In the instant case, the employee, “Stewart”, was a heavy machine operator with nine years’ of seniority. On October 18, 2005 Stewart was operating a loader truck when he struck another truck on the site, breaking its mirror. Under the company’s drug and alcohol policy, this constituted a “significant event” and Stewart was directed to submit a urine sample which tested positive for cocaine-type drugs. He was immediately suspended.
The employer undertook an investigation meeting among management, Stewart, and his union representative. Stewart disclosed that he had used cocaine between 7 and 8pm on the evening before the collision when he reported for work at 6:30am. He further disclosed that he was a frequent user of crack cocaine on his days off, and had previously used crystal methamphetamine and marijuana. At that meeting, the employee stated for the first time that he thought he had a problem with drug dependence. He had never previously disclosed his drug use or sought rehabilitative assistance which was available to him under the drug and alcohol policy.
On November 3, 2005, Elk Valley dismissed Stewart. The termination letter referenced his violation of the drug and alcohol policy, and that the employer placed primary importance on deterring similar behaviour by other employees. The employer left the door open for Stewart to reapply for new employment with the company, as was its past practice.
The Union grieved the termination, and was initially successful at arbitration. However, the arbitrator’s decision was overturned on judicial review by the Alberta Court of Queen’s Bench. The Union then decided to make an application to the Alberta Human Rights Tribunal, alleging discrimination on the basis of disability. This application was denied, as was the Union’s appeal to the Court of Queen’s Bench. At the Alberta Court of Appeal, the employer once more came out on top.
A majority of the Court endorsed the Tribunal's finding that the employee was dismissed, not because of his drug addiction, but because he breached the policy by showing up to work while at risk of being impaired. In this case, the Court accepted the important evidence that the employee retained the capacity to decide whether or not to take drugs before attending work. At paragraph 35 the Court of Appeal stated: