Leave to Appeal to the Supreme Court of Canada granted of the decision by the Alberta Court of Appeal in Stewart v. Elk Valley Coal Corporation, 2015 ABCA 225.
In Stewart, the employee was fired by the employer after getting into an vehicle collision on the worksite. The employee had a cocaine addiction and dependency, which had not been disclosed the employer. The employee did not believe he had a drug problem. At the time, he was affected by his drug use. The employer terminated him for being in breach of its drug and alcohol policy. The policy did not protect employees from discipline who only disclosed drug use after a significant event. The employee was aware of the policy.
The Alberta Human Rights Tribunal dismissed the complaint and concluded that the employee was not dismissed because of his disability, drug dependency. Rather he was dismissed for breach of the policy. The Tribunal found that the employee had the capacity to control his drug use. Moreover, the Tribunal held that, in the alternative, the employer had accommodated the employee to the point of undue hardship.
The Alberta Court of Queen’s Bench, dismissed the appeal, but held that the employed had failed to accommodate the employee.
The Alberta Court of Appeal also dismissed the appeal. The majority agreed with the Human Rights Tribunal and agreed that the employee was properly terminated for breach of the policy. The majority reasoned, among others, that “Disability revealed voluntarily would not have led to adverse impact. The breach of the Policy can happen without disability. Finally, as the Tribunal observed, there was no difficulty for Stewart complying with the Policy despite his disability. Disability was not a real factor in the enforcement of the Policy.”
The majority concluded chambers judge erred in showing deference to the Tribunal’s decision with respect to accommodation. The chambers judge reasoned that “if the employer policy was accommodative of employees with drug dependencies, the specific employee must appreciate he has such a drug dependency in order to take advantage…. ” The majority disagreed with what it said was a “convolution of logic in using ‘denial’ as a basis for excusing the employee.… .” In the view of the majority, “undue hardship relates to the negative effect on the operations of the employer arising from the effort to accommodate.’
The dissenting Appeals Court judge disagreed on both aspects of the majority’s decision.