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DISCRIMINATION - Prohibited grounds - Mental or physical disability - Context - Workplace discrimination - Drug and alcohol policies - Termination

Thursday, June 15, 2017 @ 1:14 PM  


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Appeal by the employee Stewart, through his union representative, from an Alberta Court of Appeal decision which upheld the Alberta Human Rights Tribunal’s finding that Stewart was not terminated because of his drug addiction, but for breaching his employer’s policy related to alcohol, drug and medication use. Stewart worked in a mine operated by the Elk Valley Coal Corporation, driving a loader. The employer implemented an Alcohol, Illegal Drugs & Medication Policy (Policy) with the goal of ensuring safety in the mine. Employees were expected to disclose any dependence or addiction issues before any drug-related incident occurred. If they did, they would be offered treatment. However, if they failed to disclose and were involved in an incident and tested positive for drugs, they would be terminated. The Policy was dubbed the “no free accident” rule. Stewart attended a training session at which the Policy was reviewed and explained. He also signed a form acknowledging receipt and understanding of the Policy. Stewart used cocaine on his days off, but did not tell his employer that he was using drugs, and one day his loader was involved in an accident. No one was hurt, but Stewart tested positive for drugs. In a meeting with his employer following the positive drug test, Stewart indicated that he thought he was addicted to cocaine. Nine days later, his employment was terminated in accordance with the “no free accident” rule. Stewart submitted that he was terminated for addiction and that this constituted discrimination under the Human Rights, Citizenship and Multiculturalism Act (Act). The Alberta Human Rights Tribunal (Tribunal) held that Stewart was not terminated because of his addiction, but for breaching the Policy, which required him to disclose his addiction or dependency before an accident occurred to avoid termination. The Tribunal’s decision was affirmed by the Alberta Court of Queen’s Bench and by the Alberta Court of Appeal. The main issue in the appeal was whether the employer terminated Stewart because of his addiction (raising a prima facie case of discrimination), or whether the employer terminated him for breach of the Policy prohibiting drug use unrelated to his addiction because he had the capacity to comply with those terms (not raising a prima facie case of discrimination).

HELD: Appeal dismissed. The Tribunal cited the proper legal test in concluding that prima facie discrimination was not established and it was reasonable for it to conclude that Stewart’s addiction was not a factor in his termination. In analyzing the evidence before it, the Tribunal noted that Stewart’s termination letter emphasized the Policy as the factor leading to his termination, despite his argument that the wording of the letter established that addiction was a factor in termination. There was clearly evidence capable of supporting the Tribunal’s conclusion that the reason for the termination was not addiction, but breach of the Policy. On the facts of the case, the Tribunal concluded that Stewart had the capacity to comply with the terms of the Policy. It was therefore not unreasonable for the Tribunal to conclude that there was no prima facie discrimination. While Stewart may have been in denial about his addiction, he knew he should not take drugs before working, and he had the ability to decide not to take them as well as the capacity to disclose his drug use to his employer. Denial about his addiction was thus irrelevant in this case. It could not be assumed that Stewart’s addiction diminished his ability to comply with the terms of the Policy. The connection between an addiction and adverse treatment could not be assumed and must be based on evidence. If the Tribunal had found, on the evidence, that the employer terminated Stewart’s employment, or that the Policy adversely affected him, because, either alone or among other reasons, he was addicted to drugs, prima facie discrimination would have been made out.  However, in the Tribunal’s view, the evidence did not support that conclusion. Given that a prima facie case of discrimination was not established, it was unnecessary to consider whether Stewart was reasonably accommodated. The Tribunal’s decision was affirmed.

Stewart v. Elk Valley Coal Corp., [2017] S.C.J. No. 30, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., June 15, 2017. Digest No. TLD-June122017013SCC