Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human rights complaints – Discrimination – Disability – Drug and alcohol testing – Employer’s policies – Judicial review – Evidence – Standard of review – Correctness – Reasonableness simpliciter
Leonard v. Newfoundland and Labrador (Human Rights Commission),  N.J. No. 113, 2011 NLTD(G) 48, Newfoundland and Labrador Supreme Court, Trial Division – General Division, March 30, 2011, V.L. Marshall J.
In July 2002, Leonard travelled via helicopter to the Hibernia Oil Platform. Upon his arrival on the platform, he was advised that a partially smoked marijuana cigarette had been located at the check-in area for the helicopter ride. All persons who travelled on the flight were being tested for drugs. Leonard provided a urine sample. Although Leonard worked on the platform from July 25 to July 31, 2002, on July 31, 2002 he was advised that he had failed the drug test and would have to go ashore for further medical testing. His duties were restricted until that time. Then, on August 1, 2002, Leonard was suspended pending further investigation of the incident and, specifically, a violation of Noble’s drug and alcohol policy. The drug and alcohol policy had been signed by Leonard at the time of his hiring by Noble, several years earlier. The policy included an acknowledgement that Leonard had read and understood the policy related to the use of drugs, narcotics and firearms and that he understood that the policy was a term of his employment agreement with Noble. Leonard acknowledged his understanding that he would be terminated without notice and without compensation in lieu of notice if he had breached the policy. The policy expressly provided that any positive drug test would constitute a breach of the policy.
Ultimately Leonard’s employment was terminated for cause for violating Noble’s drug and alcohol policy.
Leonard’s complaint went to hearing before the Commission’s Board of Inquiry (the “Board”). The Board decided that Leonard was not disabled within the meaning of the Human Rights Code (the “Code”). Leonard was not perceived by Noble to be a drug addict and therefore had not demonstrated an enumerated ground of disability under the Code.
On appeal, Leonard argued that the Board did not engage in a proper legal analysis. Leonard submitted that the Board should have first determined whether the Noble drug policies were prima facie discriminatory, rather than engaging in an analysis about whether he was perceived by Noble to be disabled.
On appeal, the standard of review applied was correctness for issues of law and reasonableness for matters of fact or mixed fact and law. The court referred to the decision in Newfoundland v. Newfoundland and Labrador Nurses’ Union, 2010 NLCA 13 which elaborated the meaning of “justification, transparency and intelligibility” as descriptors of the standard of reasonableness referred to in Dunsmuir v. New Brunswick,  1 S.C.R. 190. In Newfoundland, the court said “to summarize, in assessing justification, transparency and intelligibility in the decision making process as a component of Dunsmuir analysis, reasons must be sufficient to permit the parties to understand why the Tribunal made the decision and to enable judicial review of that decision. The Reasons should be read as a whole and in context, and must be such as to satisfy the reviewing court that the Tribunal grappled with the substantive live issues necessary to dispose of the matter.”
Leonard’s allegation of discrimination was based on Section 9 of the Code which provides that an employer shall not refuse to employ or continue to employ a person because of that person’s “physical or mental disability.”
The parties agreed that an individual with a substance problem is disabled for the purposes of Section 9. The parties also agreed that Leonard did not have a substance abuse problem, and therefore no actual disability. Leonard submitted that he was dismissed on the basis of a “perceived disability”.
The court referred to the decision in British Columbia (Public Service Employee Relations Committee) v. British Columbia Government and Service Employee Union (Meiorin grievance),  3 S.C.R. 3 (S.C.C.) which altered the conventional approach to analyzing human rights complaints. After Meiorin, it is no longer necessary to categorize a human rights complaint as either a direct discrimination or an adverse effect discrimination case. The analysis proffered in Meiorin is a unified approach where the complainant must establish a prima facie case of discrimination, after which the onus shifts to the employer to justify the discrimination as a bona fide occupational requirement.
Although Leonard argued that the Board should have determined that the Noble drug policies were discriminatory, such that a prima facie case of discrimination was established and that the drug policies created the perception that, because he had tested positive once, he may do so again in future and was thus impaired in his ability to perform his job safely, the court rejected the submission that a prima facie case of discrimination had been made out. Leonard bore the onus of establishing that there was a perceived disability. “Prima facie discrimination is proven by establishing differential treatment based on a prohibited ground. A human rights complainant must establish the existence of an enumerated prohibited ground, if such is not apparent; a perceived disability is not apparent. If a human rights complainant fails to establish a perceived disability, the complainant cannot establish a prima facie case of discrimination based on a perceived disability. If a prima facie case is not established, there is no need to consider the defence of bona fide occupational qualification.”
The court rejected Leonard’s submission that the Board could only consider whether there was a perceived disability if and when it considered whether the employer’s actions were justified as a bona fide occupational requirement.
When a human rights complaint is based on an alleged “non apparent characteristic”, the complainant must establish the existence of an “anomaly” encompassed by the prohibited ground, and prima facie discrimination connected to that anomaly (paragraph 52).
The court also rejected Leonard’s argument that Noble should not be permitted to respond to the allegation that a prohibited ground of discrimination exists. Noble’s drug policies and their application to Leonard were not viewed by the Board in isolation of its evidence about the reason for termination of Leonard’s employment.
The second stage of the human rights complaint analysis only needed to be considered if Leonard had discharged his onus and established a prima facie case of discrimination. If he had, the analysis would have turned to whether Noble had established a bona fide occupational requirement inviting consideration of evidence of actual limitations, rather than evidence of an actual perceived disability.
It is acceptable for the Board, at the first stage of analysis, to ascertain whether an employer’s decision to terminate employment was in any way based on a perception that the complainant had a disability.
The court found no error of law in the determination of whether an actual perceived disability existed. The Board determined that a prohibited ground of discrimination did not exist and therefore Leonard was not entitled to protection under the Code. No further analysis was required. In making that determination the Board appropriately considered Leonard’s position regarding the drug policies and the evidence adduced in response by Noble.
Applying the reasonableness standard of review, the rationale for the Board’s decision was adequately explained. The conclusion was based on all of the evidence, with specific reference to certain pieces of evidence. The requirements of justification, transparency and intelligibility were satisfied and the decision to dismiss the complaint due to Leonard’s failure to establish a perceived disability was within the range of acceptable outcomes.
Leonard attempted to argue that the Board erred by using the language “drug addict” rather than “drug abuser”. The court did not feel this semantic difference was an issue. “Persons who fall in either category do not fall within mutually exclusive groups when seeking protection under the Code.” (paragraph 75).
The Board decided that Leonard was not perceived as disabled. Human rights legislation is intended to protect persons disadvantaged by distinctions or those perceived as having distinctions. The distinctions protected are those encompassed by enumerated prohibited grounds for discrimination found in Section 9 of the Code. Accommodation is not required where an individual does not have a distinction falling within those categories.
The court agreed that, when considering a bona fide occupational requirement issue, the Meiorin analysis ought to be used, including a requirement that drug testing policies might be required to focus on detecting and preventing impairment in the workplace rather than on the simple presence of drugs on a blood or urine test. However, because the Board had first made a determination that there was no perception of disability, there was no need to engage in the Meiorin analysis here, and therefore no error of law.
The application to reverse the decision of the Board was dismissed with costs to Noble. Although the Human Rights Commission appeared at the hearing, they did not take a position as to the outcome. No costs were ordered with respect to the Commission.
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