Alberta Human Rights Information Service October 11, 2017

In this issue:
Human rights case law: Court and tribunal decisions
Commission news
Publications and resources

HUMAN RIGHTS CASE LAW: COURT AND TRIBUNAL DECISIONS

1. Important court decision related to human rights:
Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII) (Supreme Court of Canada, June 15, 2017)
The Supreme Court of Canada determines Alberta case involving drug dependency and human rights 

The appellant, Mr. Stewart, was involved in a minor workplace collision at a coal mine. After the accident, he was tested for alcohol and drugs. When Mr. Stewart tested positive for cocaine, his employer terminated him, pursuant to the employer’s drug and alcohol policy which, essentially, stated: If an employee discloses his drug use before an accident occurred, there will be no adverse consequences. But, if an employee does not disclose his drug use until after an accident, then the employee will be terminated.

Mr. Stewart filed a complaint with the Alberta Human Rights Commission alleging discrimination on the protected ground of disability, a drug addiction. His complaint alleged that his drug addiction put him in a state of denial about his drug use, which allegedly explained why he did not disclose his drug use before the accident.

The Alberta Human Rights Tribunal held that there was no prima facie (“on its face”) discrimination since the evidence indicated that, notwithstanding his drug addiction, Mr. Stewart’s addiction was not so severe as to render him incapable of making the choice to disclose or not. Accordingly, the Tribunal decided that Mr. Stewart’s termination was caused by his choice to not comply with his employer’s drug use policy and it was not caused by the employer’s alleged discrimination toward an employee suffering from a disability.

The Tribunal’s decision was affirmed on appeals both to the Court of Queen's Bench and the Alberta Court of Appeal. 

On a final appeal, the majority of the Supreme Court agreed with the Tribunal’s decision and found that there was sufficient evidence to support the Tribunal’s conclusion that the decision for the termination was not addiction, but rather Mr. Stewart’s choice to not comply with its self-report policy. Therefore, Mr. Stewart’s drug use was not a factor in his employer’s decision to terminate his employment. If there was no prima facie discrimination in the first place, then, the majority stated, there was no need to consider whether the employer’s adverse impact of termination was justifiable. 

However, there was a robust dissent rendered by Gascon, J. who stated that any workplace drug policy that “automatically” terminates employees who use drugs appears to be at least prima facie discriminatory toward those burdened by drug dependence. Justice Gascon stated that the legal threshold for prima facie discrimination is simply whether the complainant’s protected ground was a factor in the adverse consequences that followed and that it is too high a threshold to require a complainant to additionally prove that a factor caused an adverse impact such as job termination. Further, Gascon J. indicated that if an employee must first prove a causal link between a protected ground and an adverse impact, then that would essentially require the employee, instead of the employer, to prove whether or not the employer discriminated. In this case, that would mean requiring Mr. Stewart to prove whether choice was the cause of the adverse impact of his job being terminated (inferring no discrimination against the employee) or whether addiction was the cause of the adverse impact (inferring possible discrimination against a disabled employee). Justice Gascon reasoned that the majority’s approach to prima facie discrimination amounts to asking the employee to essentially prove the employer’s defence. 

For now, though, the law is that unless an employee can, from the outset, prove that his or her drug dependency was severe enough to render the employee fully incapable of making a choice to comply or not with an employer’s alcohol and drug policy, then an employer is not being discriminatory in terminating any employee who breaches such policy.

2. The Commission recently released the following tribunal decisions:

  • Morley Johnsen v. Pro Line Property Maintenance Ltd. (September 5, 2017; Joanne Archibald, Tribunal Chair)
  • Sandra Binks v. Trinidad Drilling Ltd. (August 25, 2017; Karen Scott, Tribunal Chair)
  • Dean Redhead v. Pillar Resource Services Inc. (Preliminary matters decision re delay; August 24, 2017; Joanne Archibald, Tribunal Chair)
  • Ashley Penner v. Irish Pub Holdings Inc. o/a Molly Malone’s Irish Pub (August 16, 2017; Melissa L. Luhtanen, Tribunal Chair)
  • Naomi Kowtook v. Carillion Canada Inc. (August 16, 2017; Kathryn Oviatt, Tribunal Chair)
  • Kathalin Horvath v. Rocky View School Division No. 41 (Supplementary Decision on Remedy Re CPP Disability Benefits; August 10, 2017; William D. McFetridge, Q.C., Tribunal Chair)

These tribunal decisions can be accessed free of charge through the Canadian Legal Information Institute (CanLII) website.

COMMISSION NEWS

1. Acting Chief of the Commission and Tribunals appointed
The Minister of Justice and Solicitor General, Kathleen Ganley, has appointed William D. McFetridge, Q.C., as Acting Chief of the Commission and Tribunals of the Alberta Human Rights Commission, through a Ministerial Order signed August 23, 2017.

Mr. McFetridge has served as a Member of the Commission since September 30, 2010. He received his Bachelor of Arts from the University of Alberta and his Law degree from the University of Calgary. Mr. McFetridge is a Chartered Arbitrator and since 1983 has chaired interest and rights arbitrations to resolve grievances and collective bargaining disputes in the public and private sectors. Mr. McFetridge brings to the Commission an extensive legal background including over 35 years of experience in the industrial relations field. You can read more about Mr. McFetridge on the Biographies page.

2. Commission bids farewell to outgoing Chief Robert A. Philp
Robert A. Philp, Queen’s Counsel, completed his term as Chief of the Commission and Tribunals on June 30, 2017. Commission staff express their gratitude for the leadership provided by Mr. Philp who was strongly committed to human rights, the principle of full inclusion for all, and the complex and multi-faceted work of the Commission.

3. Commission congratulates Janice R. Ashcroft, Q.C., on appointment to Court of Queen’s Bench of Alberta
Janice R. Ashcroft, Q.C., Senior Legal Counsel to the Chief of the Commission and Tribunals, Alberta Human Rights Commission, was appointed a justice of the Court of Queen’s Bench of Alberta in Calgary on June 23, 2017. During her 19 years at the Commission, Justice Ashcroft was a committed ambassador for human rights in Alberta, litigating cases for the Commission in her early years as legal counsel for the Director of the Commission and advising tribunal members as senior legal counsel to the Chief of the Commission and Tribunals in recent years. She also spoke regularly at educational forums and conferences about human rights and administrative law issues.

Justice Ashcroft’s commitment to and empathy for vulnerable Albertans will be an enduring legacy. Her colleagues and friends at the Commission congratulate her and wish her the best in her new role. You can read the news release from Justice Canada.

4. Acting Director of the Commission appointed
John Gabriele has been appointed as Acting Director of the Alberta Human Rights Commission, effective August 22, 2017. You can read the Order in Council

5. Commission bids farewell to Don Smallwood
On June 30, 2017, Don Smallwood left his position as Director of the Commission to take a new position within the Ministry of Justice and Solicitor General as Executive Director, Claims and Recoveries Branch, Justice Services Division. Mr. Smallwood served as Director of the Commission from April 2, 2012 to June 30, 2017. Commission staff express their gratitude for the leadership provided by Mr. Smallwood during his tenure at the Commission. His hard work and commitment to human rights have moved the work of the Commission forward in significant ways over the last five years.

6. Upcoming Human Rights in the Workplace public workshops: The Commission offers the following public workshops, intended for anyone wanting basic human rights information:

Edmonton
Date: October 18, 2017
Time: 9:00 a.m. to 4:00 p.m.
Location: Radisson Hotel Edmonton South, 4440 Gateway Blvd., Edmonton
Fee: The workshop fee is $125.00 plus GST, totaling $131.25. Lunch is included.

You can read more and register online for the October 18, 2017 public workshop.

Calgary
Date: October 25, 2017
Time: 9:00 a.m. to 4:00 p.m.
Location: Acclaim Hotel Calgary Airport, 123 Freeport Boulevard NE
Fee: The workshop fee is $125.00 plus GST, totaling $131.25. Lunch is included.
 
You can read more and register online for the October 25, 2017 public workshop.

7. Upcoming forums:
Human Rights in Employment Forum Series: Understanding Gender Identity and Gender Expression in the Workplace

The Commission is offering a forum on Understanding Gender Identity and Gender Expression in the Workplace.
Edmonton: February 7, 2018
Calgary: February 28, 2018
You can read more about the upcoming forums.

8. E-learning Centre: What’s new?
Are you an Alberta employer or employee who wants to learn more about how to accommodate employees in the workplace? If so, the Commission has a webinar series on Duty to Accommodate in Workplaces. These webcasts are free for on-demand viewing with registration:

  • Overview: offers information for employers on how to accommodate employees and potential employees and describes the rights and responsibilities of employers and employees in the process.
  • Undue Hardship: explains undue hardship and what constitutes undue hardship when providing an accommodation for an employee.
  • Bona Fide Occupational Requirement: describes the concept of a bona fide occupational requirement and outlines the 3-part test set out by the Supreme Court of Canada.

You can view other webcasts and playlists available on the Commission's E-learning page. 

9. Recently completed project funded in part by a grant from the Human Rights Education and Multiculturalism Fund: 

 

Funded in part by a grant from the Human Rights Education and Multiculturalism Fund, the Voice of Albertans with Disabilities Society recently completed collaborative work with the Alberta Lodging and Housing Association and other organizations to identify accessibility barriers to Alberta hotels, motels and lodges. The project summary includes an international literature review of current accessibility standards, the results of a survey of Albertans with disabilities and hotel managers on existing conditions, and recommendations for changes to improve accessibility. In addition, three resource tools were developed: structural diagrams of accessible hotel rooms, a self-assessment guide for hotels to evaluate property accessibility, and an assessment tool for travellers with suggestions on what to look for when selecting a potential lodging. There are plans to follow up on final report recommendations with the Alberta Lodging and Housing Association and stakeholders. For more information, contact Voice of Albertans with Disabilities Society at vad@vadsociety.ca.

10. Canadian Coalition of Municipalities Against Racism and Discrimination (CCMARD) update:
Strathcona County has recently joined CCMARD, bringing the total number of municipalities involved in the Coalition to 72, including 17 Alberta municipalities. Read the List of Signatory Municipalities who have joined the Coalition.

PUBLICATIONS AND RESOURCES

1. Shelter guidelines for LGBTQ2S youth housing
The Government of Alberta released guidelines for Alberta’s housing and homelessness system to help ensure LGBTQ2S youth feel safe and accepted when using services. You can read the Government of Alberta news release  and the LGBTQ2S Youth Housing and Shelter Guidelines.

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