{"id":1988,"date":"2017-09-20T00:00:00","date_gmt":"2017-09-20T00:00:00","guid":{"rendered":"https:\/\/perlaw.ca\/2017\/09\/20\/supreme-court-of-canada-upholds-one-strike-youre\/"},"modified":"2019-07-22T20:14:54","modified_gmt":"2019-07-22T20:14:54","slug":"supreme-court-of-canada-upholds-one-strike-youre","status":"publish","type":"post","link":"https:\/\/perlaw.ca\/fr\/2017\/09\/20\/supreme-court-of-canada-upholds-one-strike-youre\/","title":{"rendered":"Supreme Court of Canada upholds \u201cone strike, you\u2019re out\u201d drug policy"},"content":{"rendered":"

In Stewart v. Elk Valley Coal Corp.<\/em>[1]<\/strong><\/em><\/a> [Elk Valley], the Supreme Court of Canada upheld the dismissal of an employee for a breach of a policy relating to the use of drugs.\u00a0 The factual situation involved a coal mining operation, which was a highly safety-sensitive environment.<\/p>\n

The employer had a drug policy with zero tolerance for drug use that would impact safety in the workplace. The policy required employees to disclose any drug dependency to the employer without waiting for a workplace incident to occur.\u00a0 Once disclosed, the employer would accommodate the employee with treatment programs and modified work.\u00a0 Although, technically speaking, the policy indicated that if there was an incident of drug use at work, all surrounding circumstances would be considered when determining the outcome, it appeared to be well-recognized that the employer had a \u201cno free accident\u201d policy.\u00a0 If an employee\u2019s drug use contributed to a workplace incident, the standard response of the employer was to terminate the employee.<\/p>\n

The employee involved in Elk Valley<\/em> used cocaine regularly on his days off.\u00a0 The employee was involved in an accident at work and, although no one was hurt, the employee tested positive for drugs.\u00a0 In a meeting with the employer, the employee said that he thought that he was addicted to cocaine.\u00a0 The employee was terminated.<\/p>\n

The Alberta Human Rights Tribunal (the \u201cTribunal\u201d) held that the employee was not terminated because of his addiction but, rather, was terminated for breaching the policy which required him to disclose an addiction or dependency before an accident occurred.\u00a0 The main point in contention at the Supreme Court of Canada was whether or not the Tribunal erred in holding that the employee did not prove a prima facie<\/em> case of discrimination.<\/p>\n

The Tribunal relied on expert evidence to find that the employee was addicted to drugs and, therefore, had a recognized disability.\u00a0 The Tribunal also accepted that the employee\u2019s termination was an adverse effect. However, the Tribunal found that the employee\u2019s disability was not \u201ca factor\u201d in the termination.\u00a0 The Tribunal approached this issue by considering whether the employee\u2019s breach of the policy was connected to his dependency.\u00a0 The Tribunal held that the employee was terminated for a breach of the policy, and that his drug dependency was not a factor in the decision to terminate.<\/p>\n

The Tribunal also went on to consider whether the \u201cno free accident\u201d rule amounted to a bona fide<\/em> occupational requirement, and found that it did.\u00a0 The only real question in this analysis was whether the employer could have continued to employ the employee without undue hardship.\u00a0 The Tribunal found that offering an alternative to termination would substantially dilute the deterrent effect of the policy and this would amount to undue hardship.<\/p>\n

At the Supreme Court of Canada, the majority upheld the Tribunal\u2019s decision.\u00a0 Writing for the majority, McLachlin C.J. noted that substantial deference should be given to a human rights tribunal when applying settled principles to a particular factual situation.\u00a0 A court should only intervene under these circumstances if the findings of a tribunal were unreasonable.<\/p>\n

With respect to the finding of prima facie<\/em> discrimination, the Court adopted a well-recognized approach from earlier case law requiring:<\/p>\n