The Generals - Fall/Winter 2017 - 35

they have a characteristic protected from discrimination under the Code; that they experienced adverse impact with respect to the
service; and that the protected characteristic
was a factor in the adverse impact": Moore,
at para. 33. Discrimination can take many
forms, including "'indirect' discrimination",
where otherwise neutral policies may have
an adverse effect on certain groups: Quebec
(Commission des droits de la personne et
des droits de la jeunesse) v. Bombardier Inc.
(Bombardier Aerospace Training Center), 2015
SCC 39, [2015] 2 S.C.R. 789, at para. 32.
Discriminatory intent on behalf of an employer
is not required to demonstrate prima facie
discrimination: Bombardier, at para. 40.
It is conceded that the first two elements of
a prima facie case of discrimination are established in this case. The only dispute is on the
third requirement-whether Mr. Stewart's addiction was a factor in his termination.
The Tribunal cited the proper legal test and
noted, at para. 117, that it was "not necessary
that discriminatory considerations be the sole
reason for the impugned actions in order for
there to be a contravention of the Act". After
a detailed review of the evidence, it concluded
that Mr. Stewart's addiction was not a factor
in his termination for two related reasons. In
the Tribunal's view, Mr. Stewart was fired not
because he was addicted, but because he had
failed to comply with the terms of the Policy,
and for no other reason. The Tribunal also
concluded that Mr. Stewart was not adversely
impacted by the Policy because he had the
capacity to comply with its terms.

The only question for a reviewing court is
whether this conclusion is unreasonable.
Deference requires respectful attention to the
Tribunal's reasoning process. A reviewing court
must ensure that it does not only pay "lip service" to deferential review while substituting its
own views: Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190, at para. 48. If the
decision is within a "range of possible, acceptable outcomes" which are defensible in respect
of the evidence and the law, it is reasonable:
Dunsmuir, at para. 47; see also Newfoundland
and Labrador Nurses' Union v. Newfoundland
and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708, at para. 16.
I am satisfied that the Tribunal's conclusion
that addiction was not a factor in the termination of Mr. Stewart's employment is reasonable.
It was the Tribunal's task to determine whether
the reason for the termination of employment or
the impact of the Policy on Mr. Stewart established a prima facie case of discrimination. There
is ample evidence to support the Tribunal's conclusion that there was no prima facie case and,
therefore, no basis to overturn it."
Justices Moldaver and Wagner wrote (joint
reasons concurring in the result) as follows
(at para. 48):
"We are of the view that the appeal should
be dismissed. While we concur with the Chief
Justice in the result, we agree with Gascon J.
that the test for prima facie discrimination was
met in this case. The Tribunal's conclusion that
Mr. Stewart's drug dependency was not a "factor" in his termination was unreasonable. Where
we part company with Gascon J. is with respect

to reasonable accommodation. In our view, the
Tribunal reasonably held that the employer met
its obligation to accommodate Mr. Stewart to the
point of undue hardship. Therefore, we accept
the Tribunal's conclusion that Mr. Stewart's
employer did not discriminate against him on
the ground of his drug dependency."
Justice Gascon (in dissent) wrote as follows
(at para. 145):
"Elk Valley prima facie discriminated against
Mr. Stewart. He was drug-dependent, and he was
terminated for giving in to that dependence, an
undeniable symptom of his disability. Further,
Elk Valley did not reasonably accommodate
Mr. Stewart. Its only accommodation during
employment was letting him voluntarily disclose
his disability without discipline. But he could
not access this accommodation because he
appears to have been unaware of his addiction; again, a symptom of his disability. As the
Tribunal's decision to the contrary on both issues
was, in my assessment, unreasonable, I would
have allowed the appeal."
This decision has important implications for
employers in at least three areas:
1. The importance of having a well drafted
Fitness for Duty Policy;
2. The need for a proper Alcohol & Drug Testing
Policy in place in dangerous workplaces;
3. The need to get legal advice before deciding
to terminate workers for substance use. ■
For more information on this case, or assistance
in drafting and implementing of a Fitness for Duty
Policy, please feel free to contact Norm Keith at
416-868-7824 or at nkeith@fasken.com.
Fall/Winter 2017

35



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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