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
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
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
he or she has a personal characteristic that is protected by
humans rights legislation;
he or she suffered adverse treatment; and
it is reasonable to infer from the evidence that his or her
personal characteristic was a factor in the adverse
Once prima facie discrimination has been established,
the burden shifts to the respondent to justify the conduct or
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
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.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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