Case Brief: On dismissal of a drug user with an unacknowledged dependency

In 2012, we referenced a case in which a complainant, terminated for breach of his employer’s drug and alcohol policy, failed to establish that the termination was discriminatory: 2012 AHRC 7. The policy at issue in the case distinguished between employees who had voluntarily disclosed addictions and those who were identified only after a breach of the policy. Harsher consequences were imposed on the latter. The complainant, who had tested positive for cocaine in post-incident testing, insisted that he was a recreational user until after his termination. Then, he claimed a dependency. The Human Rights Tribunal found that the termination was not a result of the complainant’s disability, but of his failure to stop using drugs and to disclose his drug use in accordance with the policy. The Tribunal also held that the complainant had been accommodated to the point of undue hardship if discrimination had occurred.

On December 23, 2013, the Alberta Queen’s Bench, applying a standard of correctness, upheld the finding that no discrimination had been established: Bish v Elk Valley Coal Corporation, 2013 ABQB 756. The Court agreed there was no causal connection or nexus between the complainant’s disability and his termination. The complainant’s ability to control his drug use and his addiction meant that the adverse effect of the employer’s policy was based on his failure to do so and not on his addiction. The Court also agreed that the complainant had been treated as a drug user and not as a drug addict. No arbitrary or preconceived stereotypes were at play in the decision to terminate. The decision was not rendered discriminatory merely because an unacknowledged addiction existed at the time it was made.

The Court did not agree that the employer’s policy would have constituted reasonable accommodation had prima facie discrimination been established. The protections granted to drug addicts under the policy did not address the issues faced by the complainant before he acknowledged his addiction. It could not be considered an accommodation of the complainant’s disability. The Tribunal had reached an unreasonable conclusion in finding that the duty of reasonable accommodation had been fulfilled on the facts.