Contributed by Jenny Wang
Earlier this year, the Supreme Court of Canada confirmed and clarified the legal regime governing discrimination in the workforce based on disability pursuant to s.7 of the Alberta Human Rights Act (Act). In Stewart v. Elk Valley Coal Corporation, the majority of the court upheld the Alberta Human Rights Tribunal’s decision that the termination of a cocaine addicted employee did not constitute discrimination in the workplace. There has been a lot of discussion regarding the implications of the majority’s decision. Some believe that its practical effect would be to deprive drug-dependent employees of human rights protection in the workplace, while others argue that the highly dangerous nature of the work environment necessitated such a decision.
Mr. Stewart worked in a mine operated by Elk Valley Coal Corporation (the employer). As the mines were extremely dangerous, workplace safety was a primary concern for Elk Valley Coal Corporation. The employer established a policy requiring employees to disclose whether they had any drug dependencies or addiction issues. Upon disclosure, these employees would be offered treatment from the employer. In addition, the policy specified a “no free accident” rule such that if one were to be involved in a workplace accident and was subsequently tested positive for drug use, the employee would be terminated immediately if he or she had failed to disclose the addiction.
After being involved in a workplace accident, Mr. Stewart was tested positive for drugs and admitted that he was addicted to cocaine. Nine days later, Elk Valley Coal Corporation terminated Mr. Stewart. As addiction is a recognized disability under the Act, Mr. Stewart argued that the termination constituted discrimination based on disability pursuant to s.7 of the Act.
To claim discrimination under the Act, the plaintiff must first show a prima facie case of discrimination. To do so, the employee must prove: “(1) a disability which is protected under the Act; (2) adverse treatment with regard to his employment or a term of that employment; and (3) that the disability was a factor in the adverse treatment.” Once a prima facie case is established, the onus shifts to the defendant to show that the employer accommodated the employee to the point of undue hardship for the employer.
Alberta Human Rights Tribunal Decision
The tribunal held that Mr. Stewart failed to establish prima facie discrimination. The tribunal relied on expert evidence to conclude that Mr. Stewart was in fact addicted to cocaine at the time of the incident. Moreover, it also considered Mr. Stewart’s termination to be adverse treatment. However, the tribunal was of the opinion that the disability was not a factor in the termination and therefore Mr. Stewart failed to meet the three-step test to establish prima facie discrimination. It argued that the employer would have terminated Mr. Stewart regardless of whether he was an addict or a casual user of cocaine under the established policy. Mr. Stewart argued that his denial of his addiction prevented him from disclosing his condition prior to the incident. However, the tribunal dismissed this argument, holding that Mr. Stewart’s denial was irrelevant because he had the capacity to comply with the policy’s terms and decide not to take drugs prior to work.
Although the tribunal recognized that the distinction between termination due to disability and termination due to failure to comply with policy may appear to be superficial, it nevertheless found that Mr. Stewart’s termination was based on noncompliance with the policy and not because of his disability.
The Alberta Court of Queen’s Bench and the Alberta Court of Appeal both upheld the Tribunal’s decision.
McLachlin C.J., writing for 6 judges of the Supreme Court, dismissed the appeal. In the analysis, the majority showed deference to the tribunal’s decision, stating that the court’s role is to determine whether the tribunal’s judgement was within a range of possible and acceptable outcomes. The court deemed that the decision was in fact reasonable in the circumstances as there was evidence supporting the tribunal’s conclusions.
The majority recognized that in some cases, drug and alcohol addiction may affect one’s ability to comply with rules, while under other circumstances addiction does not. In the former scenario, the breach of workplace rules will be inextricably connected with the addiction whereas in the latter, the noncompliance would not be associated with the addiction. In this case, the majority concluded that the facts do not support the conclusion that Mr. Stewart failed to comply with the policy due to his addiction.
Furthermore, the majority refused to assess whether the employer’s termination decision was stereotypical or arbitrary. McLachlin C.J. believed that to add a fourth step would result in shifting the focus to determining whether there was discriminatory intent rather than discriminatory impact.
Unlike the majority, Moldaver J. and Wagner J. believed that there was prima facie discrimination. However, this discrimination was justified because Elk Valley Coal Corporation could not further accommodate Mr. Stewart without incurring undue hardship.
According to these two judges, the residual control that Mr. Stewart had on his decision to use cocaine reduced the extent to which his addiction contributed to the termination but did not eliminate it as a factor. Therefore, Mr. Stewart’s addiction was still a factor in the adverse treatment. However, the concurring judges were of the opinion that the employer reasonably accommodated Mr. Stewart. As the mines are extremely dangerous, the policy sought to deter employees from using drugs such that it would affect their work and result in dangerous working environments. Had Elk Valley Coal Corporation not terminated Mr. Stewart and provided him with a less serious consequence instead, the deterrence effect of the policy would be greatly diminished. Therefore, Moldaver J. and Wagner J. found Mr. Stewart’s immediate termination to be reasonable in the circumstances.
Unlike the majority and concurring judges, Gascon J. found Mr. Stewart’s termination to be discriminatory. Gascon J. focused on the stigma that exists surrounding those who are addicted to drugs: “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.”
For Gascon J., a policy resulting in immediate termination prima facie discriminates against those who are dependent on drugs. Moreover, the two types of accommodations that Elk Valley Coal Corporation provided Mr. Stewart – namely, treatment had he disclosed his addiction prior to an accident and the possibility for him to reapply to the corporation after participating in a rehabilitation program – did not justify the discrimination.
The first accommodation was not accessible to Mr. Stewart because at that time, he was unaware of his dependency, a symptom of his addiction. Furthermore, the second option does not constitute accommodation for the purposes of this case. Reasonable accommodation requires the employer to provide options for the employee while he or she is still an employee, rather than giving him or her the option to reapply after the fact. These two options failed to consider Mr. Stewart’s circumstances, and therefore, the second prong of the test was not met.
In this case, the court reiterated the two-pronged test used to establish a case of discrimination based on disability under the Act. Although the majority did not the change the legal regime, their application of the law have left some with a heavy heart. In effect, the mere existence of addiction does not establish prima facie discrimination if the court concludes that one was terminated due to noncompliance of workplace policies. Although the highly dangerous nature of the work was an important consideration, some argue that the court adopted a narrow interpretation of addiction.
Jenny Wang is a third-year student in the B.C.L./LL.B. program at McGill University, Faculty of Law and is a Senior Online Editor with the McGill Journal of Law and Health. Prior to starting at McGill, Jenny completed the Arts and Sciences program at Marianopolis College.