Canadian Employment Law Today

CELT November 13 2013:celt 467.qxd 13-10-25 10:57 AM Page 9 CANADIAN EMPLOYMENT LAW TODAY Nurse's drug addiction causally connected to theft of drugs ...continued from page 3 would have no hesitation in sustaining the discharge which was imposed. While she has an otherwise unblemished record of professional performance, the (employee) is a short service employee. Whatever her seniority, her misconduct was extremely serious and went to the heart of what was reasonably expected of her as a nurse by the hospital." However, because the nurse suffered an admitted addiction and since that addiction was causally connected to the misconduct at issue, the employer was required to demonstrate it was unable to accommodate her disability without undue hardship. The ruling was largely affected by the nurse's participation in the accommodation process. Since the employer's investigation, the nurse obtained in-patient treatment and attended counselling. She had also remained drug- and alcoholfree for more than one year, which was supported by negative results from a lengthy period of supervised drug and alcohol testing. Compare the results in this case to the decision in Toronto Transit Commission v. Canadian Union of Public Employees, Local 2 (M.S. Grievance), where arbitrator John Stout considered a similar situation and upheld a termination where the employee suffered from cocaine and marijuana dependence, ASK AN EXPERT ...continued from page 2 period found in the employment agreement was "a tremendously significant modification of the implied term of reasonable notice" that applied to the original terms of employment and additional consideration — something new in exchange for the new term or condition — was required to support such a modification of the original terms of employment. More recently, in Hobbs v. TDI pathological gambling, alcohol abuse and depression. In addition, the employee stole and sold property belonging to the employer. Arbitrator Stout found there was no connection between the misconduct and the disability other than the fact that the grievor used the money from the sale of stolen property to buy cocaine and, on that basis, upheld the termination. The different results despite similar facts seem driven by the arbitrator's views as to whether the misconduct was related to the disability. In other words, it appears that if the addiction or disability removes an element of volition from the employee's conduct, accommodation may be required. For employers, the analysis in London Health Sciences Centre appears to create a significant hurdle, or at the very least a further step, when determining if "just cause" for termination exists. Even when assessing an employee's entitlement to monies under the Ontario Employment Standards Act, the issue of whether the conduct was "wilful" comes into play. From a common sense perspective, however, it may be that the true lesson learned is that employers are under a greater duty to ask the right questions and embark on the proper inquiry to obtain as much information as possible, prior to termination, to determine if the misconduct in question is causally connected to an addiction or disability. Canada Ltd., the Ontario Court of Appeal confirmed Francis as authority for the principle that additional consideration is required to bind an employee to a new term or condition. What is an example of the type of consideration required if an employer desires to make significant changes? In Hobbs, the court was clear that consideration is not simply a promise of continued employment. Thus, continued employment with increased security of employment may, on the facts, constitute new consideration for new terms and conditions an employer seeks to rely on after an employment offer is signed. CELT This is a more focused approach, but not an impossible one. And given that both the employee and the union are participants in the accommodation process, if they fail or refuse to participate, then a defence of addiction may not be available in the event of a termination. CELT For more information see: ■Ontario Nurses' Association v. London Health Sciences Centre (Jan. 8, 2013), J. Hayes — Arb. (Ont. Lab. Arb.). ■Toronto Transit Commission v. Canadian Union of Public Employees, Local 2 (M.S. Grievance) (Aug. 6, 2011), John Stout — Arb. (Ont. Lab. Arb.). ABOUT THE AUTHORS Lorenzo Lisi Fiona Brown Lorenzo Lisi and Fiona Brown practise employment and labour law with Aird & Berlis LLP in Toronto. Aird & Berlis can be reached at (416) 863-1500 or www.airdberlis.com. For more information see: ■Wajid Trading Corp. v. Mohamadu, 2009 CarswellNat 2238 (Can. Adj.(CLC Part III)). ■K.N. Umlah Insurance Agency Ltd. v. Christie, 2009 CarswellNS 110 (N.S. Small Cl. Ct.). ■Francis v. Canadian Imperial Bank of Commerce, 1994 CarswellOnt 995 (Ont. C.A.). ■Hobbs v. TDI Canada Ltd., 2004 CarswellOnt 4989 (Ont. C.A.). Brian Johnston is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374. Published by Canadian HR Reporter, a Thomson Reuters business 2013 9

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