Bish v. Elk Valley Coal Corp. et al., (2015) 602 A.R. 210

• Judge: Picard, Watson and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 28, 2014
• Citations: (2015), 602 A.R. 210;2015 ABCA 225

Bish v. Elk Valley Coal Corp. (2015), 602 A.R. 210; 647 W.A.C. 210 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JL.024

Brent Bish on behalf of Ian Stewart (respondent on cross-appeal/appellant on appeal/appellant) v. Elk Valley Coal Corporation, Cardinal River Operations (appellants on cross-appeal/respondent on appeal/respondent) and The Alberta Human Rights Commission (respondent by order)

(1403-0001-AC; 2015 ABCA 225)

Indexed As: Bish v. Elk Valley Coal Corp. et al.

Alberta Court of Appeal

Picard, Watson and O'Ferrall, JJ.A.

June 30, 2015.

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, in a decision reported at (2013), 581 A.R. 234, dismissed the appeal on the threshold issue of prima facie discrimination. However, the court disagreed with the Commission on the accommodation issue. The union appealed. The employer cross-appealed on the accommodation issue.

The Alberta Court of Appeal, O'Ferrall, J.A., dissenting, dismissed the appeal. The cross-appeal was allowed. However, no consequential relief was necessary.

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 985

Discrimination - Employment - Duty to accommodate - Stewart was fired for violating the employer's alcohol and drug policy - The union's complaint to the Alberta Human Rights Commission that Stewart's termination violated the Human Rights Act because he was fired due to his addiction disability was dismissed - Even though it found no discrimination, the Commission also indicated that the policy amply accommodated employees with addiction disabilities and that Stewart had chosen not to request accommodation - On the union's appeal, the chambers judge disagreed with the Commission on the accommodation issue - On the employer's appeal, the Alberta Court of Appeal discussed the accommodation obligation, stating, "The logic of accommodation is that it is the counterweight to discrimination. 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. Employers are encouraged - and compelled - to proceed proactively to habilitate the disabled worker by methods of accommodation whereby the disabled worker is able to participate meaningfully in the work force like non-disabled persons. The aim of accommodation is quite idealistic, in other words, but in more than one way. It tries to achieve a win-win-win (employee, employer, society). It seeks to engage employers in the process of enabling their employees to perform the jobs that they are given in a manner which benefits the employer's operation while treating the disabled employee as equally entitled to the full measure of respect (and in that regard the full measure of self-respect and personal responsibility) of other employees." - See paragraph 84.

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 998

Discrimination - Employment - Exceptions - Bona fide or reasonable occupational requirement or qualification - [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 - However, 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's complaint to the Alberta Human Rights Commission that Stewart was fired due to his addiction disability was dismissed on the basis that there was 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 Appeal dismissed the union's appeal - The Commission found no real nexus between the application of the policy and the disability, itself - There was no direct discrimination in the sense of the employer acting on arbitrary or preconceived stereotypes - Nor was there indirect discrimination in the sense of the employer having created a policy structure under which termination would follow from a culture of discriminatory arrangements - Most importantly, the nexus between the disability and the employer's actions was not such as to make the disability, itself, a factor in the termination - See paragraphs 60 to 77.

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 that the policy amply accommodated employees with addiction disabilities - The termination was justified due to the need for strict deterrence in the employer's safety sensitive environment - On appeal, the chambers judge disagreed with the Commission on the accommodation issue - The policy protected only those individuals who had a "dependency or addiction" who sought treatment before an accident - It did not protect drug users, like Stewart, who only later came to realize that they were addicted - The Alberta Court of Appeal allowed the employer's appeal - The employer's policy and practices thereunder addressed bona fide occupational requirements and constituted relevant reasonable accommodations for persons who had an addiction or dependency disability with a nexus to those requirements - The goals of maintaining a safe working environment and deterring employees engaged in perilous work from failing to address their addictions or dependencies and from keeping those issues secret were valid considerations in determining whether the policy was reasonable - See paragraphs 78 to 90.

Civil Rights - Topic 7117

Federal, provincial or territorial legislation - Practice - Appeals (incl. standard of review) - Stewart was fired for violating the employer's alcohol and drug policy - The union's complaint to the Alberta Human Rights Commission that Stewart's termination violated the Human Rights Act because he was fired due to his addiction disability was dismissed on the basis that there was no prima facie discrimination - The union's appeal to the Court of Queen's Bench was dismissed - The union appealed - The Commission intervened, arguing that it should be afforded deference on all legal issues under its authorizing statute - The Alberta Court of Appeal held that the standard of review as to the extricable questions of law regarding the scope in law of the definitions of discrimination and of bona fide occupational requirement/accommodation was correctness - These were questions of law of fundamental significance to the Canadian legal system - The presumption of reasonableness as to a tribunal's interpretation of the terms of a "home statute" was rebutted in this specific respect - Correctness did not apply to the underlying fact findings and to matters such as the credibility of witnesses or the value of expert evidence - These were matters of fact or were contributors to conclusions of mixed law and fact that were reviewed on a standard of reasonableness - See paragraphs 47 to 59.

Cases Noticed:

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; 176 D.L.R.(4th) 1, refd to. [paras. 3, 94].

British Columbia (Minister of Education) v. Moore et al., [2012] 3 S.C.R. 360; 436 N.R. 152; 328 B.C.A.C. 1; 558 W.A.C. 1; 2012 SCC 61, refd to. [paras. 6, 97].

R. v. Konkolus (1988), 86 A.R. 144; 1988 ABCA 127, refd to. [para. 9].

Telecommunications Workers Union v. Telus Communications Inc. (2014), 575 A.R. 93; 612 W.A.C. 93; 95 Alta. L.R.(5th) 285; 2014 ABCA 154, refd to. [para. 25].

Wright v. College and Association of Registered Nurses (Alta.) (2012), 536 A.R. 349; 559 W.A.C. 349; 355 D.L.R.(4th) 197; 2012 ABCA 267, leave to appeal denied (2013), 452 N.R. 398; 566 A.R. 399; 597 W.A.C. 399 (S.C.C.), dist. [paras. 33, 100].

British Columbia v. British Columbia Government and Service Employees' Union (2008), 259 B.C.A.C. 204; 436 W.A.C. 204; 83 B.C.L.R.(4th) 299; 298 D.L.R.(4th) 624; 2008 BCCA 357, leave to appeal refused (2008), 395 N.R. 389; 282 B.C.A.C. 320; 476 W.A.C. 320 (S.C.C.), dist. [paras. 33, 109].

Armstrong v. British Columbia (Minister of Health), [2010] 5 W.W.R. 210; 283 B.C.A.C. 167; 480 W.A.C. 167; 2 B.C.L.R.(5th) 290; 2010 BCCA 56, leave to appeal refused (2010), 410 N.R. 383; 298 B.C.A.C. 319; 505 W.A.C. 319 (S.C.C.), refd to. [paras. 33, 106].

Tranchemontagne et al. v. Disability Support Program (Ont.) (2010), 269 O.A.C. 137; 324 D.L.R.(4th) 87; 102 O.R.(3d) 97; 2010 ONCA 593, refd to. [paras. 33, 107].

Central Alberta Dairy Pool v. Human Rights Commission (Alta.), [1990] 2 S.C.R. 489; 113 N.R. 161; 111 A.R. 241; 72 D.L.R.(4th) 417, dist. [paras. 35, 104].

Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section local 2000 (SCFP-FTQ) v. Hydro-Québec, [2008] 2 S.C.R. 561; 377 N.R. 136; 294 D.L.R.(4th) 407; 2008 SCC 43, refd to. [para. 38].

Southern Pacific Co. v. Jensen (1926), 244 U.S. 205, refd to. [para. 48].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269; 153 D.L.R.(4th) 385, refd to. [para. 48].

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761; 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [para. 49].

Scott v. Scott, [1913] A.C. 417 (H.L.), refd to. [para. 52].

Mouvement laïque québécois et al. v. Saguenay (City) (2015), 470 N.R. 1; 382 D.L.R.(4th) 385; 2015 SCC 16, refd to. [para. 54].

Fasken Martineau DuMoulin LLP v. Human Rights Tribunal (B.C.) et al., [2014] 2 S.C.R. 108; 458 N.R. 38; 2014 SCC 39, refd to. [para. 55].

McCormick v. Fasken Martineau DuMoulin LLP - see Fasken Martineau DuMoulin LLP v. Human Rights Tribunal (B.C.) et al.

Tervita Corp. et al. v. Commissioner of Competition et al. (2015), 467 N.R. 97; 380 D.L.R.(4th) 381; 2015 SCC 3, refd to. [para. 55].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al. (2012), 432 N.R. 1; 347 D.L.R.(4th) 235; 2012 SCC 35, refd to. [para. 55].

Canada (Attorney General) v. Johnstone et al. (2014), 459 N.R. 82; 2014 FCA 110, refd to. [para. 55].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 55].

Lethbridge Regional Police Service et al. v. Lethbridge Police Association (2013), 542 A.R. 252; 566 W.A.C. 252; 2013 ABCA 47, leave to appeal denied (2013), 463 N.R. 394; 580 A.R. 400; 620 W.A.C. 400 (S.C.C.), refd to. [para. 55].

Boissoin et al. v. Lund et al. (2012), 536 A.R. 272; 559 W.A.C. 272; 2012 ABCA 300, refd to. [paras. 55, 95].

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; 329 D.L.R.(4th) 76; 2011 ABCA 3, refd to. [para. 55].

Human Rights and Citizenship Commission (Alta.) et al. v. Kellogg Brown & Root (Canada) Co. (2007), 425 A.R. 35; 418 W.A.C. 35; 2007 ABCA 426, refd to. [para. 55].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 55].

Whatcott v. Human Rights Tribunal (Sask.) et al., [2013] 1 S.C.R. 467; 441 N.R. 1; 409 Sask.R. 75; 568 W.A.C. 75; 2013 SCC 11, refd to. [para. 56].

Edmonton East (Capilano) Shopping Centres Ltd. v. Edmonton (City) et al. (2015), 599 A.R. 210; 643 W.A.C. 210; 382 D.L.R.(4th) 85; 2015 ABCA 85, refd to. [para. 59].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [para. 59].

Workers' Compensation Board (N.W.T. and Nunavut) v. Mercer et al. (2014), 569 A.R. 153; 606 W.A.C. 153; 2014 NWTCA 1, refd to. [para. 66].

Kemess Mines Ltd. v. International Union of Operating Engineers, Local 115 (2006), 222 B.C.A.C. 213; 368 W.A.C. 213; 264 D.L.R.(4th) 495; 2006 BCCA 58, refd to. [para. 70].

R. v. Chambers (D.F.) (2014), 362 B.C.A.C. 22; 622 W.A.C. 22; 316 C.C.C.(3d) 44; 2014 YKCA 13, refd to. [para. 71].

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Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 100].

Health Employers Association of British Columbia (Kootenay Boundary Regional Hospital) v. British Columbia Nurses' Union (2006), 222 B.C.A.C. 201; 368 W.A.C. 201; 264 D.L.R.(4th) 478; 2006 BCCA 57, refd to. [para. 106].

Quebec (Commission des droits de la personne et des droits de la juenesse) v. Montreal (Ville) et al., [2000] 1 S.C.R. 665; 253 N.R. 107; 2000 SCC 27, refd to. [para. 118].

Counsel:

E.W. Benedict, for the appellant, Brent Bish on behalf of Ian Stewart (cross-respondent);

P.A. Gall, Q.C., and A.L. Zwok, for the respondent, Elk Valley Coal Operation (cross-appellant);

J.R. Ashcroft, Q.C., for the respondent, The Alberta Human Rights Commission.

These appeals were heard on October 28, 2014, by Picard, Watson and O'Ferrall, JJ.A., of the Alberta Court of Appeal. On June 30, 2015, the court's memorandum of judgment was filed, including the following opinions:

Picard and Watson, JJ.A. - see paragraphs 1 to 91;

O'Ferrall, J.A., dissenting - see paragraphs 92 to 143.