disorder.
 The employer’s witnesses testified that the grievor’s addiction was not a factor in the decision to terminate and the employer relies on this to support its argument that the grievor’s addiction was not a factor in her termination. Respectfully, that is not the issue in a case such as this. The focus at this stage is whether the application of valid workplace norms has a discriminatory effect on the grievor because her disability interferes with her ability to comply with those norms.
With respect to whether it would cause the employer undue hardship to accommodate the employee, a lot of time was spent considering the restrictions placed on the grievor’s license by the College of Nurses. The arbitrator held that, because the employer had not even considered whether it could accommodate the employee, a breach of the Human Rights Code had been established.
In the end, the arbitrator ordered the employee reinstated to her position. The employee was also awarded general damages for injury to dignity, feelings and self-respect. The quantum was reserved until after the accommodation process has been completed.
This case highlights the tension between blanket rules and constructive discrimination. The most famous example of constructive discrimination is the quotation by Anatole France in Le Lys rouge:
Ils y doivent travailler devant la majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain.
The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.
That is to say, just because the rule applies to everyone, doesn’t mean that it’s fair.
The case also highlights that just because an employer may not be able to actually accommodate an employee’s disability does not mean that the employer is excused from the procedural duty to consider whether it could do so. Accommodation is a two-step process.
Takeaways for employers
The takeaway for employers is that is to be mindful of one’s obligations under the Human Rights Code, including by ensuring that those in management are aware of both the substantive and procedural duty to accommodate. Employers must also be mindful of the potential for constructive discrimination with blanket rules.