Is it a discriminatory practice and potential breach of the Ontario Human Right Code for a nursing home to prohibit nurses from stealing narcotics?
In the case of Regional Municipality of Waterloo (Sunnyside Home) v Ontario Nurses’ Association, 2019 CanLII 433 (ON LA), a labour arbitrator ruled that it was. Moreover, the arbitrator ordered that the registered nurse, who conceded that her employment had been terminated for just cause, reinstated to her employment.
There is a saying about the pace at which the wheels of justice move: they grind slowly. Perhaps no case better exemplifies that saying than that of Sharon Fair.
On December 15, 2003, Ms. Fair filed a human rights complaint, claiming that her employer, the Hamilton-Wentworth District School Board, had discriminated against her under the Ontario Human Rights Code by failing to accommodate her disability by placing her in a suitable alternate position.
The Human Rights Tribunal did not release its decision on the merits until 2012: Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 (CanLII).
The decision on remedy, which has really driven the subsequent litigation, was not released until March 14, 2013: Hamilton-Wentworth District School Board, 2013 HRTO 440. In 2013, I proclaimed that decision the number one case of importance to Ontario employment law, see Ontario Employment Law’s Top Five Cases – 2013 Edition.
The School Board sought judicial review of the Tribunal’s decision and in 2014 the Ontario Divisional Court released its decision upholding the decision. I blogged about that decision in the post Appeals Court Upholds Employee’s Reinstatement 9 Years After Termination.
On May 31, 2016, nearly twelve and one half years after Ms. Fair filed her human rights complaint, the Court of Appeal for Ontario offered its opinion on the issue: Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421 (CanLII).
Once again Ms. Fair prevailed. With respect to the fact that many, many years had passed between the start of Ms. Fair’s case and the Tribunal’s order that she be reinstated, the express decision of the Court of Appeal was that, “The passage of years is not, by itself, determinative of whether reinstatement is an appropriate remedy.”
At the end of 2013, this blog proclaimed the decision of the Human Rights Tribunal of Ontario in Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440, as the number one case in Ontario employment law for that year. At the end of September 2014, the Tribunal’s decision was upheld by a three-judge bench of the Ontario Divisional Court: 2014 ONSC 2411.
While one has to assume that this case is still yet far from over, the purpose of this post is to consider the decision of the Divisional Court with respect to this matter.
