In 2012, we referenced a case in which a complainant, terminated
for breach of his employer's drug and alcohol policy, failed to
establish that the termination was discriminatory: 2012 AHRC 7. The policy at issue in the case
distinguished between employees who had voluntarily disclosed
addictions and those who were identified only after a breach of the
policy. Harsher consequences were imposed on the latter. The
complainant, who had tested positive for cocaine in post-incident
testing, insisted that he was a recreational user until after his
termination. Then, he claimed a dependency. The Human Rights
Tribunal found that the termination was not a result of the
complainant's disability, but of his failure to stop using
drugs and to disclose his drug use in accordance with the policy.
The Tribunal also held that the complainant had been accommodated
to the point of undue hardship if discrimination had occurred.
On December 23, 2013, the Alberta Queen's Bench, applying a
standard of correctness, upheld the finding that no discrimination
had been established: Bish v Elk Valley Coal Corporation, 2013
ABQB 756. The Court agreed there was no causal connection or
nexus between the complainant's disability and his termination.
The complainant's ability to control his drug use and his
addiction meant that the adverse effect of the employer's
policy was based on his failure to do so and not on his addiction.
The Court also agreed that the complainant had been treated as a
drug user and not as a drug addict. No arbitrary or preconceived
stereotypes were at play in the decision to terminate. The decision
was not rendered discriminatory merely because an unacknowledged
addiction existed at the time it was made.
The Court did not agree that the employer's policy would
have constituted reasonable accommodation had prima facie
discrimination been established. The protections granted to drug
addicts under the policy did not address the issues faced by the
complainant before he acknowledged his addiction. It could not be
considered an accommodation of the complainant's disability.
The Tribunal had reached an unreasonable conclusion in finding that
the duty of reasonable accommodation had been fulfilled on the
Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global legal practice. We provide
the world's pre-eminent corporations and financial institutions
with a full business law service. We have more than 3800 lawyers
based in over 50 cities across Europe, the United States, Canada,
Latin America, Asia, Australia, Africa, the Middle East and Central
Recognized for our industry focus, we are strong across all
the key industry sectors: financial institutions; energy;
infrastructure, mining and commodities; transport; technology and
innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global
business principles of quality, unity and integrity. We aim to
provide the highest possible standard of legal service in each of
our offices and to maintain that level of quality at every point of
Norton Rose Fulbright LLP, Norton Rose Fulbright Australia,
Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South
Africa (incorporated as Deneys Reitz Inc) and Fulbright &
Jaworski LLP, each of which is a separate legal entity, are members
('the Norton Rose Fulbright members') of Norton Rose
Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein
helps coordinate the activities of the Norton Rose Fulbright
members but does not itself provide legal services to
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should be
sought about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).