Elk Valley operates a large open pit coal mine. Elk Valley had recently amended its drug and alcohol policy. Aside from the usual prohibition on the use of drugs while on duty by any person, the new policy emphasized that the company would assist employees with drug or alcohol problems. Employees with problems could come forward before a "Significant Event" occurred to seek assistance with rehabilitation without fear of discipline. However, the policy also stated that an employee's involvement in a rehabilitation effort or the seeking of support after there was reasonable cause for testing, including the occurrence of a "Significant Event", would not prevent discipline or termination.

Mr. Stewart drove 170 and 240 ton trucks and industrial loaders. He used crack cocaine and other illicit drugs at times. He crashed his loader into a big truck. Following the incident he tested positive for cocaine. He admitted he was tired from cocaine use the night before. His employment was terminated for breach of the drug and alcohol policy. He subsequently acknowledged he had a drug problem and filed a complaint to the Alberta Human Rights Commission.

The traditional test for a prima facie case of discrimination under human rights legislation in its most basic form is generally recognized to require a complainant to prove three elements: a disability (or other prohibited ground of discrimination), adverse treatment (e.g. termination of employment), and that the disability was a factor in the adverse treatment.

The Tribunal found as a fact, based on the expert medical evidence that despite being diagnosed with a drug addiction, the complainant still exercised control over the choice to use cocaine while on duty and despite that denial is a symptom of drug addiction the complainant exercised control over the decision not to seek support from the company (or his union) before his drug use impacted the safety of the workplace. The Tribunal determined there was no prima facie case of discrimination because the drug addiction was not a factor in the adverse treatment (i.e. termination), but rather it was the employee's decision to breach the policy. The Tribunal also found that the employer would have established a successful defence under the bona fide occupational requirement (BFOR) test in any event.

A judicial review judge and a majority of the Court of Appeal upheld the Tribunal's decision that there was no prima facie case of discrimination. In doing so, the majority used some important language to describe the third factor in the prima facie discrimination test by finding that the drug addiction was not a "real factor" in the decision of Elk Valley to terminate. Essentially, the majority did not agree with the argument that simply because an addicted employee is terminated in breach of a drug policy for using drugs in the workplace it means addiction was a factor and the prima facie case of discrimination is proven. This is significant because employers often have a challenge disputing the prima facie case of discrimination in these sorts of cases and are left to focus their defence on proving that the application of drug and alcohol policies to addicted employees is a bona fide occupational requirement and/or that the employee cannot be accommodated without incurring undue hardship.

The majority of the Court of Appeal emphasized that the policy did not distinguish between people with disabilities and people without it, but rather distinguished between people who break the policy and people who do not. The majority was very influenced by the practical safety considerations at play in a hazardous workplace. The issue of denial is often a basis for adjudicators to find that addicted employees cannot be expected to come forward for support with their addictions and thus such policy requirements are found to be discriminatory. However, the majority used strong language in finding that such an approach was irreconcilable in a safety-sensitive environment. The majority said that employers should not have to wait for a flagrant violation of the drug policy to then be subject to accommodation requirements as this "would not engender confidence in co-workers about their safety" and would "create almost perverse incentive for disregard of policies".

The majority was very influenced by particular aspects of Elk Valley's policy noted above as well as the finding of fact, based upon the particular expert medical evidence heard at the Tribunal stage, that the complainant exercised control over his decision to use drugs and to not seek support. The majority was also influenced by the fact that Elk Valley had a practice of permitting dismissed employees in the circumstances of the complainant to reapply for employment after 6 months if the employee had undergone rehabilitation and agreed to certain monitoring conditions. The complainant in this case received a letter upon termination that outlined this offer. Therefore, while this decision provides hope for employers in addressing drugs and alcohol in the workplace, employers must carefully consider their policy language as well as every individual application of such policy. We anticipate the complainant will seek leave to appeal to the Supreme Court of Canada. Stay tuned.

Note: This a reprint of an article by Bull, Housser & Tupper Labour & Employment Group of Norton Rose Fulbright Canada LLP.