SCC Rules Termination Due to Drug Policy Not Discriminatory

Written by on October 10, 2017 in Employment Law Blog, Focus on Canadian Cases
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Addictions are considered mental health disabilities under the Ontario Human Rights Code and are one of the prohibited grounds of discrimination in the workplace. Legal conflicts can arise when an employer puts in place policies that have the potential to directly affect people with addictions.

In a recent Supreme Court of Canada (“SCC”) decision, Stewart v. Elk Valley Coal Corp., 2017 SCC 30, the SCC found that the company’s drug policy did not discriminate against an employee who had a drug addiction and was fired in accordance with the policy.


Ian Stewart worked as a loader driver at a mine in Alberta operated by Elk Valley Coal Corporation (“Elk Valley”).

The mining operations were dangerous and it was integral that Elk Valley maintain a safe working environment for its employees. Consequently, Elk Valley implemented an Alcohol, Illegal Drugs & Medication Policy (“Policy”). The Policy required employees to disclose any dependencies or addictions prior to any drug-related accidents occurring in the workplace. If they didn’t, and an accident occurred, their employment would be terminated – what Elk Valley referred to as the “no free accident” rule. Elk Valley had a training session on the Policy, which Stewart attended, and he also signed a form stating he had received and understood the Policy.

Stewart used cocaine on his days off from work. However, he never disclosed his substance abuse to Elk Valley.

One day, while at work, Stewart’s loader was involved in an accident. He was tested for drugs and came up positive. In a meeting after the drug test, Stewart told Elk Valley that he was addicted to cocaine. Nine days later, Elk Valley terminated Stewart’s employment, relying on the “no free accident” rule of the Policy.

Stewart, through his union representative, argued that his employment was terminated due to an addiction and that constituted discrimination under Alberta’s Human Rights, Citizenship and Multiculturalism Act.

The Alberta Human Rights Tribunal (“Tribunal”) originally found that there was no prima facie (that is, on its face) case of discrimination. The SCC needed to determine whether the Tribunal’s decision was reasonable.


The SCC references the three-part test to make a case for prima facie discrimination outlined in another SCC case, Moore v. British Columbia (Education), 2012 SCC 61:

Complainants are required to show:

  1. that they have a characteristic protected from discrimination under the Code;
  2. that they experienced adverse impact with respect to the service; and
  3. that the protected characteristic was a factor in the adverse impact.

In this case, both parties agreed that the first two steps of the test were met. It was only a matter of determining whether Stewart’s addiction was a factor in his termination.

In the termination letter Elk Valley provided to Stewart, his noncompliance with the Policy was referenced as the reason for his termination. The Tribunal found, and the SCC agreed, that the letter was evidence that Elk Valley terminated Stewart based on a breach of the Policy, not his addiction.

The Tribunal also found that, although Stewart was in denial about his drug addiction, he still had had the ability to have disclosed his drug use to Elk Valley prior to the accident and to have decided whether or not to take drugs before work.

The SCC highlighted that just because Stewart has an addiction, it does not mean he was unable to comply with the Policy. Evidence is still required to prove a connection between the addiction and the adverse treatment – it cannot be assumed.

In conclusion, the SCC agreed with the Tribunal that Stewart’s termination of employment was related to a breach of a workplace policy, not because of his addiction. The fact that an individual has an addiction does not immediately establish prima facie discrimination and, in this case, it did not.

Lessons for Employees

You have the right to not be discriminated against in the workplace based on the prohibited grounds outlined in the Ontario Human Rights Code. In order to establish discrimination, there needs to be a connection between the adverse impact and one or more of the prohibited grounds. If there are policies in your workplace that you feel could or have an adverse impact on you, bring them to the attention of an Employment Law Lawyer to determine your rights in the situation.

Lessons for Employers

It can be difficult balancing safety in the workplace with ensuring employees do not face discrimination based on workplace policies. Where drug and alcohol policies are necessary for the safety of the workplace, they should be drafted in such a way that avoids potential discriminatory effects on employees. Receiving the advice of an Employment Law Lawyer prior to drafting or implementing a drug or alcohol policy will help ensure employee’s rights are respected while ensuring your workplace is safe and functioning appropriately.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.

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