Drug-testing picture gets murkier for employers

Alberta Court of Appeal overturns lower court’s decision that drug testing is discrimination, adding to confusion for employers

Stuart Rudner
The reality of the employment law world is the difficulty, if not impossibility, of predicting with certainty how a court will treat a particular issue. This fact is very evident in a recent Alberta court decision on pre-employment drug testing.

The June 7, 2006, issue of Canadian Employment Law Today and an online article posted July 26, 2006, discussed the Alberta Court of Queen’s Bench ruling in Chiasson v. Kellogg Brown & Root (Canada) Co., a follow-up to a previous decision rendered by the Alberta Human Rights Tribunal.

In the online article, I said that the tribunal’s decision seemed to be at odds with the Ontario Court of Appeal in Entrop vs. Imperial Oil Ltd., widely acknowledged as the leading authority in Canada with respect to drug testing of employees. The Alberta court seemed to agree, reversing the tribunal’s decision in a manner more consistent with Entrop. However, the Alberta Court of Appeal has recently contradicted the positions of the Alberta Court of Queen’s Bench and the Ontario Court of Appeal by reaching the opposite conclusion.

John Chiasson applied for employment with Kellogg, Brown & Root (KBR). There was no dispute safety was a concern in KBR’s work environment. Company policy required pre-employment drug testing and was clear that any positive result would lead to a refusal to hire. Chiasson’s test result came back positive for marijuana.

Chiasson had already been working for nine days when the test results became known and KBR immediately dismissed him. There was no indication he was addicted to drugs and he claimed he was a recreational marijuana user and not addicted in any way. In upholding the dismissal, the tribunal found since Chiasson did not suffer from a disability, he was not discriminated against and there was no duty to accommodate him. The Court of Queen’s Bench, in a decision consistent with Entrop, found the effect of the drug testing policy was to discriminate against casual users by perceiving them as drug addicts. Of course, human rights legislation protects not only those who are disabled, but also those who suffer from a perceived disability. Therefore, the court found the dismissal was a violation of Alberta human rights legislation, which is similar to human rights legislation across the country.

The Court of Queen’s Bench decision, while consistent with leading case law, was subject to much criticism from employers who felt human rights legislation should not be used to protect recreational drug users. The Court of Appeal’s decision would seem to be more in line with that “common-sense approach.” The court focused on the purpose of the policy, which was safety. It also took into account the effects of marijuana linger for several days and this can have a direct impact upon the safety of the user and those around him.

“Some of the lingering effects raise concerns regarding the user’s ability to function in a safety-challenged environment,” the court said. “The policy is directed at actual effects suffered by recreational cannabis users, not perceived effects suffered by addicts of cannabis.”

By framing the question the way it did, the court did not have to consider the issue of the duty to accommodate, undue hardship or bona fide occupational requirements. Instead, it simply assessed whether there was any actual discrimination based upon a prohibited ground. In finding none, it has arguably established a second line of case law on this issue, diverging from Entrop.

As this area of law is still in its relative infancy, it remains to be seen which line of cases will be followed. In the interim, employers are advised to proceed with caution when they draft, implement, and enforce drug-testing policies. In particular, courts and human rights tribunals will be alert to situations where there is no legitimate safety concern. While KBR succeeded at the Court of Appeal, the lower court certainly took note of the fact Chiasson had worked for nine days without incident. It is not advisable to allow an individual to start working before the results of a pre-employment test are known if the employer wants to be able to argue the results of the test are sufficiently important to warrant a refusal to hire.

For more information see:

Chiasson v. Kellogg Brown & Root (Canada) Co., 2007 CarswellAlta 1833 (Alta. C.A.).

Entrop vs. Imperial Oil Ltd., 2000 CarswellOnt 2525 (Ont. C.A.).

Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP's Toronto office. He can be reached at (416) 595-8672 or [email protected]

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