Supreme Court Upholds Termination for Violation of Anti-Drug Policy

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Can an employee be fired for violating his company’s drugs and alcohol policy, if the reason he violated such a policy was because he was addicted to an illegal drug?

For many years, most Ontario employment and human rights lawyers would have hesitantly answered that question with a “probably not”. Those who practice management-side would have sighed in frustration while they provided such advice, while those who act for employees would have adamantly pointed to human rights’ legislation prohibiting discrimination on the basis of such a recognized disability.

In June of 2017, the Supreme Court of Canada released its decision in the case of Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII). In that case, Canada’s top court upheld a termination of employment on the basis that the employee had breached the company’s anti-alcohol and drugs policy.

Supreme Court of Canada Denies Leave to Appeal in Oudin: But Does That Really Mean Anything?

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On February 2, 2017, the Supreme Court of Canada denied the application for leave to appeal from the judgment of the Court of Appeal for Ontario in Oudin v. Centre Francophone de Toronto, 2016 ONCA 514, dated June 28, 2016. As is customary of the Supreme Court, no reasons for the decision to deny leave were provided.

I previously blogged about the Oudin decision in the post The ONCA’s Decision in Oudin v. CFT Leaves One 'Wundering' – Is Wunderman Dead?, which was actually cited to the Supreme Court by the Applicant as one reason leave should be granted.

So what does the fact that the Supreme Court of Canada denied leave really mean for Ontario employment law?

No Cause? Then No Dismissal for Non-Unionized Federal Employees – The Supreme Court of Canada Shakes Up Canadian Employment Law

At the end of 2015, I proclaimed the Supreme Court of Canada’s decision to grant leave to appeal from a decision of the Federal Court of Appeal the most important decision to Canadian employment law of that year. (See Top Five Cases of Importance to Ontario Employment Law - 2015.) My reason for doing so was simple:

The Federal Court of Appeal’s decision in Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 was unanimous: A federally regulated employer can dismiss an employee without cause. While that statement may sound obvious, given the provisions of section 240 of the Canada Labour Code the same was far from a given. Indeed, given the Supreme Court’s decision to hear the appeal I would suggest that it still is not.

It is the fact that the Supremes are willing to hear the appeal, which was unanimous, and which upheld a previous decision of the Federal Court suggests to me that the Supreme Court of Canada is not entirely certain that the Federal Court got it right.

Although I somewhat reserved my prediction on matters, it would turn out I was right: The Supremes did grant leave because they doubted the correctness of the Federal Court of Appeal's decision.

On July 14, 2016, the Supreme Court of Canada (“SCC”) laid down its decision in the case of Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29.

In doing so, the Supreme Court has finally settled years of debate among Canada’s employment lawyers as to whether non-unionized federally regulated employees can be let go without cause, with a resounding “No!”.

Supreme Court of Canada Confirms that There are Two Paths to Constructive Dismissal

Under what set of circumstances can a non-unionized employee claim to have been constructively dismissed?

In a recent decision from the Supreme Court of Canada, Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, Canada's top court confirmed that there are two possible ways by which an employee can be constructively dismissed.

Making Sense of the Division of Powers in Employment Standards Legislation

The regulation of employment standards in Canada is complicated and confusing. Both the federal and provincial governments have the legal ability to regulate employment, but only within their own, separate spheres of influence. The power is divided; not shared. This division of powers can result in confusion and debate as to exactly which set of laws govern the workplace.

The debate is not wholly academic. For example, in Ontario “Family Day”, being the third Monday in February, is prescribed as a public holiday for the purpose of the definition of “public holiday” in section 1 of the Ontario Employment Standards Act, 2000. Family Day is a ‘statutory holiday,’ but only for employees whose employment is subject to that statutory law. Not all employees who work in Ontario are subject to the Ontario Employment Standards Act, 2000; some workers are subject to the provisions of the Canada Labour Code.

Deciding which statute applies to the employment relationship can be a frustrating exercise. More than once employers and employees have found themselves before Canada’s highest court seeking direction as to which law is to apply. The 2009 decision of the Supreme Court of Canada in Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, [2009] 3 SCR 407, 2009 SCC 53 (CanLII) is a paradigmatic example of such a case.

The purpose of this page is to attempt to provide an overview as to the division of powers and which law may apply. The page should be read with caution, as resolving which law applies can be much more complicated than it first appears. A reading of the Consolidated Fastfrate decision should disabuse anyone of the notion that this is a straightforward issue. Employers and employees uncertain as to which employment standards legislation applies to their situation would be prudent to seek a formal opinion on the subject before acting.