On June 15, 2017, the Supreme Court of Canada (SCC)issued the much-awaited decision, Stewart v Elk Valley Coal Corp.1 The SCC upheld an Alberta Human Rights Tribunal (the Tribunal) decision determining that the termination of an employee in a safety-sensitive position, who was involved in a workplace accident under the influence of cocaine, did not constitute unlawful discrimination. This case provides important direction to employers on how they should craft drug and alcohol policies going forward.
The appellant, Mr. Stewart (Stewart), worked in a mine operated by the Elk Valley Coal Corporation as a driving loader. Elk Valley had an alcohol and drug policy (the Policy) that required employees to refrain from drug use and required any employee with an addiction to report it to Elk Valley, so that the employee’s addiction could be accommodated. However, the Policy also provided that discipline or termination could not be avoided if the employee did not request accommodation and was subsequently involved in an accident.
Elk Valley terminated Stewart’s employment after he tested positive for drug use following a work-related accident. His union filed a complaint with the Alberta Human Rights Commission, arguing Stewart was disabled by his addiction and fired on account of his disability. Elk Valley’s position was Stewart could have voluntarily disclosed his addiction and he would have received accommodation. However, Stewart never raised his addiction prior to the accident. The termination letter issued by Elk Valley made it clear that Stewart was terminated for failing to comply with the Policy’s disclosure requirements. Ultimately, the SCC found this termination letter to be an important piece of evidence.
The Tribunal decision
The Tribunal agreed Stewart’s drug addiction was a disability protected under the Alberta Human Rights Act. However, the Tribunal concluded that Stewart “was not fired because of his disability, but rather because of his failure to stop using drugs, failure to stop being impaired in the workplace, and failing to disclose his drug use.” The termination in those circumstances was due to a breach of the Policy and further, Stewart’s disability was not a factor in the termination. Even if there was discrimination, the Tribunal concluded it would have been justified because of the need for deterrence in Elk Valley’s safety-sensitive environment. Finally, the Tribunal concluded that Elk Valley accommodated Stewart to the point of undue hardship by providing all of its employees with the Policy, and providing Stewart with an offer to assist him with treatment and possible re-employment.
The Alberta Court of Queen’s Bench (ABQB)agreed Stewart was not terminated because of his disability; instead, it was his disregard of the Policy that got him fired. However, the ABQB disagreed with the Tribunal on what constituted reasonable accommodation. Stewart appealed the ABQB decision on the issue of discrimination, while Elk Valley appealed the Queen’s Bench decision on the issue of accommodation.
Ultimately, the Alberta Court of Appeal dismissed the appeal and held that the Tribunal properly recognized that Stewart’s termination was due to his breach of the Policy, and not his disability.
Decision of the Supreme Court
In a majority decision (8 to 1), the SCC dismissed Stewart’s appeal, finding that Stewart’s addiction was not a factor in his termination. Stewart failed to comply with the terms of the Policy – a fact clearly cited in the termination letter provided to Stewart by Elk Valley. Further, the SCC showed deference to the Tribunal’s finding that Stewart had the capacity to comply with the Policy, and therefore Stewart was not adversely affected by the Policy. Importantly, the SCC held that the mere existence of an addiction does not establish prima facie discrimination.
While deferring to the Tribunal’s decision in this case, the SCC noted, however, that an employee’s failure to follow a policy may be a symptom of an addiction or disability. Relying on the fact that Stewart’s addiction did not diminish his capacity to comply with the Policy, the SCC held it was not a symptom in this case. Such an analysis is a fact-specific inquiry, and had Stewart’s addiction problem been greater, the finding of the Tribunal or courts may have differed.
Gascon J., in the sole dissent, emphasized the inability of an addicted individual to self-identify or take positive action with regard to the addiction. Gascon J. was critical of the Tribunal’s finding on Stewart’s capacity to make choices, including Stewart’s power to choose not to use drugs before coming to work that day. Further, the accommodation in this case was insufficient since self-reporting was inaccessible to an addict who was in denial or unaware of his problem at the time of the accident.
The SCC decision confirms that employers in Canada can rely on the provisions of a drug and alcohol policy that require employees in safety-sensitive positions to self-report their addictions prior to a workplace accident. This decision also confirms that an employee cannot always rely on denial of his or her disability when claiming an employer has failed to accommodate the disability.
Going forward, this case should encourage employers with safety-sensitive worksites to review their drug and alcohol policies to ensure the policy properly directs employees to self-report before any incident. Policies should also indicate that employees can access treatment programs to get the assistance they may require. When such a policy accommodates employees who comply with it and disciplines employees who do not, an employer may impose disciplinary sanctions upon employees who fail to disclose their addiction, regardless of whether they acknowledge an addiction or not.
The author wishes to thank summer student Sarah Miller and articling student Rebecca Silverberg for their help in preparing this legal update.
1 2017 SCC 30.