Yesterday, the Supreme Court of Canada issued a much awaited judgment on an appeal from an Alberta Court of Appeal decision in the Stewart v. Elk Valley Coal Corp. case.

Mr. Stewart (the Appellant) worked in a mine operated by the Elk Valley Coal Corporation, driving a loader. As a means to ensure safety in this safety-sensitive working environment, the employer implemented a policy whereby employees were required to disclose any dependency or addiction issues before any drug related incident occurred. If they did, they would be offered treatment. However, the policy also provided that an employee would be terminated if he (i) failed to disclose his dependency or addiction; (ii) was involved in an incident and; (iii) tested positive for drugs after the incident.

In this case, the Appellant was terminated when he tested positive for cocaine after being involved in an accident, driving his loader. The evidence demonstrated that he had previously attended a training session and acknowledged his understanding of the above-mentioned policy. In addition, the Appellant admitted to using cocaine on his days off, but insisted he did not know that he suffered from addiction until after he was terminated.

Mr. Stewart filed a human rights complaint with support from his union, claiming that the termination was discriminatory on the grounds of physical disability – namely his cocaine addiction or dependency.

The Alberta Human Rights Tribunal concluded that although Mr. Stewart had a disability, he was not terminated because of this disability but rather for breaching the employer's drug addiction disclosure policy. This conclusion was upheld by the Court of Queen's Bench and later by the Alberta Court of Appeal.

In a majority decision (8 to 1), the Supreme Court upheld this conclusion. Although there are some differences of opinion on the question of whether a prima facie case of discrimination had been established before the Human Rights Tribunal, the eight judges composing the majority agreed that the employer's safety objectives and responsibilities were serious enough to justify the implementation of the policy because, in such working environments, it is crucial to deter employees from using drugs in a manner that could negatively affect their work performance and potentially lead to devastating consequences.

A more detailed newsletter will be published soon but for now, we can conclude that employers with safety-sensitive workplaces can manage the risks posed by drugs or alcohol in the workplace by implementing a policy which requires employees to disclose potential drug or alcohol dependencies. When such a policy accommodates employees who comply with it and disciplines employees who don't, an employer may impose disciplinary sanctions upon employees who fail to disclose their addiction, regardless of whether they acknowledge their addiction or not.

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