Q: Supreme Court change the rules in Stewart v. Elk Valley Coal? A: No

By Jim Quail

This 8:1 decision the Supreme Court of Canada has upheld a Human Rights Tribunal decision that a cocaine addict in a safety-sensitive job, who was fired for violating the employer’s policy by failing to report his addiction and then being involved in an accident, was not fired (on the facts of the particular case) because of his disability but rather because he violated the policy under circumstances where it was entirely within his capacity to comply with it.

This case does not change the law about addictions, disabilities and human rights. It does not create “open season” for employees with addictions.  It is more about the law of compliance with workplace policies, and about the way the courts will defer to decisions by human rights and other tribunals.  The Supreme Court did not endorse the tribunal’s conclusions as correct, but rather declined to interfere with them because they involved findings of fact within the tribunal’s jurisdiction, and were within the range of potentially reasonable conclusions.  (One of the judges, Mr. Justice Gascon, disagreed and wrote that the tribunal’s decision was beyond the pale of reasonableness).

The majority’s judgment takes care to make it clear that it does not narrow existing human rights principles and protections.  Responding to some of the arguments raised before the court:

[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 . . . . The Tribunal expressly noted that proof of arbitrariness and stereotyping was not required . . . .

[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.

This means that it remains unlawful for employers to discriminate against employees by reason of such disabilities as addictions, that the employees do not need to show that the employer’s response to their disability was arbitrary or stereotyping to establish a violation, and that it is no answer for employers to show that the disability was only one minor factor behind a termination or other action.  On the other hand, if a particular employee, who performs a safety-sensitive job, is fully capable (despite their specific condition) of complying with an employer-mandated duty to report their addiction, this may expose them to discipline for violating the employer’s policy.  The law remains that the employer policy must be reasonable and must not be in conflict with a collective agreement.

Some cases change the rules.  Most cases merely apply existing rules to specific facts.  Stewart v Elk Coal is of the latter category.

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