The Generals - Fall/Winter 2017 - 34

FEATURE

Employer Did Not
Discriminate Against

Cocaine Addict
who was Dismissed for Cause

I
By Norm Keith,
LL.M., CRSP

To make a claim for
discrimination under the
Act, the employee must
establish a prima facie
case of discrimination.
If this is established, the
onus then shifts to the
employer to show that
it accommodated the
employee to the point of
undue hardship.
34

n perhaps the most important human rights
decision to date dealing with drugs in the
workplace, the Supreme Court of Canada
recently ruled that an employer may terminate a worker for just cause when he violated a
Fitness for Duty Policy by attending work under
the influence of drugs. In a landmark human
rights decision the Supreme Court ultimately
upheld the ruling of the Alberta Human Rights
Tribunal that the employer did not unlawfully
discriminate when a worker's employment was
terminated. The decision, included a provocative dissent, is reviewed and discussed below.
Mr. Stewart ("S") worked in a mine operated
by the Elk Valley Coal Corporation, driving a
loader. The mine operations were dangerous,
and maintaining a safe worksite was a matter of
great importance to the employer and employees. To ensure safety, the employer implemented
a policy requiring that employees disclose any
dependence or addiction issues before any
drug-related incident occurred. If they did, they
would be offered treatment. However, if they
failed to disclose and were involved in an incident and tested positive for drugs, they would
be a risk of having their employment terminated.
S used cocaine on his days off. He did not
tell his employer that he was using drugs. When
his loader was involved in a workplace accident,
he tested positive for drugs and later said, after
talking to his union, that he thought he was
addicted to cocaine. His employer terminated his
employment. S argued that he was terminated
for addiction and that this constitutes discrimination under s. 7 of the Albertan Human Rights,
Citizenship and Multiculturalism Act.

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The Alberta Human Rights Tribunal held that
S was terminated for breaching the Fitness for
Duty Policy, not because of his addiction. Its
decision was affirmed by the Alberta Court
of Queen's Bench and by the Alberta Court of
Appeal. The S.C.C. held (8:1) that the appeal
is dismissed.
Chief Justice McLachlin wrote (Abella,
Karakatsanis, Côté, Brown and Rowe JJ. concurring) as follows (at paras. 5, 23-28, 40):
"Like the majority of the Court of Appeal,
I find no basis for interfering with the decision
of the Tribunal. The main issue is whether the
employer terminated Mr. Stewart because of his
addiction (raising a prima facie case of discrimination), or whether the employer terminated
him for breach of the Policy prohibiting drug use
unrelated to his addiction because he had the
capacity to comply with those terms (not raising a prima facie case of discrimination). This is
essentially a question of fact, for the Tribunal
to determine. After a thorough review of all
the evidence, the Tribunal concluded that the
employer had terminated Mr. Stewart's employment for breach of its Policy. The Tribunal's
conclusion was reasonable.
Was the Tribunal Unreasonable in Finding That
Prima Facie Discrimination Was Not Established?
To make a claim for discrimination under the
Act, the employee must establish a prima facie
case of discrimination. If this is established, the
onus then shifts to the employer to show that
it accommodated the employee to the point of
undue hardship.
To make a case of prima facie discrimination, "complainants are required to show that


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Table of Contents for the Digital Edition of The Generals - Fall/Winter 2017

Chairman’s Message
President’s Message
Incoming Chair’s Message
Government Relations Report
Events
The Construction Lien Act Discussion
The New Construction Act: Coming to a Jobsite Near You
Modernizing the Construction Lien Act – Welcome Changes
Bill 142, Construction Lien Act Amendment – A Construction Owner’s Perspective
Bill 142 – Worth the Wait
Legend: Pertinent Acronyms
The Effect of Adjudication on the Construction and Legal Industries
The Proposed New Construction Act: A Dose of Realism
Employer Did Not Discriminate Against Cocaine Addict Who was Dismissed for Cause
COR Safety Certification: It’s Not just for Large Generals
Recent Decision Confirms that Notices of Claims Do Not have a “Standard Form”
Maple Reinders: After 50 Years, their Passion for Building Keeps Growing … and Growing
OGCA Golf Tournament
Associate Partners Program
Index to Advertisers
The Generals - Fall/Winter 2017 - Intro
The Generals - Fall/Winter 2017 - cover1
The Generals - Fall/Winter 2017 - cover2
The Generals - Fall/Winter 2017 - 3
The Generals - Fall/Winter 2017 - 4
The Generals - Fall/Winter 2017 - 5
The Generals - Fall/Winter 2017 - 6
The Generals - Fall/Winter 2017 - Chairman’s Message
The Generals - Fall/Winter 2017 - 8
The Generals - Fall/Winter 2017 - President’s Message
The Generals - Fall/Winter 2017 - 10
The Generals - Fall/Winter 2017 - Incoming Chair’s Message
The Generals - Fall/Winter 2017 - 12
The Generals - Fall/Winter 2017 - Government Relations Report
The Generals - Fall/Winter 2017 - 14
The Generals - Fall/Winter 2017 - Events
The Generals - Fall/Winter 2017 - The Construction Lien Act Discussion
The Generals - Fall/Winter 2017 - 17
The Generals - Fall/Winter 2017 - 18
The Generals - Fall/Winter 2017 - The New Construction Act: Coming to a Jobsite Near You
The Generals - Fall/Winter 2017 - Modernizing the Construction Lien Act – Welcome Changes
The Generals - Fall/Winter 2017 - 21
The Generals - Fall/Winter 2017 - 22
The Generals - Fall/Winter 2017 - 23
The Generals - Fall/Winter 2017 - Bill 142, Construction Lien Act Amendment – A Construction Owner’s Perspective
The Generals - Fall/Winter 2017 - 25
The Generals - Fall/Winter 2017 - Bill 142 – Worth the Wait
The Generals - Fall/Winter 2017 - 27
The Generals - Fall/Winter 2017 - 28
The Generals - Fall/Winter 2017 - Legend: Pertinent Acronyms
The Generals - Fall/Winter 2017 - The Effect of Adjudication on the Construction and Legal Industries
The Generals - Fall/Winter 2017 - 31
The Generals - Fall/Winter 2017 - The Proposed New Construction Act: A Dose of Realism
The Generals - Fall/Winter 2017 - 33
The Generals - Fall/Winter 2017 - Employer Did Not Discriminate Against Cocaine Addict Who was Dismissed for Cause
The Generals - Fall/Winter 2017 - 35
The Generals - Fall/Winter 2017 - 36
The Generals - Fall/Winter 2017 - COR Safety Certification: It’s Not just for Large Generals
The Generals - Fall/Winter 2017 - 38
The Generals - Fall/Winter 2017 - 39
The Generals - Fall/Winter 2017 - Recent Decision Confirms that Notices of Claims Do Not have a “Standard Form”
The Generals - Fall/Winter 2017 - 41
The Generals - Fall/Winter 2017 - Maple Reinders: After 50 Years, their Passion for Building Keeps Growing … and Growing
The Generals - Fall/Winter 2017 - 43
The Generals - Fall/Winter 2017 - 44
The Generals - Fall/Winter 2017 - 45
The Generals - Fall/Winter 2017 - OGCA Golf Tournament
The Generals - Fall/Winter 2017 - 47
The Generals - Fall/Winter 2017 - Associate Partners Program
The Generals - Fall/Winter 2017 - 49
The Generals - Fall/Winter 2017 - 50
The Generals - Fall/Winter 2017 - 51
The Generals - Fall/Winter 2017 - 52
The Generals - Fall/Winter 2017 - 53
The Generals - Fall/Winter 2017 - Index to Advertisers
The Generals - Fall/Winter 2017 - cover3
The Generals - Fall/Winter 2017 - cover4
The Generals - Fall/Winter 2017 - outsert1
The Generals - Fall/Winter 2017 - outsert2
The Generals - Fall/Winter 2017 - outsert3
The Generals - Fall/Winter 2017 - outsert4
The Generals - Fall/Winter 2017 - outsert5
The Generals - Fall/Winter 2017 - outsert6
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