SUPREME
COURT OF CANADA
Citation: Stewart v.
Elk Valley Coal Corp., 2017 SCC 30
|
Appeal heard:
December 9, 2016
Judgment
rendered: June 15, 2017
Docket:
36636
|
Between:
Brent
Bish on behalf of Ian Stewart
Appellant
and
Elk
Valley Coal Corporation, Cardinal River Operations and Alberta Human Rights
Commission (Tribunal)
Respondents
-
and -
Council
of Canadians with Disabilities, Empowerment Council, Construction Owners
Association of Alberta, Construction Labour Relations — an Alberta Association, Enform
Canada, Electrical Contractors Association of Alberta, Mining Association of
Canada, Mining Association of British Columbia, Ontario Mining Association,
Northwest Territories and Nunavut Chamber of Mines, Saskatchewan Mining
Association, United Nurses of Alberta, Ontario General Contractors Association,
Ontario Formwork Association and Greater Toronto Sewer and Watermain
Contractors Association
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner,
Gascon, Côté, Brown and Rowe JJ.
Reasons for
Judgment:
(paras. 1 to 47)
|
McLachlin C.J. (Abella, Karakatsanis, Côté, Brown and Rowe
JJ. concurring)
|
Joint Reasons
Concurring in the Result:
(paras. 48 to 57)
|
Moldaver and Wagner JJ.
|
Dissenting
Reasons:
(paras. 58 to 145)
|
Gascon J.
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
stewart v. elk valley coal
corp.
Brent Bish on behalf of Ian
Stewart Appellant
v.
Elk Valley Coal Corporation, Cardinal
River Operations and
Alberta Human Rights
Commission (Tribunal) Respondents
and
Council of Canadians with Disabilities, Empowerment
Council,
Construction Owners Association of
Alberta,
Construction Labour Relations — an
Alberta Association,
Enform Canada, Electrical Contractors
Association
of Alberta, Mining Association of
Canada,
Mining Association of British Columbia,
Ontario Mining Association, Northwest
Territories and Nunavut
Chamber of Mines, Saskatchewan Mining
Association,
United Nurses of Alberta, Ontario
General Contractors
Association, Ontario Formwork
Association and Greater
Toronto Sewer
and Watermain Contractors Association Interveners
Indexed as: Stewart v.
Elk Valley Coal Corp.
2017 SCC 30
File No.: 36636.
2016: December 9; 2017: June 15.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis,
Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for alberta
Human
rights — Discriminatory practices — Discrimination based on mental or physical
disability — Drug dependency — Employer’s policy aimed at ensuring safety required
employees to disclose dependence or addiction issues before drug‑related
incident — Employee involved in accident — Employee tested positive for drug
use — Employer terminated employee’s employment pursuant to policy — Whether
employee was terminated for addiction or for breaching policy — If termination
constituted prima facie discrimination, whether employer met its obligation to
accommodate employee to point of undue hardship — Human Rights, Citizenship and
Multiculturalism Act, R.S.A. 2000, c. H‑14, s. 7(1).
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
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 an accident, he tested positive for
drugs and later said that he thought he was addicted to cocaine. His employer
terminated his employment. S, through his union representative, argues that he
was terminated for addiction and that this constitutes discrimination under s. 7
of the Alberta Human Rights, Citizenship and Multiculturalism Act.
The
Alberta Human Rights Tribunal held that S was terminated for breaching the
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.
Held:
The appeal should be dismissed.
Per
McLachlin C.J. and Abella, Karakatsanis, Côté, Brown and Rowe JJ.:
This case involves the application of settled principles on workplace disability
discrimination to a particular fact situation. The nature of the particular
disability at issue does not change the legal principles to be applied. These
issues were within the purview of the Tribunal, and attract deference. The only
question is whether the Tribunal’s decision is reasonable. 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.
It
is clear that there was evidence capable of supporting the Tribunal’s
conclusion that the reason for the termination was not addiction, but breach of
the policy. On the facts of this case, the Tribunal concluded that S had the
capacity to comply with the terms of the policy and that he would have been
fired whether he was an addict or a casual user. It was therefore not
unreasonable for the Tribunal to conclude that there was no prima facie
discrimination. Although it is open to a tribunal to find that an addiction was
a factor in an adverse distinction where the evidence supports such a finding,
this was clearly not the finding of the Tribunal. It unequivocally and
repeatedly stated that addiction was not a factor in the decision to terminate.
It also rejected the argument that denial prevented S from disclosing his addiction
prior to the accident. While S may have been in denial about his addiction, he
knew he should not take drugs before working and had the ability to decide not
to take them, as well as the capacity to disclose his drug use to his employer.
Denial about his addiction was thus irrelevant in this case. Finally, a finding
of stereotypical or arbitrary decision‑making is not a stand‑alone
requirement for proving prima facie discrimination, and there is no need
to alter the settled view that the protected ground or characteristic need only
be a factor in the decision.
Since
the Tribunal’s decision that prima facie discrimination was not
established was reasonable, it is unnecessary to consider whether S was
reasonably accommodated.
Per
Moldaver and Wagner JJ.: The Tribunal’s conclusion that S’s drug
dependency was not a factor in his termination was unreasonable. To prove prima
facie discrimination, S is not required to show that his termination was
caused solely or even primarily by his drug dependency. Rather, he must only
show that there is a connection between the protected ground — his drug
dependency — and the adverse effect. His exercise of some control over his drug
use merely reduced the extent to which his dependency contributed to his
termination — it did not eliminate it as a factor in his termination.
However,
the Tribunal reasonably held that the employer had met its obligation to
accommodate S to the point of undue hardship. Given the employer’s safety
objectives and responsibilities at the coal mine, it was crucial to deter
employees from using drugs in a manner that could negatively affect their work
performance and potentially lead to devastating consequences. Subjecting S to
an individual assessment or imposing an unpaid suspension for a limited period
as a disciplinary measure instead of imposing the serious and immediate consequence
of termination would have undermined the policy’s deterrent effect. Therefore,
the Tribunal reasonably concluded that incorporating these aspects of
individual accommodation would result in undue hardship.
Per
Gascon J. (dissenting): Although drug dependence is a protected
ground of discrimination in human rights law, stigmas surrounding drug
dependence — like the belief that individuals suffering from it are the authors
of their own misfortune or that their concerns are less credible than those of
people suffering from other forms of disability — sometimes impair the ability
of courts and society to objectively assess the merits of their discrimination
claims. These stigmas contribute to the uneasy fit of drug addiction and drug
testing policies in the human rights arena. The improper considerations relied
on by the Tribunal effectively excluded S from the scope of human rights
protections.
A
drug policy that automatically terminates employees who use drugs prima
facie discriminates against individuals burdened by drug dependence. The
legal threshold for prima facie discrimination is whether the
complainant’s protected ground is a factor in the harm they suffer (also called
“contribution”). Here, drug dependence was a factor in S’s drug use, so the
policy under which S was terminated for using drugs is prima facie
discriminatory. The Tribunal’s analysis was unreasonable because it
misunderstood the legal principles informing discrimination law, and was
unsupported by its factual findings.
The
analysis of prima facie discrimination, and, in particular,
contribution, is concerned with discriminatory effect, not discriminatory
intent. Contribution addresses the relationship between an employee’s protected
ground and harm, not between the ground and the intent to harm that employee. A
ground need only be at least one of the factors linked to the employee’s harm. The
Tribunal did not follow this established approach. Instead, it unreasonably
held that S’s addiction did not contribute to his termination based on four
conceptual errors.
First,
it required S to make prudent choices to avoid discrimination. Requiring that
complainants be prudent in avoiding discrimination amounts to a sort of
contributory fault defence in discrimination cases, which (1) places a
burden on complainants to avoid discrimination, rather than on employers not to
discriminate; (2) is irreconcilable with recently recognized statutory
grounds that arguably implicate a complainant’s choices that are significant to
their identity; (3) generally contradicts the Court’s rejection of drawing
superficial distinctions between protected grounds and conduct inextricably
linked to those grounds; (4) specifically contradicts the Court’s
rejection of the view that choice makes drug users responsible for the
harms of their drug use; (5) reinforces stigma by blaming marginalized
communities for their choices; and (6) substitutes the proper inquiry
(whether drug‑dependent individuals are adversely impacted by the policy)
with an improper inquiry (whether drug‑dependent individuals are so
overwhelmingly impacted by their addictions that any discrimination they
experience is caused exclusively by their addictions).
Second,
the Tribunal limited S’s protections to an assurance of formal equality. While
both dependent and recreational drug users will receive similar treatment for
violating the policy, only drug‑dependent persons will uniquely and disproportionately
struggle in complying with the terms of the policy.
Third,
the Tribunal required S to prove that he was treated arbitrarily or
stereotypically, importing substantive considerations into the settled and low
threshold for prima facie discrimination and shifting a justificatory
burden from the employer onto the complainant.
Finally,
the Tribunal required S to prove a causal relationship between his ground and
harm, a higher bar than the mere “factor” threshold repeatedly adopted by the
Court. Prima facie discrimination should not be narrowly construed to
preserve the enforceability of drug and alcohol policies. Doing so imports
justificatory considerations into the prima facie discrimination
analysis and exaggerates the implication of finding such policies prima
facie discriminatory when they would simply need to be justified as
relating to bona fide occupational requirements. It also narrows the
Court’s recent jurisprudence, which holds that terminating an employee for a
reason related to addiction is precisely what it means for that addiction to be
a factor in the employee’s harm.
As
such, while the Tribunal cited the proper legal test for prima facie discrimination,
the manner in which it applied that test and the lack of an evidentiary foundation
for its findings demonstrate that its holding on contribution was unreasonable
and thus unworthy of deference. Although it repeatedly stated that S’s
addiction was not a factor in his termination, its reasons suggest that it
meant that S’s addiction was not a factor in the employer’s decision to
terminate him. That was the wrong legal test. Under the proper test, the
evidence before the Tribunal could not support its conclusion that S’s drug
dependence did not contribute to his termination. His residual control over his
choices merely diminishes the extent to which his dependence contributed to his
harm, it does not eliminate it as a factor. The Tribunal avoided this argument
by considering discriminatory intent, not adverse effect, and by improperly
requiring absolute incapacity to ground a claim relating to discrimination
based on addiction. Consequently, the termination of S was prima facie discriminatory.
With
respect to justification, a policy that accommodates employees through
mechanisms which are either inaccessible by the employee due to their
disability or only applicable to the employee post‑termination cannot
justify prima facie discrimination. Reasonable accommodation requires that
the employer arrange the employee’s workplace or duties to enable the employee
to do his or her work, if it can do so without undue hardship. To determine
what reasonable or practical alternatives are available, an employer must
engage in an individualized analysis of the employee based on the employee’s
individual differences and capabilities. Therefore, any predetermined or
blanket approach to sanctions imposed on employees for disability‑related
conduct will struggle to fulfill an employer’s individualized duty to
accommodate.
Here,
the text of the impugned policy provides for individualized post‑incident
accommodation: disciplinary action against an employee who tests positive for
drugs is to be based on all relevant circumstances, including the employee’s
employment record, the circumstances surrounding the positive test, the
employee’s stated pattern of usage, the likelihood that the employee’s work
performance has been or may be adversely affected, and the importance of
deterring such behaviour. However, the policy was implemented, contrary to its express
terms, with no consideration of S’s circumstances. In the human rights context,
it is not appropriate for the employer to forego individual assessment in the
interest of deterrence, even in the safety‑sensitive environment of this
workplace, and even though that environment motivates strict drug policies.
None
of the employer’s efforts at accommodation provided S with accessible
accommodation during his employment, and those efforts failed to consider his
individual circumstances in a dignified manner, so the employer cannot be said
to have discharged its duty to accommodate him as an employee up to the point
of undue hardship and the Tribunal’s findings to the contrary were
unreasonable. Before termination, S was purportedly accommodated by the offer
of lenient treatment if he voluntarily disclosed his drug dependence. But that
accommodation was inaccessible by him because he appeared to have been unaware
of his dependence, a symptom of his disability. After termination, he was
allegedly accommodated by being given the prospect of reapplying for his
position. But accommodation assists employees in their sustained employment,
not former employees who may, or may not, successfully reapply for the position
they lost as a result of a prima facie discriminatory termination. Given
that all of the purported accommodations provided by the employer could not
qualify as accommodation in law, the Tribunal’s holding that those
accommodations constituted appropriate accommodation was open to intervention.
Cases Cited
By McLachlin C.J.
Referred to: British Columbia (Public
Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Hydro‑Québec
v. Syndicat des employé‑e‑s de techniques professionnelles et de
bureau d’Hydro‑Québec, section locale 2000 (SCFP‑FTQ), 2008 SCC
43, [2008] 2 S.C.R. 561; Moore v. British Columbia (Education), 2012 SCC
61, [2012] 3 S.C.R. 360; 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; Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190; Newfoundland and Labrador Nurses’ Union
v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R.
708; Health Employers Assn. of British Columbia v. B.C.N.U., 2006 BCCA
57, 54 B.C.L.R. (4th) 113; Quebec (Attorney General) v. A, 2013 SCC 5,
[2013] 1 S.C.R. 61.
By Moldaver and Wagner JJ.
Referred to: 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; British
Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3
S.C.R. 3; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190; Central Alberta Dairy Pool v. Alberta (Human Rights
Commission), [1990] 2 S.C.R. 489; British Columbia (Superintendent of Motor Vehicles) v.
British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; Central Okanagan School
District No. 23 v. Renaud, [1992] 2 S.C.R. 970.
By Gascon J.
(dissenting)
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; Moore v. British Columbia (Education), 2012 SCC 61, [2012]
3 S.C.R. 360; Hydro‑Québec v. Syndicat des employé‑e‑s de
techniques professionnelles et de bureau d’Hydro‑Québec, section locale
2000 (SCFP‑FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561; British
Columbia (Public Service Employee Relations Committee v. BCGSEU, [1999] 3
S.C.R. 3; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16,
[2015] 2 S.C.R. 3; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC
11, [2013] 1 S.C.R. 467; Canada (Attorney General) v. PHS Community Services
Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Commission scolaire régionale
de Chambly v. Bergevin, [1994] 2 S.C.R. 525; ADGA Group Consultants Inc.
v. Lane (2008), 64 C.H.R.R. D/132; Carter v. Canada (Attorney General),
2015 SCC 5, [2015] 1 S.C.R. 331; British Columbia Public Service Agency v. B.C.G.E.U.,
2008 BCCA 357, 83 B.C.L.R. (4th) 299; Nova Scotia (Workers’ Compensation
Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504.
Statutes and Regulations Cited
Alberta Human Rights Act, R.S.A. 2000,
c. A‑25.5, s. 7(1).
Canadian Charter of Rights and Freedoms,
s. 7 .
Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H‑14, ss. 7(1), (3), 44(1)(h)
“mental disability”, (l) “physical disability”.
Authors Cited
Koshan, Jennifer. “Under the Influence: Discrimination Under Human
Rights Legislation and Section 15 of the Charter ” (2014), 3 Can. J.
Hum. Rts. 115.
Oliphant, Benjamin. “Prima Facie Discrimination: Is Tranchemontagne
Consistent with the Supreme Court of Canada’s Human Rights Code
Jurisprudence?” (2012), 9 J.L. & Equality 33.
Pothier, Dianne. “Tackling Disability Discrimination at Work: Toward
a Systemic Approach” (2010), 4 M.J.L.H. 17.
APPEAL
from a judgment of the Alberta Court of Appeal (Picard, Watson and O’Ferrall JJ.A.),
2015 ABCA 225, 19 Alta. L.R. (6th) 219, 602 A.R. 210, 647 W.A.C. 210, 87 Admin.
L.R. (5th) 299, 24 C.C.E.L. (4th) 1, 81 C.H.R.R. D/367, [2015] CLLC ¶230‑046,
386 D.L.R. (4th) 383, [2015] 9 W.W.R. 1, [2015] A.J. No. 728 (QL), 2015
CarswellAlta 1190 (WL Can.), setting aside in part a decision of
Michalyshyn J., 2013 ABQB 756, 581 A.R. 234, [2014] CLLC ¶230‑012,
[2013] A.J. No. 1462 (QL), 2013 CarswellAlta 2733 (WL Can.), affirming a
decision of the Alberta Human Rights Tribunal, 2012 AHRC 7, 74 C.H.R.R. D/425,
2012 CarswellAlta 2396 (WL Can.). Appeal dismissed, Gascon J. dissenting.
E. Wayne Benedict, for the appellant.
Peter A. Gall, Q.C., Andrea L. Zwack and Benjamin J.
Oliphant, for the respondent the Elk Valley Coal Corporation, Cardinal
River Operations.
Janice R. Ashcroft, Q.C., for the
respondent the Alberta Human Rights Commission (Tribunal).
Karen R. Spector and Mariam Shanouda, for the interveners the Council
of Canadians with Disabilities and the Empowerment Council.
Barbara B. Johnston, Q.C., and April
Kosten, for the interveners the Construction Owners Association of Alberta,
Construction Labour Relations — an Alberta Association, Enform Canada, the Electrical
Contractors Association of Alberta, the Mining Association of Canada, the Mining
Association of British Columbia, the Ontario Mining Association, the Northwest
Territories and Nunavut Chamber of Mines and the Saskatchewan Mining
Association.
Ritu Khullar, Q.C., and Vanessa Cosco, for
the intervener the United Nurses of Alberta.
Norm Keith and Marc Rodrigue, for the interveners the Ontario General
Contractors Association, the Ontario Formwork Association and the Greater
Toronto Sewer and Watermain Contractors Association.
The judgment of McLachlin C.J. and
Abella, Karakatsanis, Côté, Brown and Rowe JJ.
was delivered by
The Chief Justice —
I.
Introduction
[1]
Ian Stewart 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. The employer implemented an Alcohol, Illegal Drugs
& Medication Policy, aimed at ensuring safety in the mine (“Policy”).
Employees were expected to 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 terminated — a policy
succinctly dubbed the “no free accident” rule. The aim of the Policy was to
ensure safety by encouraging employees with substance abuse problems to come
forward and obtain treatment before their problems compromised safety.
Employees, including Mr. Stewart, attended a training session at which the
Policy was reviewed and explained. Mr. Stewart signed a form acknowledging
receipt and understanding of the Policy.
[2]
Mr. Stewart used cocaine on his days off. He did
not tell his employer that he was using drugs. One day, near the end of a
12-hour shift, Mr. Stewart’s loader was involved in an accident. No one was
hurt, but Mr. Stewart tested positive for drugs. Following the positive drug
test, in a meeting with his employer, Mr. Stewart said that he thought he was
addicted to cocaine. Nine days later, his employer terminated his employment in
accordance with the “no free accident” rule.
[3]
Addiction is a recognized disability under the Human
Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14. Mr.
Stewart, through his union representative Brent Bish, argues, that he was
terminated for addiction and that this constitutes discrimination under the
Act, which states:
7(1) No employer shall
(a) refuse to employ or refuse to continue to employ any person, or
(b) discriminate against any person with regard to employment or any
term or condition of employment,
because of the race,
religious beliefs, colour, gender, physical disability, mental disability, age,
ancestry, place of origin, marital status, source of income or family status of
that person or of any other person.
. . .
(3) Subsection (1) does not apply with respect to a refusal,
limitation, specification or preference based on a bona fide occupational
requirement.
44(1) In this Act,
. . .
(h) “mental disability” means any mental disorder, developmental
disorder or learning disorder, regardless of the cause or duration of the
disorder;
. . .
(l) “physical disability” means any degree of physical disability,
infirmity, malformation or disfigurement that is caused by bodily injury, birth
defect or illness . . . ;
[4]
The Alberta Human Rights Tribunal held that Mr.
Stewart was not terminated because of his addiction, but for breaching the
Policy, which required him to disclose his addiction or dependency before an
accident occurred to avoid termination. The Tribunal’s decision was affirmed
by the Alberta Court of Queen’s Bench and by the Alberta Court of Appeal,
O’Ferrall J.A., dissenting. Mr. Stewart, through Mr. Bish, now appeals to this
Court.
[5]
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.
II.
Prior Decisions
A.
The Tribunal Decision, 2012 AHRC 7
[6]
The Tribunal, in a decision authored by the
Honourable Paul Chrumka, accepted the settled two-part test for discrimination
in the workplace. At the first step, the employee must establish a prima
facie case of discrimination, by showing: (1) a disability which is
protected under the Act; (2) adverse treatment with regard to his employment or
a term of that employment; and (3) that the disability was a factor in the
adverse treatment. Relying on expert evidence, the Tribunal concluded that Mr.
Stewart was addicted to drugs (even though he did not recognize his addiction
at the time), and that this addiction constituted a disability protected under
the Act. The Tribunal also concluded that Mr. Stewart’s termination
constituted adverse treatment by the employer. However, it found that Mr.
Stewart’s disability was “not a factor in the termination” (para. 125
(CanLII)). In the Tribunal’s view, Mr. Stewart was terminated for failing to
comply with the Policy, which required Mr. Stewart to disclose his drug use
prior to the accident and denied him the benefit of “one free accident” (para.
142). Therefore, there was no prima facie discrimination.
[7]
In the alternative, the Tribunal stated that, if
a prima facie case of discrimination had been established, it would have
found that the employer discharged its onus at the second step of establishing
that it had accommodated Mr. Stewart to the point of undue hardship.
[8]
The Tribunal, at para. 131, relied on British
Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3
S.C.R. 3 (“Meiorin”) in setting the test for a bona fide occupational
requirement (BFOR). Meiorin provides that:
An employer may justify the impugned standard by establishing on the
balance of probabilities:
(1) that the employer adopted the standard for a purpose rationally
connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and
good faith belief that it was necessary to the fulfilment of that legitimate
work-related purpose; and
(3) that the standard is reasonably
necessary to the accomplishment of that legitimate work-related purpose.
To show that the standard is reasonably necessary, it must be demonstrated that
it is impossible to accommodate individual employees sharing the
characteristics of the claimant without imposing undue hardship upon the
employer. [para. 54]
Then, at para. 133, the Tribunal
quoted Hydro-Québec v. Syndicat des employé-e-s de techniques
professionelles et de bureau d’Hydro-Québec section locale 2000 (SFCP-FTQ),
2008 SCC 43, [2008] 2 S.C.R. 561, at paras. 12 and 16,
elaborating on the undue hardship criteria:
What is really required is not proof that it is impossible to
integrate an employee who does not meet a standard, but proof of undue hardship,
which can take as many forms as there are circumstances . . . .
. . .
The test is not whether it was impossible
for the employer to accommodate the employee’s characteristics. The employer
does not have a duty to change working conditions in a fundamental way, but
does have a duty, if it can do so without undue hardship, to arrange the
employee’s workplace or duties to enable the employee to do his or her work.
[9]
The Tribunal found that the employer had adopted
the “no free accident” rule in good faith for a job-related purpose, believing
that “application of the policy was necessary to ensure the deterrent effect of
the policy and ultimately safety in the workplace” (para. 147). The only
question was whether the employer could have continued to employ Mr. Stewart
without undue hardship. The Tribunal concluded it could not:
If the [employer] had to offer the
opportunity for assessment to Mr. Stewart or replace the harsher and immediate
effects of termination of employment with less serious consequences, the
deterrent effect of the Policy would be significantly lessened, and constitute
an undue hardship to the company, given the [employer’s] safety
responsibilities. [para. 152]
[10]
The Tribunal also found that offering an
assessment without termination given that Mr. Stewart was able to make
conscious choices regarding his drug use, would dilute the purpose of the
Policy. Finally, the Tribunal found that the opportunity under the Policy to
come forward and access treatment without fear of discipline, and the
invitation to obtain treatment and apply for re-employment in six months,
constituted accommodation of the disability.
B.
The Motions Judge’s Decision, 2013 ABQB 756, 581
A.R. 234
[11]
Mr. Bish appealed the Tribunal’s decision to the
Alberta Court of Queen’s Bench. The motions judge (Michalyshyn J.), held that
the standard of review was correctness on the issue of a prima facie case
of discrimination, and reasonableness on the issue of accommodation. He
dismissed the appeal on the ground that the Tribunal had not erred in
concluding that the reason for termination was not addiction, but breach of the
Policy. The evidence supported this conclusion and the fact that Mr. Stewart
may have been in denial changed nothing.
[12]
On the second issue, the motions judge held that
if a prima facie case had been made out, the Tribunal erred in finding
that the Policy accommodated Mr. Stewart, because Mr. Stewart “was not
‘capable’ of seeking treatment under the Policy by reason of a dependency or
addiction he did not know he had” (para. 63; see also paras. 58-66).
Self-reporting is not an accommodation for people in denial of their
disability, he held.
C.
The Court of Appeal’s Decision, 2015 ABCA 225,
19 Alta. L.R. (6th) 219
[13]
The majority of the Court of Appeal (Picard and
Watson JJ.A.) dismissed the appeal and upheld the Tribunal’s decision.
[14]
On the issue of prima facie discrimination,
the majority applied this Court’s three-part test set out in Moore v.
British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, and
held that disability must be a real factor in the adverse impact, not just part
of the background. Using the example of non-smoking policies, the majority
held that it is impermissible to refuse to employ a person simply because they
have an addiction, but permissible to refuse to employ a person for violation
of a general policy restricting consumption of addictive material that is
imposed on everyone. The majority concluded, at para. 76:
Put another
way, the Tribunal found no real nexus between the application of the
employer’s policy and the disability itself as alleged for Stewart. There was
not shown to be direct discrimination, in the sense of the employer acting upon
arbitrary or pre-conceived stereotypes when Stewart was let go. Nor was there
shown to be indirect discrimination, in the sense of the employer having
created a structure of employment policy whereby termination would effectively
follow from a culture of discriminatory employment arrangements. Finally, and
importantly to the Tribunal’s decision, the nexus between the disability
and the action of Elk Valley towards Stewart when he breached the terms of the
Policy in at least two ways, was not such as to make his disability itself a
“factor” in the action taken by Elk Valley.
[15]
On the issue of accommodation, the majority held
that an employer cannot be required to premise workplace safety policy on a
flagrant demonstration of an addiction. The fact that an employee may not know
he is addicted or be in denial about the addiction does not change this. Employers
should not be required to establish intrusive workplace rules to sniff out
potential addictions.
[16]
O’Ferrall J.A. dissented on the ground that the
Tribunal erred in law in relying on the absence of stereotypical behaviour to
conclude no prima facie case of discrimination had been established, and
in failing to consider the employer’s motive of deterrence in determining
whether the addiction was a factor in the termination. In his view, the
evidence showed that addiction was the real reason for the termination of Mr.
Stewart’s employment.
[17]
O’Ferrall J.A. also concluded that the employer
had not accommodated Mr. Stewart’s disability to the point of undue hardship.
In his view, self-reporting is not an accommodation for people in denial of
their addiction; termination as opposed to suspension pending treatment was
unduly harsh in the circumstances; and the Tribunal over-emphasized the
employer’s need for deterrence and under-valued the need to assess the
circumstances.
III.
The Issues
[18]
The appellant raises three issues on appeal.
First, he argues that the standard of review should be correctness. Second, he
says that the Tribunal erred in concluding that prima facie discrimination
was not established. Third, he argues that the Tribunal erred in finding that
the employer has met its burden of establishing undue hardship.
IV.
Analysis
A.
Standard of Review
[19]
Beneath the rhetoric that surrounds standard of
review lies the question of deference: Should the reviewing court approach the
decision below with deference?
[20]
Reviewing courts generally approach the
decisions of tribunals under human rights statutes with considerable deference.
It is the tribunal’s task to evaluate the evidence, find the facts and draw
reasonable inferences from the facts. And it is the tribunal’s task to interpret
the statute in ways that make practical and legal sense in the case before
them, guided by applicable jurisprudence. Reviewing courts tread lightly in
these areas.
[21]
The appellant, relying on what he concedes are
“outlier” decisions, suggests that a non-deferential standard of correctness
applies because legal issues arise with respect to whether stereotyping is a
requirement of a prima facie case for discrimination, and with respect
to when it becomes “impossible” to alter a workplace policy. As will be seen
from the analysis that follows, these are essentially matters of applying the
accepted law to the facts.
[22]
In sum, this case involves the application of
settled principles on workplace disability discrimination to a particular fact
situation. The nature of the particular disability at issue — in this case
addiction — does not change the legal principles to be applied. The debates
here are not about the law, but about the facts and the inferences to be drawn
from the facts. These issues were within the purview of the Tribunal, and
attract deference. The only question is whether the Tribunal’s decision was
reasonable.
B.
Was the Tribunal Unreasonable in Finding That Prima Facie
Discrimination Was Not Established?
[23]
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 hard-ship.
[24]
To make a case of prima facie discrimination,
“complainants are required to show that 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.
[25]
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.
[26]
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.
[27]
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.
[28]
I am satisfied that the Tribunal’s conclusion
that addiction was not a factor in the termination of Mr. Stewart’s employment
is reasonable.
[29]
The most important piece of evidence on whether
Mr. Stewart’s addiction was a factor in Elk Valley’s reasons for the
termination of his employment is the termination letter. The first three
paragraphs deal with the reason for termination:
Dear Ian:
Re: Termination of Employment
On October 18, 2005, you
tested positive for cocaine after being involved in an accident. A further
investigation with you revealed that you use drugs extensively.
On July 25th,
2005, you signed an acknowledgement that your employment required you to comply
with the Company’s Drug and Alcohol policy. It is fundamental to safety at the
minesite that employees comply with the Drug and Alcohol Policy and disclose
their dependency on drugs or alcohol before breaching the Policy and
placing their lives and the lives of their co-workers at risk. The policy
states that in responding to a violation of the policy the Company will place
primary importance upon deterring similar behaviour by other employees and will
terminate the employee unless termination would be unjust in all of the
circumstances.
After consideration of all of
the circumstances we have concluded that your employment should be terminated.
The termination is effective November 3rd, 2005. [Emphasis in
original.]
(A.R., vol. III, at para. 48)
[30]
The first paragraph of the letter refers to Mr.
Stewart’s drug test and use of drugs. The second paragraph cites and explains
the Policy. The third informs Mr. Stewart of his termination.
[31]
The Tribunal construed the letter as emphasizing
the Policy as the factor leading to Mr. Stewart’s termination, despite his
argument that the wording of the letter establishes that addiction was a factor
in termination:
I . . . note
the submission of [Mr. Bish’s] counsel regarding the wording in the termination
letter. However, the contextual emphasis in the letter overall is on the
violation of the Policy. [para. 123]
[32]
The Tribunal found, based on the evidence before
him, that Mr. Stewart was terminated “due to the failure of Mr. Stewart to stop
using drugs and failing to disclose his use prior to the accident” (para.
120). It accepted that people with addictions may experience denial and that
the distinction between termination due to disability and termination due to
the failure to follow a policy may appear “superficial” given that the failure
to follow a policy may be a symptom of an addiction or disability (para. 122).
However, in the circumstances of this case, the Tribunal found that the
evidence established that the Policy adversely impacted Mr. Stewart not because
of denial “but rather because he chose not to stop his drug use or disclose his
drug use” (para. 122).
[33]
For the Tribunal, the termination letter did not
establish that the addiction was a factor in Elk Valley’s decision to terminate
Mr. Stewart’s employment.
[34]
The Tribunal went on to consider whether the
Policy itself adversely impacted Mr. Stewart because of his addiction. In that
context, the Tribunal noted that “Mr. Stewart would have been fired whether or
not he was an addict or a casual user” (para. 123) and that “[t]he Policy as
applied to Mr. Stewart which resulted in Mr. Stewart’s termination was not
applied due to his disability” (para. 125). The Tribunal concluded that Mr.
Stewart had “the capacity to make choices” about his drug use (para. 126). In
the Tribunal’s view, the expert evidence in this case demonstrated that Mr.
Stewart’s addiction did not diminish his capacity to comply with the terms of
the Policy. Accordingly, the Policy did not adversely impact Mr. Stewart.
[35]
It is clear that there was evidence capable of
supporting the Tribunal’s conclusion that the reason for the termination was
not addiction, but breach of the Policy. On the facts of this case, the
Tribunal concluded that Mr. Stewart had the capacity to comply with the terms
of the Policy. It was therefore not unreasonable for the Tribunal to conclude
that there was no prima facie discrimination in this case. Mr. Stewart
makes two arguments in his attempt to overturn the Tribunal’s factual findings.
[36]
First, Mr. Bish’s attempts to recast the
Tribunal’s conclusion as a finding that, while breach of the Policy was the
dominant cause of the termination, Mr. Stewart’s addiction was nevertheless “a
factor”, and that this suffices to establish a prima facie case of
discrimination. This was clearly not the finding of the Tribunal. The
Tribunal unequivocally and repeatedly stated that addiction was not a factor in
the decision to terminate Mr. Stewart:
•
“Mr. Stewart was adversely impacted by the Policy not because of
denial through drug impairment but rather because he chose not to stop his drug
use or disclose his drug use” (para. 122);
•
“The Policy as applied to Mr. Stewart which resulted in Mr.
Stewart’s termination was not applied due to his disability” (para. 125);
•
“Given my finding that Mr. Stewart’s disability was not a factor
in his termination” (para. 126).
The Tribunal could not
have been clearer — “Mr. Stewart’s disability was not a factor in his
termination”.
[37]
Second, Mr. Bish suggests that Mr. Stewart’s
addiction was a factor in his termination because denial was part of the
addiction, and prevented him from disclosing his addiction prior to the
accident. Breach of the Policy may have been the immediate cause of the
termination, but the reason for the breach of Policy was the addiction.
Therefore, he submits, the termination was due to the addiction; the addiction
indirectly was “a factor” in the termination.
[38]
As noted above, the Tribunal rejected this
argument. While it was “sensitive to the argument that any distinction between
termination due to disability and termination due to failure to follow the
Policy may appear to be superficial given that the misconduct relied upon can
be considered, in some circumstances, to be a symptom of the addiction or
disability” (para. 122), it concluded that the argument did not assist Mr.
Stewart because he “had the capacity to come forward and disclose his drug use”
(para. 121) and “did make rational choices in terms of his drug use” (para.
122). While Mr. Stewart may have been in denial about his addiction, he knew he
should not take drugs before working, and he had the ability to decide not to
take them as well as the capacity to disclose his drug use to his employer.
Denial about his addiction was thus irrelevant in this case.
[39]
It cannot be assumed that Mr. Stewart’s
addiction diminished his ability to comply with the terms of the Policy. In
some cases, a person with an addiction may be fully capable of complying with
workplace rules. In others, the addiction may effectively deprive a person of
the capacity to comply, and the breach of the rule will be inextricably
connected with the addiction. Many cases may exist somewhere between these two
extremes. Whether a protected characteristic is a factor in the adverse impact
will depend on the facts and must be assessed on a case-by-case basis. The
connection between an addiction and adverse treatment cannot be assumed and
must be based on evidence: Health Employers Assn. of British Columbia v.
B.C.N.U., 2006 BCCA 57, 54 B.C.L.R. (4th) 113, at para. 41.
[40]
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.
[41]
O’Ferrall J.A., dissenting, argued that a
detailed view of the evidence shows that the real cause of the termination was
Mr. Stewart’s addiction. At best, however, this is simply another view of the
evidence and the factual inferences to be drawn from it. It does not establish
that the conclusion of the Tribunal was unsupported by the evidence and
unreasonable. With respect, the role of reviewing courts is to determine
whether a tribunal’s decision falls within a range of acceptable outcomes, not
to reassess the evidence. To make findings and draw inferences from the
evidence is the role of the Tribunal.
[42]
Where, as here, a tribunal concludes that the
cause of the termination was the breach of a workplace policy or some other
conduct attracting discipline, the mere existence of addiction does not
establish prima facie discrimination. If an employee fails to comply
with a workplace policy for a reason related to addiction, the employer would
be unable to sanction him in any way, without potentially violating human
rights legislation. Again, to take an example given by the majority of
the Court of Appeal, if a nicotine-addicted employee violates a workplace
policy forbidding smoking in the workplace, no sanction would be possible
without discrimination regardless of whether or not that employee had the
capacity to comply with the policy.
[43]
It is, of course, open to a tribunal to find
that an addiction was a factor in an adverse distinction, where the evidence
supports such a finding. The question, at base, is whether at least one of the
reasons for the adverse treatment was the employee’s addiction. If the
Tribunal in this case had found, on the evidence, that the employer terminated
Mr. Stewart’s employment, or that the Policy adversely affected him, because,
either alone or among other reasons, he was addicted to drugs, prima facie
discrimination would have been made out. However, in the Tribunal’s view, the
evidence did not support that conclusion. As a result, Mr. Bish did not
establish a prima facie case of discrimination.
[44]
Two other points raised by the parties, while
not essential to the decision in this case, merit comment.
[45]
First, I see no basis to alter the test for prima
facie discrimination by adding a fourth requirement of a finding of
stereotypical or arbitrary decision-making. The goal of protecting people from
arbitrary or stereotypical treatment or treatment that creates disadvantage by
perpetuating prejudice is accomplished by ensuring that there is a link or
connection between the protected ground and adverse treatment. The existence of
arbitrariness or stereotyping is not a stand-alone requirement for proving prima
facie discrimination. Requiring otherwise would improperly focus on
“whether a discriminatory attitude exists, not a discriminatory impact”,
the focus of the discrimination inquiry: Quebec (Attorney General) v. A,
2013 SCC 5, [2013] 1 S.C.R. 61, at para. 327 (emphasis in original). The
Tribunal expressly noted that proof of arbitrariness and stereotyping was not
required, at para. 117.
[46]
Second, I see no need to alter the settled view
that the protected ground or characteristic need only be “a factor” in the
decision. It was suggested in argument that adjectives should be added: the
ground should be a “significant” factor, or a “material” factor. Little is
gained by adding adjectives to the requirement that the impugned ground be “a
factor” in the adverse treatment. In each case, the Tribunal must decide on the
factor or factors that played a role in the adverse treatment. This is a matter
of fact. If a protected ground contributed to the adverse treatment, then it
must be material.
V.
Conclusion
[47]
The Tribunal’s decision that prima facie discrimination
was not established was reasonable. It is therefore unnecessary to consider
whether Mr. Stewart was reasonably accommodated. I would affirm the decision
and dismiss the appeal, with costs to Elk Valley Coal Corporation, Cardinal River
Operations.
The following are the reasons delivered by
Moldaver and Wagner JJ.
—
I.
Overview
[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.
II.
Analysis
A.
Prima Facie Discrimination
[49]
The Tribunal found that Mr. Stewart had a drug dependency
that was “characterized by impaired control over the use of a psychoactive
substance and/or behaviour” (Tribunal reasons, 2012 AHRC 7, at para. 109
(CanLII)). We accept the Tribunal’s finding that Mr. Stewart was not wholly
incapacitated by his addiction and maintained some residual control over his
drug use. But we fail to see how the Tribunal could reasonably conclude that
because Mr. Stewart had a limited ability to make choices about his drug use,
there was no connection between his dependency on cocaine and his termination
on the basis of testing positive for cocaine after being involved in a
workplace accident.
[50]
To prove prima facie discrimination, Mr.
Stewart is not required to show that his termination was caused solely or even
primarily by his drug dependency. Rather, Mr. Stewart must only show that there
is a “connection” between the protected ground — his drug dependency — and the
adverse effect: 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. 52. We agree with Gascon J. that Mr.
Stewart’s exercise of some control over his drug use merely reduced the extent
to which his dependency contributed to his termination — it did not
eliminate it as a “factor” in his termination (para. 120). Mr. Stewart’s
impaired control over his cocaine use was obviously connected to his
termination for testing positive for cocaine after being involved in a
workplace accident. In our view, the Tribunal unreasonably focused on Mr. Stewart’s limited capacity to
control his choices and behaviour regarding his use of drugs and failed to
consider the connection between his drug dependency and his employer’s decision
to fire him.
B.
Reasonable Accommodation
[51]
On the issue of reasonable accommodation,
however, we respectfully disagree with Gascon J. In our view, it was reasonable
for the Tribunal to conclude that Elk Valley Coal Corporation, Cardinal River
Operations, reasonably accommodated Mr. Stewart.
[52]
The question before the Tribunal was whether the
employer demonstrated that the prima facie discriminatory standard was
in fact reasonably necessary, i.e., that it was not possible to accommodate the
individual employee “without imposing undue hardship” on the employer: British
Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3
S.C.R. 3, at para. 54.
[53]
The Tribunal found that Mr. Stewart’s immediate
termination was reasonably necessary. Elk Valley had imposed an Alcohol,
Illegal Drugs & Medication Policy (“Policy”), stating that if an employee
was involved in a workplace incident and subsequently tested positive for
drugs, the employee would be terminated. This “no free accident” rule was meant
to deter employees from using drugs in a way that could adversely affect their
work performance. As indicated, Mr. Stewart tested positive for cocaine after
being involved in a workplace incident and was therefore subject to termination
under the Policy. The Tribunal reasoned that if Elk Valley had to offer the
opportunity for individual assessment to Mr. Stewart or replace the immediate
effect of termination of employment with less serious consequences (such as a
suspension), the deterrent effect of the Policy would be significantly lessened.
Given Elk Valley’s safety objectives and responsibilities at the coal mine, the
Tribunal found that this reduction in the Policy’s ability to deter other
employees from using drugs constituted undue hardship.
[54]
A reviewing court must be careful not to substitute
its view on reasonable accommodation for that of a tribunal. Rather, it must
determine whether a tribunal’s decision falls “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.
[55]
In our view, it was reasonable for the Tribunal
to conclude that Mr. Stewart’s immediate termination was reasonably necessary,
so that the deterrent effect of the Policy was not significantly reduced. Elk
Valley’s coal mining operation was a “safety-sensitive environment” (Tribunal
reasons, at para. 75). In such a workplace, it was crucial to deter employees from using drugs in
a manner that could negatively affect their work performance and potentially lead
to devastating consequences. Workplace safety is a
relevant consideration when assessing whether the employer has accommodated the
employee to the point of undue hardship: Central Alberta Dairy Pool v.
Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at
pp. 520-21. Subjecting Mr. Stewart to an individual assessment or
imposing an unpaid suspension for a limited period as a disciplinary measure
instead of imposing the serious and immediate consequence of termination would
undermine the Policy’s deterrent effect. This, in turn, would compromise the
employer’s valid objective to prevent employees from using drugs in a way that
could give rise to serious harm in its safety-sensitive workplace. Therefore,
the Tribunal reasonably concluded that incorporating these aspects of
individual accommodation within the “no free accident” standard would result
in undue hardship: see British
Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of
Human Rights), [1999] 3
S.C.R. 868, at para. 42.
[56]
The employee is not entitled to perfect
accommodation, but rather to accommodation that is reasonable in the
circumstances: Central
Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, at pp. 994-95. Although Mr. Stewart was immediately terminated, he was offered the
opportunity to apply for employment after six months, provided that he
completed a rehabilitation program at a recognized facility. The employer
agreed to pay 50 percent of the cost of the program on certain conditions being
met. There was also evidence that there would have been vacant positions
available had Mr. Stewart applied for employment after completing the program.
[57]
We are therefore of the view that it was
reasonable for the Tribunal to find that Mr. Stewart was not discriminated
against by his employer on the ground of his drug dependency. We would dismiss
the appeal.
The following are the reasons delivered by
Gascon J. —
I.
Overview
[58]
Drug dependence is a protected ground of
discrimination in human rights law. Its status as such is settled, and none of
the parties dispute this. Still, stigmas surrounding drug dependence — like the
belief that individuals suffering from it are the authors of their own
misfortune or that their concerns are less credible than those of people suffering
from other forms of disability — sometimes impair the ability of courts and
society to objectively assess the merits of their discrimination claims. These
stigmas contribute to the “uneasy fit of drug addiction and drug testing
policies in the human rights arena” noted by the Alberta Human Rights
Commission (the “Tribunal”) below (Tribunal reasons, 2012 AHRC 7, at para. 153
(CanLII)).
[59]
Yet, as drug-dependent persons represent one of
the marginalized communities that could easily be caught in a majoritarian
blind spot in the discrimination discourse, they of course require equal
protection from the harmful effects of discrimination. In my view, improper
considerations relied on by the Tribunal here — such as drug-dependent persons
having some control over their choices and being treated “equally” to
non-drug-dependent persons under drug policies, and drug policies not
necessarily being arbitrary or stereotypical — effectively excluded Mr.
Stewart, a drug-dependent person, from the scope of human rights protections.
[60]
I have read the majority reasons of the Chief
Justice and I partially rely on her summary of the facts and decisions below. I
respectfully find, however, that further context relevant to the proper
resolution of this appeal should be added to that summary. I also disagree with
her disposition of the prima facie discrimination issue before us. A
drug policy that, in application, automatically terminates employees who use
drugs prima facie discriminates against individuals burdened by drug
dependence. The legal threshold for prima facie discrimination is
whether a protected ground of the complainant is “a factor” in the harm they
suffer. Here, drug dependence (Mr. Stewart’s protected ground) was “a factor”
in his drug use (the basis for his termination). In consequence, the Alcohol,
Illegal Drugs & Medications Policy (“Policy”) of the Respondent, Elk Valley
Coal Corporation, Cardinal River Operations, under which Mr. Stewart was
terminated for using drugs, is prima facie discriminatory. In my view,
the Tribunal’s analysis misunderstood the legal principles informing
discrimination law, was unsupported by its factual findings, and was therefore
unreasonable.
[61]
I have also read the concurring reasons of
Justices Moldaver and Wagner and share their view that the drug policy in this
case prima facie discriminated against Mr. Stewart. However, I disagree
with their disposition of the justification issue. A policy that
“accommodates” employees through mechanisms which are either inaccessible by
the employee due to their disability or only applicable to the employee
post-termination cannot justify prima facie discrimination. Before his
termination, Mr. Stewart was purportedly accommodated by the offer of lenient
treatment if he voluntarily disclosed his drug dependence. But that
accommodation was inaccessible by him because he, as the Tribunal found,
appeared to have been unaware of his dependence, a symptom of his disability.
After his termination, Mr. Stewart was allegedly accommodated by being given
the prospect of reapplying for his position. But, again, accommodation assists
employees in their sustained employment, not former employees who may, or may
not, successfully reapply for the position they lost as a result of a prima
facie discriminatory termination. Since none of Elk Valley’s efforts at
accommodation provided Mr. Stewart with accessible accommodation during his
employment, and since those efforts failed to consider his individual
circumstances in a dignified manner, Elk Valley cannot be said to have
discharged its duty to accommodate him as an employee up to the point of undue
hardship. I thus consider that the Tribunal’s findings to the contrary were
unreasonable.
[62]
I fully appreciate the safety-sensitive
environment at the workplace of Elk Valley, and how that environment motivates
strict drug policies for employees. Nevertheless, such policies, even if
well-intentioned, are not immune from human rights scrutiny. In this case, such
scrutiny reveals that the Tribunal’s analysis of both discrimination and
justification was unreasonable. Accordingly, I would have allowed the appeal.
II.
Context
[63]
I have four points to add to the factual
background provided by the Chief Justice.
[64]
First, Mr. Stewart had a long career with Elk
Valley, starting with its predecessor (Cardinal River Operations Ltd.) in 1996,
and ending with his termination in 2005 — a total of nine years. During that
career, he moved between various positions. He began by operating a haul truck,
then a 170-ton truck, and later a 260-ton truck. He also took training and was
certified as a wheel loader operator. His final position at the time of his
termination was plant loader operator. As noted in the dissenting opinion of
the Court of Appeal, in a unionized environment like Elk Valley, these years of
experience typically confer many benefits on employees, including preferential
treatment with respect to layoffs and vacation entitlements. The dissent also
noted that Mr. Stewart had a “clean disciplinary record” for those nine years
(C.A. reasons, 2015 ABCA 225, 19 Alta. L.R. (6th) 219, at para. 136). The
Tribunal made no observations and found no facts to the contrary.
[65]
Second, the initial drug policy, implemented by
Cardinal River, was jointly agreed to by it and Mr. Stewart’s union. But the
subsequent Policy imposed by Elk Valley, was “unilaterally implemented”
(Tribunal reasons, at para. 6). That is the Policy at issue in this appeal. The
scope of the Policy’s pre-incident efforts at accommodation is important. It
provides that “[n]o employee with a dependency or addiction will be
disciplined or involuntarily terminated . . . for voluntarily requesting
rehabilitative help in overcoming the problem” (A.R., vol. III, at p. 13
(emphasis added)). Consequently, the Policy’s pre-incident accommodation is
restricted to employees with dependencies or addictions, and, in turn, is
accessible only by employees aware of their dependencies or addictions.
[66]
Third, the Chief Justice writes that employees
were expected to disclose any drug dependency issues before any “drug-related
incident” occurred (para. 1) and that Mr. Stewart “tested positive for drugs”
(para. 2) following the incident. But there was no finding of fact by the
Tribunal either that Mr. Stewart was intoxicated at the time of the incident or
that the incident in any way related to his drug use. Rather, Mr. Stewart had
an incident and tested positive for cocaine. Based on Elk Valley’s own expert
evidence, this merely meant that Mr. Stewart used drugs as early as two days
before the incident. Indeed, Elk Valley’s expert report relied on the factual
assumption that Mr. Stewart last used cocaine over 21 hours before the
incident.
[67]
Finally, I note that the Policy was implemented
contrary to its express terms. Textually, the Policy provides for
individualized post-incident accommodation. Specifically, it provides that if
an employee tests positive for drugs, then disciplinary action against that
employee “will be based on all relevant circumstances”, including: (1) the
employee’s employment record; (2) the circumstances surrounding the positive
test; (3) the employee’s stated pattern of usage; (4) the likelihood that the
employee’s work performance has been or may be adversely affected; and (5) the
importance of deterring such behaviour by employees. Here, however, the Policy
was implemented with no consideration of Mr. Stewart’s circumstances. He was
terminated without any consideration of a medical or professional assessment of
his specific circumstances. Elk Valley’s own fact witness conceded that the
Policy’s intent, far from considering individual circumstances, is to impose
automatic termination if ever an employee tests positive for drug use.
III.
Decisions Below
[68]
I find that the Chief Justice’s discussion of the
decisions below (paras. 6-17) requires additional clarification to provide the
proper context to my reasons. These decisions reflect a significant amount of
discord with respect to the proper approach to prima facie discrimination,
which must be briefly discussed. In addition, the two decisions below which
held that Elk Valley provided insufficient accommodation to Mr. Stewart — the
decision of the Court of Queen’s Bench and the dissenting opinion of the Court
of Appeal — merit further comments.
A.
Inconsistent Approaches to Prima Facie
Discrimination
[69]
It is undisputed that the basic test for prima
facie discrimination involves three steps, namely, (1) the complainant
having a protected ground under the relevant human rights legislation (which I
will call a “ground”, here drug dependence); (2) the complainant suffering
disadvantage (which I will call “harm”, here Mr. Stewart’s termination); and
(3) the ground being “a factor” in the complainant’s harm (which I will call
“contribution”): 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. 35; Moore v. British Columbia
(Education), 2012 SCC 61, [2012] 3 S.C.R. 360, at para. 33.
[70]
Despite this established test, the decisions
below rendered by the Tribunal, the Court of Queen’s Bench, and the Court of
Appeal majority took different approaches to contribution. These approaches
differed in three ways. First, they differed on whether direct discrimination
and indirect discrimination are assessed under distinct legal frameworks (and,
if so, which frameworks apply to them). Second, they differed on the scope of
the “factor” test for discrimination, including whether a mere factor is sufficient
or an enhanced type of factor (e.g. a “material” or “causal” factor) is
required, and whether the factor test considers an employer’s discriminatory
intent or the discriminatory effect of the employer’s actions. Third, they
differed on whether an employee’s choices, or an employer’s arbitrary or
stereotypical treatment of the employee, are legally relevant to prima facie
discrimination.
[71]
The Tribunal took one approach to contribution.
It held that the threshold for contribution is merely whether the complainant’s
protected ground is “a factor” in their harm, nothing more (para. 115(c)),
though the Tribunal elsewhere suggested that a causal link is required (para.
120). The Tribunal found that Mr. Stewart did not satisfy the contribution
requirement (para. 129) as he was fired for drug use (violating the Policy),
not for drug addiction (his disability): para. 120. As such, the Tribunal’s
implicit reasoning process was that, to satisfy the contribution requirement,
Mr. Stewart’s drug addiction must have been “a factor” in Elk Valley’s decision
to terminate him (which goes to Elk Valley’s discriminatory intent), not “a
factor” in what led to the termination itself (that is, the discriminatory
effect of Elk Valley’s actions). Similarly, the Tribunal’s reasoning process
relied on Mr. Stewart’s imprudent choices. The Tribunal wrote that “Mr. Stewart
was adversely impacted by the Policy not because of denial through drug
impairment but rather because he chose not to stop his drug use” (paras.
120-122). In addition, the Tribunal reasoned that a ground contributing to harm
is correlated with the complainant suffering arbitrary and stereotypical
treatment (para. 126). Lastly, the Tribunal relied on formal equality
principles (i.e. the view that treating everyone the same avoids
discrimination, even if such “neutral” policies adversely affect a minority
group). Specifically, it observed that “Mr. Stewart would have been fired
whether or not he was an addict or a casual user” (para. 123).
[72]
The Court of Queen’s Bench took a different
approach to contribution. It dismissed the motion before it on the basis that
Mr. Stewart was terminated for drug use, not for drug addiction (para. 45).
This part of its reasoning — which appears to assess discriminatory intent
rather than discriminatory effect — matches part of the Tribunal’s approach.
However, whereas the Tribunal identified a single test for all discrimination
cases (para. 115), the Court of Queen’s Bench adopted a bifurcated approach,
where “direct discrimination” cases require that an employer intend to
discriminate and “indirect discrimination” cases require that an employer’s
decision be rooted in arbitrary or stereotypical reasoning (2013 ABQB 756, 581
A.R. 234, at paras. 38, 42 and 45). In addition, the Court of Queen’s Bench
demanded that Mr. Stewart demonstrate a “causal connection” between his
disability and harm (para. 45), a higher threshold than being a mere “factor”
in that harm (the lower threshold apparently applied by the Tribunal for
contribution).
[73]
The majority of the Court of Appeal took a third
approach to contribution. It held that a protected ground must be a “real
factor” in the complainant’s harm to satisfy the contribution requirement
(para. 63), which is different from the “factor” test referred to by the
Tribunal and the “causal factor” test applied by the Court of Queen’s Bench.
The majority also held that the Policy did not prima facie discriminate
because it treated all employees the same, regardless of their disability
(paras. 66 and 70), thus relying, like the Tribunal, on formal equality
principles. Further, the majority appeared to apply a distorted version of the
bifurcated approach adopted by the Court of Queen’s Bench. The latter ruled
that “direct discrimination” cases require intent whereas “indirect
discrimination” cases require arbitrariness or stereotyping. In contrast, the
majority explained that “direct discrimination” cases require arbitrariness or
stereotyping whereas “indirect discrimination” cases require “a culture of
discriminatory employment arrangements” (para. 76).
B.
Holdings of Insufficient Accommodation
[74]
Both the Court of Queen’s Bench and the
dissenting judge at the Court of Appeal held that Elk Valley failed to
reasonably accommodate Mr. Stewart. While the Chief Justice acknowledges these
findings in her reasons (paras. 12 and 17), I find that a more detailed
consideration of those decisions is necessary for my purposes.
[75]
The Court of Queen’s Bench opined that Mr.
Stewart was not “reasonably accommodated” (para. 1). It explained that Mr.
Stewart could not benefit from the pre-incident accommodation offered to him
because that accommodation was limited to employees who had a “dependency or
addiction” (para. 61), which Mr. Stewart denied to “some degree” (para. 59),
making such accommodations inaccessible by “mere drug users” like him (paras.
64-65). As the Tribunal’s holding of sufficient accommodation relied, in part,
on this inaccessible pre-incident accommodation, the Court of Queen’s Bench
held that, if Elk Valley did prima facie discriminate against Mr.
Stewart, it failed to sufficiently accommodate him (para. 66).
[76]
O’Ferrall J.A., in dissent at the Court of
Appeal, similarly ruled that Mr. Stewart was not reasonably accommodated (para.
136). He reached this conclusion for four reasons. First, he found that “any
number of options, short of termination” (e.g. suspension without pay) could
accomplish Elk Valley’s goal of deterrence while simultaneously accommodating
Mr. Stewart and maintaining his nine years of seniority at the company (para.
136). Second, he noted that the Tribunal’s generalized approach — prioritizing
deterrence in all cases — contradicted the individualized approach to
reasonable accommodation adopted by this Court (para. 137). Third, he opined,
like the Court of Queen’s Bench, that the Policy’s pre-incident accommodation
was inaccessible by Mr. Stewart because he was unaware of his dependence (para.
138). Fourth, he held that the desire for deterrence could not override
individual assessment when such assessment was not only a “procedural duty”
under this Court’s jurisprudence but was also required by the Policy in this
case (paras. 139-40).
IV.
Analysis
A.
Standard of Review
[77]
I agree with the Chief Justice on the applicable
standard of review (para. 22). This Court recently settled the test for
discrimination (in Bombardier, which applied Moore) and for
justification (in Hydro-Québec v. Syndicat des employé-e-s de techniques
professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ),
2008 SCC 43, [2008] 2 S.C.R. 561, which applied British Columbia (Public
Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”)).
As a result, the decisions below — which at least noted these settled legal
principles and merely purported to apply them to the facts at issue — are
reviewed on a reasonableness standard (Bombardier, at para. 73; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16,
[2015] 2 S.C.R. 3, at para. 50).
B.
Prima Facie Discrimination
[78]
The Chief Justice correctly identifies the three-part
test for prima facie discrimination: (1) ground; (2) harm; and (3)
contribution (para. 24). She also rightly identifies that the third part of the
prima facie discrimination test — contribution — is the only part in
dispute (para. 25). However, in my respectful view, her analysis, like the
decisions below, fails to recognize how the Tribunal applied the test
unreasonably. I will explain my reasoning in three steps. First, I will outline
what I consider to be the correct approach to contribution. Second, I will
explain why the Chief Justice’s approach is, in my opinion, incorrect. Third, I
will summarize my assessment of the unreasonable approach taken by the
Tribunal, which was based on legal and conceptual errors and reached a
conclusion that was unsupported by its own factual findings.
(1)
The Correct Approach to Contribution
[79]
The analysis of prima facie discrimination,
and, in particular, contribution, is concerned with discriminatory effect,
not discriminatory intent (though a proven intent to discriminate
against a protected group — a presumably rare circumstance; see Meiorin,
at para. 29 — would make it difficult for an employer to deny prima
facie discrimination).
[80]
The difference between effect and intent,
analytically, is best understood from the standpoint of the relationship under
consideration. If discriminatory intent were dispositive of contribution, the
relevant relationship would be that between an employee’s protected ground and
the corporation’s intent to harm that employee. But contribution emphasizes
discriminatory effect. Indeed, for human rights legislation to protect against
“indirect discrimination” — i.e. neutral rules with adverse consequences for
certain groups — intent cannot be a requirement for prima facie discrimination
(see Bombardier, at paras. 32 and 40; Meiorin, at paras. 29 and
31). Therefore, the relevant relationship addressed by contribution is that
between an employee’s ground and harm.
[81]
This Court’s jurisprudence has consistently
focussed on discriminatory effect — i.e. on the relationship between an
employee’s ground and harm — when assessing contribution.
[82]
In Meiorin, where a woman challenged
unduly onerous aerobic capacity requirements for forest firefighters, the Court
held that those requirements prima facie discriminated because they
adversely affected women. When adjudicating prima facie discrimination,
the Court gave no consideration to whether the government intended to
discriminate against women. In fact, the aerobic capacity requirements, far
from intentionally singling out women, legitimately intended to ensure that
forest firefighters, regardless of sex, were sufficiently physically fit to
fulfill their employment obligations.
[83]
In Moore, where the father of a
child with a severe learning disability challenged a school district’s decision
to close a centre uniquely capable of educating students with such
disabilities, the Court found that decision prima facie discriminatory
because it adversely affected those students, even though the motivation behind
the decision to close the centre was “exclusively financial” (para. 46) and
there was no intent to discriminate against disabled students.
[84]
Finally, in Bombardier, the Court
rejected an intent approach to prima facie discrimination, writing that
“under both Canadian law and Quebec law, the plaintiff is not required to prove
that the defendant intended to discriminate against him or her” (para. 40).
This is not surprising, given that many forms of discrimination involve either
“multiple factors” or “unconscious” considerations (para. 41), neither of which
is captured by an inquiry based on intent. As the Court opined in Bombardier:
In a recent decision concerning
the Human Rights Code, R.S.O. 1990, c. H.19, the Ontario Court of Appeal
found that it is preferable to use the terms commonly used by the courts in
dealing with discrimination, such as “connection” and “factor”: Peel Law
Assn. v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 80, at para. 59. In that
court’s opinion, the use of the modifier “causal” elevates the test beyond what
is required, since human rights jurisprudence focuses on the discriminatory
effects of conduct rather than on the existence of an intention to discriminate
or of direct causes: para. 60. We agree with the Ontario Court of Appeal’s
reasoning on this point [Emphasis added; para 49.]
[85]
As these three leading decisions illustrate,
this Court has instructed that the prima facie discrimination inquiry,
and, in particular, the contribution criterion, addresses the relationship
between the ground and the harm, not between the ground and the intent to cause
harm. The Chief Justice recognizes that the analysis concerns discriminatory
impacts, not discriminatory attitudes (para. 45); she further recognizes that a
ground need only be “at least one of” the factors linked to the employee’s harm
(para. 43), an approach also affirmed by Justices Moldaver and Wagner (para.
50). However, the Chief Justice interprets the Tribunal’s reasons as having
followed this established approach. In my respectful view, it did not.
(2)
The Chief Justice’s Approach to Contribution
[86]
It seems to me that the Chief Justice’s reasons
deviate from this established approach to contribution in three ways: (1) they
fail to detect the Tribunal’s misunderstanding of the “factor” test for
contribution; (2) they implicitly affirm erroneous legal principles that the
Tribunal relied upon in its reasoning; and (3) they improperly import
justificatory considerations into the prima facie discrimination analysis.
[87]
On the first point, the Chief Justice defers to
the Tribunal’s finding that Mr. Stewart’s addiction was not a factor in his
termination, which she characterizes as “essentially a question of fact” (para.
5). However, a careful reading of the Tribunal’s decision shows that it was not
concerned with whether drug addiction contributed, at least in part, to Mr.
Stewart’s termination, (the proper inquiry, as the Chief Justice explains at
para. 43). Rather, the Tribunal was concerned with whether Mr. Stewart’s
addiction was (1) an irrepressible factor in his termination, i.e. a factor
which was completely beyond his control (an improper approach, as I explain
below, and as the Chief Justice recognizes at para. 46); and (2) a factor in
Elk Valley’s decision to terminate Mr. Stewart (i.e. the intent requirement
rejected by this Court’s jurisprudence, as I explained above, and about which
the Chief Justice also agrees at para. 24). In light of these errors, while the
Tribunal may have repeatedly found that Mr. Stewart’s addiction was not a
factor in his harm, that conclusion was based on misapprehensions of principle
and is therefore undeserving of deference.
[88]
The Chief Justice holds that the Tribunal’s
conclusion — that Mr. Stewart’s addiction was not a factor in his harm — was
reasonable based on the fact that his addiction did not diminish his capacity
to comply with the Policy (para. 34). On my reading, the Tribunal never held
that Mr. Stewart’s addiction did not diminish (i.e. partially weaken) his capacity
to comply with the Policy. Rather, the Tribunal merely held that his addiction
did not negate (i.e. completely remove) his capacity to comply with the Policy.
Specifically, the Tribunal’s various choice-related findings — i.e. that Mr.
Stewart “was able to make choices” about drug use (para. 121); “could, and in
fact did make rational choices” about drug use (para. 122); and “had the
capacity to make choices” about drug use (para. 126) — only mean that Mr.
Stewart maintained some residual control over his choice to use drugs, not that
he maintained complete unimpaired control over that choice. In my view, that is
the only possible interpretation of these findings when the Tribunal found that
Mr. Stewart was addicted to cocaine (para. 118) and interpreted “addiction” as
meaning “impaired control” over drug use (para. 109). As a result, admitting
that Mr. Stewart had impaired control regarding drug use is irreconcilable with
that control being in no way diminished by his addiction.
[89]
Considering these findings, it seems to me that
there was prima facie discrimination in this case. At para. 39, the
Chief Justice describes a notional spectrum regarding the various degrees to
which an addiction may impact an individual’s capacity to control their
choices. This spectrum segments into three sections differing in respect of the
degree of an addiction’s impact on an individual’s self-control: (1) no impact
(a person being “fully capable of complying with workplace rules”); (2) full
impact (an addiction “effectively depriv[ing] a person’s capacity to comply”);
and (3) some impact (“somewhere between these two extremes”). In my opinion, if
we are to truly accept that a protected ground being “a factor” in a
complainant’s harm is sufficient to constitute prima facie discrimination,
then only the ‘no impact’ portion of the spectrum would fail to qualify as prima
facie discrimination. By including all of the “some impact” portion of the
spectrum in the scope of prima facie discrimination, I am not assuming
that Mr. Stewart’s addiction diminished his ability to comply with the terms of
the Policy. I am only recognizing that addiction — meaning, impaired ability to
resist using, for example, a specific drug — entails, as a matter of fact and
logic, a diminished ability to resist using that drug. We must remember that in
order to qualify as addiction disabled (the ground at issue here), the
complainant must first prove a sufficient degree of drug craving to reach the
threshold of drug dependence.
[90]
On the second point, I believe that the Chief
Justice’s reasons implicitly affirm erroneous legal principles that the
Tribunal relied upon in its reasoning. For instance, she approvingly summarizes
how the Tribunal limited its reasoning to discriminatory intent rather than
effect (paras. 26 and 31-36), despite expressly recognizing that discriminatory
intent is not required for prima facie discrimination (para. 24). She
also approvingly summarizes how the Tribunal relied on “choice” reasoning
(paras. 5, 26, 32, 34-35, 38-39 and 42). Lastly, she approvingly summarizes how
the Tribunal relied on “formal equality” reasoning (para. 34), despite
expressly recognizing the validity of indirect discrimination claims (para.
24). For my part, I would not endorse these principles that depart from the
established test for prima facie discrimination.
[91]
I rather prefer, and agree with, the Chief
Justice’s description of the proper test for prima facie discrimination,
namely that the ground need only be “at least one of the reasons for the
adverse treatment” (para. 43) or, in other words, need only be “a factor” that
“contributed” to the harm (paras. 24 and 46). I consider that this lower and
correct threshold was met on the record before the Tribunal.
[92]
Lastly, the Chief Justice appears to suggest
that prima facie discrimination should be narrowly construed to preserve
the enforceability of drug and alcohol policies (para. 42). Her reasons
reinforce this analysis with the example of nicotine-dependent employees
smoking inside offices without being sanctioned by their employer, who is
handcuffed by over-generous human rights legislation, thus resulting in
unenforceable workplace policies (para. 42).
[93]
I take issue with this approach. It imports
justificatory considerations — like the importance of the workplace policy and
its legitimate aims — into the prima facie discrimination analysis.
Further, it exaggerates the implication of finding such policies prima facie
discriminatory by claiming that they would be unenforceable (“no sanction
would be possible without discrimination”: reasons of McLachlin C.J., at para.
42), when, in reality, they would simply need to be justified as relating to bona
fide occupational requirements. It also narrows this Court’s recent
jurisprudence in Moore and Bombardier; terminating an employee
“for a reason related to addiction” (reasons of McLachlin C.J., at para. 42) is
precisely what it means for that addiction to be “a factor” in the employee’s
harm.
[94]
I now turn to the Tribunal’s approach to
contribution.
(3)
The Tribunal’s Unreasonable Approach to
Contribution
[95]
I consider the Tribunal’s analysis indefensible
in respect of its factual findings and the legal principles underlying prima
facie discrimination (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190, at para. 47). The Chief Justice rightly observes that the
Tribunal “cited the proper legal test” for prima facie discrimination
(para. 26). But the Tribunal is not immune from review merely because it cited
the proper legal test. In this case, the manner in which it improperly applied
that test, and the lack of an evidentiary foundation for its findings,
demonstrate that its holding on contribution was unreasonable and thus unworthy
of deference.
(a) The Tribunal’s Improper Understanding of Discrimination Law
Principles
[96]
In my opinion, the Tribunal applied the test for
contribution in a manner that mischaracterized the proper inquiry; as a result,
it unreasonably held that Mr. Stewart’s addiction did not contribute to his
termination. I identify four conceptual errors in the Tribunal’s analysis: (1)
requiring the employee to make prudent choices to avoid discrimination (paras.
120-22); (2) limiting the employee’s protections to an assurance of formal
equality (para. 123); (3) requiring the employee to prove that he was treated
arbitrarily or stereotypically (paras. 124 and 126); and (4) requiring the
employee to prove a causal relationship between his ground and harm (para.
120).
[97]
A complainant’s choices are irrelevant to
contribution. This Court’s jurisprudence does not require that complainants be
prudent in avoiding discrimination; this would essentially amount to a sort of
contributory fault defence in discrimination cases. For example, in Meiorin,
the complainant was not required to prove that, even with more diligent
training, it would have been impossible to achieve the required aerobic
capacity for forest firefighting. Rather, the fact that the required aerobic
capacity was harder for women to achieve (para. 11) was sufficient to link the
ground (sex) and her harm (being laid off).
[98]
The Tribunal held that Mr. Stewart was
terminated “due to [his] failure . . . to stop using drugs and
failing to disclose his use prior to the accident” (para. 120). But these were
both symptomatic of his drug addiction, which made it more difficult for him to
stop drug use, and appeared to have left him unaware of his addiction, thus
removing him from the scope of the Policy’s pre-incident accommodation.
Claiming that Mr. Stewart’s drug addiction was not “a factor” in his
termination because he was fired “due to” his drug use is simply an alternate
phrasing for contribution requiring that a ground be a direct cause of harm
(the Policy breach), rather than an indirect cause (the addiction contributing
to that breach). Similarly, blaming Mr. Stewart for his failure to use the
pre-incident accommodation under the Policy, when that failure appears to have
been rooted in denial symptomatic of his addiction, only considers his direct
failure to use the policy and not the indirect explanation for that failure. In
other words, a choice-driven analysis of prima facie discrimination
requires that a ground be a “direct” factor in the complainant’s harm rather
than simply requiring that a ground be “a factor”; the established test.
Indeed, asserting that Mr. Stewart’s addiction was not an “immediate” (i.e.
direct) cause of his harm because he chose to use drugs reflects how this
choice approach modifies the “factor” approach to an “immediate factor”
analysis.
[99]
A choice threshold for contribution is
normatively undesirable for many reasons. For instance, such a threshold places
a burden on complainants to avoid discrimination, rather than on employers not
to discriminate. It is also irreconcilable with recently recognized statutory
grounds that arguably implicate a complainant’s choices that are significant to
their identity — such as “gender expression” (Alberta Human Rights
Act, R.S.A. 2000, c. A-25.5, s. 7(1)) — thus making
complaints based on those grounds theoretically impossible to advance.
[100]
Likewise, a choice threshold generally
contradicts this Court’s rejection — albeit in the context of other sections of
the Canadian Charter of Rights and Freedoms — of drawing
superficial distinctions between protected grounds, like drug dependence or
sexual orientation, and conduct inextricably linked to those grounds, like drug
use or sexual activity (Saskatchewan (Human Rights Commission) v. Whatcott,
2013 SCC 11, [2013] 1 S.C.R. 467, at paras. 121-24), a concern noted by the
Tribunal here (para. 122). Further, it specifically contradicts this Court’s
rejection — albeit in the context of s. 7 of the Charter — of the
view that “choice” makes drug users responsible for the harms of their drug
use, rather than Charter -infringing laws or discriminatory employers (Canada
(Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3
S.C.R. 134, at para. 106).
[101]
In addition, a choice threshold blames
marginalized communities for their choices — whether rooted in a choice to
express themselves (e.g. gender expression) or an attenuated capacity to
control their choices (e.g. drug dependence) — which reinforces stigma, as the
Tribunal accepted here (para. 127). This is antithetical to the remedial aims
of human rights legislation and is rooted in the very stereotypes that human rights
law seeks to address. As one intervener observed, choice, in this context, “is
code for moral blameworthiness”.
[102]
From this standpoint, the Tribunal’s emphasis on
the fact that Mr. Stewart’s drug dependence was not completely incapacitating
was misplaced. The Tribunal found that Mr. Stewart, despite his drug
dependence, was still able to “make rational choices in terms of his drug use”
(para. 122) and maintained control over “when and where he used drugs” (para.
121). On the basis of this residual, albeit diminished, control, the Tribunal
held that Mr. Stewart’s termination flowed from his choice to use drugs, not
his drug dependence (para. 122). I do not accept this reasoning. First, it has
the effect of denying human rights protections to a vast majority of
drug-dependent people who, despite their addiction, most likely maintain some
modicum of control over things as basic as “when and where” they use drugs.
Second, it substitutes the proper inquiry — whether drug-dependent individuals
are adversely impacted by the Policy — with an improper inquiry, namely whether
drug-dependent individuals are so overwhelmingly impacted by their addictions
that any discrimination they experience is caused exclusively by their
addictions and is in no way influenced by their willpower. This introduces a
novel, and until now unrecognized, contributory fault defence to
discrimination.
[103]
Formal equality, too, is not dispositive of
contribution. Human rights protections apply to both direct and indirect
discrimination claims (Bombardier, at para. 32; Meiorin, at
paras. 29 and 31). Despite this, the Tribunal’s reasoning has the impact of
erasing indirect discrimination from the scope of human rights protections by
relying on formal equality principles. In this respect, the Tribunal wrote that
“Mr. Stewart would have been fired whether or not he was an addict or a casual
user” (para. 123) and that “[t]he Policy applied to both casual users of drugs
as well as those who were drug addicted or dependent” (para. 128). In other
words, the Tribunal reasoned that the Policy’s equal treatment of
drug-dependent and non-drug-dependent persons who violate the Policy prevents
it from being prima facie discriminatory (para. 128). Similarly, the
Court of Appeal reasoned that cigarette smoking prohibitions cannot be prima
facie discriminatory because they apply to smokers “even if they just
started”, i.e. even if they are not yet addicted (para. 65). But such “equal”
treatment does not exhaust the prima facie discrimination analysis.
[104]
A male who failed the aerobic requirement in Meiorin
would have been laid off, just like Ms. Meiorin. What mattered was that
female candidates were adversely impacted by the requirement. Similarly, in Commission
scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525, any
employee who failed to work on Yom Kippur, whether Jewish or otherwise, would
have been required to take unpaid leave. What mattered was that Jewish teachers
— to whom Yom Kippur holds unique significance — were adversely impacted by the
workplace policy.
[105]
This case is no different. While it is true that
both dependent and recreational drug users will receive similar treatment for
violating the Policy, it is only drug-dependent persons, whose disability is a
recognized protected ground, that will uniquely and disproportionately struggle
in complying with the terms of the Policy. The equal application of a policy to
those with and without a protected ground merely means, at most, that the
policy does not discriminate directly; it is not dispositive of indirect
discrimination, and it therefore fails to exhaust the prima facie discrimination
inquiry.
[106]
Furthermore, I find that the Tribunal improperly
considered arbitrariness and stereotyping relevant to its contribution
analysis. It distinguished ADGA Group Consultants Inc. v. Lane (2008),
64 C.H.R.R. D/132 (Ont. Div. Ct.), from the instant case because, in ADGA,
the employer terminated an employee based on “stereotypes” (para. 124). The
Tribunal then commented how, in the instant case, “there is no inference that
the application of the Policy was arbitrary or perpetuated historical
stereotypes” (para. 126). However, such an approach runs counter to
jurisprudence from this Court. This Court has never affirmed a requirement of
arbitrariness or stereotyping in the prima facie discrimination
analysis. And none of the three pillars of prima facie discrimination —
ground, harm, or contribution — relates, conceptually, to arbitrariness or
stereotyping. As academic commentators have observed, to import “substantive”
considerations into the settled and low threshold for prima facie discrimination
conflicts with this Court’s jurisprudence and shifts a justificatory burden
from the employer onto the complainant (see e.g. J. Koshan, “Under the
Influence: Discrimination Under Human Rights Legislation and Section 15 of the Charter ”
(2014), 3 Can. J. Hum. Rts. 115, at pp. 123-25; B. Oliphant, “Prima
Facie Discrimination: Is Tranchemontagne Consistent with the Supreme
Court of Canada’s Human Rights Code Jurisprudence?” (2012), 9 J.L. &
Equality 33, at p. 53; D. Pothier, “Tackling Disability Discrimination at
Work: Toward a Systemic Approach” (2010), 4 M.J.L.H. 17, at p. 31).
[107]
For example, the first criterion in
justification — rationality — aligns with arbitrariness; they are simply
opposites (see e.g. Carter v. Canada (Attorney General), 2015 SCC 5,
[2015] 1 S.C.R. 331, at para. 83). Similarly, all three justification criteria
— rationality, good faith, and reasonable accommodation — would be difficult to
satisfy if an employer engaged in stereotypical reasoning. There is therefore
no basis for making arbitrariness or stereotyping a burden on the complainant
at the prima facie discrimination stage of the analysis when it is
already a burden on the employer at the justification stage (and when the
employer knows its own motivations best, in any event).
[108]
I would add the following on this point. At
para. 116, the Tribunal wrote:
A more recent aspect of the prima
facie discrimination analysis applied by a minority of the Court in McGill
. . . and seemingly adopted by the majority in Honda . . ., emphasizes
substantive equality, distinctions as opposed to discrimination, and examining
whether the adverse action of the employer based on a prohibited ground is
stereotypical or arbitrary. However, proof of prejudice or stereotyping are
not additional evidentiary requirements for the Complainant in proving prima
facie discrimination. Once adverse treatment is shown on the basis of a
prohibited ground, an inference of stereotyping,
arbitrariness or perpetuation of disadvantage will usually be drawn [Underlining added.]
[109]
This passage does three things in my view: (1)
it purports that this Court held in Honda that prima facie discrimination
— which “emphasizes substantive equality” — considers stereotyping and
arbitrariness; (2) it says that “proof of” prejudice or stereotyping “are not
additional evidentiary requirements” for the plaintiff; and (3) it claims that
an inference of stereotyping and arbitrariness “will usually be drawn” where a
ground, harm, and contribution are proven. On my reading, this paragraph does
not reject arbitrariness and stereotyping as relevant factors. Rather, it
affirms their relevance, and makes the more modest observation that they need
not be independently proven in every case because, in some cases, they can be
inferred from the circumstances. I find that this consideration of
arbitrariness and stereotyping is a misapprehension of principle.
[110]
Finally, the Tribunal misinterpreted the
“factor” test established in the jurisprudence. At one point, it stated that
“the adverse effect must be causally linked” to the ground (para. 120) — a
higher bar than the mere “factor” threshold repeatedly adopted by this Court (Moore,
at para. 33; Bombardier, at para. 49). Additionally, elsewhere in its
reasons, the Tribunal’s application of the “factor” test was erroneously
concerned with discriminatory intent (an improper inquiry) rather than
discriminatory effect (the proper inquiry). I now turn to this key error in
greater detail.
(b) The
Tribunal’s Understanding and Application of the “Factor” Test
[111]
The Tribunal dismissed Mr. Stewart’s claim based
on a false dichotomy: that Mr. Stewart must have been terminated because of
either his addiction or the Policy. The Tribunal explained that the Policy “was
not applied [to Mr. Stewart] due to his disability, but rather because of his
failure to stop using drugs” (para. 125). The Chief Justice agrees the evidence
supported the conclusion that “the reason for the termination was not addiction,
but breach of the Policy” (para. 35). However, based on my understanding of the
Tribunal’s own factual findings, Mr. Stewart’s termination was clearly linked
to both the Policy breach and his addiction.
[112]
True, the Tribunal repeatedly stated that Mr. Stewart’s
addiction was not “a factor” in his termination, which is, on its face, the
correct legal test. From the Tribunal’s reasons, though, I gather that it meant
rather that Mr. Stewart’s addiction was not “a factor” in Elk Valley’s decision
to terminate him, i.e. Elk Valley did not intentionally discriminate against
Mr. Stewart’s addiction. This flows from the Tribunal’s reasons and its concern
with whether “discriminatory considerations” factored into Elk Valley’s
decision to terminate Mr. Stewart (para. 117). That was, with respect, the
wrong legal test.
[113]
The Tribunal’s understanding of the “factor”
test is reflected in the two key cases cited in its analysis of contribution: British
Columbia Public Service Agency v. B.C.G.E.U., 2008 BCCA 357, 83 B.C.L.R.
(4th) 299 (“Gooding”), and ADGA. The Tribunal relied on Gooding
for the proposition that a ground is not a factor in harm unless it plays a
role “in the employer’s decision” to terminate an employee (para. 119, citing Gooding,
at para. 11). In turn, it analogized Gooding to this case on the basis
that Elk Valley’s decision — terminating Mr. Stewart — was made because he
breached the Policy, not due to his addiction (para. 120). Similarly, the
Tribunal relied on ADGA for the proposition that an employer cannot
terminate an employee simply because the employee “advise[s] his employer of
his medical disability”, a decision “rooted in stereotypes” (para. 124). It
then explained how ADGA was “quite distinguishable” from this case since
Elk Valley terminated Mr. Stewart for his Policy breach, not merely for having
a disability (paras. 124-25).
[114]
The Tribunal’s reliance on these cases for these
principles of law illustrates how it narrowed the scope of prima facie discrimination
to direct and intentional discrimination. ADGA is indeed distinguishable
from this case, but that is because it was a case of direct
discrimination. Direct discrimination need not be proven in all cases. If such
proof were always required, this Court would not have found prima facie discrimination
in Meiorin and Moore, both of which involved indirect
discrimination.
[115]
At one point, the Tribunal alluded to the proper
approach to prima facie discrimination:
. . . I am sensitive to the
argument that any distinction between termination due to disability, and
termination due to failure to follow the Policy, may appear to be superficial
given that the misconduct relied upon can be considered, in some circumstances,
to be a symptom of the addiction or disability. [para. 122]
This lower threshold — whether the
ground was “a factor” in the occurrence of the harm, not in the employer’s
decision to cause that harm — is the correct approach in law, as this Court has
consistently ruled. But the Tribunal did not follow it.
[116]
Given this, the Tribunal’s repeated holding that
Mr. Stewart’s disability was not “a factor” in his termination (paras. 122, 125
and 126) cannot be accorded deference. Under the proper test — i.e. whether the
ground was a factor in the harm — the evidence before the Tribunal could not
support its conclusion that Mr. Stewart’s drug dependence did not contribute to
his termination.
[117]
The Chief Justice accepts that “[t]he question,
at base, is whether at least one of the reasons for the adverse treatment was
the employee’s addiction” (para. 43). In my view, drug addiction was at least
one, if not the central, factor in Mr. Stewart’s termination for drug use. The
Tribunal found, and both parties’ experts opined, that addiction means
“impaired control” over drug use (para. 109). The Tribunal also found that Mr.
Stewart was drug-dependent with respect to cocaine (para. 118). Both experts
agreed that Mr. Stewart was unaware of his drug dependence at the time of the
incident (paras. 58, 61, 66 and 80). Accordingly, Mr. Stewart had an impaired
ability to comply with the Policy in two respects: (1) it prohibited drug use,
which he uniquely and inordinately craved; and (2) it provided accommodation to
drug-addicted persons, which he appears to have denied being — a symptom of his
addiction.
[118]
It is true that Mr. Stewart was not wholly
incapacitated by his addiction and maintained some residual control over his
choices (paras. 121-22). But that merely diminishes the extent to which his
dependence contributed to his harm, it does not eliminate it as “a factor”. To
require complete incapacitation for addiction to ground a discrimination claim
would effectively erase addiction from the scope of legal disability. This is
because addiction, by definition, refers to impaired, not eliminated, control.
According to the Chief Justice, the Tribunal “rejected this argument” based “on
the facts” of this case (paras. 38-39). But, in reality, the Tribunal did not
reject this argument; rather, it avoided it by interpreting the “factor” test
as relating to discriminatory intent, not adverse effect, and by improperly
requiring absolute incapacity to ground a claim relating to discrimination
based on addiction.
[119]
Consequently, in light of the Tribunal’s factual
findings, Elk Valley’s termination of Mr. Stewart was prima facie discriminatory.
His ground (drug dependence) and harm (termination) are conceded. As for
contribution, the link between Mr. Stewart’s drug dependence (impairing his
self-control with respect to drug use) and his termination (for using drugs, a
symptom, and thus an extension, of his dependence) was established on the
record. Similarly, Mr. Stewart’s drug dependence appears to have left him
unaware of his addiction, impairing his ability to comply with the voluntary
disclosure provisions of the Policy, and making that unawareness far from
irrelevant in this case. As one intervener put it, drug dependence — whether
through stigma or denial — can be a factor in an employee’s failure to
voluntarily disclose their disability. On that basis, prima facie discrimination
was satisfied here.
[120]
I also note that, in any event, Mr. Stewart’s
drug dependence was seemingly “a factor” in Elk Valley’s decision to terminate
him. In this regard, I disagree with the Chief Justice’s characterization of
the termination letter as relating solely to Mr. Stewart’s “use of drugs” and
as “explain[ing] the Policy” (para. 30). As O’Ferrall J.A. persuasively
observed in dissent (paras. 118-21), the termination letter’s phrasing
addressed, if not primarily emphasized, Mr. Stewart’s drug dependence. It read:
A further investigation with
you revealed that you use drugs extensively.
. . . It is fundamental to
safety at the minesite that employees comply with the Drug and Alcohol Policy
and disclose their dependency on drugs or alcohol . . .
. . .
. . . we are hopeful that you
will find the personal resolve that is necessary to overcome an addiction.
. . .
. . . We wish you every
success in turning your life around. [Emphasis added.]
(A.R., vol. III, at p. 48; see
also C.A. reasons, at para. 119.)
[121]
Elk Valley’s post-incident questioning of Mr.
Stewart, in the presence of his Union President and Vice-President, similarly
reflected its specific concerns with his drug dependence. Among the many
questions he was asked, the following can be highlighted: “So this wasn’t
your first introduction to cocaine? . . . Do you use other drugs
Ian? . . . Staying with coke / crack what would be your pattern of usage?
. . . Do you have a problem? . . . Do you think you are addicted?
. . . What is your pattern of usage now? . . . Do you have an intention
to enter treatment?” (A.R., vol. III, at pp. 36-44 (emphasis added)).
[122]
Considering the termination letter and the
transcript of Mr. Stewart’s post-incident interview, it was unreasonable for
the Tribunal to conclude that Elk Valley was not at least interested in whether
Mr. Stewart was drug-dependent, if not primarily motivated by that concern.
This was not a mere fact in the background.
[123]
Regardless, this analysis of what factored into
Elk Valley’s decision to terminate Mr. Stewart is not required to prove prima
facie discrimination. The contribution inquiry simply addresses whether Mr.
Stewart’s addiction was a factor in his termination. The evidence showed that
Mr. Stewart’s addiction had indeed factored into his drug use, and in turn, his
violation of the Policy. Had the Tribunal reasonably applied the legal test it
had identified, it would have found prima facie discrimination. Its
decision to the contrary was unreasonable and should not be afforded any
deference in my opinion.
C.
Justification
[124]
Turning to the other step of the analysis, the
Tribunal (para. 131) correctly identified the three-part test for justification
based on Meiorin and Hydro-Québec: (1) a connection between the
adopted standard and job performance; (2) good faith; and (3) it being
impossible to accommodate the employee further without undue hardship (which I
will call “reasonable accommodation”). Justices Moldaver and Wagner properly
identify that the third part of the justification test — reasonable
accommodation — is the only part in dispute (para. 52). I respectfully
disagree, however, with their conclusion that the Tribunal reasonably
interpreted both the law on reasonable accommodation and the facts before it.
(1)
The Correct Approach to Justification
[125]
Reasonable accommodation does not require that
it be “impossible for the employer to accommodate the employee’s
characteristics” (Hydro-Québec, at para. 16). However, the employer
“does have a duty, if it can do so without undue hardship, to arrange the
employee’s workplace or duties to enable the employee to do his or her work” (Hydro-Québec,
at para. 16). In distilled form, reasonable accommodation has been
described by this Court as being satisfied only if the employer “could not have
done anything else reasonable or practical to avoid the negative impact” on the
employee (Moore, at para. 49).
[126]
To determine what “reasonable or practical”
alternatives are available to it, an employer must engage in an individualized
analysis of the employee in question (Meiorin, at paras. 54-55; Hydro-Quebec,
at para. 17) based on the employee’s “individual differences” and “individual
capabilities” (Meiorin, at paras. 55, 64 and 67). In Meiorin,
this Court went so far as to say that “[e]mployers designing workplace
standards owe an obligation to be aware of both the differences between
individuals, and differences that characterize groups of individuals” (para.
68). Likewise, in Nova Scotia (Workers’ Compensation Board) v. Martin,
2003 SCC 54, [2003] 2 S.C.R. 504, at para. 81, the Court held that “no single
accommodation or adaptation can serve the needs of all”, which reflects the
wide spectrum on which addiction lies. Therefore, any predetermined or blanket
approach to sanctions imposed on employees for disability-related conduct will
struggle to fulfill an employer’s individualized duty to accommodate.
[127]
This individualized analysis involves both
procedural and substantive duties. The procedural duties relate to “the
procedure, if any, which was adopted to assess the issue of accommodation”; the
substantive duties relate to “the substantive content of either a more
accommodating standard which was offered or alternatively the employer’s
reasons for not offering any such standard” (Meiorin, at para. 66
(emphasis deleted)).
[128]
Lastly, the threshold of undue hardship — i.e.
the substantive duty — means that employers, when considering their options,
will always have to weigh options resulting in some hardship; it is only
hardship that is “undue” that an employer cannot be forced to endure.
Compelling employers to bear some hardship strikes the liberal balance sought
by human rights legislation:
It may be ideal from the employer’s
perspective to choose a standard that is uncompromisingly stringent. Yet the standard,
if it is to be justified under the human rights legislation, must accommodate
factors relating to the unique capabilities and inherent worth and dignity of
every individual, up to the point of undue hardship. [Meiorin,
para. 62]
[129]
In their concurring opinion, Justices Moldaver
and Wagner defer to the Tribunal’s approach to reasonable accommodation (paras.
55-56). In so doing, they affirm that it was appropriate for Elk Valley to
forego individual assessment in the interest of deterrence. I do not agree with
this proposition in the human rights law context.
[130]
Individual assessment is foundational to the
reasonable accommodation framework. By automatically terminating any employee,
no matter their circumstance, for ever testing positive for drug use, whether
on or off duty, Elk Valley made no effort to specifically accommodate Mr.
Stewart as an individual, contrary to the guidance of this Court. Rather, Elk
Valley lumped all drug users (no matter their motivation) and drug addicts (no
matter their degree of addiction) into a single group to be dealt with
identically and summarily, without any individual assessment.
[131]
Admittedly, the Tribunal held that requiring Elk
Valley to provide any further accommodation to Mr. Stewart would have amounted
to undue hardship (paras. 152 and 154). However, if all of the purported
accommodations provided by Elk Valley cannot qualify as accommodation in law,
then the Tribunal’s holding that those accommodations “constituted appropriate
accommodation” (para. 152) is open to appellate intervention. In my view, the
Tribunal’s holding — that Elk Valley provided sufficient accommodation to Mr.
Stewart — can be overturned, since, in reality, Elk Valley provided him with no
accommodation at all.
(2)
The Tribunal’s Unreasonable Approach to
Justification
[132]
As with prima facie discrimination,
although the Tribunal identified the correct test (paras. 131-33), the manner
in which it applied that test, and the evidentiary foundation for its findings,
both demonstrate that its holding on justification was unreasonable.
[133]
Elk Valley’s purported accommodation must be
assessed through the lens of its procedural and substantive duties.
Procedurally, the Tribunal accepted that Elk Valley had a duty to inquire as to
Mr. Stewart’s specific circumstances before taking adverse action against him
(para. 149). Yet it is not disputed that Elk Valley did not consider Mr.
Stewart’s specific circumstances (the extent of his addiction, his employment
history, his capacity for rehabilitation, etc.) before terminating his
employment. The Tribunal justified Elk Valley’s disregard for its procedural
duty to accommodate partly on the basis that Mr. Stewart had disregarded his
own duty “to request accommodation” for his disability given his “capacity” to
do so (para. 149).
[134]
With respect, this holding is indefensible on
the record. The Policy provided pre-incident accommodation only to employees
“with a dependency or addiction”. As well, both experts agreed that Mr. Stewart
was unaware of his drug dependence at the time of the incident (paras. 58, 61,
66 and 80). To diminish Elk Valley’s duty to accommodate based on Mr. Stewart’s
failure to request accommodation, when that failure appears to have been
symptomatic of the disability for which he was being discriminated against, was
in my view unreasonable. The Court of Queen’s Bench (paras. 59, 61 and 64-65)
and the dissenting judge below (para. 138) similarly held that Mr. Stewart
should not have been expected to disclose a drug dependence of which he was
unaware. Bearing in mind that those suffering from addiction are routinely
unaware of their drug dependence, this amounts to, in effect, removing all
human rights protections for such individuals. In other words, it says: you
only get human rights protections if you ask, though we know, due to your
disability, that you will not.
[135]
This insensitivity arises disproportionately in
the context of addictions, likely because of the stigma associated with them.
We would never demand that an employee with a physical disability complete an unattainable
physical activity to access accommodation. Still, that is precisely what Elk
Valley, in a psychological context, did to Mr. Stewart here. He could never
have sought accommodation for a disability he did not know he had.
[136]
In any event, Mr. Stewart’s ability “to make
conscious choices regarding his drug use” (Tribunal reasons, at para. 150) did
not diminish Elk Valley’s duty to accommodate him. Complainants’ choices,
imprudent or otherwise, do not weaken their human rights, either in law or in
policy. Such an approach reverses the burden and requires that complainants
avoid discrimination. In addition, it cannot be reconciled with protected
grounds that may in some ways be indivisible from choice (such as “gender
expression”), it contradicts this Court’s Charter jurisprudence linking
protected grounds to conduct related to those grounds, and it blames or
stigmatizes marginalized communities for their choices, counter to the remedial
aims of human rights legislation.
[137]
Substantively, the Tribunal accepted that Elk
Valley’s duty to accommodate included “examining alternative approaches which
have less discriminatory effect” (para. 150). However, the Tribunal excused Elk
Valley’s failure to implement such alternatives on the basis of an unreasonable
analysis. The Tribunal summarized the pre- and post-incident accommodation
provided in this case as follows:
I accept that the accommodation offered
through the ameliorative disclosure provisions of the Policy, the 6 month offer
of reinstatement and the offer to pay a portion of the rehabilitation costs as
per the termination letter, constituted appropriate accommodation in the facts
of this case, to the point of undue hardship. [para 152]
In my opinion, none of these
accommodations qualifies as accommodation to Mr. Stewart as an employee. As
such, it was unreasonable to hold that such accommodations reasonably
discharged Elk Valley’s human rights obligations.
[138]
The Tribunal held that Elk Valley’s pre-incident
accommodation — i.e. letting employees voluntarily disclose their disability
without discipline — “should be considered as part of the accommodation
provided to Mr. Stewart” (para. 151). That is unsupported on the facts.
Reasonable accommodation is an individual exercise, sensitive to the individual
characteristics of the employee involved. The experts agreed that Mr. Stewart
was unaware of his disability. It follows that Elk Valley’s pre-incident
accommodation was inaccessible by him. While those accommodations may have been
accessible by other employees who were aware of their disabilities, they appear
not to have been accessible by Mr. Stewart, the relevant employee here. As held
by the Court of Queen’s Bench below, a policy permitting voluntary disclosure
by drug-dependent persons does “little if anything” for someone who is unaware
of their drug dependence (para. 61).
[139]
The Tribunal further held that Elk Valley’s
post-incident accommodation — i.e. letting employees apply for new employment
six months after their automatic termination and subsidizing their
rehabilitation, if successful — “also contributes to accommodation
responsibilities” (para. 151). In my view, this belies the concept of
reasonable accommodation altogether. These accommodations are not only
post-incident, they are also post-employment. They were triggered only after
Mr. Stewart was terminated. While they may have been kind gestures, they could
not discharge Elk Valley’s duty to accommodate Mr. Stewart as an employee. As a
matter of fact, any stranger to this litigation would have been welcome to
apply for a position with Elk Valley six months from the date of Mr. Stewart’s
termination, making such accommodation rather superficial.
[140]
In reality, none of the purported accommodations
provided to Mr. Stewart was accessible by him during his employment. As a
result, the Tribunal held that Elk Valley discharged its duty to accommodate,
in effect, by providing Mr. Stewart with no accommodation at all. Such a
conclusion was unreasonable. None of the accommodations provided related in any
way to Mr. Stewart’s “unique capabilities and inherent worth and dignity” (Meiorin,
at para. 62). Instead, those accommodations, with no sensitivity to the
experience of those suffering from addiction, or to Mr. Stewart’s unique
circumstances, guaranteed his termination in the event of a positive drug test,
no matter the surrounding circumstances.
[141]
I would add that the Tribunal paid no regard to
the fact that the Policy actually requires individual assessment of employees
who test positive for drugs, as the dissenting Court of Appeal judge observed
(paras. 139-40). In fact, the Policy reflects the individual analysis demanded
by this Court’s jurisprudence. It provides that if an employee tests positive
for drugs, then disciplinary action against that employee “will be based on all
relevant circumstances, including . . . (i) the employment record of the
employee; (ii) the circumstances surrounding the Positive Test; (iii) the
employee’s stated pattern of usage; (iv) the likelihood that the employee’s work
performance has been or may be adversely affected; and (v) the importance of
deterrence of such behaviour by other employees” (A.R., vol. III, at p. 16).
Despite this language, none of these considerations was weighed by Elk Valley
when deciding the appropriate disciplinary action to take against Mr. Stewart.
Indeed, Elk Valley essentially conceded that it unilaterally imposed this
policy language with no intent of ever following through on it, as Elk Valley’s
fact witness explained and as the Tribunal noted (para. 71).
[142]
In Meiorin, this Court wrote that, for
reasonable accommodation, an employer cannot choose an “uncompromisingly
stringent” standard unless it reasonably accommodates each employee’s “unique
capabilities and inherent worth and dignity . . . up to the point of undue
hardship” (para. 62). The implementation of the Policy in this case was based
precisely, in my opinion, on such an “uncompromisingly stringent” standard. Elk
Valley in no way accommodated factors relating to anything unique about Mr.
Stewart, his nine years with the corporation, or his apparently clean
disciplinary record.
[143]
I emphasize one final point on justification.
The Tribunal claimed that Elk Valley offered Mr. Stewart “the opportunity of
reinstatement in 6 months under certain reasonable conditions” (para. 151).
This is, with respect, incorrect. The termination letter sent to Mr. Stewart
offered him “new employment” (A.R., vol. III, at p. 48); it made no
representations about Mr. Stewart being “reinstated”, i.e. regaining his employment
with all of the benefits he accrued in his nine years with Elk Valley. Further,
even if Elk Valley intended to offer reinstatement, I question the
reasonableness of the Tribunal’s holding that Mr. Stewart’s termination was
“reasonably necessary to provide a deterrent effect to drug users and drug
addicts” (para. 149). If Elk Valley in fact offered reinstatement, the
difference between suspending Mr. Stewart without pay subject to meeting the
conditions outlined in the termination letter and terminating him subject to
reinstatement if he meets those same conditions, is immaterial. The only
difference is that, in the case of the suspension, Mr. Stewart is accommodated
while employed, and in the case of the termination, Mr. Stewart is
“accommodated” as a former employee (counter to the legal meaning of reasonable
accommodation). In either case, his employment with Elk Valley six months later
turns only on his successful rehabilitation. If this was the Tribunal’s
understanding of the termination letter, I am hard-pressed to understand how
such a trivial difference could result in greater deterrence of drug use.
[144]
As the dissenting Court of Appeal judge
correctly noted, “[s]uspension without pay is a significant penalty with
considerable deterrent effect” (para. 136), especially if the suspension is for
six months. For most persons, the deterrent effect of being suspended from
work, and of receiving no salary for the duration of that suspension, is
immense and should not be understated. In my view, such a harsh penalty should
have been carefully considered alongside other sanctions in the context of
reasonable accommodation. It was not. In the end, the only difference between
Elk Valley’s chosen sanction and a lengthy unpaid suspension is Mr. Stewart’s
loss of his seniority benefits, even if he successfully completed
rehabilitation. One should exercise restraint when stripping away an employee’s
nine years of seniority, particularly when that harsher sanction serves
primarily to punish an employee for misconduct symptomatic of their disability.
V.
Conclusion
[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.
Appeal
dismissed with costs to Elk Valley Coal Corporation, Cardinal River Operations,
Gascon J. dissenting.
Solicitors for the
appellant: McGown Cook, Calgary.
Solicitors for the
respondent the Elk Valley Coal Corporation,
Cardinal River Operations: Gall Legge Grant & Munroe,
Vancouver.
Solicitor for the
respondent the Alberta Human Rights
Commission (Tribunal): Office of the Chief of the Commission and
Tribunals, Calgary.
Solicitor for the interveners the Council of Canadians with
Disabilities and the Empowerment Council: ARCH Disability Law
Centre, Toronto.
Solicitors for the
interveners the Construction Owners
Association of Alberta, Construction Labour Relations — an Alberta Association,
Enform Canada, the Electrical Contractors Association of Alberta, the Mining
Association of Canada, the Mining Association of British Columbia, the Ontario
Mining Association, the Northwest Territories and Nunavut Chamber of Mines and
the Saskatchewan Mining Association: Dentons Canada, Calgary.
Solicitors for the
intervener the United Nurses of Alberta: Chivers Carpenter Lawyers,
Edmonton.
Solicitors for the
interveners the Ontario General Contractors
Association, the Ontario Formwork Association and the Greater Toronto Sewer and
Watermain Contractors Association: Fasken Martineau DuMoulin,
Toronto.