Supreme Court of Canada on Workplace Drug Policies and Ensuring Safety

Stewart v Elk Valley Coal Corp. , 2017 SCC 30

Earlier this year, the Supreme Court of Canada rendered a decision affirming the termination of an employee, Mr. Stuart, who tested positive for drug use and in doing so violated the employer’s drug policy.

Mr. Stuart worked in a mine operated by the Elk Valley Coal Corporation. The mine operations were dangerous and to ensure safety, the employer implemented a policy requiring employees to disclose any dependence or addiction issues before any drug-related incident occurred. If employees did disclose they would be offered treatment. If they did not disclose and were subsequently involved in an incident and were tested positive for drugs, they would be terminated.

Mr. Stuart used cocaine on his days off, and did not tell his employer. When his loader was involved in an accident, he tested positive for drugs and later said that he thought he was addicted to cocaine. His employer terminated his employment.

Mr. Stuart argued that he was terminated for addiction and that this constituted discrimination under the Alberta Human Rights, Citizenship and Multiculturalism Act, RSA 2000, c. H-14 [the “Act”].

Saskatchewan has comparable legislation in The Saskatchewan Human Rights Code, SS 1979, c. S-24.1 under which termination on the grounds of a disability such as an addiction may amount to discrimination.

The Supreme Court of Canada was tasked with determining whether the employer terminated Mr. Stuart because of his addiction. If so, this would amount to discrimination. If the employee was terminated for breach of the Policy prohibiting drug use, unrelated to his addiction, there would have been no discrimination.

The majority confirmed the decision of the Human Rights Tribunal [the “Tribunal”] in determining the addiction was not a factor in the dismissal.

The majority concluded that it was reasonable for the Tribunal to determine that Mr. Stuart was fired not because he was addicted, but solely because he had failed to comply with the terms of the Policy. The majority also found that it was reasonable that Mr. Stuart was not adversely impacted by the Policy, despite his assertion that he was in denial about his addiction, because he had the capacity to stop his drug use or disclose his drug use, and thereby comply with its terms.

The majority found that the mere existence of an addiction does not establish prima facie discrimination. To establish discrimination the employer must have terminated Mr. Stuart because of his addiction or considered his addiction among other factors for termination. Alternatively, if the policy adversely affected him because of his addiction it would have amounted to discrimination.

Justice Moldaver and Justice Wagner while concurring with the majority’s result, found that the Tribunal’s decision, that Mr. Stuart’s addiction was not a factor in his termination, was unreasonable. They outlined that to prove prima facie discrimination, Mr. Stuart only had to show that there was a connection between the protected ground of his drug dependency and the adverse effect. Justices Moldaver and Wagner found that the Tribunal unreasonably focused on Mr. Stuart’s limited capacity to control his choices and behaviour regarding his use of drugs, and did not consider the connection between his addiction and his employer’s decision to terminate him.

However, they found that the Tribunal had reasonably held that the employer had met its obligation to accommodate Mr. Stuart to the point of undue hardship. Given the employer’s safety objectives and responsibilities, it was crucial to deter employees from using drugs in a way that could negatively impact their work performance.

Gascon J dissented, and found that a drug policy which automatically terminated employees who used drugs was discriminatory against individuals with a drug dependence.

Major Takeaways:

Where the termination of an employee is based on the breach of a workplace policy, the mere existence of an addiction will not establish discrimination. Employers in drafting a dismissal letter must ensure there is no ambiguity as to the reason for the dismissal. The termination cannot be due to an employee’s addiction, but due to the employee’s breach of a workplace policy.

As such, workplace policies must be carefully constructed to ensure they are not discriminatory. Policies that make it impossible for employees with a disability, such as an addiction, to comply with may be found to be discriminatory. However safety-sensitive workplaces have a unique need to deter alcohol and drug use, and the Supreme Court has confirmed that employers are entitled to ensure the deterrent effects of those policies are enforced. A policy such as the one in this case where employees who reported their addiction would receive treatment prior to any incident occurring, is one potential way to reduce the likelihood of a finding of discrimination.