Monday, 4 September 2017

Supreme Court Upholds Termination for Violation of Anti-Drug Policy

(c) istock/BenGoode

Can an employee be fired for violating his company’s drugs and alcohol policy, if the reason he violated such a policy was because he was addicted to an illegal drug?

For many years, most Ontario employment and human rights lawyers would have hesitantly answered that question with a “probably not”. Those who practice management-side would have sighed in frustration while they provided such advice, while those who act for employees would have adamantly pointed to human rights’ legislation prohibiting discrimination on the basis of such a recognized disability.

In June of 2017, the Supreme Court of Canada released its decision in the case of Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII). In that case, Canada’s top court upheld a termination of employment on the basis that the employee had breached the company’s anti-alcohol and drugs policy.


Ian Stewart, the Applicant, worked in a mine operated by the Elk Valley Coal Corporation, the Respondent, driving a loader. The mine operations were dangerous, and maintaining a safe worksite was a matter of great importance to the employer and employees. The employer implemented an Alcohol, Illegal Drugs & Medication Policy, aimed at ensuring safety in the mine (“Policy”). Employees were expected to disclose any dependence or addiction issues before any drug-related incident occurred. If they did, they would be offered treatment. However, if they failed to disclose and were involved in an incident and tested positive for drugs, they would be terminated — a policy succinctly dubbed the “no free accident” rule. The aim of the Policy was to ensure safety by encouraging employees with substance abuse problems to come forward and obtain treatment before their problems compromised safety. Employees, including Mr. Stewart, attended a training session at which the Policy was reviewed and explained. Mr. Stewart signed a form acknowledging receipt and understanding of the Policy.

Mr. Stewart used cocaine on his days off. He did not tell his employer that he was using drugs. One day, near the end of a 12-hour shift, Mr. Stewart’s loader was involved in an accident. No one was hurt, but Mr. Stewart tested positive for drugs. Following the positive drug test, in a meeting with his employer, Mr. Stewart said that he thought he was addicted to cocaine. Nine days later, his employer terminated his employment in accordance with the “no free accident” rule.

Under Alberta law, addiction is a recognized disability. Mr. Stewart, through his union representative Brent Bish, argued, that he was terminated for addiction, which constituted discrimination under the applicable human rights legislation.

The Alberta Human Rights Tribunal held that Mr. Stewart was not terminated because of his addiction, (indeed, the Tribunal held that his disability was not even a factor in the decision to terminate his employment,) but for breaching the Policy, which required him to disclose his addiction or dependency before an accident occurred to avoid termination. The Tribunal’s decision was affirmed by the Alberta Court of Queen’s Bench and was also affirmed by the Alberta Court of Appeal, O’Ferrall J.A., dissenting. Mr. Stewart, through his union representative, appealed to the Supreme Court of Canada.


The Supreme Court of Canada split three ways. Chief Justice McLachlin wrote the majority opinion, with Justices Abella, Karakatsanis, Côté, Brown and Rowe concurring. Justices Moldaver and Wagner wrote their own concurring reasons, and Justice Clément Gascon dissented.

Majority Opinion (McLachlin, CJ.)

For the Chief Justice and those justices who singed on to her opinion, there was no basis for interfering with the decision of the Alberta Human Rights Tribunal. In their opinion, the main issue was whether the employer terminated Mr. Stewart because of his addiction (raising a prima facie case of discrimination), or whether the employer terminated him for breach of the Policy prohibiting drug use unrelated to his addiction because he had the capacity to comply with those terms (not raising a prima facie case of discrimination). Justice McLachlin held that such a question was essentially a question of fact, for the Tribunal to determine. Justice McLachlin held that the Tribunal had conducted a thorough review of all the evidence and concluded that the employer had terminated Mr. Stewart’s employment for breach of its Policy. In the Court’s view, the Tribunal’s conclusion was reasonable.

Although the fact that the Tribunal’s decision was reasonable was determinative of the appeal, the Chief Justice added the following with respect to the main argument on appeal:

[42] Where, as here, a tribunal concludes that the cause of the termination was the breach of a workplace policy or some other conduct attracting discipline, the mere existence of addiction does not establish prima facie discrimination. If an employee fails to comply with a workplace policy for a reason related to addiction, the employer would be unable to sanction him in any way, without potentially violating human rights legislation. Again, to take an example given by the majority of the Court of Appeal, if a nicotine-addicted employee violates a workplace policy forbidding smoking in the workplace, no sanction would be possible without discrimination regardless of whether or not that employee had the capacity to comply with the policy.

[43] It is, of course, open to a tribunal to find that an addiction was a factor in an adverse distinction, where the evidence supports such a finding. The question, at base, is whether at least one of the reasons for the adverse treatment was the employee’s addiction. If the Tribunal in this case had found, on the evidence, that the employer terminated Mr. Stewart’s employment, or that the Policy adversely affected him, because, either alone or among other reasons, he was addicted to drugs, prima facie discrimination would have been made out. However, in the Tribunal’s view, the evidence did not support that conclusion. As a result, Mr. Bish did not establish a prima facie case of discrimination.

Although immaterial to the disposition of the appeal, the Court did add one additional point about human rights law:

[46] I see no need to alter the settled view that the protected ground or characteristic need only be “a factor” in the decision. It was suggested in argument that adjectives should be added: the ground should be a “significant” factor, or a “material” factor. Little is gained by adding adjectives to the requirement that the impugned ground be “a factor” in the adverse treatment. In each case, the Tribunal must decide on the factor or factors that played a role in the adverse treatment. This is a matter of fact. If a protected ground contributed to the adverse treatment, then it must be material.

Regular followers of human rights law will not the similarity of language to that used by the Court of Appeal for Ontario in the case of Peel Law Association v. Pieters, 2013 ONCA 396:

[59] While the word “nexus” is perfectly acceptable, I think it preferable to continue to use the terms more commonly used in the jurisprudence developed under the Code. All that is required is that there be a “connection” between the adverse treatment and the ground of discrimination. The ground of discrimination must somehow be a “factor” in the adverse treatment.

As mentioned at the outset, given the Court’s decision that the Alberta Human Rights Tribunal’s decision was reasonable, the appeal was dismissed.

Concurring Opinion (Moldaver and Wagner, JJ)

While Justices Moldaver and Wagner agreed with the Chief Justice that the appeal ought to be dismissed, they disagreed that the test for prima facie discrimination had not been established. In their view, the Tribunal’s conclusion that Mr. Stewart’s drug dependency was not a “factor” in his termination was unreasonable. Where they parted company with Justice Gascon is with respect to reasonable accommodation. In their view, the Tribunal reasonably held that the employer met its obligation to accommodate Mr. Stewart to the point of undue hardship. Therefore, they accepted the Tribunal’s conclusion that Mr. Stewart’s employer did not discriminate against him on the ground of his drug dependency.

In holding that Mr. Stewart’s drug addiction was a factor in the decision to terminate his employment, Justices Moldaver and Wagner wrote the following:

[50] To prove prima facie discrimination, Mr. Stewart is not required to show that his termination was caused solely or even primarily by his drug dependency. Rather, Mr. Stewart must only show that there is a “connection” between the protected ground — his drug dependency — and the adverse effect: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (CanLII), [2015] 2 S.C.R. 789, at para. 52. We agree with Gascon J. that Mr. Stewart’s exercise of some control over his drug use merely reduced the extent to which his dependency contributed to his termination — it did not eliminate it as a “factor” in his termination (para. 120). Mr. Stewart’s impaired control over his cocaine use was obviously connected to his termination for testing positive for cocaine after being involved in a workplace accident. In our view, the Tribunal unreasonably focused on Mr. Stewart’s limited capacity to control his choices and behaviour regarding his use of drugs and failed to consider the connection between his drug dependency and his employer’s decision to fire him.

On the issue of undue hardship, Justices Moldaver and Wagner held that it was reasonable for the Tribunal to conclude that Mr. Stewart’s immediate termination was reasonably necessary, so that the deterrent effect of the Policy was not significantly reduced. Such a decision was dispositive of their position and little more was written.

Dissenting Opinion (Gascon, J.)

In the opening paragraphs to his reasons for decision, Justice Clément Gascon wrote the following:

[58] Drug dependence is a protected ground of discrimination in human rights law. Its status as such is settled, and none of the parties dispute this. Still, stigmas surrounding drug dependence — like the belief that individuals suffering from it are the authors of their own misfortune or that their concerns are less credible than those of people suffering from other forms of disability — sometimes impair the ability of courts and society to objectively assess the merits of their discrimination claims. These stigmas contribute to the “uneasy fit of drug addiction and drug testing policies in the human rights arena” noted by the Alberta Human Rights Commission (the “Tribunal”) below (Tribunal reasons, 2012 AHRC 7, at para. 153 (CanLII)).

[59] Yet, as drug-dependent persons represent one of the marginalized communities that could easily be caught in a majoritarian blind spot in the discrimination discourse, they of course require equal protection from the harmful effects of discrimination. In my view, improper considerations relied on by the Tribunal here — such as drug-dependent persons having some control over their choices and being treated “equally” to non-drug-dependent persons under drug policies, and drug policies not necessarily being arbitrary or stereotypical — effectively excluded Mr. Stewart, a drug-dependent person, from the scope of human rights protections.

With respect to the issue of prima facie discrimination, Justice Gascon held:

[60] … A drug policy that, in application, automatically terminates employees who use drugs prima facie discriminates against individuals burdened by drug dependence. The legal threshold for prima facie discrimination is whether a protected ground of the complainant is “a factor” in the harm they suffer. Here, drug dependence (Mr. Stewart’s protected ground) was “a factor” in his drug use (the basis for his termination). In consequence, the Alcohol, Illegal Drugs & Medications Policy (“Policy”) of the Respondent, Elk Valley Coal Corporation, Cardinal River Operations, under which Mr. Stewart was terminated for using drugs, is prima facie discriminatory. In my view, the Tribunal’s analysis misunderstood the legal principles informing discrimination law, was unsupported by its factual findings, and was therefore unreasonable.

On the issue of undue hardship, Justice Gascon wrote this:

[61] … A policy that “accommodates” employees through mechanisms which are either inaccessible by the employee due to their disability or only applicable to the employee post-termination cannot justify prima facie discrimination. Before his termination, Mr. Stewart was purportedly accommodated by the offer of lenient treatment if he voluntarily disclosed his drug dependence. But that accommodation was inaccessible by him because he, as the Tribunal found, appeared to have been unaware of his dependence, a symptom of his disability. After his termination, Mr. Stewart was allegedly accommodated by being given the prospect of reapplying for his position. But, again, accommodation assists employees in their sustained employment, not former employees who may, or may not, successfully reapply for the position they lost as a result of a prima facie discrimination termination. Since none of Elk Valley’s efforts at accommodation provided Mr. Stewart with accessible accommodation during his employment, and since those efforts failed to consider his individual circumstances in a dignified manner, Elk Valley cannot be said to have discharged its duty to accommodate him as an employee up to the point of undue hardship. I thus consider that the Tribunal’s findings to the contrary were unreasonable.

Justice Gascon noted that he “fully appreciated” the “safety-sensitive environment at the workplace of Elk Valley”, and how that environment “motivates strict drug policies for employees”. Nevertheless, he held that such policies, even if well-intentioned, “are not immune from human rights scrutiny.” In this case, Justice Gascon held, such scrutiny reveals that the Tribunal’s analysis of both discrimination and justification was unreasonable. Accordingly, Justice Gascon would have allowed the appeal.


Here is the primary problem with this case: It was commenced before an administrative tribunal. Wrote the Chief Justice of the Supreme Court, “the role of reviewing courts is to determine whether a tribunal’s decision falls within a range of acceptable outcomes, not to reassess the evidence. To make findings and draw inferences from the evidence is the role of the Tribunal.” Put another way, if you lose before an administrative tribunal, such as the Human Rights Tribunal, good luck getting that decision overturned on appeal.

Second, it interesting to note the following comments, as contained within the reasons for decision of Justices Moldaver and Wagner:

[56] … Although Mr. Stewart was immediately terminated, he was offered the opportunity to apply for employment after six months, provided that he completed a rehabilitation program at a recognized facility. The employer agreed to pay 50 percent of the cost of the program on certain conditions being met. There was also evidence that there would have been vacant positions available had Mr. Stewart applied for employment after completing the program.

One has to query what effect such an offer had on the court’s decision to uphold the termination.

In my view this decision provides a very easy way for employers to get around human rights obligations. Rather than dismiss an employee for having a disability, create a policy that essentially prohibits having such a disability and then terminate employees in accordance with the policy. While that is a much too simplistic view of what happened, it’s not entirely wrong either. In that respect, I find the opinions of Justices Moldaver, Wagner, and Gascon with respect to the issue of prima facie discrimination more appealing than those of the majority of decisions makers to consider this case. I believe there was prima facie discrimination in this case.

As to whether accommodating such an addiction would constitute “undue hardship”, I decline comment. To my mind, it would very much depend upon the nature of the position held and the addiction’s effects on the individual. Without reviewing the evidence, I cannot say whether accommodating Mr. Stewart’s addiction would have constituted undue hardship; but it is possible that I would have found (as Justice Gascon did) that it would not have.

Takeaways for Employees with Labour Pains

For many years there has been a perception that employers could not create rules that would punish those who claimed to have an addiction to drugs or alcohol. Human rights legislation was seen as a form of trump card that could be played in such cases. What this case demonstrates is that such an opinion is demonstrably misplaced. Not only did the Supreme Court rule in the employer’s favour, every court below it did as well – as did the Alberta Human Rights Tribunal.

Takeaways for Employers with Labour Pains

This case is a major win for employers. As mentioned above, there has long been a perception that rules prohibiting the consumption of drugs and alcohol would generally be viewed as discriminatory and therefore be legally prohibited. That view is clearly shattered by this decision.

However, the fact that this case found its way in front of the Supreme Court of Canada, after passing through two lower levels of court and a human rights tribunal, demonstrates that the issue as far from settled. A split on Canada’s top court only confirms such division. Employers must be mindful of the fact that it can be very, very difficult and expensive to enforce such policies. Mr. Stewart’s employment was terminated on November 3, 2005. The Supreme Court of Canada did not release its decision until June 15, 2017.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

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