skip to main content

Cavalluzzo Secures Big Win at Arbitration — Human Rights Violation for Terminating an Employee Due to Theft Caused by Addiction

News/
5 December 2018
Share
Share with your friends and colleagues
Pick one or more destinations:

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.

Recent News

News/25 July 2019

ONA Successfully Challenges Arbitration Decision in Divisional Court

In ONA v Cambridge Memorial Hospital and Arbitrator Dana Randall, the Divisional Court set aside an arbitration award involving a nurse suffering subs... Read More
News/21 June 2019

Divisional Court Quashes York University Decision to Discipline Striking Students

In Ball v Audette, the Divisional Court quashed disciplinary measures taken by York University against members of its graduate student bargaining unit... Read More
News/21 June 2019

Talos v. Grand Erie District School Board Recognized as Top Outcome by the Ontario Human Rights Commission

The Ontario Human Rights Commission recently recognized Talos v. Grand  Erie District School Board as a top outcome in its 2018-2019 Fo... Read More

Stay Updated

To receive email updates on legal developments and firm news and events, please sign up here.