June 15, 2017
The Supreme Court of Canada released its judgment today in the case of Brent Bish on behalf of Ian Stewart v. Elk Valley Coal Corporation, Cardinal River Operations, et al., 2017 SCC 30. ARCH Disability Law Centre lawyers, Karen R. Spector and Mariam Shanouda, represented the Council of Canadians with Disabilities (CCD) and the Empowerment Council (EC) as joint interveners before the Court.
CCD/EC is concerned with the majoritys decision to dismiss the appeal, finding that there was no discrimination based on the particular set of circumstances before the Court. However, the jurisprudence on the prima facie test for discrimination as set out in Moore v. British Columbia (Education) SCC 2012 61 (Moore) and Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Aerospace Training Center), 2015 SCC 39 (Bombardier) remains strong and was not overturned by the Court.
The Chief Justice, writing for the majority, re-affirmed that the test set out in Moore and Bombardier is based on three requirements, with no need to add a fourth: 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 (para. 45).
This re-affirmation is important as it directs the lower courts and tribunals to refrain from importing additional factors into the prima facie legal test which raises the threshold to a much higher standard than it is intended to be.
CCD/EC made submissions regarding the barriers in the workplace faced by persons with addictions disabilities including the challenges of disclosing their disability-related needs for accommodation. CCD/EC also made arguments regarding the scope of the employers duty to accommodate including in circumstances where the employees failure to disclose their disability is itself disability-related.
CCD/EC welcome the lengthy dissent by Gascon, J., who found that the prima facie test for discrimination had been met and that the test for undue hardship had not been satisfied. In his dissent, Gascon J. paraphrased CCD/ECs factum and stated, As one intervener put it, drug dependence whether through stigma or denial can be a factor in an employees failure to voluntarily disclose their disability. On that basis, prima facie discrimination was satisfied here. (para. 119)
Gascon J. emphasized that human rights protection extend to persons with addictions disabilities, who:
represent one of the marginalized communities that could easily be caught in a majoritarian 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 their choices and being treated equally to non-drug-dependent persons under drug policies, and drug policies not necessarily being arbitrary or stereotypical effectively excluded Mr. Stewart, a drug-dependent person, from the scope of human rights protections. (para. 59)
April DAubin, Research Analyst at CCD states, The legal test for prima facie discrimination is at the cornerstone of human rights. The courts confirmation of the three-part test maintains the appropriate threshold for establishing discrimination.
Jennifer Chambers, Executive Director of the Empowerment Council states, Persons with mental health disabilities, including addictions disabilities, often experience discrimination and moral judgment. It is essential for persons with addictions disabilities to be included within the scope of human rights protections as recognized by Justice Gascon in his dissent.
For further information, please contact:
James Hicks, CCD National Coordinator: 343-291-1118, or
April DAubin, CCD Research Analyst: 204-947-0303.
Jennifer Chambers, Executive Director, Empowerment Council: firstname.lastname@example.org
Karen R. Spector, ARCH Legal Counsel: 416-482-8255
Original at http://www.archdisabilitylaw.ca/node/1211