Bish v. Elk Valley Coal Corp., (2013) 581 A.R. 234 (QB)

• Judge: Michalyshyn, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 05, 2013
• Citations: (2013), 581 A.R. 234 (QB);2013 ABQB 756

Bish v. Elk Valley Coal Corp. (2013), 581 A.R. 234 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JA.083

Brent Bish on behalf of Ian Stewart (appellant) v. Elk Valley Coal Corporation, Cardinal River Operations (respondent)

(1203 09671; 2013 ABQB 756)

Indexed As: Bish v. Elk Valley Coal Corp.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Michalyshyn, J.

December 23, 2013.

Summary:

The employer's alcohol and drug policy stated that employees "with a dependency or addiction" could, before a work-related accident, seek rehabilitation without fear of discipline of involuntary termination. The policy also stated that discipline or termination could not be avoided for treatment for "abuse, dependency or addiction" sought only after an accident. Following an accident, Stewart's drug test was positive. He was fired for violating the policy. The union complained to the Alberta Human Rights Commission that Stewart's termination violated the Human Rights Act because he was fired due to his addiction disability. The Commission dismissed the complaint, finding no prima facie discrimination. Even though it found no discrimination, the Commission also indicated, alternatively, that the policy amply accommodated employees with addiction disabilities and that Stewart had chosen not to request accommodation. The union appealed.

The Alberta Court of Queen's Bench dismissed the appeal on the threshold issue of prima facie discrimination. However, the court disagreed with the Commission on the accommodation issue.

Civil Rights - Topic 980.1

Discrimination - Accommodation - General - [See second Civil Rights - Topic 999.8 ].

Civil Rights - Topic 983

Discrimination - Employment - What constitutes discrimination - [See first Civil Rights - Topic 999.8 ].

Civil Rights - Topic 985

Discrimination - Employment - Duty to accommodate - [See second Civil Rights - Topic 999.8 ].

Civil Rights - Topic 989

Discrimination - Employment - On basis of physical or mental disability - [See first Civil Rights - Topic 999.8 ].

Civil Rights - Topic 992

Discrimination - Employment - Adverse effect or indirect discrimination - [See first Civil Rights - Topic 999.8 ].

Civil Rights - Topic 992.1

Discrimination - Employment - Adverse effect discrimination - Duty of employer or union to accommodate employee - [See second Civil Rights - Topic 999.8 ].

Civil Rights - Topic 999.8

Discrimination - Employment - Drug and alcohol policies (incl. random testing) - The employer's alcohol and drug policy stated that employees "with a dependency or addiction" could, before a work-related accident, seek rehabilitation without fear of discipline of involuntary termination - The policy also stated that discipline or termination could not be avoided for treatment for "abuse, dependency or addiction" sought only after an accident - Following an accident, Stewart's drug test was positive - He was fired for violating the policy - The union complained to the Alberta Human Rights Commission that Stewart's termination violated the Human Rights Act because he was fired due to his addiction disability - The Commission dismissed the complaint, finding no prima facie discrimination - Stewart was not fired because of his disability, but because of his failure to stop using drugs and to disclose his drug use - No causal connection existed between the disability and the employer's treatment of Stewart - Nor was the decision to terminate based on arbitrary or preconceived stereotypes - The Alberta Court of Queen's Bench agreed - The Commission was entitled to come to its conclusion that Stewart's disability was not a factor in his termination - The court disagreed with the union's argument that any connection between the disability and the adverse treatment was sufficient for a finding of prima facie discrimination - The mere presence of an addiction which had not been identified by anyone at the time of the accident did not elevate the employer's decision to prima facie discrimination in law - See paragraphs 27 to 52.

Civil Rights - Topic 999.8

Discrimination - Employment - Drug and alcohol policies (incl. random testing) - The employer's alcohol and drug policy stated that employees "with a dependency or addiction" could, before a work-related accident, seek rehabilitation without fear of discipline of involuntary termination - The policy also stated that discipline or termination could not be avoided for treatment for "abuse, dependency or addiction" sought only after an accident - Following an accident, Stewart's drug test was positive - He was fired for violating the policy - The union complained to the Alberta Human Rights Commission that Stewart's termination violated the Human Rights Act because he was fired due to his addiction disability - The Commission dismissed the complaint, finding no prima facie discrimination - Even though it found no discrimination, the Commission also indicated, alternatively, that the policy amply accommodated employees with addiction disabilities and that Stewart had chosen not to request accommodation - Therefore, the termination was justified due to the need for strict deterrence in the employer's safety sensitive environment - The Alberta Court of Queen's Bench disagreed with the Commission on the accommodation issue - Stewart had no pre-accident awareness of his addiction - The policy protected only those individuals who had a "dependency or addiction" who sought treatment before an accident - It did not apply to drug users who only later came to realize that they were addicted - Thus, the Commission erred when it found that Stewart was an "individual with a disability" who could reasonably be expected to comply with the policy - The error was repeated when the Commission found that the deterrent value of termination was appropriate and when it commented on the reasonableness of the employer's policy - See paragraphs 53 to 66.

Civil Rights - Topic 7117

Federal, provincial or territorial legislation - Practice - Appeals (incl. standard of review) - The employer's alcohol and drug policy stated that employees "with a dependency or addiction" could, before a work-related accident, seek rehabilitation without fear of discipline of involuntary termination - The policy also stated that discipline or termination could not be avoided for treatment for "abuse, dependency or addiction" sought only after an accident - Following an accident, Stewart's drug test was positive - He was fired for violating the policy - The union complained to the Alberta Human Rights Commission that Stewart's termination violated the Human Rights Act because he was fired due to his addiction disability - The Commission dismissed the complaint, finding no prima facie discrimination - Even though it found no discrimination, the Commission also indicated, alternatively, that the policy amply accommodated employees with addiction disabilities and that Stewart had chosen not to request accommodation - The union appealed - The Alberta Court of Queen's Bench held that the standard of review on the question of prima facie discrimination was correctness - The question of accommodation was reviewed on the standard of reasonableness - See paragraphs 14 to 26.

Cases Noticed:

Alberta (Minister of Human Resources and Employment) v. Director of the Human Rights, Citizenship and Multiculturalism Commission (Alta.) et al. (2006), 391 A.R. 31; 377 W.A.C. 31; 2006 ABCA 235, refd to. [para. 14].

Lockerbie & Hole Industrial Inc. et al. v. Human Rights and Citizenship Commission (Alta.) et al. (2011), 493 A.R. 295; 502 W.A.C. 295; 39 Alta. L.R.(5th) 236; 2011 ABCA 3, refd to. [para. 14].

Human Rights and Citizenship Commission (Alta.) et al. v. Kellogg Brown & Root (Canada) Co. (2007), 425 A.R. 35; 418 W.A.C. 35; 84 Alta. L.R.(4th) 205; 2007 ABCA 426, refd to. [para. 14].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Canada (Attorney General) v. Mowat (2011), 422 N.R. 248; 2011 SCC 53, refd to. [para. 15].

Boissoin et al. v. Lund et al. (2012), 536 A.R. 272; 559 W.A.C. 272; 2012 ABCA 300, refd to. [para. 16].

Lethbridge Regional Police Service et al. v. Lethbridge Police Association (2013), 542 A.R. 252; 566 W.A.C. 252; 2013 ABCA 47, refd to. [para. 18].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al. (2012), 432 N.R. 1; 2012 SCC 35, refd to. [para. 20].

Whatcott v. Human Rights Tribunal (Sask.) et al. (2013), 441 N.R. 1; 409 Sask.R. 75; 568 W.A.C. 75; 2013 SCC 11, refd to. [para. 21].

Canadian Human Rights Commission v. Canada (Attorney General) et al. (2013), 444 N.R. 120; 2013 FCA 75, refd to. [para. 22].

Walsh v. Mobil Oil Canada et al. (2013), 553 A.R. 360; 583 W.A.C. 360; 2013 ABCA 238, refd to. [para. 22].

Alberta (Minister of Human Resources and Employment) v. Weller - see Alberta (Minister of Human Resources and Employment) v. Director of the Human Rights, Citizenship and Multiculturalism Commission (Alta.) et al.

Gramaglia v. Alberta (Minister of Government Services) et al. (2007), 404 A.R. 233; 394 W.A.C. 233; 2007 ABCA 93, refd to. [para. 25].

Wright v. College and Association of Registered Nurses (Alta.) (2012), 536 A.R. 349; 559 W.A.C. 349; 2012 ABCA 267, leave to appeal denied (2013), 452 N.R. 398 (S.C.C.), refd to. [para. 30].

McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal et al. (2007), 356 N.R. 177; 2007 SCC 4, refd to. [para. 37].

Keays v. Honda Canada Inc. (2008), 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 37].

British Columbia v. British Columbia Government and Service Employees' Union (2008), 259 B.C.A.C. 204; 436 W.A.C. 204; 2008 BCCA 357, leave to appeal denied (2008), 395 N.R. 389; 282 B.C.A.C. 320; 476 W.A.C. 320 (S.C.C.), refd to. [para. 37].

Armstrong v. British Columbia (Minister of Health) (2010), 283 B.C.A.C. 167; 480 W.A.C. 167; 2010 BCCA 56, leave to appeal denied (2010), 410 N.R. 383 (S.C.C.), refd to. [para. 43].

Tranchemontagne et al. v. Disability Support Program (Ont.) (2010), 269 O.A.C. 137; 2010 ONCA 593, refd to. [para. 43].

British Columbia (Minister of Education) v. Moore et al. (2012), 436 N.R. 152; 328 B.C.A.C. 1; 558 W.A.C. 1; 2012 SCC 61, refd to. [para. 46].

Quebec (Attorney General) v. A. - see A. v. B.

A. v. B. (2013), 439 N.R. 1; 2013 SCC 5, refd to. [para. 47].

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 54].

Counsel:

William J. Johnson, Q.C. (McGown Johnson), for the appellant;

Peter Gall, Q.C. (Heenan Blaikie LLP), for the respondent;

Janice Ashcroft, for the Chief of the Commission and Tribunals and the Tribunal, Alberta Human Rights Commission.

This appeal was heard on March 5, 2013, by Michalyshyn, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on December 23, 2013.