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Monthly Archives: June 2017

SCC Issues Landmark Decision on Workplace Drug Testing


On June 15, 2017, the Supreme Court of Canada (SCC) issued its decision in Stewart v. Elk Valley Coal Corp. This landmark decision is a welcome result for employers as it reaffirms the right of employers to take proactive risk mitigation and management measures through alcohol and drug policies.

In its decision, the SCC held that employers can terminate employees for breaching a drug and alcohol policy even if the employee has a drug addiction.


The appellant in the case, Ian Stewart (Mr. Stewart), worked in a safety-sensitive position for a mine operated by the Elk Valley Coal Corporation (Elk Valley) in Alberta. Recognizing that mine operations can be dangerous, maintaining a safe work environment was a matter of great importance for Elk Valley. Accordingly, Elk Valley implemented a drug and alcohol testing policy (policy) whereby employees were required to disclose any dependency or addiction issues before any drug-related incident occurred.

Under this policy, if an employee revealed a dependency or addiction issue to Elk Valley, he or she would be offered treatment. However, the policy also provided that employees could be terminated if they:

  • Failed to disclose their dependency or addiction;
  • Were involved in a safety incident; and
  • Tested positive for drug use after the incident.

Prior to the implementation of the policy, Elk Valley held training sessions for employees where the policy was presented and explained. All employees were required to sign acknowledgement forms to indicate they understood the policy. Mr. Stewart attended one of the training sessions and signed the acknowledgment form indicating that he understood and agreed to comply with the terms of the policy.

Approximately six months after the implementation of the policy, Mr. Stewart was involved in a workplace accident. During the subsequent investigation, Mr. Stewart was required to undergo a post-accident drug test where he tested positive for cocaine use. Mr. Stewart was then terminated by Elk Valley for violating the policy.

Mr. Stewart then filed a complaint with the Alberta Human Rights Commission alleging discrimination under Alberta’s Human Rights, Citizenship and Multiculturalism Act (the Act) on the grounds of a physical disability connected with his drug addiction. Mr. Stewart’s side argued that his failure to comply with Elk Valley’s policy was the result of a symptom of his addiction, and, therefore, his termination was contrary to the Act. The Alberta Human Rights Tribunal held that Mr. Stewart was justifiably terminated for breaching Elk Valley’s policy, not because of his addiction. This decision was affirmed by the Alberta Court of Queen’s Bench and by the Alberta Court of Appeal.

Supreme Court of Canada’s Decision

In an 8-1 decision, the SCC gave deference to the Alberta Human Rights Tribunal’s findings and the lower courts’ rulings that Mr. Stewart’s disability was a not a factor in his termination. Instead, the SCC found that Mr. Stewart was dismissed because he failed to adhere with the terms of Elk Valley’s drug and alcohol testing policy. Therefore, Elk Valley did not violate Mr. Stewart’s rights under the Act when he was dismissed.

In particular, the SCC accepted that since Elk Valley’s policy distinguished between disclosing drug use before and after testing positive, Mr. Stewart had the capacity to comply with the policy despite his addiction. Accordingly, Elk Valley terminated Mr. Stewart for breaching a policy that he could have complied with, not for having a drug addiction. As such, the SCC found that the circumstances of Mr. Stewart’s termination did not raise to a prima facie case of discrimination. Moreover, since the SCC did not find a prima facie case of discrimination, it was not necessary to consider whether accommodating Mr. Stewart would impose an undue hardship on Elk Valley.

Key Takeaways for Employers

The SCC’s decision is a clear win for employers that seek to ensure a safe work environment for their employees. The ruling reaffirms that employers with properly designed drug and alcohol policies have the ability to terminate employees who violate those policies, even when drug addiction is involved. What’s more, employers should consider the following:

  • When developing drug and alcohol policies, including accommodations for addiction can help ensure that employees are incentivized to disclose drug dependency before risky behaviour takes place in a safety-sensitive workplace; and
  • When implementing drug and alcohol policies, employers should make sure that adequate training is provided to employees and that employees expressly acknowledge their understanding of the policy.

Of course, the circumstances in each workplace differ. Accordingly, we encourage employers to discuss issues surrounding drug and alcohol policies and related terminations with their legal counsel before proceeding.

©  Zywave, Inc. All rights reserved.

New Commercial Fishing Vessel Safety Regulations are Coming


Changes to Fishing Vessel Safety Regulations will come into force beginning July 13, 2017—one year after they were initially announced. Transport Canada has said these regulations will help reduce fatalities, injuries, and loss or damage to vessels in the commercial fishing industry.

These changes amend the previous Small Fishing Vessel Inspection Regulations, which have not been updated in 40 years or kept up with industry best practices and new technologies.

Action Steps

In general, the Fishing Vessel Safety Regulations apply to small fishing vessels that are less than 24.4 metres in length and 150 gross tonnage. Transport Canada’s one-year transition of the regulations will come to a close July 13, 2017, and fishing vessel owners will need to comply with the new requirements.

The following are some major highlights from the regulation:

  • Safety equipment. As per the new regulation, small fishing vessels must have firefighting equipment (portable fire extinguishers) on board. Personal life-saving appliances are also required for all small fishing vessels, and items like life rafts, immersion suits and lifebuoys must be readily available.
  • Safe operating procedures. The new regulations require small fishing vessels to provide safe operating procedures in writing to the crew. These procedures must meet the language needs of the crew, and will most likely be written in English and/or French. To execute these procedures, the fishing vessel crew should be familiar with the following:
    • The location and use of all safety equipment
    • General safety measures, including how to prevent people from falling overboard, how to retrieve someone who has fallen overboard, how to protect limbs from rotating equipment, and how to avoid ropes, docking lines, nets and other safety equipment
    • How to activate the quick release of loads during an emergency, particularly when beam trawling and purse seining
    • Fire and explosion prevention methods
    • Measures related to maintaining water- and weather-tightness, thus preventing flooding of the hull interior
    • Safe loading, stowage and unloading practices, particularly as they relate to fish catches, baits and consumables
    • Towing and lifting equipment operating procedures

While written safety procedures do not need Transport Canada approval, marine safety inspectors may ask to see copies of the written safety procedures on board the vessel.

  • Safety drills. Drills on safety procedures must be held to ensure that the crew is proficient in carrying them out. A record must be kept of every drill.
  • Vessel stability. New and small fishing vessels that have a hull length between 9 and 24.4 metres are required to have a formal stability assessment. In addition, new and small fishing vessels that have a hull length of less than 6 metres must be compliant with the standards for buoyancy, flotation and stability set out in Section 4 of the Construction Standards for Small Vessels. New and small fishing vessels with a hull length between 6 and 9 metres are required to be compliant with recommended practices and standards specific to their vessel type and their intended operations.
  • Stability assessments. A full stability assessment consists of inclining the vessel and developing a stability booklet. Doing so helps operators understand the limits of their vessels and, in turn, allows the crew to load them in a safe manner and to avoid the risks associated with swamping, capsizing, foundering and sinking. Under the new regulations, stability assessments—either full or simplified—are required for the following vessels:
    • New and small fishing vessels that have a hull length greater than 9 metres
    • Existing small fishing vessels that have a hull length greater than 9 metres and have undergone a major modification that’s likely to impact overall stability
    • Existing fishing vessels that weigh more than 15 gross tonnage and are used for catching herring or capelin
    • Fishing vessels that are fitted with an anti-roll tank
    • Small fishing vessels that carry fish in bulk, exhibit free-surface effects or have a hull length of more than 18 metres

Improving Safety

As previously mentioned, the government hopes the new regulations will make commercial fishing safer. According to Transport Canada, commercial fishing is one of the most dangerous occupations in Canada. New safety requirements may help reduce the two primary causes of fatalities on commercial fishing vessels—stability-related accidents (58 per cent of fatalities) and falling overboard (27 per cent of fatalities).

Many commercial fishermen and women support the new legislation, but have requested more clarity on required standard operating procedures and more time to acquire expensive safety equipment. To read the legislation in full, click here.

© Zywave, Inc. All rights reserved

1 in 4 Internet Users Don’t Know How to Respond to a Ransomware Attack

The 2017 Centre for International Governance Innovation (CIGI)-Ipsos Global Study on Internet Security and Trust, which surveyed 24,255 users across multiple countries, recently found that 1 in 4 internet users would have no idea how to respond to a ransomware attack. In addition, the study found that just 16 per cent of users would know how to retrieve data from a backup while another 13 per cent wouldn’t even attempt to recover data if vital information was compromised.

This survey comes on the heels of the recent WannaCry ransomware attacks, which impacted over 200,000 users in at least 150 countries. Initial reports indicated that the WannaCry attack used ransomware to hijack computer systems and demand money in the form of bitcoin, a type of digital payment system.

The ransomware initially requested around $300 and, if no payment was made, it threatened to double the amount after three days and delete files within seven days. This type of cyber attack is common and can impact businesses of any size, so it’s important to know what steps to take in order to protect your business.

The WannaCry attacks illustrate the importance of ensuring that any and all software patches are up to date. For further protection, consider training every employee on cyber security, and instruct them to never click on suspicious emails or attachments.

Other ransomware precautions include the following:

  • Update your network if you haven’t yet and implement the appropriate software patches.
  • Turn on auto-updaters, if available.
  • Don’t click on links that you don’t recognize.
  • Don’t download files from people you don’t know.
  • Back up your documents regularly.

Following this attack, organizations are likely to be more proactive in adjusting security measures so malware can’t spread automatically. Taking these precautions into mind, your organization can avoid potentially costly ransomware attacks. As an added benefit, a higher focus on in-network security measures can make your organization more attractive to potential customers and other third parties.

© Zywave, Inc. All rights reserved

5 Tips for Restoring Your Business Following a Flood

Recently, Canada has experienced some of the worst flooding in decades, and torrential rain has led to mandatory evacuations and a state of emergency in parts of the country. Flash floods are extremely common and can occur within minutes of excessive rainfall, a dam or levee failure, or a sudden release of water held by an ice jam.

Floods can be miserable ordeals, even with extensive preparation. They can spring up with little to no warning and burden you with the responsibility of a lengthy, expensive restoration period. To properly restore a business after a flood, consider the following five tips:

  1. Notify your insurer. Take pictures of contents and damage for your insurer. The more pictures, the better.
  2. Check for structural damage before entering the building. Do not enter if there is any chance it may collapse. Assume that all water-damaged structures are unstable until proven otherwise.
  3. Use a pump and generator to remove water. Position the generator outside in the open air if it produces carbon monoxide. Only pump out water once the flood levels outside your property are lower than they are inside.
  4. Disinfect your property with ordinary household cleaners, but follow the manufacturer’s directions to ensure you are disinfecting properly. Let cleaned surfaces dry completely.
  5. Make the most out of an unfortunate situation by using your flood damage as an opportunity to repair your property with flood-resistant products.

Remember, the ultimate preparation for a flood is proper insurance. Be sure to purchase a comprehensive policy that accounts for business interruption and is tailored to your specific industry and location.

© Zywave, Inc. All rights reserved



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