July 25, 2017 By: Christopher C. Rootham
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In the recent decision Stewart v Elk Valley Coal Corp., the Supreme Court of Canada has weighed in again on drug use policies in workplaces.

Supreme Court of Canada Weighs In On Employer Drug Policies

The facts

The employee in this case worked in a coal mine, driving a loader. The employer implemented an Alcohol, Illegal Drugs & Medication Policy. The Policy required employees to disclose any dependence or addiction issues before any drug-related incident occurred. If they did, they would be offered treatment. If not, and if they got into an accident and tested positive for drugs, they would be terminated – a rule called the “no free accident” rule. The employee used cocaine on his days off without telling his employer. He was involved in an accident and tested positive for drugs. The employer terminated his employment in accordance with the “no free accident” rule.

Prima facie case of discrimination

In a human rights complaint advanced by his union, the Alberta Human Rights Tribunal concluded that the termination was not a prima facie case of discrimination. On eventual appeal to the Supreme Court of Canada, the majority of the Court concluded that the Tribunal’s decision was reasonable. Two judges concluded that the termination was a prima facie case of discrimination, but that the Policy was a bona fide occupational requirement because the employer met its duty to accommodate the employee to the point of undue hardship. One judge concluded that the termination was discriminatory and the employer had not accommodated the employee, and would have overturned the dismissal.

The main issue in this appeal was whether the termination was a prima facie case of discrimination. The entire Court agreed on the broad principles involved. To demonstrate a prima facie case of discrimination, a claimant needs to prove three things:

  1. They have a characteristic protected from discrimination;
  2. They have experienced adverse impact; and
  3. The protected characteristic was a factor in the adverse impact.

The majority of the Court also confirmed that there is no need for a fourth element of a finding of stereotypical or arbitrary decision-making, because such a requirement would redirect the focus on motive instead of effect. The majority also confirmed that the protected characteristic need only be a factor, not a “significant” or “material” factor.

Dealing with addiction

The Tribunal concluded that the employee was not fired because he was addicted to cocaine, but because he failed to comply with the Policy despite having the ability to comply with its terms. The majority of the Court found that the Tribunal’s conclusion was reasonable. The employee would have been fired whether or not he was an addict or a casual user; he also had the capacity to disclose his addiction to his employer and receive treatment. In response to the obvious rejoinder that one of the symptoms of addiction is often denial about the addiction, the majority of the Court stated that “It cannot be assumed that [the employee’s] addiction diminished his ability to comply with the terms of the Policy.” While sometimes addiction may effectively deprive a person of the capacity to comply with a drug and alcohol policy, this finding must be based on evidence. There was no such evidence in this case and, therefore, the Tribunal’s decision was reasonable.

The two concurring judges followed a different analytic path: the employee’s exercise of some control over his drug use merely reduced the extent to which his dependency contributed to his termination. Since the law only requires that the addiction or dependency be a factor (no matter how slight), he met the threshold of prima facie discrimination.

With respect to the majority, this logic is difficult to resist. The dissenting judge is even more pointed in his reasoning, stating that “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.” One is left wondering whether the result would have been the same if the employee was fired because he had a stroke and failed to previously disclose high blood pressure.

Take-aways

What does this decision mean for unions? Clearly drug addiction and dependence are serious issues, particularly when they affect performance or become a safety issue in a workplace. While this decision appears to condone zero-tolerance workplace policies regarding drug use, unions should continue to hold employers to account and make sure that any termination in this context is fully justified, and does not discriminate against the employee.

And for employees: it pays to be up-front about any kind of recreational drug use you engage in, particularly when there are provisions in your workplace policies prohibiting it.

Some commentators have criticised this ruling, and highlighted the arguments of the dissenting opinion of Justice Gascon, who believed the termination was in fact discriminatory. So despite the top court’s judgement in this area, there appears to be plenty of unsettled debate about drug use and discrimination in the workplace.

If you have any questions about workplace policies, contact our Labour Law Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.