Canadian Employment Law Today

8 | July 19, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends disclose any dependence or addiction issues before any drug-related incident occurred. If they did, they would be offered treatment. However, if they failed to disclose and tested positive for drugs after a workplace incident, they would be at risk of having their employ- ment terminated. Stewart used cocaine on his days off. He did not tell his employer that he was using drugs. When his loader was involved in a workplace accident, he tested positive for cocaine and later said, after talking to his union, that he thought he was addicted to the drug. Elk Valley terminated his employment and Stewart argued that he was terminated for addiction, constituting discrimination under the Alberta Human Rights, Citizen- ship and Multiculturalism Act. e Alberta Human Rights Tribunal held that Stewart was terminated for breaching Elk Valley's fitness for duty policy, not be- cause of his addiction. Its decision was af- firmed by both the Alberta Court of Queen's Bench and the Alberta Court of Appeal (see the Sept. 16, 2015, issue of Canadian Employment Law Today for more on the appeal court's decision). In an eight-to-one decision, the Supreme Court of Canada dis- missed Stewart's appeal. Chief Justice Beverley McLachlin wrote: "Like the majority of the Court of Appeal, I find no basis for interfering with the decision of the tribunal. e main issue is whether the employer terminated Mr. Stewart because of his addiction (raising a prima facie case of discrimination), or whether the employer terminated him for breach of the policy pro- hibiting drug use unrelated to his addiction because he had the capacity to comply with those terms (not raising a prima facie case of discrimination). is is essentially a ques- tion of fact, for the tribunal to determine. Af- ter a thorough review of all the evidence, the tribunal concluded that the employer had terminated Mr. Stewart's employment for breach of its policy. e tribunal's conclu- sion was reasonable." No prima facie discrimination To make a claim for discrimination under the act, the employee must establish a prima facie case of discrimination. If this is estab- lished, the onus then shifts to the employer to show that it accommodated the employee to the point of undue hardship. To make a case of prima facie discrimi- nation, "complainants are required to show that they have a characteristic protected from discrimination under the code; that they experienced adverse impact with re- spect to the service; and that the protected characteristic was a factor in the adverse impact": Moore v. British Columbia (Minis- try of Education). Discrimination can take many forms, including "indirect discrimina- tion," where otherwise neutral policies may have an adverse effect on certain groups. Discriminatory intent on behalf of an em- ployer is not required to demonstrate prima facie discrimination: see Quebec (Commis- sion des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombar- dier Aerospace Training Center. It was conceded that the first two elements of a prima facie case of discrimination were established in this case. e only dispute was on the third requirement — whether Stew- art's addiction was a factor in his termination. e tribunal noted that it was "not neces- sary that discriminatory considerations be the sole reason for the impugned actions in order for there to be a contravention of the act." It concluded that Stewart's addiction was not a factor in his termination for two re- lated reasons: Stewart was fired not because he was addicted, but because he had failed to comply with the terms of the policy; and he was not adversely impacted by the policy be- cause he had the capacity to comply with it. e only question for a reviewing court is whether this conclusion was unreason- able. A reviewing court must ensure that it does not only pay "lip service" to deferen- tial review while substituting its own views, as established in New Brunswick (Board of Management) v. Dunsmuir. If the decision is within a "range of possible, acceptable out- comes" which are defensible in respect of the evidence and the law, it is reasonable: see also Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board). e Supreme Court determined that the tribunal's conclusion that addiction was not a factor in the termination of Stewart's em- ployment was reasonable. "It was the tribunal's task to determine whether the reason for the termination of employment or the impact of the policy on Mr. Stewart established a prima facie case of discrimination. ere is ample evidence to support the tribunal's conclusion that there was no prima facie case and, therefore, no basis to overturn it," said the top court. Justices Moldaver and Wagner agreed with dismissing the appeal, but differed on prima facie discrimination. "While we concur with the Chief Justice in the result, we agree with Gascon J. (the dissenting judge) that the test for prima fa- cie discrimination was met in this case. e tribunal's conclusion that Mr. Stewart's drug dependency was not a 'factor' in his termi- nation was unreasonable. Where we part company with Gascon J. is with respect to reasonable accommodation. In our view, the tribunal reasonably held that the em- ployer met its obligation to accommodate Mr. Stewart to the point of undue hardship. erefore, we accept the tribunal's conclu- sion that Mr. Stewart's employer did not dis- criminate against him on the ground of his drug dependency." Justice Gascon, the dissenting judge, ex- plained why he decided in favour of Stewart: "(Stewart) was drug-dependent, and he was terminated for giving in to that depen- dence, an undeniable symptom of his dis- ability. Further, Elk Valley did not reason- ably accommodate Mr. Stewart. Its only accommodation during employment was letting him voluntarily disclose his disability without discipline. But he could not access this accommodation because he appears to have been unaware of his addiction; again, a symptom of his disability. As the tribunal's decision to the contrary on both issues was, in my assessment, unreasonable, I would have allowed the appeal." Implications for employers is decision has important implications for employers in at least three areas: the im- portance of having a well drafted fitness for duty policy, the need for a proper alcohol and drug testing policy in dangerous workplaces, and the need to get legal advice before decid- ing to terminate workers for substance use. For more information see: • Quebec (Commission des droits de la personne et des droits de la jeunesse) c. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 CarswellQue 6297 (S.C.C.). • Moore v. British Columbia (Ministry of Ed- ucation), 2012 CarswellBC 3446 (S.C.C.). • New Brunswick (Board of Management) v. Dunsmuir, 2008 CarswellNB 124 (S.C.C.). • N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 CarswellNfld 414 (S.C.C.). Worker fired for not complying with drug policy « from SUPREME COURT on page 1 ABOUT THE AUTHOR Norm Keith Norm Keith is a senior partner at Fasken Martineau in Toronto, practicing regulatory, employment, and white collar defence advisory, compliance, and litigation. He can be reached at nkeith@fasken.com or 1-800-268-8424 ext. 47824. He represented three intervenors in the above case.

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