In ONA v Cambridge Memorial Hospital and Arbitrator Dana Randall, the Divisional Court set aside an arbitration award involving a nurse suffering substance dependency whose employment was terminated for misappropriating narcotics. Despite the arbitrator finding the nurse had a disability (i.e. substance dependency) and that "but for" her condition, she would not have engaged in the misconduct that led to her dismissal, the arbitrator still found the termination to be just.
The Court rejected the arbitrator's decision, holding:
(1) Once an individual establishes a nexus between the substance dependency and the misconduct, there is a prima facie evidence of discrimination. The prima facie discrimination test, as settled by the Supreme Court of Canada in Stewart v Elk Valley Coal Corp, requires the complainant to only establish:
i. that they have a characteristic that is protected from discrimination under the Human Rights Code;
ii. that they have experienced an adverse impact; and
iii. that the protected characteristic was a factor in the adverse impact.
(2) The arbitrator incorrectly focused on the concept of "compulsion", or lack thereof, on the part of the nurse. The arbitrator's finding also incorrectly focused on the concept of "general deterrence". The Court found that arbitrators cannot add such additional words or concepts to the test for prima facie discrimination, which Elk Valley made clear are not part of the test.
(3) Labour arbitrators have developed special expertise in the area of human rights discrimination, and while a presumption of reasonableness was found to apply here, the arbitrator's decision was unreasonable and did not "fall within a range of possible, acceptable outcomes".
Congratulations to ONA, which was represented by Kate Hughes, Danielle Bisnar and Tyler Boggs.