Dec 12, 2018
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Toronto employment lawyer Stephen Moreau says a recent arbitration ruling provided a "significant win" for his client and sets in motion guidelines established by the Supreme Court of Canada (SCC) on how to treat employees who are suffering from an addiction.

Moreau, partner with Cavalluzzo LLP, represented a nurse at the arbitration hearing who was dismissed for stealing drugs that were intended for patients. The legal issue dealt with the hospital dismissing her without first dealing with her addiction and not following the collective bargaining agreement, he tells

Sole arbitrator Eli Gedalof considered other cases that dealt with similar issues and supported employers' dismissals without linking the cause and effect — in particular, a 2008 B.C. case — but he dismissed them.

Gedalof's decision instead relied on the 2017 SCC ruling that outlined how an employer should deal with a person suffering from an addiction, along with a number of arbitration decisions that focused on the link between the condition and the behaviour — in this case, her disability and the misconduct to support it.

"I find that the analysis in (the B.C. case) is inconsistent with the Supreme Court of Canada’s established human rights analysis," the arbitrator stated.

Geldalof found there was also a breach of the bargaining agreement where the employer failed to give proper notice.

"It is quite a significant win," says Moreau.

"The actual amount of money she is going to get is to be determined," he says, adding that the parties involved are to negotiate a financial settlement and, if they can't, the arbitrator will.

"The reason she should get compensation is that she should not have been terminated," Moreau says.

While theft is usually a firing offence, if there’s an underlying medical condition that caused the infraction, the employer has the duty to accommodate the employee, he explains.

"You just can't steal. Period," Moreau says. "But the reason they mishandled it is that although this person stole, she did it while under the influence of a drug addiction. They should have treated it as a substance-abuse issue rather than a termination offence."

There was a duty to accommodate the nurse, including offering other work responsibilities or denying her access to medicine storage areas and "you don't approach these situations as he or she is a bad person who did a bad thing and has to be removed from the workplace," he says.

Moreau says the arbitrator believed the hospital should have followed a process in determining whether the nurse could be accommodated, and in the meantime, she should have been given access to resources to treat her condition.

"All employers in Ontario, union or not, owe this duty to accommodate," he says.

Until the decision by Gedalof, this area of law was "pretty much up in the air," says Moreau.

A 2008 B.C. case "stands for the proposition that discrimination in this context only occurs when an employer intends to act in a discriminatory fashion and is motivated by stereotypes or prejudice," Moreau wrote in a recent blog.

He says that ruling overturning a dismissal suggests the employer must have a "bad attitude or is prejudiced or stereotyping."

"It doesn't matter if a person has an addiction or if the addiction caused that person to steal," Moreau says. "What mattered was that the employer who didn't know about the addiction, treated this person as they would any other thief."

He says the B.C. case and other arbitration rulings "stack the decks against us but what worked in our favour” was another Supreme Court case that affirmed a more principled approach seemingly inconsistent with the B.C. case.

"I walked in there and said her dismissal was inconsistent with what the Supreme Court had ruled on how to deal with these addiction issues," Moreau says. "And this arbitrator agreed.

"He’s the first one to speak after the Supreme Court case," he says. "It brings the ruling into the trenches and uses very important principles that the Supreme Court articulated, saying, 'this is how you apply these to a real person.'"

Moreau says the nurse in this case committed the "crime" because of the addiction.

"Terminating her would be for the crime of addiction as opposed to theft," he says, adding that addiction is not a crime, but a condition that is all too frequent.

"I think this is a very important decision," Moreau says. "I think it's going to be picked up by many arbitrators going forward. Certainly, we'll have this debate again and see what the law is in this area and we'll have more clarity going forward.

"It's a great result because it means principles of human rights are front and centre," he says. "It's a challenging area, but we're realizing more and more people are suffering these terrible diseases.

"I think we're more aware of that now," Moreau says.

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