Co-authored by Braeden Pivnick (Summer Student)
Introduction
Canadian human rights legislation protects addiction as a disability, but according to a recent Supreme Court of Canada (SCC) decision, employers retain an important tool in protecting workplace safety. Namely, in workplaces where impaired workers could cause devastating accidents, employers can reduce the risk through self-reporting drug and alcohol policies. Specifically, employers can require workers to report drug or alcohol dependency and obtain treatment, or else lose their jobs following an accident coupled with a positive drug or alcohol test. In Stewart v Elk Valley Coal Corp,1 a majority of the SCC upheld the decision of the Alberta Human Rights Tribunal, confirming that the termination of a drug-addicted employee was not a breach of human rights legislation. The SCC found that the employer didn't fire the employee for his addiction, itself, but for breaching the employer's drug policy to self-report drug use.
Lessons: adopt self-reporting policy, publicize it & cite it in termination letters
When attempting to deter workplace accidents through such a policy, employers can minimize the chance of findings of discrimination by doing the following:
- Implement a drug policy that requires employees to self-report drug use and receive treatment, before accidents occur.
- Clearly communicate the policy to employees—for example, in Elk Valley the employer trained employees on the policy and required them to acknowledge their understanding in writing.
- In termination letters, clearly show that the triggering reason was breach of the policy, not any addiction.
Note that firing an addicted employee will be prima facie discriminatory when the addiction is so severe that it prevents the employee from following workplace policies.
Mining employee lost his job for failing to follow policy to report his drug use
Elk Valley Coal Corp. had a workplace policy in place to ensure safety by requiring employees to report their drug or alcohol use and obtain treatment before their use could compromise safety.2 Under the policy, testing positive for drugs after being involved in an incident would be a firing offence. Elk Valley offered employees treatment if they complied with the policy.
Ian Stewart drove a loader at Elk Valley's mine. On off days, he used cocaine, but was in a state of denial about being addicted. He failed to disclose his drug use to Elk Valley. After an accident with his loader, he tested positive. Elk Valley then fired him, under its policy. Elk Valley invited him to reapply for a job in six months, following treatment.3
Ian Stewart argued that (1) he lost his job because of an addiction disability, and (2) his firing was discriminatory under the Human Rights, Citizenship and Multiculturalism Act.4 The Alberta Human Rights Tribunal dismissed his claim. The Tribunal found no prima facie discrimination, because the only reason he lost his job was that he violated the policy by failing to self-report.
SCC: drug users who can self-report, must comply with policies to do so
Like the Alberta Court of Queen's Bench, and the Court of Appeal, a majority of the SCC affirmed the Tribunal's decision. The SCC held that the case applied settled principles, and turned on properly applying those to the facts. The SCC determined that it should accord the Tribunal considerable deference as an administrative tribunal with expertise in applying the Act in ways that make practical and legal sense. Thus, because the Tribunal's decision fell within the range of reasonableness, the SCC upheld the decision.
The SCC set out the requirements of a claim for discrimination stating, "the employee must establish a prima facie case of discrimination. If this is established, the onus then shifts to the employer to show that it accommodated the employee to the point of undue hardship."5 To make a case for prima facie discrimination complainants must demonstrate all of the following:
- They have a characteristic that the legislation protects from discrimination.
- They experienced adverse impact upon their employment.
- The protected characteristic was a factor in the adverse impact.
Ian Stewart had satisfied the first two elements. The only issue for the majority was whether his addiction was a factor in his termination.
The majority recognized that some degrees of addiction could hamper an employee in following workplace disclosure policies.6 But "the mere existence of addiction does not establish prima facie discrimination."7 In this case, the expert evidence demonstrated that neither Ian Stewart's addiction, nor his state of denial about it, diminished his capacity to comply with the terms of the policy by disclosing his drug use. Therefore, "Mr. Stewart would have been fired whether or not he was an addict or a casual user."8 The majority of the SCC held that the Tribunal reasonably found that Ian Stewart's addiction was not a factor in his firing—the termination letter showed that the only applicable factor prompting firing was his breach of the policy.
Policies to self-report drug use remain a tool to promote workplace safety
Employees need to deter drug and alcohol use in many workplaces to maintain safety: accidents caused by drug or alcohol use can be devastating. A critical tool for employers is a policy that makes failure to self-report a firing offence. The Alberta Human Rights Tribunal has been practical in holding that such policies don't qualify as prima facie discrimination. The Alberta courts, and now the SCC, have supported that practical approach.
Footnotes
1 Stewart v Elk Valley Coal Corp, 2017 SCC 30 [Elk Valley]
2 Elk Valley at para 1
3 Elk Valley at para 10
4 RSA 2000, c H-14, s 7
5 Elk Valley at paras 23-24
6 Elk Valley at para 39
7 Elk Valley at para 42
8 Elk Valley at para 34
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.
