When Is An Employee's Disability A Factor In His Dismissal?

On June 30, 2015, the Court of Appeal of Alberta released its decision in Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 ("Stewart") and clarifying what constitutes discrimination.

In Stewart, the employer terminated an employee following a vehicle collision on the work site where the employee struck another truck with a loader truck he was operating. The employee tested positive for consumption of cocaine after the collision.

The employer had an Alcohol, Illegal Drugs & Medications Policy (the "Policy") which stated that if an employee reported drug use before an event, he or she could seek rehabilitation without discipline or termination. The Policy also stated that discipline or termination could not be avoided if an employee sought assistance with their addition only after an event. Here, the employee had failed to inform the employer of his cocaine use prior to the incident. After the incident, Mr. Stewart's employment was terminated.

Following his termination, the employee filed a complaint under the Alberta Human Rights Act, stating that his employer had discriminated against him on the grounds of physical disability, being the employee's cocaine addiction or dependency.

The Alberta Human Rights Tribunal ("Tribunal") found that the employee was not terminated because of his addiction or dependency but rather for breaching the Policy; as such, there was no discrimination. The Tribunal was also satisfied that the Policy and practice of the employer were both bona fide occupational requirements.

On appeal to the Alberta Court of Queen's Bench, the chambers judge agreed with the Tribunal's conclusions on discrimination, but held that the accommodation offered in the Policy—no-risk self-reporting—was inadequate. Both issues were appealed to the Alberta Court of Appeal. In particular, the question of whether the Tribunal applied the proper test for prima facie discrimination was hotly contested.

Alberta's highest court confirmed that in establishing that there has been discrimination in breach of the Alberta Human Rights Act, a complainant must satisfy the Human Rights Tribunal that there is a prima facie case of discrimination by meeting the test set out by the the Supreme Court of Canada in Moore v British Columbia (Education), 2012 SCC 61 ("Moore"):

[...]to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced...