On December 4, 2018, Arbitrator Eli Gedalof released a highly anticipated Award in this difficult and contentious area of labour relations. In a grievance involving the Ontario Nurses' Association ("ONA") and a hospital, the Arbitrator was asked to consider a delicate situation involving a nurse who had been terminated for stealing narcotics from the hospital but who claimed that her actions were caused by a drug addiction. ONA alleged that, due to the nurse's addiction, terminating her employment was discriminatory and contrary to the provincial Human Rights Code (the Code is part of the parties' collective agreement as well).
ONA faced a major split in the jurisprudence. One line of cases, notably a BC Court of Appeal decision (Gooding), 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. Two arbitrators hearing similar nurse addiction grievances cited this line of cases with approval. On the other side, ONA argued, the Supreme Court rejected this reasoning in Elk Valley.
The arbitrator agreed with ONA that Elk Valley rejects the Gooding approach. Accordingly, the arbitrator, in powerful and persuasive reasons, declined to rely on Gooding and the arbitral case law following it. The reasons can be found here. Unfortunately, due to concerns about the nurse's candor during the hearing, arbitrator Gedalof did not order the hospital to reinstate her. The Award will mostly be relied on going forward, for its detailed analysis and adoption of the Elk Valley framework, which was argued by ONA.
The award is the result of years of litigation by the ONA litigation team and outside counsel, Stephen Moreau.