The Alberta Court of Appeal recently released its decision in Stewart v Elk Valley Coal Corporation, which is a must-read for employers dealing with employee addiction issues. In lengthy reasons, a majority of the court agreed that there was no discrimination when an employee under the influence of cocaine was fired following a workplace accident. However, contrary to the findings of the Alberta Court of Queen's Bench, the Alberta Court of Appeal also determined that the employee had been reasonably accommodated, even though he was in denial of his addiction.

Facts

The plaintiff was employed by Elk Valley Coal Corporation, the operator of a coalmine. His position involved the operation of large vehicles and equipment. It was admitted for the purposes of the proceedings that the coalmine was a safety-sensitive workplace and that the plaintiff's job was safety sensitive.

In 2005 Elk Valley introduced a new drug and alcohol policy, which included a provision that employees "with dependency or addiction" could seek rehabilitation without fear of discipline before the occurrence of a work-related accident. For employees who disclosed their dependency or addiction after an accident, discipline or termination would result. The plaintiff attended a training session on the policy and signed a form indicating that he had understood it.

In October 2005 the plaintiff was involved in a worksite accident when the loader truck that he was operating hit another truck. He later tested positive for cocaine. The plaintiff informed his employer that prior to the incident he "didn't think [he] had a problem with drugs", but later came to realise that he did.

The plaintiff's employment was terminated in November 2005. The union filed a human rights complaint, arguing that the plaintiff was disabled by his addiction to cocaine and was fired on account of his disability.

Prior decisions

The Alberta Human Rights Tribunal found that there had been no discrimination and dismissed the complaint. Although the tribunal agreed that the plaintiff had a disability, it determined that it did not constitute a "real factor" in his termination and that he was sufficiently in control of his addiction to comply with his employer's policy.

The tribunal's decision was appealed to the Alberta Court of Queen's Bench. The chambers judge agreed that there had been no discrimination; but in the alternative, disagreed that the plaintiff had been reasonably accommodated by his employer. As the plaintiff initially did not think that he suffered from an addiction, the chambers judge found that the ameliorative aspect of the policy had not been realistically open to him and therefore he had not been accommodated.

Alberta Court of Appeal decision

In a two-one split the Alberta Court of Appeal agreed that there had been no discrimination. The plaintiff's employment had been terminated in accordance with the policy, which was not discriminatory, as an employee with an addiction disability might be caught by it, but so might an employee without any disability.

On the accommodation issue, the majority of the court overruled the chambers judge. The court rejected the suggestion that the plaintiff's denial of his addiction could excuse him from making his employer aware of the need for accommodation. To do otherwise, the court stated, would create a situation where a claim of denial after an incident could be treated as a "potential vaccine" against discipline, thus undermining efforts to maintain a safe workplace.

Comment

This decision is employer friendly. It suggests that policies which encourage employees to self-report their addictions prior to a workplace accident – but provide for more extreme action if those addictions are not disclosed and result in an incident – are acceptable. The decision also rejects the notion that a higher standard of accommodation is required when an employee is in denial about a substance abuse problem.

However, employers should be mindful that there is a strong dissent in this decision and should consult with counsel in their own jurisdictions regarding its implications.

For further information on this topic please contact Hannah Roskey at Fasken Martineau DuMoulin LLP by telephone (+1 416 366 8381) or email (hroskey@fasken.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.

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