Rick Dunlop and Richard Jordan

In Stewart v. Elk Valley Coal Corporation, 2017 SCC 30, a six-judge majority of the Supreme Court of Canada (“SCC”) confirmed a Tribunal decision which concluded that the dismissal of an employee who did not disclose his cocaine addiction prior to being involved in an accident at a safety sensitive workplace did not violate Alberta human rights legislation.

What Happened?

Elk Valley Coal Corporation operates a mine that has an Alcohol, Illegal Drugs and Medication Policy (“Policy”) which contains a “no free accident rule”, i.e. employees have to disclose drug dependence and addiction issues before any drug-related incident occurred. The “no free accident rule” was designed to encourage safety by encouraging employees with substance abuse problems to come forward and obtain treatment before their problems compromise safety.

Ian Stewart, a heavy equipment operator, received training on the Policy and signed an acknowledgment that he had received and understood the Policy. Stewart, however, had a cocaine addiction which he did not disclose under the Policy. In October 2005, while operating a loader, Stewart was involved in a collision with another vehicle. He tested positive for cocaine and was dismissed as a result of the breach of the Policy and the “no free accident rule.”

Mr. Stewart, through his union representative, filed a complaint with the Alberta Human Rights Tribunal, arguing that he was terminated for an addiction which constitutes discrimination under the Alberta Human Rights, Citizenship and Multiculturalism Act (“HRCMA”). The Tribunal found that there was no prima facie discrimination. The Tribunal found that in the circumstances of this case the evidence established that the Policy adversely impacted Mr. Stewart not due to denial of a disability often associated with addicts, “but rather because he chose not to stop his drug use or disclose his drug use.” The Tribunal concluded on the basis of expert evidence that Mr. Stewart had the “capacity to make choices.”

Who Decided What?

The 9 SCC justices issued three sets of reasons:

1. Majority – No Prima Facie Discrimination

The Majority determined that the Tribunal reasonably concluded that Mr. Stewart’s disability (i.e. cocaine addiction) was not a factor in his dismissal and therefore there was no prima facie discrimination.

2. Justices Moldaver and Wagner – Prima Facie Discrimination but Undue Hardship if Mr. Stewart Was Not Dismissed

Justices Moldaver and Wagner agreed with the Majority that there was no violation of the HRCMA but for different reasons. They found that the Tribunal unreasonably concluded that there was no prima facie discrimination, but found that the Tribunal’s conclusion that anything short of dismissal would have amounted to undue hardship was reasonable.

3. Justice Gascon – Prima Facie Discrimination and No Undue Hardship

Justice Gascon agreed with Justices Moldaver and Wagner that there was prima facie discrimination but was not satisfied that Elk Valley had met the undue hardship threshold.

Why did the Majority find the Tribunal’s conclusion that there was no Prima Facie Discrimination was reasonable?

The Majority found the Tribunal’s conclusion that there was no prima facie discrimination reasonable for the following reasons:

(a) Standard of Review

The Majority approached the Tribunal’s findings with deference. The Majority considered the case to involve “the application of settled principles on workplace disability discrimination to a particular fact situation…. [t]he debates here are not about the law, but about the facts and the inferences to be drawn from the facts.”

(b) Tribunal Relied Upon Proper Test for Prima Facie Discrimination

The Majority found that the Tribunal “cited the proper legal test and noted…that it was not ‘necessary that discriminatory considerations be the sole reason for the impugned actions in order for there to be a contravention of the [HRCMA.]” The Tribunal considered that Mr. Stewart was dismissed “not because he was addicted but because he failed to comply with the terms of the Policy… [and] Mr. Stewart was not adversely impacted by the Policy because he had the capacity to comply with its terms.”

(c) Termination Letter

The Majority considered the “most important piece of evidence on whether Mr. Stewart’s addiction was a factor” in Mr. Stewart’s dismissal was the termination letter. The termination letter established the following:

• Mr. Stewart signed an acknowledgement that his employment required him to comply with the Policy.

• It is fundamental to safety at the mine site that employees comply with the Policy and disclose their dependency before breaching the Policy and placing lives at risk.

• The Policy “states that in responding to a violation of the policy the Company will place primary importance upon deterring similar behaviour by other employees and will terminate the employee unless termination would be unjust in all of the circumstances.”

Although not referred to in the Majority’s reasons, Elk Valley offered Mr. Stewart the opportunity to be re-employed by Elk Valley if, among other things, he successfully completed a rehabilitation program and agreed to a 24 month program that monitored and ensured his commitment to a drug-free lifestyle.

(d) No Assumption that Addiction Diminished Ability to Comply with Policy

Substance dependent employees who violate workplace rules inevitably raise the difficult question as to whether the addiction diminished the employee’s ability to comply with the workplace rule. The Majority ultimately concluded that this determination will “depend on the facts and must be assessed on a case-by-case basis … [but] the “connection between an addiction and adverse treatment cannot be assumed.” The Majority reasoned that in “some cases, a person with an addiction may be fully capable of complying with workplace rules … [i]n others, the addiction may effectively deprive a person of the capacity to comply, and the breach of the rule will be inextricably connected with the addiction.” Some cases may fall “between these two extremes.”

Why did Justices Moldaver, Wagner and Gascon find the Tribunal’s No Prima Facie Discrimination Conclusion to Be Unreasonable?

Justices Moldaver and Wagner accepted the Tribunal’s conclusion that Mr. Stewart “was not wholly incapacitated by his addiction and maintained some residual control over his drug use.” They, however, failed “to see how the Tribunal could reasonably conclude that because Mr. Stewart had a limited ability to make choices about his drug use, there was no connection between his dependency on cocaine and his termination on the basis of testing positive for cocaine after being involved in a workplace accident.”

They emphasized that because “Mr. Stewart is not required to show that his termination was caused solely or even primarily by his drug dependency. Rather, Mr. Stewart must only show that there is a “connection” between the protected ground — his drug dependency — and the adverse effect…Mr. Stewart’s exercise of some control over his drug use merely reduced the extent to which his dependency contributed to his termination — it did not eliminate it as a “factor” in his termination…”

They considered “Mr. Stewart’s impaired control over his cocaine use” to be “obviously connected to his termination for testing positive for cocaine after being involved in a workplace accident.”

Accordingly, the “Tribunal unreasonably focused on Mr. Stewart’s limited capacity to control his choices and behaviour regarding his use of drugs and failed to consider the connection between his drug dependency and his employer’s decision to fire him.”

Why did Justices Moldaver and Wagner Find the Tribual’s Conclusion on Undue Hardship to be Reasonable?

Given the Majority’s conclusion that a finding of prima facie discrimination on the basis of a connection between an addiction and adverse treatment will depend upon the facts of each case, the most positive aspect of the decision for employers may be Justices Moldaver and Wagner’s commentary on undue hardship:

• The underlying policy rationale for the “no free accident” rule was deterrence.

• Workplace safety is a relevant consideration when assessing undue hardship.

• “Subjecting Mr. Stewart to an individual assessment or imposing an unpaid suspension for a limited period as a disciplinary measure instead of imposing the serious and immediate consequences of termination would undermine the Policy’s deterrent effect … [that] would compromise the employer’s valid objective to prevent employees from using drugs in a way that could give rise to serious harm in its safety-sensitive workplace.”

• Mr. Stewart is only entitled to reasonable accommodation in the circumstances; not perfect accommodation.

• Mr. Stewart was offered alternative employment if he completed a rehabilitation program.

What does the Decision mean for employers?

The Decision is positive for employers, but does suggest the following:

(a) Dismissal on the basis of a breach of a “no free accident rule” will not constitute prima facie discrimination if there is no connection between the employee’s addiction and dismissal. Unfortunately, some tribunals will be more inclined to make such a connection than the Tribunal in this case.

(b) The termination letter is of central importance in any dismissal due to a violation of a drug and alcohol policy and should be drafted with care.

(c) In the event that the employer cannot establish that there has been no prima facie discrimination because the medical evidence and circumstances differ from that of Mr. Stewart, the employer may be in a position to establish that violation of “no free accident rule” constitutes reasonable accommodation.