Canada: Supreme Court Of Canada Rules No Discrimination For Termination Of Drug Addicted Employee

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).


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.


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.

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.

Events from this Firm
23 Nov 2018, Other, Toronto, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

28 Nov 2018, Speaking Engagement, Toronto, Canada

Arbitration has a number of advantages and some disadvantages for the resolution of domestic and international commercial disputes.

Similar Articles
Relevancy Powered by MondaqAI
Stikeman Elliott LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Stikeman Elliott LLP
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions