Generally, employers have a duty to accommodate an employee's disability up to the point of undue hardship. However, the duty to accommodate is not without limitation. Recently, in Stewart v. Elk Valley Coal Corporation, 2015 ABCA 225, the Alberta Court of Appeal upheld a decision of the Alberta Human Rights Tribunal which had found that the termination of a safety sensitive employee, who was involved in a workplace accident while under the influence of cocaine, did not constitute unlawful discrimination.

As background, Elk Valley Coal Corporation (“ Elk Valley ”) had an Alcohol and Drug Policy (the “ Policy ”) that required employees to refrain from drug use and required any employee with an addiction to report their addiction to Elk Valley, so that the employee 's addiction could be accommodated. However, the Policy also provided that discipline or termination could not be avoided if the employee did not request accommodation and was subsequently involved in an accident.

Elk Valley terminated the employment of an employee named Ian Stewart after he tested positive for drug use following a work related accident. His union filed a complaint with the Alberta Human Rights Commission, arguing that Stewart was disabled by his addiction and was fired on account of his disability. Elk Valley's position was that Stewart could have voluntarily disclosed his addiction and he would have received accommodation. However, Stewart had never raised his addiction prior to the accident.

The Alberta Human Rights Tribunal (the “ Tribunal ”) agreed that Stewart's drug addiction was a disability protected under the Alberta Human Rights Act. However, the Tribunal concluded that Stewart “was not fired because of his disability, but rather because of his failure to stop using drugs, failure to stop being impaired in the workplace and failing to disclose his drug use”. The termination in those circumstances was due to a breach of the Policy and that Mr. Stewart's disability was not a factor in the termination. Even if there was discrimination, the Tribunal concluded that it would have been justified because of the need for the strict deterrence in the safety-sensitive environment. Further, the Tribunal concluded that Elk Valley accommodated Stewart to the point of undue hardship by providing all of its employees with the Policy and the fact that Elk Valley provided Stewart with an offer of assisting him with treatment.

The Alberta Court of Queen's Bench agreed that Stewart was not terminated because of his disability, instead it was his disregard of the employer's policy that got him fired. However, the Alberta Court of Queen's Bench disagreed with the Tribunal on what constituted reasonable accommodation. Stewart appealed the Queen's Bench decision on the issue of discrimination, while Elk Valley appealed the Queen's Bench decision on the issue of accommodation.

Discrimination and Accommodation

On appeal, Stewart argued that his disability was a factor in the breach of the Policy. The Court of Appeal held that the Tribunal properly recognized that to demonstrate discrimination, complainants are required to show that they have a characteristic protected from discrimination under the legislation; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. The Court of Appeal held that the adverse impact, namely the termination of Stewart's employment, was due to his breach of the Policy and not his disability.

Once an argument has failed the test for discrimination, the test for accommodation is generally not considered. However, the Court of Appeal considered whether Elk Valley policy was accommodative of employees with drug dependencies. With respect to the subject of accommodation, the Court of Appeal noted that the objective of the accommodation obligation is to remove the barriers of arbitrariness or stereotypical assumptions or attitudes about disability and to replace them with a mindset of inclusion. In this case, the Policy was accommodative of employees with drug dependencies.

Stewart had argued that his denial was a component of his disability. The Court of Appeal stated that while denial was a real component of drug dependency as a disability, it was convoluted logic to allow Stewart's denial as an excuse for failing to make Elk Valley aware of the need for accommodation. The Court of Appeal stated that Stewart's approach amounted to a suggestion that an employee in a highly safety sensitive position who knew precisely what he was doing could unilaterally and in a secretive manner disregard the safety obligations of his employment not only to the employer but to his co-workers. In the Court of Appeal's view, legitimizing such behaviour lost touch with the objectives of anti-discrimination laws.


The Court of Appeal decision suggests that employers in Alberta can rely on the provisions of a drug and alcohol policy that require safety sensitive employees to self-report their addictions prior to a workplace accident. Further, the Court of Appeal decision appears to reject the idea that an employee can rely on the denial of their disability when claiming that the employer failed to accommodate the disability. Employers should consider updating their drug and alcohol policies in light of this decision.


Andrew Pozzobon


Labour and Employment
Labour and Employment Law