Summary

36636

Brent Bish on behalf of Ian Stewart v. Elk Valley Coal Corporation, Cardinal River Operations, et al.

(Alberta) (Civil) (By Leave)

Keywords

Human rights - Right to equality.

Summary

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Human Rights – Right to equality – Discrimination on the basis of mental or physical disability – Whether the correct test for establishing prima facie discrimination in the context of mental disability should be applied differently to those suffering from addiction-related disabilities – Whether there is inter-jurisdictional consistency in the application of that legal test and across factual contexts – Whether the correct test to establish the defence of justification of a discriminatory standard as a bona fide occupational requirement should be applied differently to addiction-related disabilities – Whether there is inter-jurisdictional consistency in the application of that legal test and across factual contexts – British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees Union, [1999] 3 S.C.R. 3 – Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 – Alberta Human Rights Act, R.S.A. 2000 c. A-25.5, s. 7.

A worker was terminated from his employment with Elk Valley Coal Corporation when he tested positive for cocaine after a loader truck he was operating struck another truck. He had previously attended a training session and acknowledged his understanding of the employer’s policy of allowing workers with a dependency or addiction to seek rehabilitation without fear of termination, provided they sought assistance before an accident occurred. The worker admitted to regular use of cocaine on his days off but didn’t think he had a drug problem prior to the accident and testing. His union filed a complaint with the Alberta Human Rights Commission, claiming the worker was fired on account of his addiction disability. The tribunal concluded that while the complainant’s drug addiction was a disability protected under the legislation, there had been no prima facie discrimination. The worker was not fired because of his disability, but because he failed to stop using drugs, stop being impaired at work, and did not disclose his drug use. Alternatively, the tribunal held that the employer had shown accommodation to the point of undue hardship.

The Court of Queen’s Bench of Alberta dismissed the appeal from the decision of tribunal but disagreed with the alternative conclusion that the worker had been reasonably accommodated. A majority of the Court of Appeal of Alberta dismissed the appeal and allowed the cross-appeal.