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B LAW402 (43)
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Alberta v. Kellogg Brown & Root edited.doc

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Department
Business Law
Course Code
B LAW402
Professor
Elaine Geddes

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The Director of the Alberta Human Rights and Citizenship Commission and John Chiasson v. Kellogg Brown & Root (Canada) Company (edited) Decision of the Alberta Court of Appeal (For detailed facts of the case see the Chambers Judge decision immediately following) The appellant Kellogg Brown & Root (Canada) Company (“KBR”) appeals the chambers judge’s decision to set aside the Human Rights Panel’s determination that the respondent John Chiasson had not suffered discrimination under Alberta’s human rights legislation. The chambers judge held that Chiasson had been the victim of discrimination based on KBR’s perception that he suffered from drug addiction. We conclude that the chambers judge erred in law and made a palpable and overriding error in finding that KBR perceived Chiasson to suffer from drug addiction. Human Rights Panel Decision The panel held that no actual disability due to drug addiction was demonstrated. It concluded that because Chiasson was employed in a safety sensitive position at a hazardous work site, there was also no perceived disability. The evident logic being that if KBR had perceived disability on the part of Chiasson, it would not have assigned him to that type of work. The panel then concluded that drug testing was prima facie discriminatory with respect to addicted persons. It also determined that had Chiasson demonstrated an actual or perceived disability, KBR’s drug testing policy would have failed to totally accommodate, as required by the third part in the three-part test articulated by the Supreme Court of Canada in Meiorin. The Chambers Judge’s Decision The chambers judge concluded that the effect of the KBR policy was to treat recreational cannabis users as if they were addicted to cannabis. She therefore held that KBR must have perceived Chiasson to be a Cannabis addict and thus disabled. The chambers judge then considered the issues of whether the discrimination was reasonable and justifiable as a bona fide occupational requirement (“BFOR”) and whether KBR met its obligation to accommodate. She determined that the evidence presented by KBR regarding the zero tolerance drug policies coinciding with substantial reduction in workplace accidents was not determinative of the policy having any effect, since other changes in the workplace environment could have been responsible for the reduction. She concluded that KBR’s policy “imposes a pre-employment barrier, with zero tolerance, automatic termination and no accommodation” Court of Appeal Decision From all the evidence in this case, Chiasson is not in fact drug addicted. Nor was Chiasson’s termination based on the perception by any KBR employees that he is drug addicted. Those were findings of fact made by the human rights panel, and as such are reviewable on a standard of patent unreasonableness. Therefore, the only basis on which the KBR policy would be discriminatory against casual marijuana users, such as Chiasson, would be if, as the chambers judge concluded, the effect of the policy is to perceive anybody testing positive as drug addicted and therefore disabled, and to impose restrictions, penalties, or differential treatment on those persons based on the perceived disability. The chambers judge concluded the effect of KBR’s policy was to exclude Chiasson from employment on the basis of perceived disability, stating: “[t]he Policy not only treats all prospective employees who test positive for drugs the same, it treats them as if they were drug dependent and further assumes that they are likely to report to work impaired”. That conclusion cannot be sustained. The evidence disclosed that the effects of casual use of cannabis sometimes linger for several days after its use. Some of the lingering effects raise concerns regarding the user’s ability to function in a safety challenged environment. The purpose of the policy is to reduce workplace accidents by prohibiting workplace impairment. There is a clear connection between the policy, as it applies to recreational users of cannabis, and its purpose. The policy is directed at actual effects suffered by recreational cannabis users, not perceived effects suffered by cannabis addicts. Although there is no doubt overlap between effects of casual use and use by addicts, that does not mean there is a mistaken perception that the casual user is an addict. To the extent that this conclusion is at odds with the decision of the Ontario Court of Appeal in Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18, 189 D.L.R. (4th) 14, we decline to follow that decision. The Act prohibits certain, but not all, treatment based on human characteristics as discriminatory. The jurisprudence has extended the prohibited grounds to include instances where an employer incorrectly perceives that an employee has a prescribed disability. In this case KBR’s policy does not perceive Chiasson to be an addict. Rather it perceives that persons who use drugs at all are a safety risk in an already dangerous workplace. Having come to this conclusion it is not necessary to consider the question of accommodation. Since there was no breach, there is nothing to accommodate. Nor is it necessary to consider whether KBR’s policy constitutes a BFOR. Decision of the Chambers Judge When Mr. Chiasson was interviewed for employment as a receiving inspector at the Syncrude plant in Fort McMurray he was told that as a non-unionized employee he was required to take and pass a pre-employment drug test. He took the required urine test, began work and worked for approximately nine days, when his employer learned that he tested positive for cannabis and immediately terminated his employment. Mr. Chiasson challenged the practice of mandatory pre-employment drug testing as discrimination on the basis of disability before a Human Rights Panel. His evidence was that his use of marijuana is recreational, outside of work and is not the product of an addiction. The Panel determined that there was no accommodation offered to Mr. Chiasson, but that did not give rise to an infringement or remedy because Mr. Chiasson did not suffer from a disability or perceived disability and there was therefore no discrimination. Mr. Chiasson testified that he did not take drugs at work and said that at the termination interview. He said that he had not had a workplace accident in his twenty plus years in the workforce. The uncontradicted evidence is that Mr. Chiasson was never impaired at work, there were no reported accidents or incidents and the written evaluation of his performance while at KBR placed him in the above average to outstanding range. Mr. Chiasson states that he is not, and has never been, dependent on any drug. He classifies his use of marijuana as social and recreational and the employer does not dispute this. Mr. Chiasson was hired as a non-union employee. Union employees worked under a different regime: they were hired from a union hall and there was no mandatory pre-employment drug screening required of them. KBR situates its Policy in the framework of its obligation to provide a healthy and safe work environment. It also seeks a drug and alcohol free workplace culture. While KBR was obliged to have a suitable drug and alcohol policy in place, one that conformed with the Canadian Model Guidelines, neither those Guidelines nor Syncrude required KBR to conduct pre-employment drug testing. The intent of the KBR Policy is to prohibit impairment from the use of alcohol, controlled or prohibited substances by Company Employees or Contractors while engaged in company activities, and to prohibit the possession and sale of prohibited and controlled substances. Prohibition from impairment is enforced through testing. As the use of alcohol or prohibited or controlled substances may adversely affect the ability of a person to work in a safe manner, the presence of them in the body is prohibited as set out in this policy. The focus of these provisions is clearly on workplace behavior: drug use in the workplace, the prohibition of impairment while engaged in company activities, and the application of the Policy to those on duty or using company property. The written Policy allows for various forms of drug testing, including post offer and pre-employment, post incident, random and unit sweep testing, and for reasonable cause and rehabilitation. The section on confirmed test results states that “the presence of a prohibited substance in an Employee’s urine, blood or breath are considered sufficient evidence of a violation of this policy to result in the termination of the Employee or preclude the hiring of the Employee.” The employer interpreted its Policy as requiring the automatic termination of Mr. Chiasson as a result of his positive test result. Ms. Caul testified that the employer was not following the written Policy in all details, even for those to whom it applied: no random testing was conducted at the Syncrude site and certain accommodations were made for non-probationary employees with drug or alcohol dependencies. The evidence was that new recruits who do not pass the pre-employment drug screen are allowed to re- apply after six months have passed. Mr. Chiasson was never informed of this possibility. Mr. Chiasson was not offered any form of accommodation at the time of his dismissal. The Human Rights, Citizenship and Multiculturalism Act protects human rights in the province, provides for a code of conduct and establishes the Alberta Human Rights and Citizenship Commission. A two step approach is contemplated by the Act for human rights complaints. First, the complainant has the burden of establishing discrimination on a prohibited ground. If successful, the burden then shifts to the employer to show that any violation was reasonable and justifiable or a bona fide occupational requirement (“BFOR”) The claimant argued that pre-employment drug testing constituted prima facie discrimination under s. 7 (1) of the Act: No employer shall (a) refuse to employ or refuse to continue to employ any person, or (b) discriminate against any person with regard to employment or any term or condition of employment, because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income or family status of that person or of any other person. The prohibited ground of discrimination alleged was real or perceived disability, defined in s. 44 of the Act as: (h) “mental disability” means any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder; (l) “physical disability” means any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes epilepsy, paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, and physical reliance on a guide dog, wheelchair or other remedial appliance or device; If the claimant satisfies this burden, then the employer may justify its policy according to ss. 7(3) and 11. Section 7(3) states that subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement. Section 11 provides that “a contravention of this Act shall be deemed not to have occurred if the person who is alleged to have contravened the Act shows that the alleged contravention was reasonable and justifiable in the circumstances.” This burden of proof of justification is considered pursuant to a three part test established by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. British Columbia G.S.E.U. (“Meiorin”) The Panel received an Agreed Statement of Facts and heard extensive evidence. All experts agreed that drug testing by urinalysis does not measure actual impairment levels. A urine test measures only the presence of inactive cannabis metabolites rather than active substances (by comparison a breathalyzer test for alcohol measures the active substance at the time of an event). As a result, drug testing by urinalysis cannot measure whether an employee was under the influence of drugs at a particular time. Cannabis metabolites remain in a person’s system for an extended period of time following use of the drug. Dr. Chiasson, the employer’s expert, said that a positive drug test cannot pin- point when the drug was consumed, discriminate between isolated or recreational use, abuse or dependence of the drug, quantify the amount of the drug consumed, determine the degree to which the user was intoxicated, confirm or allow diagnosis of any drug abuse or dependence, evaluate the general health condition of the donor, or evaluate the donor’s present capability to perform a certain task or any task whatsoever. Dr. Jacyk … stated that there is no basis for the assumption that a positive test will in any way predict the risk of a work place incident. Whether a site was safety-sensitive or not, he was of the opinion that pre-employment drug testing attempted to exclude people on a statistical basis, but it was not really effective because it was indirect. KBR acknowledges that there is no reliable, easy and inexpensive method to measure THC and its metabolites in the blood. However, it claims that despite its limitations, a positive drug test is useful in several ways. First, a positive drug test result indicates that the cognitive potential of the person may have been altered in the more or less recent past. Second, a positive test is a signal or “red flag” that the person has been in contact with a potentially dangerous drug. Third, a positive test indicates that the person may have a problem with drug abuse or dependence. In particular, where job applicants are informed about pre-employment drug testing and the consequences of a negative test- result, then a positive test result may reflect an applicant’s inability to control his or her usage of the drug. The evidence submitted and relied upon by KBR was that between nine and ten per cent of people who use cannabis exhibit symptoms of addiction. Therefore, according to their calculations there was a ten per cent chance that Mr. Chiasson was addicted to marijuana, which could present a greater risk of getting “high” at work, in what they claimed was a safety-critical position. Fourth, it shows a person is willing to break the law to become intoxicated. At the hearing, held February 14, 15,16 and March 1, 2005, the Panel adopted the correct two step approach. On the issue of discrimination, the Panel acknowledged that the Respondent’s drug testing policy is prima facie discriminatory against drug dependent individuals. However, there was no discrimination against Mr. Chiasson. The Panel focused on Mr. Chiasson’s statement that he was only a recreational drug user to find that his drug use was “a matter of personal, voluntary choice, and not a disability.” There was no perceived disability concerning Mr. Chiasson because his work was considered excellent and there was nothing to show that the employer suspected him of serious drug use or on site impairment. The finding that there was no disability, real or perceived, led to the dismissal of Mr. Chiasson’s claim. The Panel also canvassed the three part test in Meiorin to determine if a work place policy is justifiable. The parties agreed that the first and second elements were met: the policy was directed towards a legitimate goal and enacted in good faith. The real issue concerned the third part of the test and whether mandatory pre-employment drug testing under this Policy was reasonably necessary to accomplish the employer’s work related purpose and was it impossible to accommodate the individual employee without imposing undue hardship on the employer. The Panel found that the employer had not met its burden. The Panel accepted that the policy was reasonably necessary because cannabis use impairs workplace performance and Mr. Chiasson’s employment included “safely operating a motor vehicle in an extremely congested and inherently dangerous, heavy equipment environment, as well as physical dexterity in inspecting load material. The complainant was also required to inspect critical material such as pressure vessels for flaws or shipping damage.” However, the Panel found insufficient accommodation. Ms. Caul testified that the employer offered no accommodation to new or probationary employees. The Panel concluded: “Had the complainant established evidence of a disability, real or perceived, the Panel finds that the withdrawal of the employment offer to the complainant would have been discriminatory, in spite of the financial benefits that were provided to him when the offer was withdrawn.” This appeal is taken jointly by Mr. Chiasson and the HRCC, pursuant to section 37 of the Act. They argue that the Panel erred in law for failing to find that Mr. Chiasson was perceived to be disabled by the operation of this drug testing policy, the comments of Mr. Dickie and the actions of KBR in terminating Mr. Chiasson’s employment, and erred in both fact and law in finding that the pre-employment drug testing met the Meiorin test. [43] The respondent says the appellants have failed to make out a case of prima facie discrimination. The evidence before the Court shows that Mr. Chiasson has repeatedly and continuously asserted that he is not drug-dependent and that he is not therefore disabled. As such, the Panel was correct to find that there was no disability on which to ground the complaint. If there is discrimination, KBR argues that it met the Meiorin test. This appeal raises the following issues: (a) What is the standard of review to be applied by this Court? (b) Did the Panel err in finding that there was no perceived disability? (c) If so, did the Panel err in finding that the violation was not reasonable and justifiable as a BFOR? (d) What remedy, if any, should be applied by this Court? This is the first time this court has been asked to address pre-employment drug testing under the Act. In terms of first principles, the starting point is that human rights legislation is to be given a broad, purposive interpretation which is to be adapted to "changing social conditions" and evolving "conceptions of human rights". Protected rights are to receive a broad interpretation and exceptions and defenses are to be narrowly construed. Human rights legislation is also quasi constitutional legislation; the Act(s. 1(1)) contains a paramountcy clause in s. 1(1)which means that in cases of conflict between statutes, human rights legislation will govern. So while employers have a duty to maintain a healthy and safe work environment under s. 2 of the Occupational Safety Act, they must do so in a way which respects human rights. Human rights legislation sets out a floor beneath which the parties cannot contract. The general purpose of Canadian human rights legislation is to protect against discrimination and to guarantee rights and freedoms. The specific objective in the employment context is “to eliminate exclusion that is arbitrary and based on preconceived ideas concerning personal characteristics which, when the duty to accommodate is taken into account, do not affect a person's ability to do a job.” A classic and oft quoted statement concerning workplace discrimination comes from the Abella Report, where the Commission explained: Equality in employment means that no one is denied opportunities for reasons that have nothing to do with inherent ability. It means equal access free from arbitrary obstructions. Discrimination means that an arbitrary barrier stands between a person's ability and his or her opportunity to demonstrate it. Discrimination in this context means practices or attitudes that have, whether by design or impact, the effect of limiting an individual's or group's right to the opportunities generally available because of attributed rather than actual characteristics. What is impeding the full development of the potential is not the individual's capacity but an external barrier that artificially inhibits growth. In Meiorin the Supreme Court adopted a unified approach that looks for prima facie discrimination, without the need to classify it as direct discrimination or adverse affects discrimination. The Court was mindful that the distinction between direct and adverse effect discrimination may, in practice, serve to legitimize systemic discrimination. Under the single standard of prima facie discrimination the court is to examine the effect of the impugned policy irrespective of whether it was discriminatory on its face or in its effect, irrespective of whether or not the employer intended to discriminate, or even whether or not the employer had turned its mind to the possibility of discrimination…. the unified approach meant that employers are now required in all cases to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. Incorporating accommodation into the standard itself ensures that each person is assessed according to her or his own personal abilities. On numerous occasions the Supreme Court has said it is the effect, rather than the intention, of an impugned policy which determines whether it is discriminatory. The focus of the analysis is on the validity of the policies that impact upon the individual. Applying these principles to the KBR Policy, I find prima facie discrimination. The KBR Policy combines mandatory pre-employment testing for all covered employees, automatic termination for a positive result and no accommodation. By purpose and effect it screens individuals from the work force based on a risk assessment that a positive drug test increases the chance an individual may be impaired at work some time in the future. The employer said “testing at the time of hiring is the best way to determine if the new employee is a user of the narcotic, and to reduce significantly the risk of employing a worker who is or may later be impaired by the drug.” In relying on general statistics to weed out a particular person, the Policy relies upon presumed personal traits and does not take into account the capacity, needs, merits and circumstances of the individual job applicant. The Policy imposes an automatic, singular and absolute sanction in all cases of a positive result. The Policy creates a class of people, those who test positive, and then treats them all the same way by denying them employment. By doing so it fails to assess each prospective employee according to her or his own personal abilities, and instead judges them against presumed group characteristics. The recognized limits of urine tests also mean that an individual may be screened from the workforce based on behavior that took place not only off-site but well before the employment commenced. In the case at bar the drug use took place before the job interview. The KBR Policy treats prospective employees unfairly by grounding a total exclusion from the workforce on a test which yields such limited information. The purpose of s. 7(1) is to prevent people from being denied employment opportunities on the basis of attributes that are unrelated to their ability to perform the job. Being kept from the labor force is an especially pernicious form of employment barrier which strikes at the heart of s. 7(1). This Policy denies employment opportunity based on a generalized risk assessment of what certain pre-employment behavior may portend for future workplace behavior. When KBR refused to hire Mr. Chiasson it breached this part of s. 7(1) and the KBR Policy differentiates, indeed discriminates, between individuals on the basis of a positive drug test. However, the main issue dividing the parties is whether the Policy discriminates on the prohibited ground of disability. The Panel accepted that pre-employment drug testing is prima facie discriminatory against drug dependent persons. However, Mr. Chiasson did not suffer from an addiction and his claim cannot be determined on the basis of an actual disability. The case law states that employees may also claim the protection of human rights legislation if adverse employment action is taken against them due to perceived, rather than actual disabilities. The leading authority on perceived discrimination is Quebec v. Boisbriand, in which the Supreme Court considered 2 parallel cases. In the first, the City of Montreal refused to hire an individual as a gardener-horticulturalist because a pre-employment medical revealed an anomaly in his spinal column. In the second, the City of Boisbriand dismissed an individual from his position as a police officer when it was revealed that he had Crohn’s Disease. In both cases, the medical evidence before the Court indicated that the individuals could perform the duties normally expected for the positions and that they therefore had no functional limitations. Both individuals brought claims under s. 10 of the Québec Charter of Human Rights and Freedoms alleging that they had been discriminated against on the grounds of “handicap.” In both cases the Court found a perceived handicap or disability and prima facie discrimination. The Court said that what qualifies as a handicap is to receive a broad, liberal and purposive interpretation, as befits quasi-constitutional legislation. The objectives of the [Québec] Charter, namely the right to equality and protection against discrimination, cannot be achieved unless we recognize that discriminatory acts may be based as much on perception and myths and stereotypes as on the existence of actual functional limitations. Since the very nature of discrimination is often subjective, assigning the burden of proving the objective existence of functional limitations to a victim of discrimination would be to give that person a virtually impossible task. Functional limitations often exist only in the mind of other people, in this case that of the employer. It would be strange indeed if the legislature had intended to enable persons with handicaps that result in functional limitations to integrate into the job market, while exclud
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