Ian Stewart was a long-term employee who worked as a loader driver in a mine.

His employer, Elk Valley Coal Corp., had a strict substance abuse policy. It required employees to disclose any dependence or addiction issues before they were involved in any drug-related incidents.

If an employee disclosed their addiction, the employer would offer treatment. If not, and if the employee was involved in an incident and tested positive for drugs, the employee would be terminated automatically.

Mr. Stewart used cocaine and did not disclose this to his employer. The employer terminated Mr. Stewart after a minor workplace accident involving his loader in 2015. Stewart then tested positive for cocaine use. He admitted to having consumed the drug while off work a couple of days prior to the incident.

Stewart did not disclose his addiction or seek treatment because he did not realize he had an addiction until after the accident.

He alleged, through his Union, that his termination amounted to discrimination on the basis of disability.

This case started at the Alberta Human Rights tribunal and went all the way up to the Supreme Court of Canada (SCC). In June 2017, the SCC released its decision: Stewart v. Elk Valley Coal Corp.

The Court did affirm that addiction is a disability and the current legal framework for discrimination on the basis of disability. But, the Court upheld Stewart’s termination. The Court deemed that his termination was not a result of his cocaine addiction. Instead, the decision found that Stewart breached the company’s anti-drug-use policy with which he had the capacity to comply. The Court noted that Stewart would have been fired whether he was an addict or a casual user.

“While Stewart 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.”

The Court ruling disappointed many legal observers as it reveals a very narrow understanding of addiction.

The Court placed emphasis on Stewart’s individual “choice” to use drugs, and the distinction between terminations for using drugs versus terminations for breaching a policy forbidding the use of drugs.

Justice Gascon wrote a powerful dissent rejecting the argument that the employer accommodated Stewart to the point of undue hardship. The Tribunal pointed to two accommodations:

• The offer of treatment if the employer disclosed their addiction prior to an accident occurring, and;
• An offer that Stewart could reapply for a new position with the employer if he completed a rehabilitation program.

Gascon wrote:

“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.”

This case demonstrates that there is much more work to do in the area of mental health and addiction accommodations.

Unfortunately, this decision will be a boost for employers with “zero tolerance” drug and alcohol policies, particularly in safety-sensitive workplaces. Employers may interpret it as the ability to establish zero-tolerance policies without having to assess whether people have addictions.

Essentially, this decision says that prior disclosure of the disability of addiction is a pre-requisite for any human rights protection from misconduct related to the disability. The Local Union recommends that Members make themselves familiar with any substance use policies that exist in your collective agreements. Union Stewards and Reps must also be more mindful than ever before about the possibility of addiction. They must work with members to get past the issues of denial and stigma, and to disclose their addiction.

If you have questions or concerns about the language in your collective agreement, please speak to your Union Representative.

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