A construction company appealed a chambers judge’s decision which had overturned the Human Rights Panel’s determination and finding that the Respondent had been the victim of discrimination because of the company’s drug testing policy. The chambers judge’s conclusion that the effect of the company’s policy was to exclude the Respondent from employment on the basis of perceived disability could not be sustained. There was a clear connection between the policy and its purpose, which was to reduce workplace accidents by prohibiting workplace impairment.

26. February 2008 0

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Drug and alcohol testing – Policies – Discrimination – Disability – Duty to accommodate – Employment law – Termination of employment – Judicial review – Standard of review – Correctness – Patent unreasonableness

Alberta (Human Rights and Citizenship Commission) v. Kellogg Rott & Brown (Canada) Co., [2007] A. J. No. 1460, Alberta Court of Appeal, December 28, 2007, E.A. McFadyen, K.G. Ritter and J. Watson JJ.A.

The Appellant was a construction company working in the Fort McMurray area of Alberta, where it was involved in a very large project, at which several thousand workers were working and the accident risk was high. The Appellant’s hiring policy required all persons seeking non-unionized positions to take and pass a post-offer/pre-employment drug test before they would be hired. If the prospective employee failed the test, he or she would not be hired. The stated intent of the policy was to prohibit impairment and ensure workplace safety.

The Respondent took the pre-employment drug test on June 28, 2002 and started working for the Appellant on July 8, 2002. The Respondent had smoked marijuana on June 22, 2002, but did not tell anyone at the company that he had done so and, assuming that the marijuana would have cleared his system by the testing date, did not ask that the test be delayed to a later date. On July 17, 2002, the Appellant’s medical director informed the Respondent that he had failed the test. He was told to leave the work site and fly to Calgary the next day to “sign some papers”. On arrival in Calgary, the Respondent met with the Appellant’s administrative manager who advised him that his employment was terminated because he failed the pre-employment drug test.

The Respondent filed a complaint with the Alberta Human Rights and Citizenship Commission, alleging discrimination in employment practices on the grounds of physical and mental disability.

At the Human Rights hearing, the Respondent testified that he was a recreational user of marijuana and that he was not addicted to it. All of the  Appellant’s witnesses, who had had dealings with the Respondent, stated that they did not consider the Respondent to be addicted to marijuana. The Panel found on the evidence that the Respondent was not addicted to cannabis and was only an occasional, recreational user and that no actual disability due to drug addiction was demonstrated. It also concluded that there was no perceived disability. The Panel concluded that drug testing was prima facie discriminatory with respect to addicted persons. It also determined that had the Respondent demonstrated an actual or perceived disability, the Appellant’s drug testing policy would have failed to totally accommodate.

The chambers judge reviewed the Panel’s decision using the correctness standard for all issues. She concluded that the effect of the Appellant’s policy was to treat recreational cannabis users as if they were addicted to cannabis and that, therefore, the Appellant must have perceived the Appellant to be a cannabis addict and thus disabled. She concluded that the Appellant’s policy “imposes a pre-employment barrier, with zero tolerance, automatic termination and no accommodation”.

On appeal, the Court of Appeal began by applying the pragmatic and functional approach to determine the appropriate standard of review. The Court found that the question of whether the Appellant’s drug testing policy discriminated against casual cannabis users based on perceived disability and, if so, whether it provided appropriate accommodation, was reviewable on the patent unreasonableness standard. The remaining issues, including whether the policy was a bona fide occupational requirement, were to be reviewed on the correctness standard.

From all of the evidence, the Respondent was not in fact drug-addicted. Nor was the Respondent’s termination based on the perception by any of the Appellant’s employees that he was drug addicted. The chambers judge’s conclusion that the effect of the Appellant’s policy was to exclude the Respondent from employment on the basis of perceived disability could not be sustained. The purpose of the policy was to reduce workplace accidents by prohibiting workplace impairment. There was a clear connection between the policy, as it applied to recreational users of cannabis, and its purpose. The policy was directed at actual effects suffered by recreational cannabis users, not perceived effects suffered by cannabis addicts.

Having come to the conclusion that there was no breach of the Human Rights Code, there was nothing to accommodate. Nor was it necessary for the Court to consider whether the Appellant’s policy constituted a bona fide occupational requirement.

In the result, the appeal was granted and the Panel’s decision restored.

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