Safety issues raised in drug testing debate

Recent court appeal shows workplace safety can trump individual rights against discrimination

Workplace alcohol and drug testing remains a controversial legal and human resource issue for many Canadian employers. The debate has reached a feverish pitch in many provinces before arbitrators, human right tribunals and the courts. With a booming economy, massive large-scale projects and a significant labour shortage in many sectors, employers in Alberta have used alcohol and drug testing at various stages of the employee career cycle (pre-employment; site access; reasonable cause; post-incident; return to work and termination).

The Chiasson appeal

Many employers are awaiting the ruling of the Alberta Court of Appeal in Chiasson v. Kellogg Brown and Root. This case involves pre-employment drug testing of a job applicant who admittedly used marijuana on a recreational basis prior to submitting to the test. The job offer was automatically revoked because of positive test results.

The Chiasson appeal was heard on Oct. 11, 2007. While observers will need to wait for the written decision of the Court of Appeal, it is significant to note how the issue of pre-employment testing was argued during the course of the hearing. The employer argued job applicants who use drugs on a recreational basis are not protected under human rights legislation. As such, there was no duty to accommodate a job applicant who does so. Moreover, recreational drug users in high-risk jobs, particularly in the energy sector, pose safety risks that could trigger occupational health and safety as well as Criminal Code violations.

The Alberta Human Rights Commission argued the employer’s policy discriminated on the basis of perception of disability which then triggered a duty to accommodate the job applicant. The commission relied on the Supreme Court of Canada decision in Commission des droits de la personne & des droits de la jeunesse c. Montréal (Ville), which held that an employer discriminates when it perceives the employee to be disabled. Considerable discussion focused on whether there was sufficient evidence to justify a finding that Chiasson was ever perceived to be disabled. The employer questioned whether a self-acknowledged recreational user was disabled at all, a sentiment echoed by one of the appeal judges. The court also inquired about what protection, if any, is afforded “recreational drug users” who engage in activity which itself arguably contravenes the Criminal Code.

A somewhat analogous situation was considered last year by the Ontario Divisional Court in Chornyj v. Weyerhaeuser Co. Chornyj complained to the Ontario Human Rights Commission that Weyerhaeuser’s pre-employment drug testing was discriminatory and the company’s decision to withdraw its conditional offer of employment after he tested positive for marijuana discriminated against him. The court found the evidence did not support a conclusion that the employer perceived Chornyj as disabled. The court also considered the Chiasson decision and noted that, unlike Chiasson’s situation, a positive drug test did not result in an automatic dismissal or revocation of an offer of employment. A person with a positive drug test was able to continue their employment if they satisfied a number of conditions.

Importance of safety

Particularly important to employers in this appeal is the degree to which safety obligations are reconciled with human right obligations.

It was argued in Chiasson that recent Criminal Code amendments, together with specific statutory obligations and occupational health and safety legislation to provide safe work environments, must play a significant role in determining what an employer can do to combat substance abuse and working under the influence of alcohol or drugs.

In Oak Bay Marina Ltd. v. British Columbia (Human Rights Commission), the British Columbia Court of Appeal stated safety and health regulations need to be interpreted in a way which harmonizes with human rights.

“Even as full adherence must be given to the standards of human rights, human rights tribunals must be mindful of the fuller legal framework regulating an enterprise when it assesses the occupational requirements asserted by that enterprise, and decide in a fashion harmonious with that framework in order not to force non-compliance with some legal obligations in exchange for compliance with the human rights legislation,” the court said.

In the Chiasson appeal, the court asked a number of questions relating to safety and code matters as they pertain to recreational users who test positive. The commission counsel pointed out Chiasson was permitted to work in a safety sensitive job for nine days after being tested and questioned how a delay this long could be reconciled with the employer’s safety concerns. Other interveners argued the prevalence of drugs in Fort McMurray, Alta., together with the high use of drugs in the construction industry generally raised the safety concerns of employers. It remains to be seen what weight the court will give to these arguments.

This decision is particularly important as the appeal clearly focuses the alcohol and drug testing debate along the lines of safety versus human rights. Previous decisions, including that of the Ontario Court of Appeal in Entrop v. Imperial Oil, centered on the technological aspect of testing.

Random alcohol testing versus random drug testing has been largely decided on the basis of the testing methodology that detects impairment rather than on the broader policy issues of safety and human rights.

In Chiasson, based on oral argument, it appears the court and the litigants have framed the issue on the much broader underlying policy issues.

Employers will need to carefully consider what steps they need to take to ensure their policies remain enforceable before human rights tribunals and arbitrators. The importance of creating and administering a policy based on safety compliance remains paramount.

For more information see:

Chiasson v. Kellogg Brown & Root (Canada) Co., 2006 CarswellAlta 621 (Alta. Q.B.).
Québec (Commission des droits de la personne & des droits de la jeunesse) c. Montréal (Ville), 2000 CarswellQue 649 (S.C.C.).
Chornyj v. Weyerhaeuser Co., 2007 CarswellOnt 983 (Ont. Div. Ct.).
Oak Bay Marina Ltd. v. British Columbia (Human Rights Commission), 2002 CarswellBC 2057 (B.C. C.A.).
• Entrop v. Imperial Oil, 2000 CarswellOnt 2525 (Ont. C.A.).

Michael Ford is a partner at McCarthy Tétrault LLP in Calgary specializing in labour and employment law. Hecan be reached at 403-260-3673 or mford@mccarthy.ca.

From the archives

A comprehensive overview of the facts and positions adopted in Chiasson v. Kellogg Brown and Root at both the tribunal stage and the subsequent judicial review in the Alberta Court of Queen’s Bench was set out in the June 7, 2006 issue of Canadian Employment Law Today as well as an online story posted to the website on July 26, 2006.

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