Stewart v. Elk Valley Coal Corp.

Stewart v. Elk Valley Coal Corp.
Collection
Supreme Court Judgments
Date
2017-06-15
Neutral citation
2017 SCC 30
Report
[2017] 1 SCR 591
Case number
36636
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Alberta
Notes
SCC Case Information: 36636
Decision Content
SUPREME COURT OF CANADA
Citation: Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591
Appeal heard: December 9, 2016
Judgment rendered: June 15, 2017
Docket: 36636
Between:
Brent Bish on behalf of Ian Stewart
Appellant
and
Elk Valley Coal Corporation, Cardinal River Operations and Alberta Human Rights Commission (Tribunal)
Respondents
- and -
Council of Canadians with Disabilities, Empowerment Council, Construction Owners Association of Alberta, Construction Labour Relations — an Alberta Association, Enform Canada, Electrical Contractors Association of Alberta, Mining Association of Canada, Mining Association of British Columbia, Ontario Mining Association, Northwest Territories and Nunavut Chamber of Mines, Saskatchewan Mining Association, United Nurses of Alberta, Ontario General Contractors Association, Ontario Formwork Association and Greater Toronto Sewer and Watermain Contractors Association
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Reasons for Judgment:
(paras. 1 to 47)
McLachlin C.J. (Abella, Karakatsanis, Côté, Brown and Rowe JJ. concurring)
Joint Reasons Concurring in the Result:
(paras. 48 to 57)
Moldaver and Wagner JJ.
Dissenting Reasons:
(paras. 58 to 145)
Gascon J.
Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591
Brent Bish on behalf of Ian Stewart Appellant
v.
Elk Valley Coal Corporation, Cardinal River Operations and
Alberta Human Rights Commission (Tribunal) Respondents
and
Council of Canadians with Disabilities, Empowerment Council,
Construction Owners Association of Alberta,
Construction Labour Relations — an Alberta Association,
Enform Canada, Electrical Contractors Association
of Alberta, Mining Association of Canada,
Mining Association of British Columbia,
Ontario Mining Association, Northwest Territories and Nunavut
Chamber of Mines, Saskatchewan Mining Association,
United Nurses of Alberta, Ontario General Contractors
Association, Ontario Formwork Association and Greater
Toronto Sewer and Watermain Contractors Association Interveners
Indexed as: Stewart v. Elk Valley Coal Corp.
2017 SCC 30
File No.: 36636.
2016: December 9; 2017: June 15.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for alberta
Human rights — Discriminatory practices — Discrimination based on mental or physical disability — Drug dependency — Employer’s policy aimed at ensuring safety required employees to disclose dependence or addiction issues before drug‑related incident — Employee involved in accident — Employee tested positive for drug use — Employer terminated employee’s employment pursuant to policy — Whether employee was terminated for addiction or for breaching policy — If termination constituted prima facie discrimination, whether employer met its obligation to accommodate employee to point of undue hardship — Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H‑14, s. 7(1).
S worked in a mine operated by the Elk Valley Coal Corporation, driving a loader. The mine operations were dangerous, and maintaining a safe worksite was a matter of great importance to the employer and employees. To ensure safety, the employer implemented a policy requiring that employees disclose any dependence or addiction issues before any drug‑related incident occurred. If they did, they would be offered treatment. However, if they failed to disclose and were involved in an incident and tested positive for drugs, they would be terminated.
S used cocaine on his days off. He did not tell his employer that he was using drugs. When his loader was involved in an accident, he tested positive for drugs and later said that he thought he was addicted to cocaine. His employer terminated his employment. S, through his union representative, argues that he was terminated for addiction and that this constitutes discrimination under s. 7(1) of the Alberta Human Rights, Citizenship and Multiculturalism Act.
The Alberta Human Rights Tribunal held that S was terminated for breaching the policy, not because of his addiction. Its decision was affirmed by the Alberta Court of Queen’s Bench and by the Alberta Court of Appeal.
Held: The appeal should be dismissed.
Per McLachlin C.J. and Abella, Karakatsanis, Côté, Brown and Rowe JJ.: This case involves the application of settled principles on workplace disability discrimination to a particular fact situation. The nature of the particular disability at issue does not change the legal principles to be applied. These issues were within the purview of the Tribunal, and attract deference. The only question is whether the Tribunal’s decision is reasonable. If the decision is within a range of possible, acceptable outcomes which are defensible in respect of the evidence and the law, it is reasonable.
It is clear that there was evidence capable of supporting the Tribunal’s conclusion that the reason for the termination was not addiction, but breach of the policy. On the facts of this case, the Tribunal concluded that S had the capacity to comply with the terms of the policy and that he would have been fired whether he was an addict or a casual user. It was therefore not unreasonable for the Tribunal to conclude that there was no prima facie discrimination. Although it is open to a tribunal to find that an addiction was a factor in an adverse distinction where the evidence supports such a finding, this was clearly not the finding of the Tribunal. It unequivocally and repeatedly stated that addiction was not a factor in the decision to terminate. It also rejected the argument that denial prevented S from disclosing his addiction prior to the accident. While S 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. Finally, a finding of stereotypical or arbitrary decision making is not a stand‑alone requirement for proving prima facie discrimination, and there is no need to alter the settled view that the protected ground or characteristic need only be a factor in the decision.
Since the Tribunal’s decision that prima facie discrimination was not established was reasonable, it is unnecessary to consider whether S was reasonably accommodated.
Per Moldaver and Wagner JJ.: The Tribunal’s conclusion that S’s drug dependency was not a factor in his termination was unreasonable. To prove prima facie discrimination, S is not required to show that his termination was caused solely or even primarily by his drug dependency. Rather, he must only show that there is a connection between the protected ground — his drug dependency — and the adverse effect. His exercise of some control over his drug use merely reduced the extent to which his dependency contributed to his termination — it did not eliminate it as a factor in his termination.
However, the Tribunal reasonably held that the employer had met its obligation to accommodate S to the point of undue hardship. Given the employer’s safety objectives and responsibilities at the coal mine, it was crucial to deter employees from using drugs in a manner that could negatively affect their work performance and potentially lead to devastating consequences. Subjecting S to an individual assessment or imposing an unpaid suspension for a limited period as a disciplinary measure instead of imposing the serious and immediate consequence of termination would have undermined the policy’s deterrent effect. Therefore, the Tribunal reasonably concluded that incorporating these aspects of individual accommodation would result in undue hardship.
Per Gascon J. (dissenting): Although drug dependence is a protected ground of discrimination in human rights law, stigmas surrounding drug dependence — like the belief that individuals suffering from it are the authors of their own misfortune or that their concerns are less credible than those of people suffering from other forms of disability — sometimes impair the ability of courts and society to objectively assess the merits of their discrimination claims. These stigmas contribute to the uneasy fit of drug addiction and drug testing policies in the human rights arena. The improper considerations relied on by the Tribunal effectively excluded S from the scope of human rights protections.
A drug policy that automatically terminates employees who use drugs prima facie discriminates against individuals burdened by drug dependence. The legal threshold for prima facie discrimination is whether the complainant’s protected ground is a factor in the harm they suffer (also called “contribution”). Here, drug dependence was a factor in S’s drug use, so the policy under which S was terminated for using drugs is prima facie discriminatory. The Tribunal’s analysis was unreasonable because it misunderstood the legal principles informing discrimination law, and was unsupported by its factual findings.
The analysis of prima facie discrimination, and, in particular, contribution, is concerned with discriminatory effect, not discriminatory intent. Contribution addresses the relationship between an employee’s protected ground and harm, not between the ground and the intent to harm that employee. A ground need only be at least one of the factors linked to the employee’s harm. The Tribunal did not follow this established approach. Instead, it unreasonably held that S’s addiction did not contribute to his termination based on four conceptual errors.
First, it required S to make prudent choices to avoid discrimination. Requiring that complainants be prudent in avoiding discrimination amounts to a sort of contributory fault defence in discrimination cases, which (1) places a burden on complainants to avoid discrimination, rather than on employers not to discriminate; (2) is irreconcilable with recently recognized statutory grounds that arguably implicate a complainant’s choices that are significant to their identity; (3) generally contradicts the Court’s rejection of drawing superficial distinctions between protected grounds and conduct inextricably linked to those grounds; (4) specifically contradicts the Court’s rejection of the view that choice makes drug users responsible for the harms of their drug use; (5) reinforces stigma by blaming marginalized communities for their choices; and (6) substitutes the proper inquiry (whether drug‑dependent individuals are adversely impacted by the policy) with an improper inquiry (whether drug‑dependent individuals are so overwhelmingly impacted by their addictions that any discrimination they experience is caused exclusively by their addictions).
Second, the Tribunal limited S’s protections to an assurance of formal equality. While both dependent and recreational drug users will receive similar treatment for violating the policy, only drug‑dependent persons will uniquely and disproportionately struggle in complying with the terms of the policy.
Third, the Tribunal required S to prove that he was treated arbitrarily or stereotypically, importing substantive considerations into the settled and low threshold for prima facie discrimination and shifting a justificatory burden from the employer onto the complainant.
Finally, the Tribunal required S to prove a causal relationship between his ground and harm, a higher bar than the mere “factor” threshold repeatedly adopted by the Court. Prima facie discrimination should not be narrowly construed to preserve the enforceability of drug and alcohol policies. Doing so imports justificatory considerations into the prima facie discrimination analysis and exaggerates the implication of finding such policies prima facie discriminatory when they would simply need to be justified as relating to bona fide occupational requirements. It also narrows the Court’s recent jurisprudence, which holds that terminating an employee for a reason related to addiction is precisely what it means for that addiction to be a factor in the employee’s harm.
As such, while the Tribunal cited the proper legal test for prima facie discrimination, the manner in which it applied that test and the lack of an evidentiary foundation for its findings demonstrate that its holding on contribution was unreasonable and thus unworthy of deference. Although it repeatedly stated that S’s addiction was not a factor in his termination, its reasons suggest that it meant that S’s addiction was not a factor in the employer’s decision to terminate him. That was the wrong legal test. Under the proper test, the evidence before the Tribunal could not support its conclusion that S’s drug dependence did not contribute to his termination. His residual control over his choices merely diminishes the extent to which his dependence contributed to his harm, it does not eliminate it as a factor. The Tribunal avoided this argument by considering discriminatory intent, not adverse effect, and by improperly requiring absolute incapacity to ground a claim relating to discrimination based on addiction. Consequently, the termination of S was prima facie discriminatory.
With respect to justification, a policy that accommodates employees through mechanisms which are either inaccessible by the employee due to their disability or only applicable to the employee post‑termination cannot justify prima facie discrimination. Reasonable accommodation requires that the employer arrange the employee’s workplace or duties to enable the employee to do his or her work, if it can do so without undue hardship. To determine what reasonable or practical alternatives are available, an employer must engage in an individualized analysis of the employee based on the employee’s individual differences and capabilities. Therefore, any predetermined or blanket approach to sanctions imposed on employees for disability‑related conduct will struggle to fulfill an employer’s individualized duty to accommodate.
Here, the text of the impugned policy provides for individualized post‑incident accommodation: disciplinary action against an employee who tests positive for drugs is to be based on all relevant circumstances, including the employee’s employment record, the circumstances surrounding the positive test, the employee’s stated pattern of usage, the likelihood that the employee’s work performance has been or may be adversely affected, and the importance of deterring such behaviour. However, the policy was implemented, contrary to its express terms, with no consideration of S’s circumstances. In the human rights context, it is not appropriate for the employer to forego individual assessment in the interest of deterrence, even in the safety‑sensitive environment of this workplace, and even though that environment motivates strict drug policies.
None of the employer’s efforts at accommodation provided S with accessible accommodation during his employment, and those efforts failed to consider his individual circumstances in a dignified manner, so the employer cannot be said to have discharged its duty to accommodate him as an employee up to the point of undue hardship and the Tribunal’s findings to the contrary were unreasonable. Before termination, S was purportedly accommodated by the offer of lenient treatment if he voluntarily disclosed his drug dependence. But that accommodation was inaccessible by him because he appeared to have been unaware of his dependence, a symptom of his disability. After termination, he was allegedly accommodated by being given the prospect of reapplying for his position. But accommodation assists employees in their sustained employment, not former employees who may, or may not, successfully reapply for the position they lost as a result of a prima facie discriminatory termination. Given that all of the purported accommodations provided by the employer could not qualify as accommodation in law, the Tribunal’s holding that those accommodations constituted appropriate accommodation was open to intervention.
Cases Cited
By McLachlin C.J.
Referred to: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Hydro‑Québec v. Syndicat des employé‑e‑s de techniques professionnelles et de bureau d’Hydro‑Québec, section locale 2000 (SCFP‑FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Health Employers Assn. of British Columbia v. B.C.N.U., 2006 BCCA 57, 54 B.C.L.R. (4th) 113; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61.
By Moldaver and Wagner JJ.
Referred to: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970.
By Gascon J. (dissenting)
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360; Hydro‑Québec v. Syndicat des employé‑e‑s de techniques professionnelles et de bureau d’Hydro‑Québec, section locale 2000 (SCFP‑FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561; British Columbia (Public Service Employee Relations Commisson) v. BCGSEU, [1999] 3 S.C.R. 3; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525; ADGA Group Consultants Inc. v. Lane (2008), 64 C.H.R.R. D/132; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362; British Columbia Public Service Agency v. B.C.G.E.U., 2008 BCCA 357, 83 B.C.L.R. (4th) 299; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504.
Statutes and Regulations Cited
Alberta Human Rights Act, R.S.A. 2000, c. A‑25.5, s. 7(1).
Canadian Charter of Rights and Freedoms, s. 7 .
Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H‑14, ss. 7(1), (3), 44(1)(h) “mental disability”, (l) “physical disability”.
Authors Cited
Koshan, Jennifer. “Under the Influence: Discrimination Under Human Rights Legislation and Section 15 of the Charter ” (2014), 3 Can. J. Hum. Rts. 115.
Oliphant, Benjamin. “Prima Facie Discrimination: Is Tranchemontagne Consistent with the Supreme Court of Canada’s Human Rights Code Jurisprudence?” (2012), 9 J.L. & Equality 33.
Pothier, Dianne. “Tackling Disability Discrimination at Work: Toward a Systemic Approach” (2010), 4 M.J.L.H. 17.
APPEAL from a judgment of the Alberta Court of Appeal (Picard, Watson and O’Ferrall JJ.A.), 2015 ABCA 225, 19 Alta. L.R. (6th) 219, 602 A.R. 210, 647 W.A.C. 210, 87 Admin. L.R. (5th) 299, 24 C.C.E.L. (4th) 1, 81 C.H.R.R. D/367, [2015] CLLC ¶230‑046, 386 D.L.R. (4th) 383, [2015] 9 W.W.R. 1, [2015] A.J. No. 728 (QL), 2015 CarswellAlta 1190 (WL Can.), setting aside in part a decision of Michalyshyn J., 2013 ABQB 756, 581 A.R. 234, [2014] CLLC ¶230‑012, [2013] A.J. No. 1462 (QL), 2013 CarswellAlta 2733 (WL Can.), affirming a decision of the Alberta Human Rights Commission (Tribunal), 2012 AHRC 7, 74 C.H.R.R. D/425, 2012 CarswellAlta 2396 (WL Can.). Appeal dismissed, Gascon J. dissenting.
E. Wayne Benedict, for the appellant.
Peter A. Gall, Q.C., Andrea L. Zwack and Benjamin J. Oliphant, for the respondent the Elk Valley Coal Corporation, Cardinal River Operations.
Janice R. Ashcroft, Q.C., for the respondent the Alberta Human Rights Commission (Tribunal).
Karen R. Spector and Mariam Shanouda, for the interveners the Council of Canadians with Disabilities and the Empowerment Council.
Barbara B. Johnston, Q.C., and April Kosten, for the interveners the Construction Owners Association of Alberta, Construction Labour Relations — an Alberta Association, Enform Canada, the Electrical Contractors Association of Alberta, the Mining Association of Canada, the Mining Association of British Columbia, the Ontario Mining Association, the Northwest Territories and Nunavut Chamber of Mines and the Saskatchewan Mining Association.
Ritu Khullar, Q.C., and Vanessa Cosco, for the intervener the United Nurses of Alberta.
Norm Keith and Marc Rodrigue, for the interveners the Ontario General Contractors Association, the Ontario Formwork Association and the Greater Toronto Sewer and Watermain Contractors Association.
The judgment of McLachlin C.J. and Abella, Karakatsanis, Côté, Brown and Rowe JJ. was delivered by
The Chief Justice —
I. Introduction
[1] Ian Stewart worked in a mine operated by the Elk Valley Coal Corporation, driving a loader. The mine operations were dangerous, and maintaining a safe worksite was a matter of great importance to the employer and employees. The employer implemented the Alcohol, Illegal Drugs & Medications Policy, aimed at ensuring safety in the mine (“Policy”). Employees were expected to disclose any dependence or addiction issues before any drug-related incident occurred. If they did, they would be offered treatment. However, if they failed to disclose and were involved in an incident and tested positive for drugs, they would be terminated — a policy succinctly dubbed the “no free accident” rule. The aim of the Policy was to ensure safety by encouraging employees with substance abuse problems to come forward and obtain treatment before their problems compromised safety. Employees, including Mr. Stewart, attended a training session at which the Policy was reviewed and explained. Mr. Stewart signed a form acknowledging receipt and understanding of the Policy.
[2] Mr. Stewart used cocaine on his days off. He did not tell his employer that he was using drugs. One day, near the end of a 12-hour shift, Mr. Stewart’s loader was involved in an accident. No one was hurt, but Mr. Stewart tested positive for drugs. Following the positive drug test, in a meeting with his employer, Mr. Stewart said that he thought he was addicted to cocaine. Nine days later, his employer terminated his employment in accordance with the “no free accident” rule.
[3] Addiction is a recognized disability under the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14 (“Act”). Mr. Stewart, through his union representative Brent Bish, argues that he was terminated for addiction and that this constitutes discrimination under the Act, which states:
7(1) No employer shall
(a) refuse to employ or refuse to continue to employ any person, or
(b) discriminate against any person with regard to employment or any term or condition of employment,
because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income or family status of that person or of any other person.
. . .
(3) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.
. . .
44(1) In this Act,
. . .
(h) “mental disability” means any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder;
. . .
(l) “physical disability” means any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness . . . ;
[4] The Alberta Human Rights Commission (“Tribunal”) held that Mr. Stewart was not terminated because of his addiction, but for breaching the Policy, which required him to disclose his addiction or dependency before an accident occurred to avoid termination. The Tribunal’s decision was affirmed by the Alberta Court of Queen’s Bench and by the Alberta Court of Appeal, O’Ferrall J.A., dissenting. Mr. Stewart, through Mr. Bish, now appeals to this Court.
[5] Like the majority of the Court of Appeal, I find no basis for interfering with the decision of the Tribunal. The main issue is whether the employer terminated Mr. Stewart because of his addiction (raising a prima facie case of discrimination), or whether the employer terminated him for breach of the Policy prohibiting drug use unrelated to his addiction because he had the capacity to comply with those terms (not raising a prima facie case of discrimination). This is essentially a question of fact, for the Tribunal to determine. After a thorough review of all the evidence, the Tribunal concluded that the employer had terminated Mr. Stewart’s employment for breach of its Policy. The Tribunal’s conclusion was reasonable.
II. Prior Decisions
A. The Tribunal Decision, 2012 AHRC 7
[6] The Tribunal, in a decision authored by the Honourable Paul Chrumka, accepted the settled two-part test for discrimination in the workplace. At the first step, the employee must establish a prima facie case of discrimination, by showing: (1) a disability which is protected under the Act; (2) adverse treatment with regard to his employment or a term of that employment; and (3) that the disability was a factor in the adverse treatment. Relying on expert evidence, the Tribunal concluded that Mr. Stewart was addicted to drugs (even though he did not recognize his addiction at the time), and that this addiction constituted a disability protected under the Act. The Tribunal also concluded that Mr. Stewart’s termination constituted adverse treatment by the employer. However, it found that Mr. Stewart’s disability was “not a factor in the termination” (para. 125 (CanLII)). In the Tribunal’s view, Mr. Stewart was terminated for failing to comply with the Policy, which required Mr. Stewart to disclose his drug use prior to the accident and denied him the benefit of “one free accident” (para. 142). Therefore, there was no prima facie discrimination.
[7] In the alternative, the Tribunal stated that, if a prima facie case of discrimination had been established, it would have found that the employer discharged its onus at the second step of establishing that it had accommodated Mr. Stewart to the point of undue hardship.
[8] The Tribunal, at para. 131, relied on British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”), in setting the test for a bona fide occupational requirement. Meiorin provides that
[a]n employer may justify the impugned standard by establishing on the balance of probabilities:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer. [para. 54]
Then, at para. 133, the Tribunal quoted Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561, at paras. 12 and 16, elaborating on the undue hardship criteria:
What is really required is not proof that it is impossible to integrate an employee who does not meet a standard, but proof of undue hardship, which can take as many forms as there are circumstances. . . .
. . .
The test is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.
[9] The Tribunal found that the employer had adopted the “no free accident” rule in good faith for a job-related purpose, believing that “application of the policy was necessary to ensure the deterrent effect of the policy and ultimately safety in the workplace” (para. 147). The only question was whether the employer could have continued to employ Mr. Stewart without undue hardship. The Tribunal concluded it could not:
If the [employer] had to offer the opportunity for assessment to Mr. Stewart or replace the harsher and immediate effects of termination of employment with less serious consequences, the deterrent effect of the Policy would be significantly lessened, and constitute an undue hardship to the company, given the [employer]’s safety responsibilities. [para. 152]
[10] The Tribunal also found that offering an assessment without termination given that Mr. Stewart was able to make conscious choices regarding his drug use, would dilute the purpose of the Policy. Finally, the Tribunal found that the opportunity under the Policy to come forward and access treatment without fear of discipline, and the invitation to obtain treatment and apply for re-employment in six months, constituted accommodation of the disability.
B. The Motions Judge’s Decision, 2013 ABQB 756, 581 A.R. 234
[11] Mr. Bish appealed the Tribunal’s decision to the Alberta Court of Queen’s Bench. The motions judge (Michalyshyn J.) held that the standard of review was correctness on the issue of a prima facie case of discrimination, and reasonableness on the issue of accommodation. He dismissed the appeal on the ground that the Tribunal had not erred in concluding that the reason for termination was not addiction, but breach of the Policy. The evidence supported this conclusion and the fact that Mr. Stewart may have been in denial changed nothing.
[12] On the second issue, the motions judge held that if a prima facie case had been made out, the Tribunal erred in finding that the Policy accommodated Mr. Stewart, because Mr. Stewart “was not ‘capable’ of seeking treatment under the Policy by reason of a dependency or addiction he did not know he had” (para. 63; see also paras. 58-66). Self-reporting is not an accommodation for people in denial of their disability, he held.
C. The Court of Appeal’s Decision, 2015 ABCA 225, 19 Alta. L.R. (6th) 219
[13] The majority of the Court of Appeal (Picard and Watson JJ.A.) dismissed the appeal and upheld the Tribunal’s decision.
[14] On the issue of prima facie discrimination, the majority applied this Court’s three-part test set out in Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, and held that disability must be a real factor in the adverse impact, not just part of the background. Using the example of non-smoking policies, the majority held that it is impermissible to refuse to employ a person simply because they have an addiction, but permissible to refuse to employ a person for violation of a general policy restricting consumption of addictive material that is imposed on everyone. The majority concluded, at para. 76:
Put another way, the Tribunal found no real nexus between the application of the employer’s policy and the disability itself as alleged for Stewart. There was not shown to be direct discrimination, in the sense of the employer acting upon arbitrary or pre-conceived stereotypes when Stewart was let go. Nor was there shown to be indirect discrimination, in the sense of the employer having created a structure of employment policy whereby termination would effectively follow from a culture of discriminatory employment arrangements. Finally, and importantly to the Tribunal’s decision, the nexus between the disability and the action of Elk Valley towards Stewart when he breached the terms of the Policy in at least two ways, was not such as to make his disability itself a “factor” in the action taken by Elk Valley.
[15] On the issue of accommodation, the majority held that an employer cannot be required to premise workplace safety policy on a flagrant demonstration of an addiction. The fact that an employee may not know he is addicted or be in denial about the addiction does not change this. Employers should not be required to establish intrusive workplace rules to sniff out potential addictions.
[16] O’Ferrall J.A. dissented on the ground that the Tribunal erred in law in relying on the absence of stereotypical behaviour to conclude no prima facie case of discrimination had been established, and in failing to consider the employer’s motive of deterrence in determining whether the addiction was a factor in the termination. In his view, the evidence showed that addiction was the real reason for the termination of Mr. Stewart’s employment.
[17] O’Ferrall J.A. also concluded that the employer had not accommodated Mr. Stewart’s disability to the point of undue hardship. In his view, self-reporting is not an accommodation for people in denial of their addiction; termination as opposed to suspension pending treatment was unduly harsh in the circumstances; and the Tribunal over-emphasized the employer’s need for deterrence and under-valued the need to assess the circumstances.
III. The Issues
[18] The appellant raises three issues on appeal. First, he argues that the standard of review should be correctness. Second, he says that the Tribunal erred in concluding that prima facie discrimination was not established. Third, he argues that the Tribunal erred in finding that the employer has met its burden of establishing undue hardship.
IV. Analysis
A. Standard of Review
[19] Beneath the rhetoric that surrounds standard of review lies the question of deference: Should the reviewing court approach the decision below with deference?
[20] Reviewing courts generally approach the decisions of tribunals under human rights statutes with considerable deference. It is the tribunal’s task to evaluate the evidence, find the facts and draw reasonable inferences from the facts. And it is the tribunal’s task to interpret the statute in ways that make practical and legal sense in the case before it, guided by applicable jurisprudence. Reviewing courts tread lightly in these areas.
[21] The appellant, relying on what he concedes are “outlier” decisions, suggests that a non-deferential standard of correctness applies because legal issues arise with respect to whether stereotyping is a requirement of a prima facie case for discrimination, and with respect to when it becomes “impossible” to alter a workplace policy. As will be seen from the analysis that follows, these are essentially matters of applying the accepted law to the facts.
[22] In sum, this case involves the application of settled principles on workplace disability discrimination to a particular fact situation. The nature of the particular disability at issue — in this case addiction — does not change the legal principles to be applied. The debates here are not about the law, but about the facts and the inferences to be drawn from the facts. These issues were within the purview of the Tribunal, and attract deference. The only question is whether the Tribunal’s decision was reasonable.
B. Was the Tribunal Unreasonable in Finding That Prima Facie Discrimination Was Not Established?
[23] To make a claim for discrimination under the Act, the employee must establish a prima facie case of discrimination. If this is established, the onus then shifts to the employer to show that it accommodated the employee to the point of undue hardship.
[24] To make a case of prima facie discrimination, “complainants are required to show that they have a characteristic protected from discrimination under the [Human Rights Code, R.S.B.C. 1996, c. 210]; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact”: Moore, at para. 33. Discrimination can take many forms, including “‘indirect’ discrimination”, where otherwise neutral policies may have an adverse effect on certain groups: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789, at para. 32. Discriminatory intent on behalf of an employer is not required to demonstrate prima facie discrimination: Bombardier, at para. 40.
[25] It is conceded that the first two elements of a prima facie case of discrimination are established in this case. The only dispute is on the third requirement — whether Mr. Stewart’s addiction was a factor in his termination.
[26] The Tribunal cited the proper legal test and noted, at para. 117, that it was “not necessary that discriminatory considerations be the sole reason for the impugned actions in order for there to be a contravention of the Act”. After a detailed review of the evidence, it concluded that Mr. Stewart’s addiction was not a factor in his termination for two related reasons. In the Tribunal’s view, Mr. Stewart was fired not because he was addicted, but because he had failed to comply with the terms of the Policy, and for no other reason. The Tribunal also concluded that Mr. Stewart was not adversely impacted by the Policy because he had the capacity to comply with its terms.
[27] The only question for a reviewing court is whether this conclusion is unreasonable. Deference requires respectful attention to the Tribunal’s reasoning process. A reviewing court must ensure that it does not only pay “lip service” to deferential review while substituting its own views: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 48. If the decision is within a “range of possible, acceptable outcomes” which are defensible in respect of the evidence and the law, it is reasonable: Dunsmuir, at para. 47; see also Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 16.
[28] I am satisfied that the Tribunal’s conclusion that addiction was not a factor in the termination of Mr. Stewart’s employment is reasonable.
[29] The most important piece of evidence on whether Mr. Stewart’s addiction was a factor in Elk Valley’s reasons for the termination of his employment is the termination letter. The first three paragraphs deal with the reason for termination:
Dear Ian:
Re: Termination of Employment
On October 18, 2005, you tested positive for cocaine after being involved in an accident. A further investigation with you revealed that you use drugs extensively.
On July 25th, 2005, you signed an acknowledgement that your employment required you to comply with t