Supreme Court of Canada upholds dismissal of employee for failing to disclose cocaine use in violation of “No Free Accident Rule”
In Stewart v. Elk Valley Coal Corp., 2017 SCC 30, the Supreme Court of Canada recently reaffirmed the two-part test for discrimination in the workplace. Centered on the termination of an employee’s employment for drug use in violation of a drug and alcohol policy, this decision reinforces employers’ ability to implement and rely upon drug and alcohol policies aimed at promoting a safe workplace.
Elk Valley Coal Corporation implemented an Alcohol, Illegal Drugs & Medication Policy (“Policy”) aimed at promoting safety at its mine. The Policy contained a “No Free Accident Rule” – employees who disclosed any dependence or addiction issues would be offered rehabilitation and treatment without fear of reprisal; however, employees who failed to disclose dependency or addiction issues, and tested positive for a substance following an incident would have their employment terminated.
Ian Stewart was employed as a load driver. Stewart signed a form acknowledging that he understood and would comply with the Policy. He used cocaine on his days off, but did not disclose his substance use to Elk Valley. Stewart was involved in an incident while driving the loader, and post-accident testing produced a positive result for cocaine. Elk Valley terminated Stewart’s employment pursuant to the Policy. Stewart’s union representative filed a complaint with the Alberta Human Rights Tribunal, arguing that the termination of Stewart’s employment was the result of discrimination based on addiction.
The Human Rights Tribunal of Alberta found that Elk Valley’s decision to terminate Stewart’s employment was not influenced by addiction; rather, the termination resulted because Stewart failed to disclose his substance use in accordance with the Policy. Consequently, Stewart failed to establish prima facie discrimination, which is the first stage of the test for discrimination. In particular, at the first stage, the complainant must demonstrate:
- a disability protected under the relevant human rights legislation;
- adverse treatment with regard to the claimant’s employment or a term of that employment; and
- the disability was a factor in the adverse treatment.
A majority of the Supreme Court of Canada upheld the Tribunal’s conclusion that Stewart did not establish prima facie discrimination. In doing so, the majority rejected the argument that Stewart’s addiction prevented him from complying with the Policy, and was, therefore, an “indirect” factor in his termination. While acknowledging that addiction can sometimes deprive a person of the capacity to comply with workplace policies, the majority accepted the Tribunal’s finding that Stewart had the capacity to decide when to use drugs, and to disclose his use. The fact that Stewart may have been in denial about his addiction did not alter this conclusion. As stated by the majority:
 It cannot be assumed that Mr. Stewart’s addiction diminished his ability to comply with the terms of the Policy. In some cases, a person with an addiction may be fully capable of complying with workplace rules. In others, the addiction may effectively deprive a person of the capacity to comply, and the breach of the rule will be inextricably connected with the addiction. Many cases may exist somewhere between these two extremes. Whether a protected characteristic is a factor in the adverse impact will depend on the facts and must be assessed on a case-by-case basis. The connection between an addiction and adverse treatment cannot be assumed and must be based on evidence: Health Employers Assn. of British Columbia v. B.C.N.U., 2006 BCCA 57, 54 B.C.L.R. (4th) 113, at para. 41.
The majority also took this case as an opportunity to further confirm the first stage of the test for discrimination in the workplace. Specifically, the majority confirmed that a finding of stereotypical or arbitrary decision-making is not necessary to find prima facie discrimination. Further, the majority rejected calls to insert “significant” or “material” before “a factor” under the third element of the prima facie discrimination test.
Take Away for Employers
The Stewart decision affirms employers’ ability to implement policies to prevent alcohol and drug use in high-risk workplaces. Notably, in appropriate circumstances and with the right language, an employer can adopt a stringent “No Free Accident Rule” or “zero-tolerance” policy for drugs and alcohol as a mechanism to promote workplace safety. However, such policies will not override an employer’s duties under applicable human rights legislation. As occurred in Stewart, providing employees with a copy of the policy, educating employees about the policy, and obtaining their acknowledgment of the policy is good practice, both from a safety and enforcement perspective.