SCC Upholds Employer's 'No Free Accident' Alcohol And Drug Policy: Stewart V Elk Valley

On June 15, 2017, the Supreme Court of Canada released its decision in Stewart v Elk Valley Coal Corp. (2017 SCC 30). This is a landmark decision, reinforcing the right of employers to take proactive risk mitigation and management measures through alcohol and drug policies to ensure workplace safety.

In this case, Ian Stewart ("Stewart") worked in a safety-sensitive mine operated by the Elk Valley Coal Corporation, Cardinal River Operations ("Elk Valley"). The employer implemented an alcohol and drug policy, which among other things, required employees to disclose addiction issues before any alcohol or drug-related incident occurred ("Policy"). Employees who self-disclosed would be offered treatment. Employees who failed to self-disclose in advance of an incident and subsequently tested positive for alcohol or drugs, could be terminated.

Stewart was involved in a workplace accident and tested positive for cocaine. During an investigation meeting with his employer following the positive test, he stated that he thought he was addicted to cocaine. Stewart had not disclosed his addiction prior to the incident. Pursuant to the Policy, Elk Valley terminated Stewart's employment. Stewart argued that he was terminated for his addiction, which constituted discrimination under section 7 of the Alberta Human Rights Act, RSA 2000, c A-25.5.

History

The Alberta Human Rights Tribunal (the "Tribunal") held that while Stewart suffered from a disability, namely addiction, he was terminated for breaching the Policy, not his addiction (2012 AHRC 7). Therefore, there was no prima facie discrimination. Further, in the alternative, the discrimination alleged constituted a bona fide occupational requirement ("BFOR") and Elk Valley accommodated Stewart's disability to the point of undue hardship. The Court of Queen's Bench and Court of Appeal dismissed the appeal of the Tribunal's decision (2013 ABQB 756 and 2015 ABCA 225).

Supreme Court of Canada

The Supreme Court of Canada dismissed the appeal in an eight to one decision. Chief Justice McLachlin delivered the majority decision on behalf of herself, and Abella, Karakatsanis, Côté, Brown and Rowe JJ. Justices Moldaver and Wagner issued joint reasons, concurring in the result, disagreeing with the majority on the issue of prima facie discrimination but finding that the employer met its obligation to accommodate to the point of undue hardship. Justice Gascon issued dissenting reasons.

Prima Facie Discrimination

The...