Bish v. Elk Valley Coal Corporation, 2013 ABQB 756

Court of Queen ’ s Bench of Alberta Citation: Bish v. Elk Valley Coal Corporation, 2013 ABQB 756 Date: 20131223 Docket: 1203 09671 Registry: Edmonton Between: Brent Bish on Behalf of Ian Stewart Appellant - and - Elk Valley Coal Corporation, Cardinal River Operations Respondent _ _________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Peter Michalyshyn _________________________________________ ______________ I.

Introduction [ 1 ] This is an appeal from a decision of the Alberta Human Rights Commission reported at Bish v Elk Valley Coal Corporation , 2012 AHRC 7 . In short, Elk Valley’s employee Ian Stewart was terminated when he tested positive for cocaine after a work-related accident. His union filed a complaint with the AHRC, arguing Stewart was disabled by his addiction to cocaine and was fired on account of his disability. A Tribunal appointed by the AHRC concluded Stewart was not fired on account of his disability.

For reasons which follow, I agree with the Tribunal’s threshold conclusion that no prima facie discrimination exists in this case, but disagree in the alternative that Stewart was reasonably accommodated. II. Facts [ 2 ] On May 25, 2005, Stewart attended a training session where Elk Valley Coal Corporation explained and implemented an Alcohol and Drug Policy (the “Policy”). The Policy included a provision that employees “with a dependency or addiction” could, before the occurrence of a work-related accident, seek rehabilitation without fear of discipline of involuntary termination.

[ 3 ] On the other hand, the Policy also stated that discipline or termination could not be avoided for treatment for “abuse, dependency or addiction” sought only after an accident. Stewart signed a form acknowledging he understood the Policy. [ 4 ] On October 18, 2005, Stewart was operating a loader truck when he struck another truck. Under the Policy Stewart was obliged to undergo drug testing. The drug test came back positive. [ 5 ] Stewart admitted to the regular use of cocaine on his days off.

At the meeting after the accident but prior to his termination Stewart informed Elk Valley he didn’t think he had a problem with drugs prior to the accident and the drug test. Stewart admitted that he came to realize after the fact that he did have a problem and that he was addicted at the time of the accident. The evidence is clear however that prior to the accident Stewart approached no one at Elk Valley or his union about his drug use or addiction. He sought no rehabilitative assistance for his drug use. [ 6 ] Stewart was terminated for violating the Policy.

Stewart’s union filed a complaint with the AHRC that his termination violated the Alberta Human Rights Act RSA 2000 c. A-25.5 in that he was fired on account of an addiction disability. [ 7 ] The Tribunal agreed that Stewart’s drug addiction was a disability protected under the Act .

However, the Tribunal accepted Elk Valley’s expert evidence that Stewart made rational choices regarding his drug use and had the capacity to come forward before the accident in compliance with the Policy. [ 8 ] The Tribunal found the evidence supported the conclusion that Stewart “was not fired because of his disability, but rather because of his failure to stop using drugs, failure to stop being impaired in the workplace and failing to disclose his drug use”.

The Tribunal stated that the adverse effect of the employer’s treatment of the employee must be causally linked to the disability in order to find prima facie discrimination. In this case no causal connection existed. Instead, the termination was linked to Stewart’s failure to disclose his drug use, and to his failure to stop using drugs.

Further, the Tribunal found that the termination did not perpetuate historical stereotypes or disadvantages against employees with addictions. [ 9 ] Even though it found no prima facie discrimination, the Tribunal held in the alternative that the termination was justified due to the need for strict deterrence in the safety-sensitive environment in question. The Policy together with the terms of the termination letter offering after-the-fact treatment amongst other things, showed that Elk Valley attempted to accommodate Stewart to the point of undue hardship.

A lesser form of discipline would have encouraged other employees to delay reporting drug use until they were faced with termination. The Tribunal found such an outcome would be unacceptable in the safety-sensitive environment. III. Standard of Review [ 10 ] There are two standard of review issues to be addressed, first the standard to be applied to the Tribunal’s definition and application of the legal test for prima facie discrimination, and second the standard to be applied to its legal and factual findings around accommodation. [ 11 ] The Applicant argues the standard of review throughout is correctness.

Elk Valley, joined by the Commission appearing before me only with regard to standard of review issues, argues a reasonableness standard. [ 12 ] Elk Valley’s position relies on the assertion that in essence the Applicant is challenging the Tribunal’s finding of fact that Stewart was able to control his drug use and chose not to abide by the Policy. I do not agree that is the ‘essence’ of the Applicant’s position. I take the Applicant’s position to be that given the presence of a drug addiction – which all agree is a disability - it matters not if Stewart was able to control his drug use from day to day.

I take the Applicant’s position to be that in law the Tribunal erred by ruling out prima facie discrimination when dealing with a disability over which Stewart had a measure of control. [ 13 ] Put another way, in my view Elk Valley in its brief at para. 124 states a question of law when it says: Where, as here, an individual is not prevented by his disability from complying with a workplace rule, but chooses not to comply with the workplace rule, the imposition of disciplinary consequences for that choice is not prima facie discriminatory.

Standard of review on the question of prima facie discrimination [ 14 ] Many authorities conclude that the question of whether a policy or action is discriminatory is a question of law: Alberta (Minister of Human Resources and Employment) v Weller , 2006 ABCA 235 at para 20 .

The Alberta Court of Appeal has previously set a correctness standard of review for decisions on questions of law by human rights panels: Lockerbie & Hole Industrial Inc. v Alberta (Human Rights and Citizenship Commission, Director) , 2011 ABCA 3 at paras 8-10 ; Alberta (Human Rights and Citizenship Commission) v Kellogg Brown & Root (Canada) Company , 2007 ABCA 426 at paras 16-28 . [ 15 ] Granted, in Canada (Canadian Human Rights Commission) v Canada (Attorney General), (“Mowat”) , 2011 SCC 53 , the Supreme Court of Canada recognized that not all questions of general law entrusted to human rights tribunals rise to the level of issues of central importance to the legal system, or fall outside the adjudicator's specialized area of expertise.

In Mowat the Supreme Court concluded that the question of whether legal costs may be awarded in a compensation order was reviewable on a standard of reasonableness. This was an example of the court’s admonition that … not all questions of general law entrusted to the Tribunal rise to the level of issues of central importance to the legal system or fall outside the adjudicator's specialized area of expertise. (at para. 23) And at para.24: In substance, if the issue relates to the

interpretation and application of its own statute, is within its expertise and does not raise issues of

general legal importance, the standard of reasonableness will generally apply and the Tribunal will be entitled to deference. [ 16 ] In Lund v Boissoin , 2012 ABCA 300 , a case decided after Mowat , the Alberta Court of Appeal recognized recent Supreme Court of Canada jurisprudence that not all decisions of human rights tribunals are subject to a correctness standard. The Court of Appeal however held that the

interpretation and application in that case of

section 3 of the Alberta Human Rights Act was a question of law of general importance to the legal system. It held that the Human Rights Commission was not a “specialized board which has acquired an expertise in this area”. As such it held that a correctness standard applied. [ 17 ] Although at issue in this appeal is not s. 3 but rather s. 7 of the Act , Lund suggests that a correctness standard applies to the

interpretation and application of a

section of the Act on what may constitute a case of prima facie discrimination. [ 18 ] More recently, the Alberta Court of Appeal has also stated broadly that “the nature of human rights issues are questions of law of general importance to the legal system.

In the circumstances, the appropriate standard of review is correctness”: Lethbridge Regional Police Service v Lethbridge Police Assn , 2013 ABCA 47 at para 28 . [ 19 ] The Commission argues before me that Lethbridge is of little value in that it was a review of an arbitrator’s decision, it failed to engage in a meaningful standard of review analysis, and it failed to follow relevant authorities.

That submission ignores however the Court’s parenthetical comment, again at para. 28, that “... the appropriate standard of review is correctness (even when such issues are decided by human rights panels).” What’s more, I find no lack of guidance from the Lethbridge court’s succinct standard of review analysis in particular when read together with other of the court’s recent decisions to a similar effect.

And I have no reason to conclude that the Lethbridge court, though not mentioning all of it, was not alive to the Supreme Court of Canada’s recent standard of review jurisprudence in the human rights context. [ 20 ] I have also no lack of confidence in the Court of Appeal’s reliance on Rogers Communications Inc. v Society of Composers , Authors and Music Publishers of Canada , 2012 SCC 35 at para 15 , that human rights issues may be decided by a number of tribunals and that where a number of tribunals have concurrent jurisdiction over an issue, consistency requires that review be conducted on a correctness standard. [ 21 ] The Commission points to Saskatchewan (Human Rights Commission) v Whatcott , 2013 SCC 11 as further authority in favour of a reasonableness standard in the case on appeal.

No one argues against the caution in Whatcott that courts should not slavishly rely on precedent but should rather examine whether a decision is within the expertise of the Tribunal and what type of question is being decided. Whatcott does not go so far as to say that human rights Tribunals must always be reviewed on the standard of reasonableness.

Nothing in Whatcott persuades me that I should not be guided by the Alberta cases already mentioned. [ 22 ] Nor likewise do I find anything said in Attorney General v Canadian Human Rights Commission, Family Nations Child and Family Caring Society, et al , 2013 FCA 75 , relied on by the Commission – or for that matter Walsh v.

Mobil Oil Canada 2013 ABCA 238 – that steers me away from the Alberta authorities already mentioned. [ 23 ] As a result, I conclude that correctness is the applicable standard of review in the circumstances of the case before me on the question of whether there is a prima facie case of discrimination in an employment context under

section 7 of the Alberta Human Rights Act . Standard of review on the question of accommodation/justification [ 24 ] The briefs and submissions of the Applicant and of the Commission do not specifically address a different standard of review at the accommodation or justification stage of the human rights analysis. Elk Valley does address the point. It argues a reasonableness standard applies given that the accommodation issue here involves questions of mixed fact and law. [ 25 ] I agree with Elk Valley on this point.

In the case before me, the question of whether any existing discrimination is reasonable and justifiable is a question of mixed law and fact and subject to a standard of review of reasonableness: Alberta (Minister of Human Resources and Employment) v. Weller , 2006 ABCA 235 at para. 20 ; Gramaglia v. Alberta (Government Services Minister) , 2007 ABCA 93 at para. 27 . [ 26 ] Having addressed standard of review, I now turn to the merits of the appeal from the Tribunal. IV. Prima facie discrimination [ 27 ] The Appellant objects to the Tribunal’s finding of prima facie discrimination on the following bases: a.

The Tribunal applied an incorrect legal test to the Appellant’s addiction disability c. The Tribunal failed to find a causal connection or nexus between the Appellant’s disability and termination c. The Tribunal incorrectly inferred that Elk Valley’s lack of intention to discriminate was relevant d. The Tribunal considered risk to safety at the prima facie discrimination stage e. The Tribunal failed to recognize a “clear case” of adverse effect discrimination [ 28 ] I will deal with the Appellant’s objections in the order they were raised.

a. The Tribunal applied an incorrect legal test to the Appellant’s drug addiction disability [ 29 ] The Appellant concedes that the Tribunal articulated the correct test, but objects that the third element of the test in particular was misapplied, and objects that the Tribunal treated Stewart’s drug-related disability differently from other disabilities at the prima facie discrimination stage of its analysis.

The Appellant says the Tribunal applied a far too rigorous test at this early stage of the analysis, and a correspondingly too lax test at the justification stage. [ 30 ] I disagree that the Tribunal misapplied the test. The Tribunal’s comments at para. 127 regarding the “stigma attached to drug addiction” and at para. 153 regarding the “uneasy fit of drug addiction and drug testing policies in the human rights arena” do nothing more than characterize the Appellant’s disability. See Wright v. College and Association of Registered Nurses of Alberta (Appeals Commission) 2012 ABCA 267 at para. 51 .

Read in context, the Tribunal’s comments do not support the conclusion that Stewart’s disability was treated differently from other disabilities at this stage of the analysis. b. The Tribunal failed to find a causal connection or nexus between the Appellant’s disability and termination [ 31 ] The Appellant says it was not open to the Tribunal to exclude Stewart’s disability as a “factor” in the employer’s decision to terminate. [ 32 ] As noted, the Tribunal agreed Stewart had a disability but disagreed it was operating on him when he continued to use drugs before the accident.

The Tribunal concluded that the evidence showed Stewart was able to control his addiction and thus was able to comply with the policy. The Tribunal also acknowledged evidence that Stewart was to some extent “in denial” of his addiction but nevertheless found on the evidence that Stewart was in control of his drug use. At para. 121, the Tribunal stated succinctly: ...The adverse effect of the Policy as applied to Mr.

Stewart came about, not because of his disability, but because of his failure to stop using drugs and his failure to disclose. [ 33 ] But the Appellant points to evidence which arguably supports the conclusion that the disability was a factor in that it was causally connected to the positive drug test. For example, the Appellant points to the wording of the employer’s letter terminating Stewart, which acknowledges the addiction.

The Appellant also points to certain expert evidence which confirmed the addiction was “in play” when Stewart decided to use cocaine for which he tested positive. [ 34 ] The Tribunal considered the letter in its entirety, and indeed all of the expert evidence and concluded none of it was inconsistent with the conclusion that the Appellant’s disability was not a factor in his termination.

On the evidence the Tribunal was entitled to come to that conclusion. [ 35 ] I agree with Elk Valley that the mere addiction to cocaine - taken together with the undisputed evidence that Stewart had ample control over the addiction - does not support the conclusion in fact or in law that the Appellant’s disability was a factor in his termination. [ 36 ] As noted by Elk Valley, the Appellant’s argument hinges on the proposition that any connection between the disability and the adverse treatment is sufficient for a finding of prima facie discrimination.

That proposition was correctly rejected by the Tribunal. [ 37 ] Elk Valley relies on McGill University Health Centre (Montreal General Hospital) v. Syndicat des employes de l’Hopital General de Montreal 2007 SCC 4 , Honda Canada Inc. v. Keays 2008 SCC 39 , British Columbia (Public Service Agency) v. British Columbia Government and Service Employees Union 2008 BCCA 357 , leave to appeal refused [2008] SCCA No. 460 (“ Gooding ”), and Wright v.

College and Assn. of Registered Nurses of Alberta (Appeals Committee) 2012 ABCA 267 , leave to appeal refused [2012] SCCA No. 486. [ 38 ] Taken together these authorities support the proposition that the test for prima facie discrimination includes some consideration of whether that adverse treatment was based on stereotypical or arbitrary assumptions. [ 39 ] In Wright the court accepted that “...the appellants’ conduct was to some degree caused or motivated by their disability, that is [,] their addiction.

The question, however, is whether the [Respondent’s] conduct ... is legally connected to the appellants’ disability...” (at para. 57) [ 40 ] In considering what is “legally connected” the court in Wright referred to Gooding , a case it referred to as “one of the few ... that directly addresses this issue” (at para. 63). [ 41 ] In Gooding an employee was fired for stealing alcohol. At the time he was fired he disclosed for the first time that he was an alcoholic. An arbitrator concluded his firing was prima facie discrimination because his alcoholism, a disability, was a factor in the theft.

On appeal, a majority of court acknowledged that alcohol-dependent persons may have a greater temptation to steal alcohol from their workplace. In this sense then arguably the alcoholism would be a “factor” in the adverse treatment. Yet after referring to McGill and to Keays amongst other cases, the majority in Gooding concluded: I can find no suggestion in the evidence that Mr. Gooding’s termination was arbitrary and based on preconceived ideas concerning his alcohol dependency. It was based on misconduct that rose to the level of crime.

That his conduct may have been influenced by his alcohol dependency is irrelevant if that admitted dependency played no

part in the employer’s decision to terminate his employment and he suffering no impact for his misconduct greater than that another employee would have suffered for the same misconduct. (at para. 15)

[ 42 ] The court in Wright characterized the Gooding outcome as follows: To the extent that it alleged direct discrimination, the grievance was therefore dismissed largely on a factual basis. There was no indication that the employer’s decision to dismiss was motivated to any degree by Gooding’s disability; it was motivated entirely by his criminal conduct. Nor was indirect discrimination made out.

The fact that his criminal conduct was motivated (or caused) by his addiction did not elevate the employer’s decision to the level of discrimination, because the decision to dismiss for theft was not arbitrary or based on preconceived stereotypes. (at para. 63) [ 43 ] The court in Wright interpreted cases such as Armstrong v British Columbia (Ministry of Health) , 2010 BCCA 56 , leave refused [2010] SCCA No. 128, and Ontario (Director, Disability Support Program) v Tranchemontagne , 2010 ONCA 593 as: ... confirm[ing] the need for a link or nexus between the protected ground or characteristic and the adverse treatment.

Those cases conclude that the required link or nexus is incorporated into the core test for prima facie discrimination. The strength or proximity of that link or nexus is a mixed question of fact and law, and an important component in the analysis is whether the treatment is in fact stereotypical or arbitrary, and whether it affronts concepts of human dignity. Not any nexus or connection, no matter how remote, is sufficient.

The medical cause, while relevant, may not equate to a legally recognized cause. (at para. 65) [ 44 ] In the end, the court in Wright concluded that while a connection may have existed between the appellants’ conduct and their addiction disability, the connection was insufficient to make the respondent’s actions in that case discriminatory: The fact that the appellants’ conduct was motivated or caused at some level by the addiction does not raise the College’s proceedings to the level of discrimination in law. (at para. 67) [ 45 ] As to the appeal before me, the Tribunal was correct to find no causal connection or nexus between Stewart’s disability and termination.

To paraphrase from Wright, to the extent Stewart unsuccessfully alleged direct discrimination, the case before the Tribunal was dismissed on a factual basis; the evidence properly understood supported the conclusion that Stewart was terminated for his failure to stop using drugs and for his failure to disclose. As to alleged indirect discrimination, on the whole there was no serious dispute that Stewart did not believe he was addicted before the accident and was therefore in control of his drug use. That he may have been in denial and as such that his addiction was ‘in play’, in my view changes nothing.

Stewart was treated not as a drug addict but as a drug user. As such, the Tribunal found, consistent with the evidence, that the decision to terminate was not based on arbitrary or preconceived stereotypes.

In the circumstances the mere presence of an addiction which had not been identified by anyone at the time of the accident, fails to elevate the employer’s decision to prima facie discrimination in law. [ 46 ] Finally, the Appellant says Moore v British Columbia (Education) 2012 SCC 61 at para. 33 supports Stewart’s position that a finding of prima facie discrimination should be made free of any consideration of arbitrary or stereotypical assumptions.

The Appellant says Moore trumps the McGill/Keays line of cases not to mention the Gooding/Wright line of cases in the provincial courts of appeal. [ 47 ] I am unable to agree that Moore supports the Appellant’s cause. Moore does not mention McGill or Keays or for that matter Gooding or Wright . There is no debate in Moore around arbitrary or stereotypical assumptions forming part of the prima facie discrimination stage of the analysis. Coming after Moore is Quebec (Attorney General) v. A. 2013 SCC 5 , a decision more in line with Elk Valley’s position, and one which fails to mention Moore at all. c.

The Tribunal incorrectly inferred that Elk Valley’s lack of intention to discriminate was relevant [ 48 ] The Appellant argues the Tribunal was “preoccupied” with the employer’s intent when firing Stewart, presumably to the exclusion of an appropriate adverse effect analysis. The Appellant then returns to his argument that the disability was a factor in the adverse treatment. I am unable to agree that the Tribunal was preoccupied with intent at all, or to the exclusion of adverse effects. I have already dealt with the question of whether the disability was a factor in the adverse treatment. d.

The Tribunal considered risk to safety at the prima facie discrimination stage [ 49 ] The Appellant objects that the Tribunal, at para. 126 of its reasons, accepted on the expert evidence, and using common sense, “...that drug users and drug addicted individuals can be dangerous in safety sensitive workplaces.” Forming part of the prima facie discrimination analysis, the Appellant says this comment subordinated Stewart’s rights to the employer’s interests in averting risk.

The Appellant says the latter is only appropriately considered at the accommodation stage of the analysis. [ 50 ] I agree with Elk Valley however that it was appropriate for the Tribunal to consider, at the prima facie discrimination stage of the analysis, the drug policy context of the appellant’s employment, why for example such concerns may be rationally connected to the impugned treatment in question, and therefore not arbitrary or based on stereotypes. e.

The Tribunal failed to recognize a “clear case” of adverse effect discrimination [ 51 ] This heading of argument raises no issue not already dealt with earlier in these reasons [ 52 ] At the end of the day I am unable to agree with the points raised on appeal by the Appellant on Stewart’s behalf, and therefore confirm the Tribunal’s conclusion on prima facie discrimination.

V. Accommodation [53] If I wrong in my finding that the Tribunal’s conclusion on prima facie discrimination was correct, I must then considerwhether, on a standard of review of reasonableness, the Tribunal erred in its conclusions at the accommodation stage of the analysis. [54] The Appellant argues the Tribunal misapplied only the third part of the Meiorin test articulated by the Supreme Court ofCanada: British Columbia (Public Service Employee Relations Commission) v.

British Columbia Government and Service Employees’Union (B.C.G.S.E.U.) (Meiorin Grievance) (SCC), [1999] 3 SCR 3. [55] In other words, the Appellant does not dispute that Elk Valley adopted the Policy for a purpose rationally connected to theperformance of the job in question, and that it adopted that standard in an honest and good faith belief that it was necessary to thefulfillment of that legitimate work-related purpose. [56] The third element of the Meiorin test requires: ...that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.

To show that the standard isreasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics ofthe claimant without imposing undue hardship upon the employer. (at para. 54) [57] Elk Valley argues that given the safety interests of the employer and indeed other employees the Policy necessarily admittedof no exceptions once Stewart tested positive. Elk Valley rejected, as did the Tribunal, that the Policy would be effective if an employeecould expect to be accommodated by discipline short of termination, even after testing positive.

Elk Valley argues, as the Tribunalconcluded, that to provide Stewart with a post-event assessment or to provide him with a lesser employment consequence thantermination, would undermine the deterrent effect of the Policy.

Elk Valley argues, and the Tribunal found, that the Policy amplyaccommodated employees with addiction disabilities by offering confidential and individualized assistance, then to able to comply withthe Policy’s strict drug and alcohol restrictions. [58] The flaw in the argument, and respectfully I find in the Tribunal’s reasoning and findings, is the absence of any evidence thatStewart knew, on or before the date of the accident in question, that he needed treatment under the Policy. Evidence of his addictioncame only after the fact.

No one disagreed that Stewart had no pre-accident awareness of it. [59] Both experts before the Tribunal agreed Stewart was to some extent in denial (although of what there appeared to be somedisagreement – Stewart’s expert suggested he was squarely in denial of his addiction, whereas Elk Valley’s expert appeared to allow onlythat he was in denial of the effects of drug use on his job-related performance, although in cross examination he appeared to allow that“...[Stewart was] in denial of the idea that he has a drug problem”).

In any event, on the evidence the Tribunal concluded that to “somedegree” Stewart may have been in denial. [60] The Tribunal went on to find (at the accommodation stage of its reasons, paras 149-150) that Stewart had a duty to requestaccommodation before the accident because he was an “... individual with the disability” and had the capacity to requestaccommodation. [61] On my reading of the evidence however Stewart only had capacity to control his drug use. Equally on the evidence, Stewartdid not know he was an ‘individual with a disability’.

On the evidence, before the accident he was simply an individual who useddrugs. The ameliorative provisions relied on by the employer do little if anything for such an individual. The Policy protects fromdiscipline or involuntary termination only those individuals who have a “dependency or addiction” and who seek treatment before anaccident.

It does not apply to drug users who only later come to realize they were addicted to drugs. [62] Mindful of the reasonableness standard of review, I nevertheless respectfully find that the Tribunal thus erred when it foundStewart was in ‘individual with a disability’ who could reasonably be expected to comply with the Policy by seeking treatment before theaccident. [63] I respectfully find that the error was repeated when the Tribunal found that the deterrent value of termination under the Policywas appropriate when dealing with an individual, like Stewart, “... who [was] capable of making choices about his behavior” (at para.150).

Again, while Stewart was capable of choosing when and when not to use drugs, equally he was not “capable” of seeking treatmentunder the Policy by reason of a dependency or addiction he did not know he had. [64] I respectfully find the error yet further repeated, although earlier in the Tribunal’s reasons, when it commented on thereasonableness of Elk Valley’s policy as it required “...employees who use drugs, or who are drug addicts, to come forward without fearof disciplinary action, and disclose their drug use and access treatment, where appropriate”. (at para. 124) Again, the ameliorativeprovisions of the Policy upon which Elk Valley relies do not apply to mere drug users. [65] It follows that I disagree with Elk Valley’s submission, adopted by the Tribunal, that Stewart had the capacity to requestaccommodation during his employment and chose not to do so. [66] I am unable to separate the Tribunal’s erroneous conclusion around pre-accident accommodation from the balance of itsreasons finding that the Policy as a whole constituted reasonable accommodation.

As such, but for my conclusion regarding prima faciediscrimination, I would allow the appeal on the accommodation issue. Heard on the 5th day of March, 2013. Dated at the City of Edmonton, Alberta this 23th day of December, 2013.

Peter Michalyshyn J.C.Q.B.A. Appearances: 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