Northern Exposure

Discipline for off-duty cocaine use justified in safety-sensitive workplace

by Rosalind H. Cooper

A recent decision of the Supreme Court of Canada in Stewart v Elk Valley Coal Corp., 2017 SCC 30, has confirmed that employers have the ability to take disciplinary action against employees for drug and alcohol use in safety-sensitive workplaces.

The worker in this case was employed in a mine where a drug and alcohol policy had been implemented. The policy required workers to disclose any dependence or addiction issues and to make such disclosure in advance of any incident occurring. If employees followed the policy, they were offered treatment for their addiction. If disclosure was not made and an incident occurred and the employee subsequently tested positive for alcohol or drugs, he or she could be terminated.

The worker in question drove a loader in the mine. He used cocaine on his days off but did not disclose his drug use to his employer. He was involved in a workplace accident and was tested for drug use in accordance with the policy. He tested positive for cocaine.

Afterwards, he informed his employer that he thought he was addicted to cocaine. The employer terminated the worker on the basis of the policy because he had not disclosed his addiction prior to the accident. The worker challenged the termination under the Alberta Human Rights Act on the basis of discrimination due to a disability.

Tribunal ruling

The tribunal dismissed the complaint and found that the reason for the termination was not the worker’s disability, but rather the failure to disclose the disability, which was a breach of company policy.

In the alternative, the tribunal held that the alleged discrimination constituted a bona fide occupational requirement and that the employer had accommodated the worker’s disability to the point of undue hardship. The worker appealed to the Alberta Court of Queen’s Bench and the Court of Appeal. Both courts confirmed the tribunal’s decision.

Supreme Court ruling

The Supreme Court of Canada dismissed a further appeal by the worker. The majority of the court agreed with the tribunal’s reasoning that the grounds for the worker’s termination was not the disability, but rather breach of the disclosure requirement in the company policy.

The court stated that for a worker to make out a claim of discrimination, he or she must first establish a prima facie (minimally sufficient) case of discrimination. If successful, the onus then shifts to the employer to show that it accommodated the employee to the point of undue hardship.

In order to make a case of prima facie discrimination, the worker is required to show that he or she has a characteristic protected from discrimination under human rights legislation; that the worker experienced an adverse action relating to his or her employment; and that the protected characteristic was a factor in the adverse action. The majority agreed that the first two elements of establishing a case of prima facie discrimination were satisfied in that the worker had a disability and had been terminated.

However, with respect to the issue of whether the termination was a result of the disability, the majority of the court concluded it was not. The worker had argued that his addiction was a factor in his termination because denial was part of the addiction and this prevented him from disclosing his addiction prior to the accident. But the court held that this was a question of fact and the evidence before the tribunal showed that the worker had the ability to comply with the company policy. The majority did not address the question of accommodation.

The court held that where the cause of termination is breach of a workplace policy or other conduct that results in discipline, the mere existence of an addiction does not establish prima facie discrimination. However, in some cases, a person with an addiction may be deprived of the capacity to comply with workplace rules, in which case the breach of the rule will be inextricably linked to the addiction. 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.

Another perspective

Interestingly, there were reasons issued by two other justices of the Supreme Court. They found that a case of prima facie discrimination was made out, but they went on to consider the question of accommodation and found that the employer met its obligation to accommodate to the point of undue hardship.

The justices held that the worker’s termination was reasonably necessary to ensure the deterrent effect of the policy in a “safety-sensitive environment” and that it was crucial to deter workers from using drugs in a manner that could potentially lead to workplace accidents and injuries.


The court’s decision confirms that in safety-sensitive workplaces the need to deter alcohol and drug use justifies policies such as the one in this case. Employers are entitled to impose discipline for breach of such policies, even when a worker may suffer a disability. Finally, workplace safety is a relevant consideration in assessing whether an employer has accommodated a worker to the point of undue hardship.

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