August 21, 2018

The Supreme Court of Canada’s decision in Stewart v. Elk Valley Coal Corporation, in which the majority upheld the dismissal of an employee who failed to disclose his addiction prior to a workplace accident, has been the subject of much debate and speculation among the labour community. It has been applied by courts, arbitrators, and human rights tribunals not only in cases involving substance use disorders, but also more broadly in cases involving issues such as the prima facie test for discrimination, the duty to accommodate, and the impact of zero tolerance policies. In this session, experienced counsel will explain how Elk Valley has altered the law relating to disability-related misconduct in the workplace, addressing issues such as:

  • Establishing discrimination: How has the majority decision clarified the test for establishing prima facie discrimination? Has Elk Valley altered the manner of assessing whether workplace misconduct is causally connected to a disability? Does an employee now have to establish that a disability was the proximate cause of the adverse treatment, and not simply a contributing factor? Are adjudicators requiring that medical evidence be provided to establish this connection?
  • Duty to accommodate: Will an employee’s failure to disclose a substance use disorder, or other disability prior to a workplace accident or discipline-worthy event, displace an employee’s entitlement to accommodation based on disability? Does it alter the employer’s duty to inquire into an employee’s health and possible need for accommodation?
  • Crafting workplace policies: Does Elk Valley provide any lessons in drafting workplace drug and alcohol policies? Has the majority view that zero tolerance policies are not per se discriminatory been accepted by adjudicators? Will a zero tolerance policy alone be sufficient to provide cause for discipline or dismissal? What, if anything, must an employer establish aside from having a zero tolerance policy in order to justify discipline for disability-related misconduct? Must the employee establish in each case an incapacity to choose to comply with a self-disclosure policy, i.e. that the failure to self-disclose a substance use disorder is caused by denial that is due to addiction?
  • Impact of Elk Valley: How have adjudicators applied Elk Valley in practice? Has the decision been broadly applied, or has it been restricted to its particular facts? Has it resulted in reduced human rights protections for employees with substance use disorders or other disabilities?