Brent Bish on behalf of Ian Stewart Appellant v. Elk Valley Coal Corporation, Cardinal River Operations and Alberta Human Rights Commission (Tribunal), 2017 SCC 30

SUPREME COURT OF CANADA Citation: Stewart v.

Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591 Appeal heard: December 9, 2016 Judgment rendered: June 15, 2017 Docket: 36636 Between: Brent Bish on behalf of Ian Stewart Appellant and Elk Valley Coal Corporation, Cardinal River Operations and Alberta Human Rights Commission (Tribunal) Respondents - and - Council of Canadians with Disabilities, Empowerment Council, Construction Owners Association of Alberta, Construction Labour Relations — an Alberta Association, Enform Canada, Electrical Contractors Association of Alberta, Mining Association of Canada, Mining Association of British Columbia, Ontario Mining Association, Northwest Territories and Nunavut Chamber of Mines, Saskatchewan Mining Association, United Nurses of Alberta, Ontario General Contractors Association, Ontario Formwork Association and Greater Toronto Sewer and Watermain Contractors Association Interveners Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.

Reasons for Judgment: (paras. 1 to 47) McLachlin C.J. (Abella, Karakatsanis, Côté, Brown and Rowe JJ. concurring) Joint Reasons Concurring in the Result: (paras. 48 to 57) Moldaver and Wagner JJ. Dissenting Reasons: (paras. 58 to 145) Gascon J.

Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591 Brent Bish on behalf of Ian Stewart Appellant v.

Elk Valley Coal Corporation, Cardinal River Operations and Alberta Human Rights Commission (Tribunal) Respondents and Council of Canadians with Disabilities, Empowerment Council, Construction Owners Association of Alberta, Construction Labour Relations — an Alberta Association, Enform Canada, Electrical Contractors Association of Alberta, Mining Association of Canada, Mining Association of British Columbia, Ontario Mining Association, Northwest Territories and Nunavut Chamber of Mines, Saskatchewan Mining Association, United Nurses of Alberta, Ontario General Contractors Association, Ontario Formwork Association and Greater Toronto Sewer and Watermain Contractors Association Interveners Indexed as: Stewart v.

Elk Valley Coal Corp. 2017 SCC 30 File No.: 36636. 2016: December 9; 2017: June 15.

Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. on appeal from the court of appeal for alberta Human rights — Discriminatory practices — Discrimination based on mental or physical disability — Drug dependency — Employer’s policy aimed at ensuring safety required employees to disclose dependence or addiction issues before drug-related incident — Employee involved in accident — Employee tested positive for drug use — Employer terminated employee’s employment pursuant to policy — Whether employee was terminated for addiction or for breaching policy — If termination constituted prima facie discrimination, whether employer met its obligation to accommodate employee to point of undue hardship — Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c.

H-14, s. 7(1) . S worked in a mine operated by the Elk Valley Coal Corporation, driving a loader. The mine operations were dangerous, and maintaining a safe worksite was a matter of great importance to the employer and employees. To ensure safety, the employer implemented a policy requiring that employees disclose any dependence or addiction issues before any drug-related incident occurred. If they did, they would be offered treatment. However, if they failed to disclose and were involved in an incident and tested positive for drugs, they would be terminated. S used cocaine on his days off.

He did not tell his employer that he was using drugs. When his loader was involved in an accident, he tested positive for drugs and later said that he thought he was addicted to cocaine. His employer terminated his employment. S, through his union representative, argues that he was terminated for addiction and that this constitutes discrimination under s. 7(1) of the Alberta Human Rights, Citizenship and Multiculturalism Act . The Alberta Human Rights Tribunal held that S was terminated for breaching the policy, not because of his addiction.

Its decision was affirmed by the Alberta Court of Queen’s Bench and by the Alberta Court of Appeal. Held : The appeal should be dismissed.

Per McLachlin C.J. and Abella, Karakatsanis, Côté, Brown and Rowe JJ.: This case involves the application of settled principles on workplace disability discrimination to a particular fact situation. The nature of the particular disability at issue does not change the legal principles to be applied. These issues were within the purview of the Tribunal, and attract deference. The only question is whether the Tribunal’s decision is reasonable. If the decision is within a range of possible, acceptable outcomes which are defensible in respect of the evidence and the law, it is reasonable.

It is clear that there was evidence capable of supporting the Tribunal’s conclusion that the reason for the termination was not addiction, but breach of the policy. On the facts of this case, the Tribunal concluded that S had the capacity to comply with the terms of the policy and that he would have been fired whether he was an addict or a casual user. It was therefore not unreasonable for the Tribunal to conclude that there was no prima facie discrimination.

Although it is open to a tribunal to find that an addiction was a factor in an adverse distinction where the evidence supports such a finding, this was clearly not the finding of the Tribunal. It unequivocally and repeatedly stated that addiction was not a factor in the decision to terminate. It also rejected the argument that denial prevented S from disclosing his addiction prior to the accident. While S may have been in denial about his addiction, he knew he should not take drugs before working and had the ability to decide not to take them, as well as the capacity to disclose his drug use to his employer.

Denial about his addiction was thus irrelevant in this case. Finally, a finding of stereotypical or arbitrary decision making is not a stand-alone requirement for proving prima facie discrimination, and there is no need to alter the settled view that the protected ground or characteristic need only be a factor in the decision. Since the Tribunal’s decision that prima facie discrimination was not established was reasonable, it is unnecessary to consider whether S was reasonably accommodated.

Per Moldaver and Wagner JJ.: The Tribunal’s conclusion that S’s drug dependency was not a factor in his termination was unreasonable. To prove prima facie discrimination, S is not required to show that his termination was caused solely or even primarily by his drug dependency. Rather, he must only show that there is a connection between the protected ground — his drug dependency — and the adverse effect. His exercise of some control over his drug use merely reduced the extent to which his dependency contributed to his termination — it did not eliminate it as a factor in his termination.

However, the Tribunal reasonably held that the employer had met its obligation to accommodate S to the point of undue hardship. Given the employer’s safety objectives and responsibilities at the coal mine, it was crucial to deter employees from using drugs in a manner that could negatively affect their work performance and potentially lead to devastating consequences. Subjecting S to an individual assessment or imposing an unpaid suspension for a limited period as a disciplinary measure instead of imposing the serious and immediate consequence of termination would have undermined the policy’s deterrent effect.

Therefore, the Tribunal reasonably concluded that incorporating these aspects of individual accommodation would result in undue hardship. Per Gascon J. (dissenting): Although drug dependence is a protected ground of discrimination in human rights law, stigmas surrounding drug dependence — like the belief that individuals suffering from it are the authors of their own misfortune or that their concerns are less credible than those of people suffering from other forms of disability — sometimes impair the ability of courts and society to objectively assess the merits of their discrimination claims.

These stigmas contribute to the uneasy fit of drug addiction and drug testing policies in the human rights arena. The improper considerations relied on by the Tribunal effectively excluded S from the scope of human rights protections. A drug policy that automatically terminates employees who use drugs prima facie discriminates against individuals burdened by drug dependence. The legal threshold for prima facie discrimination is whether the complainant’s protected ground is a factor in the harm they suffer (also called “contribution”).

Here, drug dependence was a factor in S’s drug use, so the policy under which S was terminated for using drugs is prima facie discriminatory. The Tribunal’s analysis was unreasonable because it misunderstood the legal principles informing discrimination law, and was unsupported by its factual findings. The analysis of prima facie discrimination, and, in particular, contribution, is concerned with discriminatory effect, not discriminatory intent. Contribution addresses the relationship between an employee’s protected ground and harm, not between the ground and the intent to harm that employee.

A ground need only be at least one of the factors linked to the employee’s harm. The Tribunal did not follow this established approach. Instead, it unreasonably held that S’s addiction did not contribute to his termination based on four conceptual errors. First, it required S to make prudent choices to avoid discrimination.

Requiring that complainants be prudent in avoiding discrimination amounts to a sort of contributory fault defence in discrimination cases, which (1) places a burden on complainants to avoid discrimination, rather than on employers not to discriminate; (2) is irreconcilable with recently recognized statutory grounds that arguably implicate a complainant’s choices that are significant to their identity; (3) generally contradicts the Court’s rejection of drawing superficial distinctions between protected grounds and conduct inextricably linked to those grounds; (4) specifically contradicts the Court’s rejection of the view that choice makes drug users responsible for the harms of their drug use; (5) reinforces stigma by blaming marginalized communities for their choices; and (6) substitutes the proper inquiry (whether drug-dependent individuals are adversely impacted by the policy) with an improper inquiry (whether drug-dependent individuals are so overwhelmingly impacted by their addictions that any discrimination they experience is caused exclusively by their addictions).

Second, the Tribunal limited S’s protections to an assurance of formal equality. While both dependent and recreational drug users will receive similar treatment for violating the policy, only drug-dependent persons will uniquely and disproportionately struggle in complying with the terms of the policy. Third, the Tribunal required S to prove that he was treated arbitrarily or stereotypically, importing substantive considerations into the settled and low threshold for prima facie discrimination and shifting a justificatory burden from the employer onto the complainant.

Finally, the Tribunal required S to prove a causal relationship between his ground and harm, a higher bar than the mere “factor” threshold repeatedly adopted by the Court. Prima facie discrimination should not be narrowly construed to preserve the

enforceability of drug and alcohol policies. Doing so imports justificatory considerations into the prima facie discrimination analysis andexaggerates the implication of finding such policies prima facie discriminatory when they would simply need to be justified as relating tobona fide occupational requirements. It also narrows the Court’s recent jurisprudence, which holds that terminating an employee for areason related to addiction is precisely what it means for that addiction to be a factor in the employee’s harm.

As such, while the Tribunal cited the proper legal test for prima facie discrimination, the manner in which it applied that testand the lack of an evidentiary foundation for its findings demonstrate that its holding on contribution was unreasonable and thusunworthy of deference. Although it repeatedly stated that S’s addiction was not a factor in his termination, its reasons suggest that itmeant that S’s addiction was not a factor in the employer’s decision to terminate him. That was the wrong legal test.

Under the propertest, the evidence before the Tribunal could not support its conclusion that S’s drug dependence did not contribute to his termination. Hisresidual control over his choices merely diminishes the extent to which his dependence contributed to his harm, it does not eliminate it asa factor. The Tribunal avoided this argument by considering discriminatory intent, not adverse effect, and by improperly requiringabsolute incapacity to ground a claim relating to discrimination based on addiction. Consequently, the termination of S was prima faciediscriminatory.

With respect to justification, a policy that accommodates employees through mechanisms which are either inaccessible bythe employee due to their disability or only applicable to the employee post-termination cannot justify prima facie discrimination.Reasonable accommodation requires that the employer arrange the employee’s workplace or duties to enable the employee to do his orher work, if it can do so without undue hardship.

To determine what reasonable or practical alternatives are available, an employer mustengage in an individualized analysis of the employee based on the employee’s individual differences and capabilities. Therefore, anypredetermined or blanket approach to sanctions imposed on employees for disability-related conduct will struggle to fulfill an employer’sindividualized duty to accommodate.

Here, the text of the impugned policy provides for individualized post-incident accommodation: disciplinary action againstan employee who tests positive for drugs is to be based on all relevant circumstances, including the employee’s employment record, thecircumstances surrounding the positive test, the employee’s stated pattern of usage, the likelihood that the employee’s work performancehas been or may be adversely affected, and the importance of deterring such behaviour. However, the policy was implemented, contraryto its express terms, with no consideration of S’s circumstances.

In the human rights context, it is not appropriate for the employer toforego individual assessment in the interest of deterrence, even in the safety-sensitive environment of this workplace, and even thoughthat environment motivates strict drug policies.

None of the employer’s efforts at accommodation provided S with accessible accommodation during his employment, andthose efforts failed to consider his individual circumstances in a dignified manner, so the employer cannot be said to have discharged itsduty to accommodate him as an employee up to the point of undue hardship and the Tribunal’s findings to the contrary wereunreasonable. Before termination, S was purportedly accommodated by the offer of lenient treatment if he voluntarily disclosed his drugdependence.

But that accommodation was inaccessible by him because he appeared to have been unaware of his dependence, a symptomof his disability. After termination, he was allegedly accommodated by being given the prospect of reapplying for his position. Butaccommodation assists employees in their sustained employment, not former employees who may, or may not, successfully reapply forthe position they lost as a result of a prima facie discriminatory termination.

Given that all of the purported accommodations provided bythe employer could not qualify as accommodation in law, the Tribunal’s holding that those accommodations constituted appropriateaccommodation was open to intervention. Cases Cited By McLachlin C.J. Referred to: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, (SCC),[1999] 3 S.C.R. 3; Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, sectionlocale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561; Moore v.

British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R.360; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace TrainingCenter), 2015 SCC 39, [2015] 2 S.C.R. 789; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Newfoundland andLabrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Health Employers Assn.of British Columbia v. B.C.N.U., 2006 BCCA 57, 54 B.C.L.R. (4th) 113; Quebec (Attorney General) v. A, 2013 SCC 5, [2013]1 S.C.R. 61. By Moldaver and Wagner JJ.

Referred to: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (BombardierAerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789; British Columbia (Public Service Employee Relations Commission) v.BCGSEU, (SCC), [1999] 3 S.C.R. 3; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Central AlbertaDairy Pool v. Alberta (Human Rights Commission), (SCC), [1990] 2 S.C.R. 489; British Columbia (Superintendent ofMotor Vehicles) v. British Columbia (Council of Human Rights), (SCC), [1999] 3 S.C.R. 868; Central OkanaganSchool District No. 23 v.

Renaud, (SCC), [1992] 2 S.C.R. 970. By Gascon J. (dissenting) Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier AerospaceTraining Center), 2015 SCC 39, [2015] 2 S.C.R. 789; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360;Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec,

section locale 2000(SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561; British Columbia (Public Service Employee Relations Commisson) v. BCGSEU, (SCC), [1999] 3 S.C.R. 3; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Dunsmuir v.New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1S.C.R. 467; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Commission scolaire

régionale de Chambly v. Bergevin, (SCC), [1994] 2 S.C.R. 525; ADGA Group Consultants Inc. v. Lane (2008), (ON SCDC), 64 C.H.R.R. D/132; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; HondaCanada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362; British Columbia Public Service Agency v. B.C.G.E.U., 2008 BCCA 357, 83B.C.L.R. (4th) 299; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504. Statutes and Regulations Cited Alberta Human Rights Act, R.S.A. 2000, c. A-25.5, s. 7(1). Canadian Charter of Rights and Freedoms, s. 7.

Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, ss. 7(1), (3), 44(1)(h) “mental disability”, (l) “physicaldisability”. Authors Cited Koshan, Jennifer. “Under the Influence: Discrimination Under Human Rights Legislation and

Section 15 of the Charter” (2014), 3 Can.J. Hum. Rts. 115. Oliphant, Benjamin. “Prima Facie Discrimination: Is Tranchemontagne Consistent with the Supreme Court of Canada’s Human RightsCode Jurisprudence?” (2012), 9 J.L. & Equality 33. Pothier, Dianne. “Tackling Disability Discrimination at Work: Toward a Systemic Approach” (2010), 4 M.J.L.H. 17. APPEAL from a judgment of the Alberta Court of Appeal (Picard, Watson and O’Ferrall JJ.A.), 2015 ABCA 225, 19 Alta.L.R. (6th) 219, 602 A.R. 210, 647 W.A.C. 210, 87 Admin. L.R. (5th) 299, 24 C.C.E.L. (4th) 1, 81 C.H.R.R.

D/367, [2015] CLLC¶230-046, 386 D.L.R. (4th) 383, [2015] 9 W.W.R. 1, [2015] A.J. No. 728 (QL), 2015 CarswellAlta 1190 (WL Can.), setting aside in parta decision of Michalyshyn J., 2013 ABQB 756, 581 A.R. 234, [2014] CLLC ¶230-012, [2013] A.J. No. 1462 (QL), 2013 CarswellAlta2733 (WL Can.), affirming a decision of the Alberta Human Rights Commission (Tribunal), 2012 AHRC 7, 74 C.H.R.R. D/425, 2012CarswellAlta 2396 (WL Can.). Appeal dismissed, Gascon J. dissenting. E. Wayne Benedict, for the appellant. Peter A. Gall, Q.C., Andrea L. Zwack and Benjamin J.

Oliphant, for the respondent the Elk Valley Coal Corporation,Cardinal River Operations. Janice R. Ashcroft, Q.C., for the respondent the Alberta Human Rights Commission (Tribunal). Karen R. Spector and Mariam Shanouda, for the interveners the Council of Canadians with Disabilities and theEmpowerment Council. Barbara B.

Johnston, Q.C., and April Kosten, for the interveners the Construction Owners Association of Alberta,Construction Labour Relations — an Alberta Association, Enform Canada, the Electrical Contractors Association of Alberta, the MiningAssociation of Canada, the Mining Association of British Columbia, the Ontario Mining Association, the Northwest Territories andNunavut Chamber of Mines and the Saskatchewan Mining Association. Ritu Khullar, Q.C., and Vanessa Cosco, for the intervener the United Nurses of Alberta.

Norm Keith and Marc Rodrigue, for the interveners the Ontario General Contractors Association, the Ontario FormworkAssociation and the Greater Toronto Sewer and Watermain Contractors Association. The judgment of McLachlin C.J. and Abella, Karakatsanis, Côté, Brown and Rowe JJ. was delivered by The Chief Justice — I. Introduction [1] Ian Stewart worked in a mine operated by the Elk Valley Coal Corporation, driving a loader. The mine operationswere dangerous, and maintaining a safe worksite was a matter of great importance to the employer and employees.

The employerimplemented the Alcohol, Illegal Drugs & Medications Policy, aimed at ensuring safety in the mine (“Policy”). Employees wereexpected to disclose any dependence or addiction issues before any drug-related incident occurred. If they did, they would be offeredtreatment. However, if they failed to disclose and were involved in an incident and tested positive for drugs, they would be terminated— a policy succinctly dubbed the “no free accident” rule.

The aim of the Policy was to ensure safety by encouraging employees withsubstance abuse problems to come forward and obtain treatment before their problems compromised safety. Employees, including Mr.Stewart, attended a training session at which the Policy was reviewed and explained. Mr. Stewart signed a form acknowledging receiptand understanding of the Policy. [2] Mr. Stewart used cocaine on his days off. He did not tell his employer that he was using drugs. One day, near theend of a 12-hour shift, Mr. Stewart’s loader was involved in an accident. No one was hurt, but Mr.

Stewart tested positive for drugs.Following the positive drug test, in a meeting with his employer, Mr. Stewart said that he thought he was addicted to cocaine. Nine dayslater, his employer terminated his employment in accordance with the “no free accident” rule.

[ 3 ] Addiction is a recognized disability under the Human Rights, Citizenship and Multiculturalism Act , R.S.A. 2000, c. H-14 (“Act”). Mr. Stewart, through his union representative Brent Bish, argues that he was terminated for addiction and that this constitutes discrimination under the Act, which states: 7(1) No employer shall (

a) refuse to employ or refuse to continue to employ any person, or (

b) discriminate against any person with regard to employment or any term or condition of employment, because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income or family status of that person or of any other person. . . . (3) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement. . . . 44(1) In this Act , . . . (h) “mental disability” means any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder; . . . (l) “physical disability” means any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness . . . ; [ 4 ] The Alberta Human Rights Commission (“Tribunal”) held that Mr.

Stewart was not terminated because of his addiction, but for breaching the Policy, which required him to disclose his addiction or dependency before an accident occurred to avoid termination. The Tribunal’s decision was affirmed by the Alberta Court of Queen’s Bench and by the Alberta Court of Appeal, O’Ferrall J.A., dissenting. Mr. Stewart, through Mr. Bish, now appeals to this Court. [ 5 ] Like the majority of the Court of Appeal, I find no basis for interfering with the decision of the Tribunal. The main issue is whether the employer terminated Mr.

Stewart because of his addiction (raising a prima facie case of discrimination), or whether the employer terminated him for breach of the Policy prohibiting drug use unrelated to his addiction because he had the capacity to comply with those terms (not raising a prima facie case of discrimination). This is essentially a question of fact, for the Tribunal to determine. After a thorough review of all the evidence, the Tribunal concluded that the employer had terminated Mr. Stewart’s employment for breach of its Policy. The Tribunal’s conclusion was reasonable. II. Prior Decisions A.

The Tribunal Decision, 2012 AHRC 7 [ 6 ] The Tribunal, in a decision authored by the Honourable Paul Chrumka, accepted the settled two-part test for discrimination in the workplace. At the first step, the employee must establish a prima facie case of discrimination, by showing: (1) a disability which is protected under the Act ; (2) adverse treatment with regard to his employment or a term of that employment; and (3) that the disability was a factor in the adverse treatment. Relying on expert evidence, the Tribunal concluded that Mr.

Stewart was addicted to drugs (even though he did not recognize his addiction at the time), and that this addiction constituted a disability protected

under the Act. The Tribunal also concluded that Mr. Stewart’s termination constituted adverse treatment by the employer. However, itfound that Mr. Stewart’s disability was “not a factor in the termination” (para. 125 ). In the Tribunal’s view, Mr. Stewart wasterminated for failing to comply with the Policy, which required Mr. Stewart to disclose his drug use prior to the accident and denied himthe benefit of “one free accident” (para. 142).

Therefore, there was no prima facie discrimination. [7] In the alternative, the Tribunal stated that, if a prima facie case of discrimination had been established, it wouldhave found that the employer discharged its onus at the second step of establishing that it had accommodated Mr. Stewart to the point ofundue hardship. [8] The Tribunal, at para. 131, relied on British Columbia (Public Service Employee Relations Commission) v.BCGSEU, (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), in setting the test for a bona fide occupational requirement.

Meiorinprovides that [a]n employer may justify the impugned standard by establishing on the balance of probabilities: (1) that the employer adopted the standard for a purpose rationally connected to the performance of the job; (2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of thatlegitimate work-related purpose; and (3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.

To show that the standardis reasonably 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. [para. 54] Then, at para. 133, the Tribunal quoted Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec,

section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561, at paras. 12 and 16, elaborating on the undue hardshipcriteria: What is really required is not proof that it is impossible to integrate an employee who does not meet a standard, but proof of unduehardship, which can take as many forms as there are circumstances. . . . . . . The test is not whether it was impossible for the employer to accommodate the employee’s characteristics.

The employer does nothave a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrangethe employee’s workplace or duties to enable the employee to do his or her work. [9] The Tribunal found that the employer had adopted the “no free accident” rule in good faith for a job-relatedpurpose, believing that “application of the policy was necessary to ensure the deterrent effect of the policy and ultimately safety in theworkplace” (para. 147). The only question was whether the employer could have continued to employ Mr. Stewart without unduehardship.

The Tribunal concluded it could not: If the [employer] had to offer the opportunity for assessment to Mr. Stewart or replace the harsher and immediate effects of terminationof employment with less serious consequences, the deterrent effect of the Policy would be significantly lessened, and constitute an unduehardship to the company, given the [employer]’s safety responsibilities. [para. 152] [10] The Tribunal also found that offering an assessment without termination given that Mr. Stewart was able to makeconscious choices regarding his drug use, would dilute the purpose of the Policy.

Finally, the Tribunal found that the opportunity underthe Policy to come forward and access treatment without fear of discipline, and the invitation to obtain treatment and apply for re-employment in six months, constituted accommodation of the disability. B. The Motions Judge’s Decision, 2013 ABQB 756, 581 A.R. 234 [11] Mr. Bish appealed the Tribunal’s decision to the Alberta Court of Queen’s Bench. The motions judge (MichalyshynJ.) held that the standard of review was correctness on the issue of a prima facie case of discrimination, and reasonableness on the issueof accommodation.

He dismissed the appeal on the ground that the Tribunal had not erred in concluding that the reason for terminationwas not addiction, but breach of the Policy. The evidence supported this conclusion and the fact that Mr. Stewart may have been indenial changed nothing. [12] On the second issue, the motions judge held that if a prima facie case had been made out, the Tribunal erred infinding that the Policy accommodated Mr. Stewart, because Mr. Stewart “was not ‘capable’ of seeking treatment under the Policy byreason of a dependency or addiction he did not know he had” (para. 63; see also paras. 58-66).

Self-reporting is not an accommodationfor people in denial of their disability, he held. C. The Court of Appeal’s Decision, 2015 ABCA 225, 19 Alta. L.R. (6th) 219

[ 13 ] The majority of the Court of Appeal (Picard and Watson JJ.A.) dismissed the appeal and upheld the Tribunal’s decision. [ 14 ] On the issue of prima facie discrimination, the majority applied this Court’s three-part test set out in Moore v. British Columbia (Education) , 2012 SCC 61 , [2012] 3 S.C.R. 360, and held that disability must be a real factor in the adverse impact, not just part of the background.

Using the example of non-smoking policies, the majority held that it is impermissible to refuse to employ a person simply because they have an addiction, but permissible to refuse to employ a person for violation of a general policy restricting consumption of addictive material that is imposed on everyone. The majority concluded, at para. 76: Put another way, the Tribunal found no real nexus between the application of the employer’s policy and the disability itself as alleged for Stewart.

There was not shown to be direct discrimination, in the sense of the employer acting upon arbitrary or pre-conceived stereotypes when Stewart was let go. Nor was there shown to be indirect discrimination, in the sense of the employer having created a structure of employment policy whereby termination would effectively follow from a culture of discriminatory employment arrangements.

Finally, and importantly to the Tribunal’s decision, the nexus between the disability and the action of Elk Valley towards Stewart when he breached the terms of the Policy in at least two ways, was not such as to make his disability itself a “factor” in the action taken by Elk Valley. [ 15 ] On the issue of accommodation, the majority held that an employer cannot be required to premise workplace safety policy on a flagrant demonstration of an addiction. The fact that an employee may not know he is addicted or be in denial about the addiction does not change this.

Employers should not be required to establish intrusive workplace rules to sniff out potential addictions. [ 16 ] O’Ferrall J.A. dissented on the ground that the Tribunal erred in law in relying on the absence of stereotypical behaviour to conclude no prima facie case of discrimination had been established, and in failing to consider the employer’s motive of deterrence in determining whether the addiction was a factor in the termination. In his view, the evidence showed that addiction was the real reason for the termination of Mr.

Stewart’s employment. [ 17 ] O’Ferrall J.A. also concluded that the employer had not accommodated Mr. Stewart’s disability to the point of undue hardship. In his view, self-reporting is not an accommodation for people in denial of their addiction; termination as opposed to suspension pending treatment was unduly harsh in the circumstances; and the Tribunal over-emphasized the employer’s need for deterrence and under-valued the need to assess the circumstances. III. The Issues [ 18 ] The appellant raises three issues on appeal. First, he argues that the standard of review should be correctness.

Second, he says that the Tribunal erred in concluding that prima facie discrimination was not established. Third, he argues that the Tribunal erred in finding that the employer has met its burden of establishing undue hardship. IV. Analysis A. Standard of Review [ 19 ] Beneath the rhetoric that surrounds standard of review lies the question of deference: Should the reviewing court approach the decision below with deference? [ 20 ] Reviewing courts generally approach the decisions of tribunals under human rights statutes with considerable deference.

It is the tribunal’s task to evaluate the evidence, find the facts and draw reasonable inferences from the facts. And it is the tribunal’s task to interpret the statute in ways that make practical and legal sense in the case before it, guided by applicable jurisprudence.

Reviewing courts tread lightly in these areas. [ 21 ] The appellant, relying on what he concedes are “outlier” decisions, suggests that a non-deferential standard of correctness applies because legal issues arise with respect to whether stereotyping is a requirement of a prima facie case for discrimination, and with respect to when it becomes “impossible” to alter a workplace policy.

As will be seen from the analysis that follows, these are essentially matters of applying the accepted law to the facts. [ 22 ] In sum, this case involves the application of settled principles on workplace disability discrimination to a particular fact situation. The nature of the particular disability at issue — in this case addiction — does not change the legal principles to be applied. The debates here are not about the law, but about the facts and the inferences to be drawn from the facts. These issues were within the purview of the Tribunal, and attract deference.

The only question is whether the Tribunal’s decision was reasonable. B. Was the Tribunal Unreasonable in Finding That Prima Facie Discrimination Was Not Established? [ 23 ] To make a claim for discrimination under the Act , the employee must establish a prima facie case of discrimination.

If this is established, the onus then shifts to the employer to show that it accommodated the employee to the point of undue hardship. [ 24 ] To make a case of prima facie discrimination, “complainants are required to show that they have a characteristic protected from discrimination under the [ Human Rights Code , R.S.B.C. 1996, c. 210]; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact”: Moore , at para. 33 .

Discrimination can take many forms, including “‘indirect’ discrimination”, where otherwise neutral policies may have an adverse effect on certain groups: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center) , 2015 SCC 39 , [2015] 2 S.C.R. 789, at para. 32 . Discriminatory intent on behalf of an employer is not required to demonstrate prima facie discrimination: Bombardier , at para. 40. [ 25 ] It is conceded that the first two elements of a prima facie case of discrimination are established in this case.

The only dispute is on the third requirement — whether Mr. Stewart’s addiction was a factor in his termination.

[ 26 ] The Tribunal cited the proper legal test and noted, at para. 117, that it was “not necessary that discriminatory considerations be the sole reason for the impugned actions in order for there to be a contravention of the Act ”. After a detailed review of the evidence, it concluded that Mr. Stewart’s addiction was not a factor in his termination for two related reasons. In the Tribunal’s view, Mr. Stewart was fired not because he was addicted, but because he had failed to comply with the terms of the Policy, and for no other reason. The Tribunal also concluded that Mr.

Stewart was not adversely impacted by the Policy because he had the capacity to comply with its terms. [ 27 ] The only question for a reviewing court is whether this conclusion is unreasonable. Deference requires respectful attention to the Tribunal’s reasoning process. A reviewing court must ensure that it does not only pay “lip service” to deferential review while substituting its own views: Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, at para. 48 .

If the decision is within a “range of possible, acceptable outcomes” which are defensible in respect of the evidence and the law, it is reasonable: Dunsmuir , at para. 47 ; see also Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708, at para. 16 . [ 28 ] I am satisfied that the Tribunal’s conclusion that addiction was not a factor in the termination of Mr. Stewart’s employment is reasonable. [ 29 ] The most important piece of evidence on whether Mr.

Stewart’s addiction was a factor in Elk Valley’s reasons for the termination of his employment is the termination letter. The first three paragraphs deal with the reason for termination: Dear Ian: Re: Termination of Employment On October 18, 2005, you tested positive for cocaine after being involved in an accident. A further investigation with you revealed that you use drugs extensively. On July 25 th , 2005, you signed an acknowledgement that your employment required you to comply with the Company’s Drug and Alcohol policy.

It is fundamental to safety at the minesite that employees comply with the Drug and Alcohol Policy and disclose their dependency on drugs or alcohol before breaching the Policy and placing their lives, and the lives of their co-workers at risk. The policy states that in responding to a violation of the policy the Company will place primary importance upon deterring similar behavior by other employees and will terminate the employee unless termination would be unjust in all of the circumstances. After consideration of all of the circumstances we have concluded that your employment should be terminated.

The termination is effective November 3 rd , 2005. [Emphasis in original.] (A.R., vol. III, at p. 48) [ 30 ] The first paragraph of the letter refers to Mr. Stewart’s drug test and use of drugs. The second paragraph cites and explains the Policy. The third informs Mr. Stewart of his termination. [ 31 ] The Tribunal construed the letter as emphasizing the Policy as the factor leading to Mr. Stewart’s termination, despite his argument that the wording of the letter establishes that addiction was a factor in termination: I . . . note the submission of [Mr.

Bish’s] counsel regarding the wording in the termination letter. However, the contextual emphasis in the letter overall is on the violation of the Policy. [para. 123] [ 32 ] The Tribunal found, based on the evidence before it, that Mr. Stewart was terminated “due to the failure of Mr. Stewart to stop using drugs and failing to disclose his use prior to the accident” (para. 120).

It accepted that people with addictions may experience denial and that the distinction between termination due to disability and termination due to the failure to follow a policy may appear “superficial” given that the failure to follow a policy may be a symptom of an addiction or disability (para. 122). However, in the circumstances of this case, the Tribunal found that the evidence established that the Policy adversely impacted Mr.

Stewart not because of denial “but rather because he chose not to stop his drug use or disclose his drug use” (para. 122). [ 33 ] For the Tribunal, the termination letter did not establish that the addiction was a factor in Elk Valley’s decision to terminate Mr. Stewart’s employment. [ 34 ] The Tribunal went on to consider whether the Policy itself adversely impacted Mr. Stewart because of his addiction. In that context, the Tribunal noted that “Mr. Stewart would have been fired whether or not he was an addict or a casual user” (para. 123) and that “[t]he Policy as applied to Mr. Stewart which resulted in Mr.

Stewart’s termination was not applied due to his disability” (para. 125). The Tribunal concluded that Mr. Stewart had “the capacity to make choices” about his drug use (para. 126). In the Tribunal’s view, the expert evidence in this case demonstrated that Mr. Stewart’s addiction did not diminish his capacity to comply with the terms of the Policy. Accordingly, the Policy did not adversely impact Mr. Stewart.

[ 35 ] It is clear that there was evidence capable of supporting the Tribunal’s conclusion that the reason for the termination was not addiction, but breach of the Policy. On the facts of this case, the Tribunal concluded that Mr. Stewart had the capacity to comply with the terms of the Policy. It was therefore not unreasonable for the Tribunal to conclude that there was no prima facie discrimination in this case. Mr. Stewart makes two arguments in his attempt to overturn the Tribunal’s factual findings. [ 36 ] First, Mr.

Bish’s attempts to recast the Tribunal’s conclusion as a finding that, while breach of the Policy was the dominant cause of the termination, Mr. Stewart’s addiction was nevertheless “a factor”, and that this suffices to establish a prima facie case of discrimination. This was clearly not the finding of the Tribunal. The Tribunal unequivocally and repeatedly stated that addiction was not a factor in the decision to terminate Mr. Stewart: • “Mr.

Stewart was adversely impacted by the Policy not because of denial through drug impairment but rather because he chose not to stop his drug use or disclose his drug use” (para. 122); • “The Policy as applied to Mr. Stewart which resulted in Mr. Stewart’s termination was not applied due to his disability” (para. 125); • “Given my finding that Mr. Stewart’s disability was not a factor in his termination” (para. 126). The Tribunal could not have been clearer — “Mr. Stewart’s disability was not a factor in his termination”. [ 37 ] Second, Mr. Bish suggests that Mr.

Stewart’s addiction was a factor in his termination because denial was part of the addiction, and prevented him from disclosing his addiction prior to the accident. Breach of the Policy may have been the immediate cause of the termination, but the reason for the breach of Policy was the addiction. Therefore, he submits, the termination was due to the addiction; the addiction indirectly was “a factor” in the termination. [ 38 ] As noted above, the Tribunal rejected this argument.

While it was “sensitive to the argument that any distinction between termination due to disability, and termination due to failure to follow the Policy, may appear to be superficial given that the misconduct relied upon can be considered, in some circumstances, to be a symptom of the addiction or disability” (para. 122), it concluded that the argument did not assist Mr. Stewart because he “had the capacity to come forward and disclose his drug use” (para. 121) and “did make rational choices in terms of his drug use” (para. 122). While Mr.

Stewart may have been in denial about his addiction, he knew he should not take drugs before working, and he had the ability to decide not to take them as well as the capacity to disclose his drug use to his employer. Denial about his addiction was thus irrelevant in this case. [ 39 ] It cannot be assumed that Mr. Stewart’s addiction diminished his ability to comply with the terms of the Policy. In some cases, a person with an addiction may be fully capable of complying with workplace rules.

In others, the addiction may effectively deprive a person of the capacity to comply, and the breach of the rule will be inextricably connected with the addiction. Many cases may exist somewhere between these two extremes. Whether a protected characteristic is a factor in the adverse impact will depend on the facts and must be assessed on a case-by-case basis. The connection between an addiction and adverse treatment cannot be assumed and must be based on evidence: Health Employers Assn. of British Columbia v.

B.C.N.U. , 2006 BCCA 57 , 54 B.C.L.R. (4th) 113, at para. 41 . [ 40 ] It was the Tribunal’s task to determine whether the reason for the termination of employment or the impact of the Policy on Mr. Stewart established a prima facie case of discrimination. There is ample evidence to support the Tribunal’s conclusion that there was no prima facie case and, therefore, no basis to overturn it. [ 41 ] O’Ferrall J.A., dissenting, argued that a detailed view of the evidence shows that the real cause of the termination was Mr. Stewart’s addiction.

At best, however, this is simply another view of the evidence and the factual inferences to be drawn from it. It does not establish that the conclusion of the Tribunal was unsupported by the evidence and unreasonable. With respect, the role of reviewing courts is to determine whether a tribunal’s decision falls within a range of acceptable outcomes, not to reassess the evidence.

To make findings and draw inferences from the evidence is the role of the Tribunal. [ 42 ] Where, as here, a tribunal concludes that the cause of the termination was the breach of a workplace policy or some other conduct attracting discipline, the mere existence of addiction does not establish prima facie discrimination. If an employee fails to comply with a workplace policy for a reason related to addiction, the employer would be unable to sanction him in any way, without potentially violating human rights legislation .

Again, to take an example given by the majority of the Court of Appeal, if a nicotine- addicted employee violates a workplace policy forbidding smoking in the workplace, no sanction would be possible without discrimination regardless of whether or not that employee had the capacity to comply with the policy. [ 43 ] It is, of course, open to a tribunal to find that an addiction was a factor in an adverse distinction, where the evidence supports such a finding. The question, at base, is whether at least one of the reasons for the adverse treatment was the employee’s addiction.

If the Tribunal in this case had found, on the evidence, that the employer terminated Mr. Stewart’s employment, or that the Policy adversely affected him, because, either alone or among other reasons, he was addicted to drugs, prima facie discrimination would have been made out. However, in the Tribunal’s view, the evidence did not support that conclusion. As a result, Mr.

Bish did not establish a prima facie case of discrimination. [ 44 ] Two other points raised by the parties, while not essential to the decision in this case, merit comment. [ 45 ] First, I see no basis to alter the test for prima facie discrimination by adding a fourth requirement of a finding of stereotypical or arbitrary decision making. The goal of protecting people from arbitrary or stereotypical treatment or treatment that creates disadvantage by perpetuating prejudice is accomplished by ensuring that there is a link or connection between the protected ground and adverse treatment.

The existence of arbitrariness or stereotyping is not a stand-alone requirement for proving prima facie

discrimination. Requiring otherwise would improperly focus on “whether a discriminatory attitude exists, not a discriminatory impact”,the focus of the discrimination inquiry: Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61, at para. 327 (emphasis inoriginal). The Tribunal expressly noted that proof of arbitrariness and stereotyping was not required, at para. 117. [46] Second, I see no need to alter the settled view that the protected ground or characteristic need only be “a factor” inthe decision.

It was suggested in argument that adjectives should be added: the ground should be a “significant” factor, or a “material”factor. Little is gained by adding adjectives to the requirement that the impugned ground be “a factor” in the adverse treatment. In eachcase, the tribunal must decide on the factor or factors that played a role in the adverse treatment. This is a matter of fact. If a protectedground contributed to the adverse treatment, then it must be material. V. Conclusion [47] The Tribunal’s decision that prima facie discrimination was not established was reasonable.

It is thereforeunnecessary to consider whether Mr. Stewart was reasonably accommodated. I would affirm the decision and dismiss the appeal, withcosts to Elk Valley Coal Corporation, Cardinal River Operations. The following are the reasons delivered by Moldaver and Wagner JJ. — I. Overview [48] We are of the view that the appeal should be dismissed. While we concur with the Chief Justice in the result, weagree with Gascon J. that the test for prima facie discrimination was met in this case. The conclusion of the Alberta Human RightsCommission (“Tribunal”) that Mr.

Stewart’s drug dependency was not a “factor” in his termination was unreasonable. Where we partcompany with Gascon J. is with respect to reasonable accommodation. In our view, the Tribunal reasonably held that the employer metits obligation to accommodate Mr. Stewart to the point of undue hardship. Therefore, we accept the Tribunal’s conclusion that Mr.Stewart’s employer did not discriminate against him on the ground of his drug dependency. II. Analysis A. Prima Facie Discrimination [49] The Tribunal found that Mr.

Stewart had a drug dependency that was “characterized by impaired control over the useof a psychoactive substance and/or behaviour” (Tribunal reasons, 2012 AHRC 7, at para. 109 ). We accept the Tribunal’sfinding that Mr. Stewart was not wholly incapacitated by his addiction and maintained some residual control over his drug use. But wefail to see how the Tribunal could reasonably conclude that because Mr.

Stewart had a limited ability to make choices about his drug use,there was no connection between his dependency on cocaine and his termination on the basis of testing positive for cocaine after beinginvolved in a workplace accident. [50] To prove prima facie discrimination, Mr. Stewart is not required to show that his termination was caused solely oreven primarily by his drug dependency. Rather, Mr.

Stewart must only show that there is a “connection” between the protected ground— his drug dependency — and the adverse effect: Quebec (Commission des droits de la personne et des droits de la jeunesse) v.Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789, at para. 52. We agree with Gascon J. thatMr. Stewart’s exercise of some control over his drug use merely reduced the extent to which his dependency contributed to histermination — it did not eliminate it as a “factor” in his termination (para. 120). Mr.

Stewart’s impaired control over his cocaine use wasobviously connected to his termination for testing positive for cocaine after being involved in a workplace accident. In our view, theTribunal unreasonably focused on Mr. Stewart’s limited capacity to control his choices and behaviour regarding his use of drugs andfailed to consider the connection between his drug dependency and his employer’s decision to fire him. B. Reasonable Accommodation [51] On the issue of reasonable accommodation, however, we respectfully disagree with Gascon J.

In our view, it wasreasonable for the Tribunal to conclude that Elk Valley Coal Corporation, Cardinal River Operations, reasonably accommodated Mr.Stewart. [52] The question before the Tribunal was whether the employer demonstrated that the prima facie discriminatorystandard was in fact reasonably necessary, i.e., that it was not possible to accommodate the individual employee “without imposingundue hardship” on the employer: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, (SCC), [1999] 3 S.C.R. 3, at para. 54. [53] The Tribunal found that Mr.

Stewart’s immediate termination was reasonably necessary. Elk Valley had imposedAlcohol, Illegal Drugs & Medications Policy (“Policy”), stating that if an employee was involved in a workplace incident andsubsequently tested positive for drugs, the employee would be terminated. This “no free accident” rule was meant to deter employeesfrom using drugs in a way that could adversely affect their work performance. As indicated, Mr. Stewart tested positive for cocaine afterbeing involved in a workplace incident and was therefore subject to termination under the Policy.

The Tribunal reasoned that if ElkValley had to offer the opportunity for individual assessment to Mr.

Stewart or replace the immediate effect of termination ofemployment with less serious consequences (such as a suspension), the deterrent effect of the Policy would be significantly lessened.Given Elk Valley’s safety objectives and responsibilities at the coal mine, the Tribunal found that this reduction in the Policy’s ability todeter other employees from using drugs constituted undue hardship. [54] A reviewing court must be careful not to substitute its view on reasonable accommodation for that of a tribunal.Rather, it must determine whether a tribunal’s decision falls “within a range of possible, acceptable outcomes which are defensible inrespect of the facts and law”: Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.

[55] In our view, it was reasonable for the Tribunal to conclude that Mr. Stewart’s immediate termination was reasonablynecessary, so that the deterrent effect of the Policy was not significantly reduced. Elk Valley’s coal mining operation was a “safety-sensitive environment” (Tribunal reasons, at para. 75). In such a workplace, it was crucial to deter employees from using drugs in amanner that could negatively affect their work performance and potentially lead to devastating consequences.

Workplace safety is arelevant consideration when assessing whether the employer has accommodated the employee to the point of undue hardship: CentralAlberta Dairy Pool v. Alberta (Human Rights Commission), (SCC), [1990] 2 S.C.R. 489, at pp. 520-21. Subjecting Mr.Stewart to an individual assessment or imposing an unpaid suspension for a limited period as a disciplinary measure instead of imposingthe serious and immediate consequence of termination would undermine the Policy’s deterrent effect.

This, in turn, would compromisethe employer’s valid objective to prevent employees from using drugs in a way that could give rise to serious harm in its safety-sensitiveworkplace. Therefore, the Tribunal reasonably concluded that incorporating these aspects of individual accommodation within the “nofree accident” standard would result in undue hardship: see British Columbia (Superintendent of Motor Vehicles) v.

British Columbia(Council of Human Rights), (SCC), [1999] 3 S.C.R. 868, at para. 42. [56] The employee is not entitled to perfect accommodation, but rather to accommodation that is reasonable in thecircumstances: Central Okanagan School District No. 23 v. Renaud, (SCC), [1992] 2 S.C.R. 970, at pp. 994-95.Although Mr. Stewart was immediately terminated, he was offered the opportunity to apply for employment after six months, providedthat he completed a rehabilitation program at a recognized facility. The employer agreed to pay 50 percent of the cost of the program oncertain conditions being met.

There was also evidence that there would have been vacant positions available had Mr. Stewart applied foremployment after completing the program. [57] We are therefore of the view that it was reasonable for the Tribunal to find that Mr. Stewart was not discriminatedagainst by his employer on the ground of his drug dependency. We would dismiss the appeal. The following are the reasons delivered by Gascon J. (dissenting) — I. Overview [58] Drug dependence is a protected ground of discrimination in human rights law. Its status as such is settled, and noneof the parties dispute this.

Still, stigmas surrounding drug dependence — like the belief that individuals suffering from it are the authorsof their own misfortune or that their concerns are less credible than those of people suffering from other forms of disability — sometimesimpair the ability of courts and society to objectively assess the merits of their discrimination claims.

These stigmas contribute to the“uneasy fit of drug addiction and drug testing policies in the human rights arena” noted by the Alberta Human Rights Commission(“Tribunal”) below (Tribunal reasons, 2012 AHRC 7, at para. 153 ). [59] Yet, as drug-dependent persons represent one of the marginalized communities that could easily be caught in amajoritarian blind spot in the discrimination discourse, they of course require equal protection from the harmful effects of discrimination.In my view, improper considerations relied on by the Tribunal here — such as drug-dependent persons having some control over theirchoices and being treated “equally” to non-drug-dependent persons under drug policies, and drug policies not necessarily being arbitraryor stereotypical — effectively excluded Mr.

Stewart, a drug-dependent person, from the scope of human rights protections. [60] I have read the majority reasons of the Chief Justice and I partially rely on her

summary of the facts and decisionsbelow. I respectfully find, however, that further context relevant to the proper resolution of this appeal should be added to that

summary.I also disagree with her disposition of the prima facie discrimination issue before us. A drug policy that, in application, automaticallyterminates employees who use drugs prima facie discriminates against individuals burdened by drug dependence. The legal threshold forprima facie discrimination is whether a protected ground of the complainant is “a factor” in the harm they suffer. Here, drug dependence(Mr. Stewart’s protected ground) was “a factor” in his drug use (the basis for his termination).

In consequence, the Alcohol, Illegal Drugs& Medications Policy (“Policy”) of the Respondent, Elk Valley Coal Corporation, Cardinal River Operations, under which Mr. Stewartwas terminated for using drugs, is prima facie discriminatory. In my view, the Tribunal’s analysis misunderstood the legal principlesinforming discrimination law, was unsupported by its factual findings, and was therefore unreasonable. [61] I have also read the concurring reasons of Justices Moldaver and Wagner and share their view that the drug policy inthis case prima facie discriminated against Mr. Stewart.

However, I disagree with their disposition of the justification issue. A policythat “accommodates” employees through mechanisms which are either inaccessible by the employee due to their disability or onlyapplicable to the employee post-termination cannot justify prima facie discrimination. Before his termination, Mr. Stewart waspurportedly accommodated by the offer of lenient treatment if he voluntarily disclosed his drug dependence. But that accommodationwas inaccessible by him because he, as the Tribunal found, appeared to have been unaware of his dependence, a symptom of hisdisability.

After his termination, Mr. Stewart was allegedly accommodated by being given the prospect of reapplying for his position.But, again, accommodation assists employees in their sustained employment, not former employees who may, or may not, successfullyreapply for the position they lost as a result of a prima facie discriminatory termination. Since none of Elk Valley’s efforts ataccommodation provided Mr.

Stewart with accessible accommodation during his employment, and since those efforts failed to considerhis individual circumstances in a dignified manner, Elk Valley cannot be said to have discharged its duty to accommodate him as anemployee up to the point of undue hardship. I thus consider that the Tribunal’s findings to the contrary were unreasonable. [62] I fully appreciate the safety-sensitive environment at the workplace of Elk Valley, and how that environmentmotivates strict drug policies for employees. Nevertheless, such policies, even if well intentioned, are not immune from human rightsscrutiny.

In this case, such scrutiny reveals that the Tribunal’s analysis of both discrimination and justification was unreasonable.Accordingly, I would have allowed the appeal. II. Context [63] I have four points to add to the factual background provided by the Chief Justice.

[ 64 ] First, Mr. Stewart had a long career with Elk Valley, starting with its predecessor (Cardinal River Operations Ltd.) in 1996, and ending with his termination in 2005 — a total of nine years. During that career, he moved between various positions. He began by operating a haul truck, then a 170-ton truck, and later a 260-ton truck. He also took training and was certified as a wheel loader operator. His final position at the time of his termination was plant loader operator.

As noted in the dissenting opinion of the Court of Appeal, in a unionized environment like Elk Valley, these years of experience typically confer many benefits on employees, including preferential treatment with respect to layoffs and vacation entitlements. The dissent also noted that Mr. Stewart had a “clean disciplinary record” for those nine years (C.A. reasons, 2015 ABCA 225 , 19 Alta. L.R. (6th) 219, at para. 136 ). The Tribunal made no observations and found no facts to the contrary. [ 65 ] Second, the initial drug policy, implemented by Cardinal River, was jointly agreed to by it and Mr. Stewart’s union.

But the subsequent Policy imposed by Elk Valley, was “unilaterally implemented” (Tribunal reasons, at para. 6). That is the Policy at issue in this appeal. The scope of the Policy’s pre-incident efforts at accommodation is important. It provides that “[n]o employee with a dependency or addiction will be disciplined or involuntarily terminated . . . for voluntarily requesting rehabilitative help in overcoming the problem” (A.R., vol. III, at p. 13 (emphasis added)).

Consequently, the Policy’s pre-incident accommodation is restricted to employees with dependencies or addictions, and, in turn, is accessible only by employees aware of their dependencies or addictions. [ 66 ] Third, the Chief Justice writes that employees were expected to disclose any drug dependency issues before any “drug-related incident” occurred (para. 1) and that Mr. Stewart “tested positive for drugs” (para. 2) following the incident. But there was no finding of fact by the Tribunal either that Mr. Stewart was intoxicated at the time of the incident or that the incident in any way related to his drug use.

Rather, Mr. Stewart had an incident and tested positive for cocaine. Based on Elk Valley’s own expert evidence, this merely meant that Mr. Stewart used drugs as early as two days before the incident. Indeed, Elk Valley’s expert report relied on the factual assumption that Mr. Stewart last used cocaine over 21 hours before the incident. [ 67 ] Finally, I note that the Policy was implemented contrary to its express terms. Textually, the Policy provides for individualized post-incident accommodation.

Specifically, it provides that if an employee tests positive for drugs, then disciplinary action against that employee “will be based on all relevant circumstances”, including: (1) the employee’s employment record; (2) the circumstances surrounding the positive test; (3) the employee’s stated pattern of usage; (4) the likelihood that the employee’s work performance has been or may be adversely affected; and (5) the importance of deterring such behaviour by employees. Here, however, the Policy was implemented with no consideration of Mr. Stewart’s circumstances.

He was terminated without any consideration of a medical or professional assessment of his specific circumstances. Elk Valley’s own fact witness conceded that the Policy’s intent, far from considering individual circumstances, is to impose automatic termination if ever an employee tests positive for drug use. III. Decisions Below [ 68 ] I find that the Chief Justice’s discussion of the decisions below (paras. 6-17) requires additional clarification to provide the proper context to my reasons.

These decisions reflect a significant amount of discord with respect to the proper approach to prima facie discrimination, which must be briefly discussed. In addition, the two decisions below which held that Elk Valley provided insufficient accommodation to Mr. Stewart — the decision of the Court of Queen’s Bench and the dissenting opinion of the Court of Appeal — merit further comments. A.

Inconsistent Approaches to Prima Facie Discrimination [ 69 ] It is undisputed that the basic test for prima facie discrimination involves three steps, namely, (1) the complainant having a protected ground under the relevant human rights legislation (which I will call a “ground”, here drug dependence); (2) the complainant suffering disadvantage (which I will call “harm”, here Mr. Stewart’s termination); and (3) the ground being “a factor” in the complainant’s harm (which I will call “contribution”): Quebec (Commission des droits de la personne et des droits de la jeunesse) v.

Bombardier Inc. (Bombardier Aerospace Training Center) , 2015 SCC 39 , [2015] 2 S.C.R. 789, at para. 35 ; Moore v. British Columbia (Education) , 2012 SCC 61 , [2012] 3 S.C.R. 360, at para. 33 . [ 70 ] Despite this established test, the decisions below rendered by the Tribunal, the Court of Queen’s Bench, and the Court of Appeal majority took different approaches to contribution. These approaches differed in three ways. First, they differed on whether direct discrimination and indirect discrimination are assessed under distinct legal frameworks (and, if so, which frameworks apply to them).

Second, they differed on the scope of the “factor” test for discrimination, including whether a mere factor is sufficient or an enhanced type of factor (e.g. a “material” or “causal” factor) is required, and whether the factor test considers an employer’s discriminatory intent or the discriminatory effect of the employer’s actions. Third, they differed on whether an employee’s choices, or an employer’s arbitrary or stereotypical treatment of the employee, are legally relevant to prima facie discrimination. [ 71 ] The Tribunal took one approach to contribution.

It held that the threshold for contribution is merely whether the complainant’s protected ground is “a factor” in their harm, nothing more (para. 115c)), though the Tribunal elsewhere suggested that a causal link is required (para. 120). The Tribunal found that Mr. Stewart did not satisfy the contribution requirement (para. 129) as he was fired for drug use (violating the Policy), not for drug addiction (his disability) (para. 120). As such, the Tribunal’s implicit reasoning process was that, to satisfy the contribution requirement, Mr.

Stewart’s drug addiction must have been “a factor” in Elk Valley’s decision to terminate him (which goes to Elk Valley’s discriminatory intent), not “a factor” in what led to the termination itself (that is, the discriminatory effect of Elk Valley’s actions). Similarly, the Tribunal’s reasoning process relied on Mr. Stewart’s imprudent choices. The Tribunal wrote that “Mr. Stewart was adversely impacted by the Policy not because of denial through drug impairment but rather because he chose not to stop his drug use” (paras. 120-22).

In addition, the Tribunal reasoned that a ground contributing to harm is correlated with the complainant suffering arbitrary and stereotypical treatment (para. 126). Lastly, the Tribunal relied on formal equality principles (i.e. the view that treating everyone the same avoids discrimination, even if such “neutral” policies adversely affect a minority group). Specifically, it observed that “Mr. Stewart would have been fired whether or not he was an addict or a casual user” (para. 123). [ 72 ] The Court of Queen’s Bench took a different approach to contribution.

It dismissed the motion before it on the basis that Mr. Stewart was terminated for drug use, not for drug addiction ( 2013 ABQB 756 , 581 A.R. 234, at para. 45 ). This part of its reasoning — which appears to assess discriminatory intent rather than discriminatory effect — matches part of the Tribunal’s approach.

However, whereas the Tribunal identified a single test for all discrimination cases (para. 115), the Court of Queen’s Bench adopted abifurcated approach, where “direct discrimination” cases require that an employer intend to discriminate and “indirect discrimination”cases require that an employer’s decision be rooted in arbitrary or stereotypical reasoning (paras. 38, 42 and 45). In addition, the Court ofQueen’s Bench demanded that Mr.

Stewart demonstrate a “causal connection” between his disability and harm (para. 45), a higherthreshold than being a mere “factor” in that harm (the lower threshold apparently applied by the Tribunal for contribution). [73] The majority of the Court of Appeal took a third approach to contribution. It held that a protected ground must be a“real factor” in the complainant’s harm to satisfy the contribution requirement (para. 63), which is different from the “factor” testreferred to by the Tribunal and the “causal factor” test applied by the Court of Queen’s Bench.

The majority also held that the Policy didnot prima facie discriminate because it treated all employees the same, regardless of their disability (paras. 66 and 70), thus relying, likethe Tribunal, on formal equality principles. Further, the majority appeared to apply a distorted version of the bifurcated approachadopted by the Court of Queen’s Bench. The latter ruled that “direct discrimination” cases require intent whereas “indirectdiscrimination” cases require arbitrariness or stereotyping.

In contrast, the majority explained that “direct discrimination” cases requirearbitrariness or stereotyping whereas “indirect discrimination” cases require “a culture of discriminatory employment arrangements”(para. 76). B. Holdings of Insufficient Accommodation [74] Both the Court of Queen’s Bench and the dissenting judge at the Court of Appeal held that Elk Valley failed toreasonably accommodate Mr. Stewart.

While the Chief Justice acknowledges these findings in her reasons (paras. 12 and 17), I find thata more detailed consideration of those decisions is necessary for my purposes. [75] The Court of Queen’s Bench opined that Mr. Stewart was not “reasonably accommodated” (para. 1). It explainedthat Mr. Stewart could not benefit from the pre-incident accommodation offered to him because that accommodation was limited toemployees who had a “dependency or addiction” (para. 61), which Mr. Stewart denied to “some degree” (para. 59), making suchaccommodation inaccessible by “mere drug users” like him (paras. 64-65).

As the Tribunal’s holding of sufficient accommodation relied,in part, on this inaccessible pre-incident accommodation, the Court of Queen’s Bench held that, if Elk Valley did prima faciediscriminate against Mr. Stewart, it failed to sufficiently accommodate him (para. 66). [76] O’Ferrall J.A., in dissent at the Court of Appeal, similarly ruled that Mr. Stewart was not reasonably accommodated(para. 136). He reached this conclusion for four reasons.

First, he found that “any number of options, short of termination” (e.g.suspension without pay) could accomplish Elk Valley’s goal of deterrence while simultaneously accommodating Mr. Stewart andmaintaining his nine years of seniority at the company (para. 136). Second, he noted that the Tribunal’s generalized approach —prioritizing deterrence in all cases — contradicted the individualized approach to reasonable accommodation adopted by this Court (para.137). Third, he opined, like the Court of Queen’s Bench, that the Policy’s pre-incident accommodation was inaccessible by Mr.

Stewartbecause he was unaware of his dependence (para. 138). Fourth, he held that the desire for deterrence could not override individualassessment when such assessment was not only a “procedural duty” under this Court’s jurisprudence but was also required by the Policyin this case (paras. 139-40). IV. Analysis A. Standard of Review [77] I agree with the Chief Justice on the applicable standard of review (para. 22). This Court recently settled the test fordiscrimination (in Bombardier, which applied Moore) and for justification (in Hydro-Québec v.

Syndicat des employé-e-s de techniquesprofessionnelles et de bureau d’Hydro-Québec,

section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561, which appliedBritish Columbia (Public Service Employee Relations Commission) v. BCGSEU, (SCC), [1999] 3 S.C.R. 3(“Meiorin”)). As a result, the decisions below — which at least noted these settled legal principles and merely purported to apply them tothe facts at issue — are reviewed on a reasonableness standard (Bombardier, at para. 73; Mouvement laïque québécois v. Saguenay(City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 50). B.

Prima Facie Discrimination [78] The Chief Justice correctly identifies the three-part test for prima facie discrimination: (1) ground; (2) harm; and (3)contribution (para. 24). She also rightly identifies that the third part of the prima facie discrimination test — contribution — is the onlypart in dispute (para. 25). However, in my respectful view, her analysis, like the decisions below, fails to recognize how the Tribunalapplied the test unreasonably. I will explain my reasoning in three steps. First, I will outline what I consider to be the correct approach tocontribution.

Second, I will explain why the Chief Justice’s approach is, in my opinion, incorrect. Third, I will summarize my assessmentof the unreasonable approach taken by the Tribunal, which was based on legal and conceptual errors and reached a conclusion that wasunsupported by its own factual findings.

(1) The Correct Approach to Contribution [79] The analysis of prima facie discrimination, and, in particular, contribution, is concerned with discriminatory effect,not discriminatory intent (though a proven intent to discriminate against a protected group — a presumably rare circumstance; seeMeiorin, at para. 29 — would make it difficult for an employer to deny prima facie discrimination). [80] The difference between effect and intent, analytically, is best understood from the standpoint of the relationshipunder consideration.

If discriminatory intent were dispositive of contribution, the relevant relationship would be that between anemployee’s protected ground and the corporation’s intent to harm that employee. But contribution emphasizes discriminatory effect.Indeed, for human rights legislation to protect against “indirect discrimination” — i.e. neutral rules with adverse consequences for certaingroups — intent cannot be a requirement for prima facie discrimination (see Bombardier, at paras. 32 and 40; Meiorin, at paras. 29 and31).

Therefore, the relevant relationship addressed by contribution is that between an employee’s ground and harm.

[ 81 ] This Court’s jurisprudence has consistently focussed on discriminatory effect — i.e. on the relationship between an employee’s ground and harm — when assessing contribution. [ 82 ] In Meiorin , where a woman challenged unduly onerous aerobic capacity requirements for forest firefighters, the Court held that those requirements prima facie discriminated because they adversely affected women. When adjudicating prima facie discrimination, the Court gave no consideration to whether the government intended to discriminate against women.

In fact, the aerobic capacity requirements, far from intentionally singling out women, legitimately intended to ensure that forest firefighters, regardless of sex, were sufficiently physically fit to fulfill their employment obligations. [ 83 ] In Moore , where the father of a child with a severe learning disability challenged a school district’s decision to close a centre uniquely capable of educating students with such disabilities, the Court found that decision prima facie discriminatory because it adversely affected those students, even though the motivation behind the decision to close the centre was “exclusively financial” (para. 46) and there was no intent to discriminate against disabled students. [ 84 ] Finally, in Bombardier , the Court rejected an intent approach to prima facie discrimination, writing that “under both Canadian law and Quebec law, the plaintiff is not required to prove that the defendant intended to discriminate against him or her” (para. 40).

This is not surprising, given that many forms of discrimination involve either “multiple factors” or “unconscious” considerations (para. 41), neither of which is captured by an inquiry based on intent. As the Court opined in Bombardier : In a recent decision concerning the Human Rights Code , R.S.O. 1990, c. H.19, the Ontario Court of Appeal found that it is preferable to use the terms commonly used by the courts in dealing with discrimination, such as “connection” and “factor”: Peel Law Assn. v. Pieters , 2013 ONCA 396 , 116 O.R. (3d) 80, at para. 59 .

In that court’s opinion, the use of the modifier “causal” elevates the test beyond what is required, since human rights jurisprudence focuses on the discriminatory effects of conduct rather than on the existence of an intention to discriminate or of direct causes : para. 60. We agree with the Ontario Court of Appeal’s reasoning on this point. [Emphasis

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