In Stewart v Elk Valley Coal Corporation, 2015 ABCA 225, the Alberta Court of Appeal upheld the decision of the Human Rights Tribunal that the termination of a safety sensitive employee involved in a workplace incident while under the influence of cocaine did not constitute discrimination.

We have been following this case for several years and our e-alert article on the previous Queen’s Bench decision can be found here.

Background

In May 2005, Elk Valley put in place an Alcohol and Drug Policy which stated that employees with a dependency or addiction could come forward and seek employer assistance with rehabilitation without fear of termination. However, asking for rehabilitation after a significant event, such as a workplace accident, would not prevent the exercise of disciplinary measures or even termination.

Ian Stewart was an employee at Elk Valley and had attended a training session that explained the new Alcohol and Drug Policy, but nevertheless failed to disclose his continued drug use to Elk Valley. In October 2005, Stewart was involved in a work related accident when he struck a vehicle while driving his loader truck. He tested positive for cocaine after the accident, and acknowledged that his cocaine consumption the night before had made him feel sleepy behind the wheel. Two weeks later Stewart received a letter from Elk Valley stating that as the Alcohol and Drug Policy required he disclose his dependency before an incident, the determination had been made to terminate him for breaching the Policy.

The letter also included an invitation to reapply to Elk Valley after 6 months if Stewart had completed a rehabilitation program, and would agree to a 24 month Recovery Maintenance Agreement with the company that included monitoring and commitment to a drug-free lifestyle. If he was successful in his commitment to the Recovery Maintenance Agreement, Elk Valley would reimburse 50% of the rehabilitation program cost.

Prima facie discrimination

The Court of Appeal upheld the Tribunal and Court of Queen’s Bench decisions rejecting the argument that any connection between a disability and adverse treatment should be sufficient for finding prima facie discrimination. Stewart’s termination had been on the grounds of a breach of the Alcohol and Drug Policy, not a drug addiction.

Part of the test for discrimination requires “that the protected characteristic was a factor in the adverse impact” discrimination. Stewart argued that his drug dependency was a factor in the consideration of his termination, and he was therefore prima facie discriminated against. The Court saw it differently, stating that “the Policy did not distinguish between people with a disability and people without. It distinguished between people who break the Policy and people who do not”. To accept Stewart’s argument as valid would be tantamount to saying that no policy regarding drug dependency and workplace safety could ever escape being discriminatory.

The Policy put in place by Elk Valley could capture both people with and without a disability, and for this reason was not discriminatory in nature. There was no real connection between the application of the Policy and the substance dependence disability as put forward by Stewart.

Accommodation

Once an argument has failed the test for discrimination, the test for accommodation is generally not considered. Because of the importance of the issue, however, the Court weighed in on the adequacy of Elk Valley’s Alcohol and Drug Policy with regard to accommodating those with a dependency.

The Court of Appeal upheld the Tribunal decision that Elk Valley’s Alcohol and Drug Policy was still a valid attempt to accommodate substance dependence, regardless of the fact that it could not be effective when the individual was in denial of his/her own drug dependency. Stewart argued that his denial of being dependent precluded him from exercising the option to make use of rehabilitation resources, and that because the remedial aspect of the Policy was not available to him, the Policy did not accommodate him. However, the evidence illustrated that Stewart understood exactly what he was doing when he withheld his drug use from his employer, and that he believed his drug use did not affect his work performance. Stewart understood the Policy and could have complied with it, but chose not to.

The Court of Appeal stated that while denial is a real component of drug dependency as a disability, it is convoluted logic to allow an employee in denial to use that as an excuse for failing to make an employer aware of the need for accommodation.

The Policy was found to appropriately accommodate to the point of undue hardship. The court based this finding on the protection Elk Valley afforded to those who disclosed their dependence, the 6 month re-application provision, and the offer to pay 50% of the rehabilitation cost if the employee was rehired.

Conclusion

Stewart (Bish) v. Elk Valley remains good news for employers. Unlike most Canadian jurisdictions, Alberta employers can still rely on provisions in an alcohol and drug Policy that require safety sensitive employees to stop drug use or disclose dependencies in advance of a workplace incident.

Employers should carefully examine their alcohol and drug policies to assess whether there are remedial steps to accommodate those with dependency issues before termination becomes the only option.