Equipment Operator Drug Use Case Headed to the Supreme Court

By: Norm Keith[1] and Rachel Devon[2]

The Supreme Court of Canada will soon be called upon to address the legal issues resulting from a heavy equipment operator using cocaine on the job and causing a serious accident. The Alberta Court of Appeal decision in Stewart v Elk Valley Coal Corporation[3], ("Elk Valley Coal") is critical for how it addressed the permissible scope of drug and alcohol policies in safety sensitive workplaces. In particular, Elk Valley Coal suggests that workplace policies promoting proactive, preventative disclosure of addiction and dependency issues without fear of discipline are not discriminatory. The case is critical for employers who face workers who use alcohol and drugs at work and put other workers and the public at risk of harm.

The case arose from a complaint under the Alberta Human Rights Act ("AHRA") in relation to the termination of Ian Stewart ("Stewart") by his employer, Elk Valley Coal Corporation ("Elk Valley"). Stewart was terminated after he tested positively for cocaine following a vehicle collision on the worksite between a loader truck he was operating and another vehicle. The accident occurred just several months after Stewart had attended an education session on the company’s Alcohol and Drug Policy ("Policy"), and had indicated his understanding of the Policy. Specifically, the Policy stated that employees with a dependency or addiction could seek assistance before the occurrence of a "Significant Event," such as a workplace accident, without fear of discipline. However, Stewart did not inform Elk Valley of his cocaine use, since by his own admission, he did not recognize he had a problem until after the incident. Following the termination, Stewart’s union filed a complaint with the Alberta Human Rights Commission, alleging termination on the grounds of disability—specifically his cocaine addiction or dependency.

A majority of the Alberta Court of Appeal affirmed the decision of the Tribunal, and the chambers judge, finding that the termination did not amount to discrimination on the grounds of disability. The Court of Appeal agreed with the Tribunal’s reasoning that the Policy did not distinguish between people with a disability and people without, but rather, it distinguished between those who break the Policy and those who do not. Although addiction constitutes a disability under the AHRA, the Tribunal found no discrimination by Elk Valley, as the adverse effect of the Policy came about because of Stewart’s failure to stop using drugs and to disclose his drug use prior to the accident. Thus, the Court of Appeal agreed that Stewart was not terminated because of his disability, but rather, for breach of the Policy.

While the Tribunal held that Elk Valley had shown reasonable accommodation to the point of undue hardship, the chambers judge disagreed on this point, reasoning that because an employee must appreciate that he or she has a drug dependency in order to take advantage of the Policy, the Policy did "little if anything" for individuals who do not realize they have a disability. However, the Court of Appeal rejected this finding, suggesting that denial should not be a basis for excusing employees who need accommodation from raising this with their employer. The Court of Appeal further stated that demanding accommodation after a serious workplace incident would create "almost a perverse incentive for disregard of policies."

Overall, the Court of Appeal took a strong, safety-oriented approach by emphasizing the importance of proactive disclosure of alcohol and drug addiction and dependency without fear of discipline in order to prevent the occurrence of workplace accidents. In March 2016, the Supreme Court granted leave to appeal from this decision. The OGCA is seeking permission of the Supreme Court to intervene at the Supreme Court, and will be represented by Fasken Martineau as its legal counsel.