The Applicant, North American Construction Group Inc., sought to nullify the appointment of a Human Rights Panel to consider the complaint of Glenn Todd Davis (“Davis”) who filed a complaint against North American Construction Group Inc. after a drug test taken as a condition of employment uncovered his history of marijuana use. Davis claimed that the marijuana use was for medicinal purposes only; however, he was held to have lied to the testing lab and to representatives of North American Construction Group Inc. and so he forfeited the right to avail himself of any personal remedy.

25. November 2003 0

Administrative law – Human rights complaints – Discrimination – Drug and alcohol testing – Occupational requirement – Employment law – Condition of employment – Judicial review – Standard of review – Reasonableness simpliciter

North American Construction Group Inc. v. Alberta Human Rights and Citizenship Commission, [2003] A.J. No. 1198, Alberta Court of Queen’s Bench, September 5, 2003, Cooke J.

Given the public policy aspect of the discriminatory practice, the court held that although Davis’ conduct had been found to have disentitled him from any private remedy, this did not alter the finding that North American Construction Group’s stated hiring policy constituted a discriminatory practice under section 8 of the Human Rights, Citizenship and Multiculturalism Act, S.A. 2000, c.H-14. Section 8(2) of the Act provided that subsection 1, which prohibits discrimination based on physical disability, would not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

Thus, the issue of the extent to which absence of a drug or alcohol consumption is a bona fide occupational requirement was a factual matter that was to be addressed by a considerable degree of expertise. The court noted that, if for example, the test was not total abstinence, the question became at what point in respect of what employment functions does such consumption fall within the bona fide occupational requirement, thus avoiding the finding of discrimination based on physical disability?

The court reviewed the decision of the Chief Commissioner to appoint a Human Rights Panel to investigate this matter, according to the standard of reasonableness simpliciter. The court held that the decision of the Commission and the Chief Commissioner was entirely supported by the evidence, the legislation and the judicial authority on the subject. The court noted that the Respondent Alberta Human Rights Commission should wish to have this issue examined before a Hearing Panel, particularly with a view to establishing the parameters of the bona fide occupational requirement exemption. In the court’s view, this issue was of significant concern, both from the point of view of safety of fellow workers and consequent litigation for tort and/or contractual breach actions. In the result, the application for the prohibition to prevent the Chief Commissioner from appointing a Human Rights Panel pursuant to section 27(1) of the Human Right, Citizenship and Multicultural Act was denied.

The court also noted that the denial of a private remedy to Davis did not extend to his rights as a member of the Canadian work force to make application for work in the future. One possible remedy available to the appointed panel would be to find that the North American Construction Group Inc. should cease the application of their pre-employment drug test and that no individual remedy should be recommended for the Complainant. If the Human Rights Commission was not satisfied with the ultimate panel decision once it was rendered, the court noted that it had a virtual de novo appeal available to it.

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