Home|Audio Conferences|Elk Valley and Disability-Related Misconduct

Elk Valley and Disability-Related Misconduct: How has the Supreme Court changed the law?

Thursday, September 28, 2017, 12:30 pm - 2:00 pm EDT

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Douglas Ruck



Norm Keith

Employer Counsel
Fasken Martineau
John Carpenter

Union Counsel
Chivers Carpenter


On June 15, 2017, the Supreme Court of Canada released its much anticipated decision in Stewart v. Elk Valley Coal Corporation (“Elk Valley”). Grappling with the question of whether an employer can dismiss an employee for failing to disclose drug dependence prior to a workplace accident, the Supreme Court’s decision in Elk Valley has ignited strong responses from employers, unions, and human rights advocates. While some have applauded this decision as providing much needed relief for Canadian employers in safety-sensitive workplaces, others have expressed concern that it inappropriately limits human rights protections for individuals with substance use disorders. In this audio conference, expert panelists will discuss the Supreme Court of Canada’s decision in Elk Valley and consider what it means for the treatment of disability-related misconduct in Canadian workplaces.

  • Background: What were the essential facts and main issues in dispute in Elk Valley? What was the Human Rights Tribunal of Alberta’s ruling in this case? On what grounds did the Alberta Court of Appeal affirm the Tribunal’s decision?
  • Majority Decision: On appeal to the Supreme Court of Canada, why did the majority opinion, written by Chief Justice McLachlin, ultimately uphold the Tribunal’s ruling in Elk Valley? How important was the concept of judicial deference for the majority in reaching its conclusion? Why was it considered significant that, during the period in question, the applicant was found to have had the “capacity to comply” with the terms of his employer’s drug and alcohol policy? Why was the employee’s denial of his addiction considered irrelevant in this case? How did the majority respond to arguments that the prima facie test for discrimination should be altered?
  • Concurring Judgment: In what way did Justices Moldaver and Wagner disagree with the majority opinion in Elk Valley? Why did their concurring judgment find that a prima facie case of discrimination had been established in the circumstances? In concluding that the employer had met its obligation to accommodate the employee, what do Moldaver and Wagner suggest about the relationship between undue hardship and safety-sensitive work environments?
  • Dissenting Reasons: In his dissenting opinion, what concerns did Justice Gascon express about the stigma surrounding substance abuse? Why did Justice Gascon conclude that the Tribunal’s decision in Elk Valley was unreasonable? What conceptual errors did Gascon identify in the Tribunal’s decision? Why did Gascon suggest that the Tribunal had confused discriminatory intent with discriminatory effect in its analysis of prima facie discrimination? On what basis did Gascon conclude that the employer had not met its obligation to accommodate the employee to the point of undue hardship?
  • Understanding Elk Valley’s Impact: How does the Supreme Court of Canada's decision in Elk Valley alter the employer’s duty to inquire into an employee's health and possible need for accommodation? Are employees who engage in misconduct related to a disability now prevented from raising discrimination and accommodation arguments at arbitration if they did not notify the employer before the misconduct occurred? How is the Elk Valley decision expected to impact the way adjudicators assess whether workplace misconduct is causally connected to a substance use disorder? To what extent do fact specific considerations in Elk Valley make this case unique? What lessons can be drawn from the Supreme Court’s decision for the purposes of drafting workplace alcohol and drug policies?


HRPA Continuing Professional Development

The Human Resources Professionals Association (HRPA) has approved Lancaster House as a Continuing Professional Development Partner, guaranteeing that participation in our audio conferences will be accepted by the HRPA for CPD credit.

HRMA Continuing Professional Development

This audio conference has been approved by the HRMA for CPHR recertification credits.

Lancaster House CPD
  • This audio conference has been approved by the Law Society of British Columbia for 1.5 Continuing Professional Development hours.
  • CPD for Members of the Law Society of Upper Canada: 1.5 Substantive Hours; 0 Professionalism Hours.
  • Members of the Nova Scotia Barristers Society may count this program for 1.5 Continuing Professional Development hours.
  • Members of the Law Society of Saskatchewan should contact their Law Society regarding CPD approval.
  • This program has been approved by CPHR Alberta for 1.5 Continuing Professional Development hours. CPD hours for this event can be logged online, through your CPHR Alberta member profile.

Additional Information

Valuable, up-to-date materials and case summaries will be available for downloading from our website. Each audio conference is accompanied by a PDF of concise summaries of the cases discussed.

Live Session – $245, plus HST
Live Session for 2 or more (Boardroom fee) – $490, plus HST
Bundle Rate – Purchase a Live Session and receive the companion MP3 Recording for $145, plus HST
MP3 Recording – $245, plus HST
(Registrations must be paid in advance of the audio conference)

Audio conference MP3 files are available for $245. Those who have purchased the live audio conference may purchase the corresponding downloadable audio MP3 file for the discounted price of $145.

The recorded MP3 file and materials are available for download one business day after the live audio conference. After purchasing, you will receive an e-mail with instructions on how to access and download the audio conference MP3 file and materials by visiting My Account and selecting Order History. For audio file purchases for upcoming audio conferences, once the MP3 file is available through our site, registrants will receive an update e-mail informing them that the links are now ready.

When you register, you'll be given a toll-free number to dial at the time of the session and an access code to join the call. For additional program and registration information, call Lancaster House at (416) 977-6618.

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