Stewart v Elk Valley Coal Corp. Summary: SCC Reaffirms Test for Discrimination but Gives a Narrow Understanding of Addiction
- June 27, 2017
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On June 15, 2017, the Supreme Court of Canada handed down its decision in the case of Stewart v Elk Valley Coal Corp., 2017 SCC 30. The majority judgment affirmed the current framework for determining whether discrimination has occurred. However, bakerlaw is concerned that the majority decision could have a chilling effect on individuals suffering from an addiction, as the Court’s ruling hinged on a very narrow understanding of addiction, which impacted its decision on whether in this case, drug dependence was a factor in the termination of employment.
Ian Stewart worked as a loader driver in a mine. His employer, Elk Valley Coal Corp., had a strict policy requiring employees to disclose any dependence or addiction issues before they were involved in any drug-related incidents. If an employee disclosed his addiction, he would be offered treatment. If not, and if the employee was involved in an incident and tested positive for drugs, the employee would be terminated. Mr. Stewart was a user of cocaine, and did not disclose this to his employer. After his loader was involved in a workplace accident, and after Mr. Stewart tested positive for cocaine use, he was terminated.
As drug addiction is considered a disability under human rights legislation, Mr. Stewart applied to the Alberta Human Rights Tribunal arguing that his termination constituted discrimination on the basis of disability. The Tribunal dismissed his complaint, finding that Mr. Stewart was terminated for breaching the policy, and not for his addiction. This decision was affirmed by the Alberta Court of Queen’s Bench and the Alberta Court of Appeal on review.
The majority of the Supreme Court upheld the Tribunal’s decision, however the judgment was split on different issues. The majority, led by Chief Justice McLachlin, found the Tribunal had reasonably concluded that there was no discrimination. The minority found that there was discrimination, but that this discrimination was justified because the employer could not accommodate Mr. Stewart without incurring undue hardship. The lone dissenting judge, Justice Gascon, wrote a lengthy judgment finding that there was discrimination and this discrimination was not justified.
The majority’s decision does not change the legal framework for finding discrimination: a complainant must still show that they have a characteristic that is protected under the relevant Human Rights Code, that they experienced an adverse impact, and that the protected characteristic was a factor in this treatment. The majority also refused to raise the bar for a finding of discrimination, by requiring a complainant to show that treatment was “stereotypical or arbitrary” or by requiring that a complainant’s protected characteristic was a “substantial” or “causal” factor in the adverse treatment (instead of just “a factor”). These are welcome findings as they ensure that applicants are not put to an even greater onus in order to establish discrimination.
However, the majority’s application of the law to the facts is troubling for individuals suffering from addiction. It placed emphasis on the individual “choice” of Mr. Stewart to use drugs, and accepted the Tribunal’s rather superficial distinction between termination for using drugs and termination for breaching a policy forbidding the use of drugs. As Justice Gascon noted in dissent, the majority also afforded too much deference to the Tribunal’s finding that Mr. Stewart’s addiction was not a factor in the employer’s decision to terminate him. The correct question rather was whether Mr. Stewart’s addiction was a factor in his termination – including his breach of the policy.
In his dissent, Justice Gascon was sensitive to the particular difficulties facing those who suffer from addiction:
[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 [para 58].
Justice Gascon also rejected the argument that Mr. Stewart had in any event been accommodated to the point of undue hardship. The Tribunal pointed to two accommodations – the offer of treatment if addiction was disclosed prior to an accident occurring, and an offer that Mr. Stewart could reapply for a new position with the employer if he completed a rehabilitation program.
Justice Gascon held that the second accommodation could not be an accommodation in law, as accommodation must be provided to an individual while that person is still an employee. As to the first accommodation, Justice Gascon was troubled by the impact on drug-dependent people as a particularly vulnerable group:
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 [para 134].
While each case turns on its own facts, bakerlaw is concerned about the majority’s discussion regarding addiction. This case demonstrates there is much more work to be done in the area of mental health and addiction accommodations.
You can read the decision here (link).