On June 15, 2017, the Supreme Court of Canada (SCC) released its decision in Stewart v. Elk Valley Coal Corp. (Stewart). Stewart is a welcome decision for employers looking to improve and enforce alcohol and drug policies in safety-sensitive workplaces.
For related analysis regarding substance abuse in the workplace, see our May 2016 Blakes Bulletin: Suncor Clears Important Hurdle in Implementation of Random Alcohol and Drug Testing in Alberta.
The appellant was employed by Elk Valley Coal Corporation (Elk Valley) in a safety-sensitive position at its coal mine near Hinton, Alberta. His employment was terminated in 2005 after the vehicle he was operating collided with another vehicle at the worksite. Following the accident, the appellant tested positive for drugs and admitted to the use of crack cocaine outside of work.
Elk Valley’s alcohol and drug policy (Policy) allowed employees with drug dependencies to seek rehabilitation without fear of discipline, as long as workers acknowledged their drug use and sought help before a “significant event” occurred. The Policy also stated that employees who sought assistance after an accident occurred, or when demanded to be tested, could be terminated from their employment.
The appellant stated that he did not disclose his drug use because he did not feel it affected his workplace performance or that he had a dependency. It was only after the accident that he admitted to being dependent on cocaine, a fact which he had previously been in denial about.
Elk Valley terminated the appellant’s employment. His union subsequently filed a complaint with the Alberta Human Rights Commission claiming that Elk Valley discriminated against the appellant on the basis of his physical disability (i.e., dependency on cocaine). The Alberta Human Rights Tribunal (Tribunal) recognized that the appellant had a drug dependency that amounted to a disability under the legislation. However, it found no discrimination, since the appellant’s employment was terminated because of his breach of the Policy, not because of his disability.
Upon appeal to the Alberta Court of Queen’s Bench, the Tribunal’s decision was upheld on the basis that it did not err in concluding that the reason for termination was not related to addiction but to a breach of the Policy. However, the Tribunal noted that if a prima facie case of discrimination had been made out, the Policy did not properly accommodate the appellant (i.e., self-reporting is insufficient accommodation for an employee in denial about his drug addiction).
ALBERTA COURT OF APPEAL
The Alberta Court of Appeal upheld the previous decisions holding that Elk Valley did not discriminate against the appellant. The Court of Appeal found that the appellant’s employment was terminated in accordance with the terms of the Policy, which the Court held was not discriminatory since it did not distinguish between workers with disabilities and those without disabilities. Rather, the Court of Appeal found that the Policy distinguished between workers who complied with the Policy and those who did not (since workers with and without drug dependencies could be terminated for failure to comply with the Policy).
With respect to the issue of accommodation, the majority of the Court of Appeal rejected the appellant’s argument that the Policy failed to accommodate workers unaware of their addictions. In the court’s view, failure by employees to follow alcohol and drug policies on the basis that they were “in denial” would undermine workplace safety programs and subject employers and other workers to health and safety risks.
SUPREME COURT OF CANADA
The SCC affirmed the decision of the Court of Appeal. Writing for the majority of the SCC, Chief Justice B. McLachlin emphasized that the nature of the particular disability in question did not affect the application of settled legal principles. On these facts, the SCC held that the appellant was not terminated from his employment because of his addiction. Rather, it was because of his breach of the Policy.
In arriving at this conclusion, Chief Justice McLachlin went on to stress that the appellant could have complied with the Policy, but chose not to. Moreover, even if the appellant was in denial about his addiction: he understood that he should not take drugs before work; he could have decided not to take drugs in the first place; and he had the capacity to disclose his drug use to his employer. As such, “[d]enial about his addiction was thus irrelevant in this case.”
Chief Justice McLachlin also underscored that the Policy itself was not discriminatory since any employee could be terminated from his or her employment for failure to comply with its terms. Whether a worker was an addict or a casual drug user made no difference and, therefore, failure to follow the Policy could be sufficient grounds for termination of employment. Of course, this outcome was dependent on the fact that the appellant worked in a safety-sensitive position at a safety-sensitive workplace.
Given the finding that the appellant was not discriminated against, the Chief Justice did not consider the issue of whether Elk Valley sufficiently accommodated the appellant.
Notably, Chief Justice McLachlin took the opportunity to reaffirm that, in discrimination cases, the protected ground or characteristic in question need only be “a factor” in order to invite a finding of discrimination. It is not appropriate or necessary to quantify “how much” something contributes to the adverse treatment. Thus, if a protected ground of discrimination, such as a disability, contributes in any way to an employee’s adverse treatment, an employer will be found to have discriminated against that employee.
In light of the Stewart decision, employers with safety-sensitive work environments should consider whether existing alcohol and drug policies are sufficiently robust. By clearly requiring employees to self-report drug use without fear of repercussion and offering assistance in accessing rehabilitation, such policies may, in certain circumstances, be relied upon to terminate the employment relationship and refute allegations of discrimination.