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

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?