The Alberta Court of Appeal’s decision in Stewart v Elk Valley Coal Corporation (2015 ABCA 225) on June 30, 2015 is of note to employers seeking to strengthen policies aimed at reducing drug and alcohol abuse in safety sensitive workplaces.

Mr. Ian Stewart worked as a load operator in a coal mine operated by Elk Valley Coal Corporation (EVCC). Both the coal mine and Stewart’s position were safety sensitive.

Stewart was involved in a vehicle collision on the worksite. Following the accident, Stewart tested positive for cocaine and his employment was terminated. EVCC advised Stewart that it would consider re-hiring him if he successfully completed a rehabilitation program and agreed to participate in a recovery maintenance agreement.

Pursuant to EVCC’s alcohol and drug policy, employees struggling with addiction and dependency could self-report prior to the occurrence of a “significant event” without fear of discipline or termination. The policy did not provide similar protection to employees who failed to reveal an addiction or dependency.

Stewart filed a complaint with the Alberta Human Rights Commission claiming that the policy discriminated against individuals with addiction-related disabilities, particularly those in denial of their addiction.

A complainant alleging discrimination under human rights legislation has the initial burden of establishing prima facie discrimination. Specifically, the complainant must demonstrate that:

  1. he or she has a personal characteristic that is protected by humans rights legislation; 
  2. he or she suffered adverse treatment; and 
  3. it is reasonable to infer from the evidence that his or her personal characteristic was a factor in the adverse treatment. 

Once prima facie discrimination has been established, the burden shifts to the respondent to justify the conduct or practice.

The human rights tribunal held that there was no real nexus between Stewart’s disability and his termination. The chambers judge agreed and dismissed the first appeal.

The Alberta Court of Appeal Decision

The Alberta Court of Appeal affirmed the decision of the tribunal and chambers judge. The court held that Stewart’s disability was not a factor in his termination and that the policy did not discriminate based on addiction. The policy applied equally to employees who suffered from addiction-related disabilities and those who did not. The court found that Stewart had the ability to control his drug use. Further, the court noted that Stewart could have revealed his disability prior to the accident without any adverse impact to his employment. In fact, the evidence indicated Stewart had concealed his drug use with the hope that it would go undetected. Finally, the court determined that the policy adequately accommodated employees since it, among other things, afforded employees a second chance if they agreed to undergo rehabilitation.

The above decision provides comfort for employers whose drug and alcohol policies encourage employees to proactively disclose an addiction or dependency. According to the Alberta Court of Appeal, a violation of this type of policy will likely justify discipline or even termination, at least in circumstances where an employer can demonstrate that the employee had the capacity to control his or her drug use.

- Fraser Genuis (Summer Student)