All About Information

On January 29th, a panel of the Ontario Superior Court of Justice (Divisional Court) dismissed a application for review of drug testing arbitration decision in which Imperial Oil was held to have violated a collective agreement by implementing random and unannounced drug testing for cannabis impairment.

The policy challenged at arbitration was the same policy that had been upheld by the Ontario Court of Appeal in 2000 in Entrop. Based on Entrop, and the Court of Appeal’s specific finding that random alcohol testing in safety-sensitive positions did not violate the Human Rights Code, Imperial Oil re-instituted random drug testing for safety-sensitive positions by using a new testing technology that could determine current impairment by way of a saliva test.

In December 2006, the majority of an arbitration board chaired by Arbitrator Michel Picher upheld a grievance which challenged the re-implemented random drug testing policy. The board held that the Union was not barred from challenging random drug testing despite being barred from challenging random alcohol testing (based on an equitable doctrine that bars claims after inordinate delay) because random alcohol testing by breathalyzer and random drug testing by saliva test were qualitatively different tests. A key factor, as Mr. Picher’s wrote, was that the saliva testing processing in use by Imperial Oil did not provide an immediate, on-site reading of impairment. The board also found that sampling by buccal swab was more invasive than sampling by breathalyzer and distinguished Entrop by finding that the Court of Appeal’s decision was made in consideration of rights granted under the Human Rights Code rather than a collective agreement.

The Divisional Court rejected Imperial Oil’s argument that the board erred by amending the collective agreement and by relying on unsupported findings of fact. It also held that the board did not made a patently unreasonable decision given the Court of Appeal’s decision in Entrop. It said:

The Board explained why it found the testing to be an invasion of privacy and an infringement of the rights under the collective agreement. As a result of its interpretation, employees under the parties’ collective agreement receive greater protection than they would have under the Code because of their unionized status. Such an interpretation is not inconsistent with the Code, which provides minimum standards for those covered by it. However, the Code does not provide an exhaustive guide as to the meaning of dignity and respect in the workplace generally.

Based on this reasoning, the Divisional Court held that the board did not err in assessing the policy against the somewhat unique anti-discrimination clause in Imperial Oil’s collective agreement, nor did it err in assessing Imperial Oil’s exercise of management rights.

There are some limited factual bases on which other employers may attempt to distinguish the Imperial Oil arbitration decision. Despite these bases, Mr. Picher’s principled attack on random drug and alcohol testing (now upheld by the Divisional Court) is a feature which makes the decision both significant and problematic for employers.

Imperial Oil Ltd. v. Communications Energy and Paperworkers Union of Canada, Local 990, [2008] O.J. No. 489 (QL) (S.C.J.).

Last November 26th, the Alberta Court of Queen’s Bench dismissed a judicial review application which sought to quash an arbitrator’s endorsement of a site-access testing policy brought in by an Alberta construction site owner.

Petro Canada implemented a site access drug and alcohol testing rule at an Oil Sands construction site in 2004. It required Bantrel (the employer) to apply the policy to its employees who were already on site. The drug test to be conducted was not a “current impairment test,” but it gave employees two months’ notice so they could refrain from drug use and pass a test. Most or all of the employer’s available work was on the Petro Canada site, so employees who refused or failed the test were laid off with or without accommodation as appropriate.

In March 2007, an arbitration board chaired by Arbitrator Phyllis Smith held the employer had implemented a reasonable work rule. She reasoned that an employer that imposes a work rule based on a third-party requirement must still demonstrate that it is reasonable to enforce the third-party requirement. Despite this, she held that testing was reasonable in all the circumstances. Even though the employer was not testing for current impairment she held that site access testing implemented on two months’ notice was a reasonable risk management tactic:

The design of the policy insofar as it applied to current employees was such that it would only detect, through non-negative test results, the most significant risks to the workplace, namely persons who were either unwilling to or unable to give up drug use for any time at all.

Risk management was justifiable, she held, based on the nature of the work (undoubtedly safety sensitive) and based on general evidence of work-related drug use in the Alberta construction industry and general evidence supporting efficacy of testing over supervisory monitoring. Ms. Smith expressly held that the employer need not prove that it has a drug and alcohol problem to justify risk management testing (as opposed to current impairment testing).

Ms. Smith also held the employer had not violated the Alberta Human Rights, Citizenship and Multiculturalism Act. Although her analysis is not particularly probing, she appears to have held that site access testing is a BFOR based on the same general evidence supporting its reasonableness. She did note that employees were accommodated, with treatment where appropriate.

The Alberta Court of Queen’s Bench upheld both of these parts of Ms. Smith’s award as reasonable.

While notable, this case demonstrates a markedly different balancing of interests than displayed in recent Ontario arbitration awards, a point noted by Ms. Smith and again by the Court. It is also partly explained by Petro Canada’s broader, risk management purpose - a purpose given weight based on evidence of a broad challenge relating to drug use in the Alberta construction industry and a uniform adoption of site access testing by construction site owners. In Ontario, and perhaps elsewhere, site access drug testing should still be approached with substantial caution.

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 488 v. Bantrel Constructors Co., 2007 ABQB 721.

Yesterday the Alberta Court of Appeal issued its much-anticipated Chiasson v. Kellogg Brown & Root award, and in doing so, found that a casual drug user who was terminated after failing a pre-employment drug test was not subjected to discriminatory treatment under Alberta human rights legislation.

The key issue addressed by the Court of Appeal is whether zero tolerance drug testing policies are de facto discriminatory because they rest on a presumed assumption that casual drug users are at greater risk being impaired at work, in turn, because they are likely to fall into a “cycle of abuse.” This issue - let’s call it the perceived disability theory of casual drug user protection issue - was raised but not clearly determined in the Ontario Court of Appeal’s leading Entrop decision. It is critical in Canadian drug testing law because it determines the scope of legal protection against “unnecessary” drug tests. Ironically, Alberta is one of three provinces that have passed broadly-applicable regimes for protecting employee privacy rights. In fact, a drug testing complaint in which Kellogg Brown & Root is a respondent is now proceeding before of Alberta’s Information and Privacy Commissioner. In other jurisdictions, including Ontario, casual users who are given offers of hire conditional on testing clean have no clear avenue of redress should they feel their privacy rights have been violated.

The Court of Appeal held that the Alberta Court of Queen’s Bench had erred in finding that the complainant was treated as if he was drug dependent and likely to report to work impaired. It rejected the idea that a zero tolerance policy necessarily targets those who are at risk of becoming addicted and held that all the Kellogg Brown & Root policy does is protect against the lingering deleterious effects of cannabis use (a point apparently proven in evidence). The Court of Appeal said:

Chiasson testified that what he did on his own time was his business. He did not at any time suggest that he would cease his recreational use of drugs while employed by KBR. As we have already stated the evidence established that effects of cannabis use lingers for days particularly given that the concentration of active ingredients is now many times higher than it was in the past. Given these concerns the policy’s effects are not misdirected in their application to Chiasson.

We see this case as no different than that of a trucking or taxi company which has a policy requiring its employees to refrain from the use of alcohol for some time before the employee drives one of the employer’s vehicles. Such a policy does not mean that the company perceives all its drivers to be alcoholics. Rather, assuming it is aimed at safety, the policy perceives that any level of alcohol in a driver’s blood reduces his or her ability to operate the employer’s vehicles safely. This is a legitimate presumption. Its goal is laudable since carnage on the highways is a leading, but often ignored, cause of death nearing epidemic proportions. Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic.

On this view, whether a drug and alcohol policy discriminates against casual users is a question of fact. This is consistent with the employer-favoured reading of Entrop, in which an Imperial Oil policy was that was found to discriminate against all drug users included langauge stating a belief in the “cycle of abuse” to which all drug users subject themselves. The Alberta Court of Appeal suggested that the perceived disability finding in Entrop was simply based on this language.

Chiasson v. Kellogg Brown & Root, 2007 ABCA 426.

The Alberta Court of Appeal heard the Kellogg Brown & Root drug testing appeal on October 11th and has reserved judgement. The case will give Alberta’s highest court an important opportunity to consider the circumstances in which casual drug users are protected under human rights legislation based on the perceived disability doctrine. This has been an issue that has caused some uncertainty since the Ontario Court of Appeal’s landmark Entrop v. Imperial Oil judgement in 2000.

Kellogg Brown & Root is about an employee who was terminated 10 days into employment after a pre-employment drug test came back positive for cannabis. He was never impaired at work and testified that that he was only a casual marijuana user. In 2005, an Alberta Human Rights Panel dismissed the employee’s complaint because it was not based on any real or perceived disability and, alternatively, because the testing policy was not reasonably necessary.

In June 2006 the Alberta Court of Queen’s Bench reviewed all of the case law on perceived disability and acknowledged that there is a “difference of opinion” over the right of casual drug users to protection from discrimination. In the end, it chose to adopt the approach taken in Entrop, which allows for a finding of prima facie discrimination based on the circumstances in which the relevant distinction is made. As in Entrop, the Court held that the complainant was treated as if he was drug dependent and likely to report to work impaired. Recall that the policy in Entrop explicitly stated, “In the cycle of substance abuse, users frequently experimenting with drugs progress to the dependent user state later on.” The Court held that this approach to casual users could be implied in any zero tolerance policy and (criticizing a significant Canadian Human Rights Tribunal decision called Milazzo) held that an employer cannot defend against a discrimination claim by proving a subjective belief that the complainant was a casual user.

The Court then held that pre-employment testing was not reasonably necessary to satisfying the objective of “prohibiting workplace impairment.” Its reasoning is summarized in the following sentence: “While there is a rational connection between impairment and job performance, the link between a positive pre-employment urine test and workplace impairment is tenuous and uses predictions based on statistical risk to bar particular people.” More significantly, the Court suggested a number of ways by which the employer could have built a standard which was more accommodative and better connected to the goal of prohibiting (by predicting) workplace impairment.

Incidentally, and implicitly recognizing that the prima facie discrimination analysis in drug testing cases is tortuous, the Court commented that its okay that human rights legislation may be doing “the work of privacy rights.” Since Alberta employers are subject to employment privacy legislation (the Alberta Personal Information Protection Act) and since Oil Sands employers are clearly applying strict drug testing policies, we might expect a statement on drug testing from the Alberta Information and Privacy Commissioner in the near future. In fact, a PIPA complaint was filed against Kellogg Brown & Root that was recently dismissed on jurisdictional grounds. Until the Privacy Commissioner gets his chance to speak, the Kellogg Brown & Root Alberta Court of Appeal case is the one to watch.