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June 23, 2017

Supreme Court Upholds Termination for Violating Drug Policy

Authors Hendrik Nieuwland and Mallory Adams

Employers with safety sensitive workplaces may now have more confidence in creating and enforcing workplace policies that encourage disclosure of addictions in light of the recent Supreme Court of Canada (“SCC”) decision in Stewart v. Elk Valley Coal Corp., 2017 SCC 30.

The SCC found that an employee who did not disclose his addiction to cocaine before a drug related incident occurred could be dismissed in accordance with the company’s policy without it being a violation of the Alberta Human Rights Act (the “Human Rights Act”).

However, the SCC limited the circumstances in which termination of employment would be acceptable.  The SCC found that, while Mr. Stewart had an addiction, it did not affect his ability to disclose his drug use to his employer.  Furthermore, the safety sensitive nature of the workplace was important in the SCC’s decision. 

Facts

Mr. Stewart was an employee in a safety sensitive work environment with a safety sensitive position.  The employer, Elk Valley Coal Corp. (“Elk Valley”), introduced the Alcohol, Illegal Drugs & Medication Policy (the “Drug Policy”) to all employees. The Drug Policy stated that, if anyone had an addiction or dependency, they could disclose this to the employer before a drug related incident occurred and they would be offered treatment. If an employee only disclosed their addiction or dependency after an incident, the employee would face termination. All employees received training on the Drug Policy, and Mr. Stewart signed a form acknowledging that he understood the Drug Policy.  

Elk Valley’s motivation for the Drug Policy was to ensure safety in the workplace by facilitating disclosure and treatment for employees with substance abuse problems, before safety was compromised due to their substance use.

Mr. Stewart used cocaine on his days off but did not disclose this to Elk Valley.  He was involved in an accident at work, and tested positive for cocaine.  At a follow up investigation meeting with Elk Valley and his Union, he disclosed for the first time that he thought he had an addiction. Mr. Stewart’s employment was ,therefore, terminated as per the Drug Policy.  However, as a gesture of goodwill and to accommodate Mr. Stewart, Elk Valley agreed to reimburse Mr. Stewart for 50% of the cost of a treatment program and invited him to re-apply for his position in six (6) months if he successfully completed a treatment program.

The Human Rights Tribunal and the Courts at all levels found there was no violation of the Human Rights Act. The SCC held there was no prima facie discrimination.  The SCC found that Mr. Stewart’s addiction was not a factor in his dismissal.  Rather, it was Mr. Stewart’s failure to follow the Drug Policy that resulted in the termination of his employment.

The SCC found that Mr. Stewart breached the Drug Policy by using cocaine and failing to disclose his dependency. The SCC found that Mr. Stewart’s failure to disclose his drug addiction was not the product of his cocaine addiction.  In other words, Mr. Stewart’s cocaine addiction did not prevent him from disclosing the addiction to his employer; rather his failure to disclose his addiction was solely the result of his own personal choice.  It was Mr. Stewart’s personal choice not to disclose his addiction that resulted in his termination.  Since his addiction was not a factor in the decision to terminate Mr. Stewart’s employment, there was no prima facie discrimination and no breach of the Human Rights Act.

The SCC’s decision turned on two key factors.  First, it found that Mr. Stewart was capable of choosing not to inform Elk Valley of his drug use in breach of the Drug Policy and, as such, it was not his addiction that made him breach the Drug Policy.  Second, Elk Valley was a safety sensitive work environment where avoidance of accidents was crucial.  This justified the Drug Policy. Considering these two key factors in the Court’s decision, it is likely to have narrow application in the future.

The foregoing is for informational purposes only, and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyer’s by email or telephone.

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