Canada: Firing For Not Reporting Drug Use Is Not A Human Rights Violation

Last Updated: July 9 2015
Article by Vicki Giles

Last week, with its decision in Stewart v Elk Valley Coal Corporation, the Alberta Court of Appeal gave employers with safety-sensitive workplaces some additional assistance in their battle against drug and alcohol use in the workplace.

Mr. Stewart was employed as a truck and loader operator at a coal mine. The coal mine was a safety-sensitive workplace and Mr. Stewart's job was safety-sensitive. He was terminated in 2005 after testing positive for cocaine when the loader truck he was operating struck another truck. Despite the termination, the employer advised Mr. Stewart that if he successfully completed a rehabilitation program it would be prepared to consider him for new employment six months after his termination date. He would be required to participate in a "recovery maintenance agreement" for 24 months after returning to work but if he completed it successfully, the employer would reimburse him for 50% of his rehabilitation program facility cost.

The coal mine, as part of its efforts to provide a safe work environment, had an alcohol and drug policy which allowed employees with drug or alcohol dependencies to seek assistance prior to the occurrence of a "significant event" without fear of discipline. However, the policy also made it clear that if an employee sought assistance for dependency issues after a significant event or demand for testing by the employer, the seeking of such assistance would not prevent the employee from being disciplined or terminated, although termination was not the automatic result.

Following his positive test, Mr. Stewart admitted to use of crack cocaine on his days off. He chose not to advise his employer of his cocaine use because he didn't think he had a problem with drugs and did not believe that his drug use affected his work performance. Following the accident, he realized that he did have a dependency, which was confirmed by experts who testified at the hearing. Those experts also found that Mr. Stewart had the capacity to control his use of drugs and had the capacity to seek assistance under the policy.

To prove discrimination under human rights legislation a complainant must prove:

  1. he has a characteristic protected from discrimination under the Code;
  2. he experienced an adverse impact as a result of workplace decision; and
  3. the protected characteristic was a factor in the adverse impact.

Both parties agreed that Mr. Stewart's dependency was a disability and that he had experienced an adverse impact (termination), but disagreed as to whether his dependency was a factor in his termination.

Mr. Stewart argued that his dependency was a factor in his termination - his termination arose from his breach of policy and his dependency was a factor in the breach of the policy. The employer argued that he was terminated, not because of his dependency, but because of his failure to stop using drugs and his failure to disclose his drug use.

The Court of Appeal agreed with the employer's position and confirmed (in accordance with two previous similar decisions) that not every link between an employee's disability and an adverse impact will be a "legal" link sufficient to find discrimination. The Court found that the policy did not distinguish between people with disabilities and those without - it distinguished between people who break the policy and those who do not. Both those with addictions and those without could be caught by the policy if they breach it - the fact of disability is irrelevant. In addition, since a disability case could be caught by the employee voluntarily admitting a dependency, the fact of disability is eliminated from the factors which lead to the adverse impact. The evidence in this case confirmed Mr. Stewart could have complied with the policy. As such, his dependency was not a real factor (in the legal sense) in the enforcement of the policy and his ultimate termination.

The Court of Appeal also made some interesting comments about drug/alcohol accommodation in safety-sensitive workplaces. Mr. Stewart argued that although the policy did accommodate employees with addictions, it failed to accommodate those who did not realize they had a problem (i.e. those in "denial"). He suggested that by failing to accommodate those who did not realize they had a dependency until after an incident, the policy did not accommodate to the point of undue hardship.

The case contains interesting comments by the majority in rejecting an argument that accommodation obligations should be greater when a drug user is in denial. The court rejected this argument because they said it would allow employees in highly safety-sensitive positions to unilaterally and secretly disregard their safety obligations to their employers and co-workers. The Court found that to legitimize such behaviour loses touch with the objectives of anti-discrimination laws.

This decision is a welcome one in balancing addiction issues and the real safety risk that drug and alcohol use pose in the workplace. The case shifts the focus from catching drug use to punishing employees for their failure to report their own drug use when the employer policy requires it. Policies should be reconsidered in light of the decision to ensure they clearly require self-reporting and protect employees who self-report and assist them in seeking rehabilitation.

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

Click to Login as an existing user or Register so you can print this article.

Vicki Giles
Events from this Firm
27 Oct 2016, Seminar, Edmonton, Canada

Alberta is going through a difficult economic period. These times can be challenging and while owners struggle to get their business through the rough patch, they want to preserve the assets and capital they have built up.

2 Nov 2016, Webinar, Calgary, Canada

“Problem Employees” come in a variety of forms but seem to take up the majority of an employer’s time. Each form brings its own challenges and each must be addressed in a different way.

30 Nov 2016, Webinar, Calgary, Canada

Legal issues surrounding contaminated sites affects landowners, developers, realtors, as well as consultants and contractors working on the front lines. This webinar will provide a practical review of how the legislation is actually being used, recent court decisions, challenges with brownfield developments, and future changes.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.