Enform Alcohol & Drug Project - Summaries of Relevant Case
Law
Enform Alcohol & Drug Project
As part of the preparation of the Alcohol and Drug Policy
Model, a detailed legal opinion has been obtained. This opinion
contains a thorough summary of case law in Canada related to
alcohol and drugs since 1998. For those who enjoy or are seeking a
comprehensive appreciation of the Canadian legal context, an 18
page summary document can be found here. The summary includes the
recent United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry, Local 488 v. Bantrel
Constructors Co. decision, which offered some support to the risk
management approach to alcohol and drug testing.
Summaries of Relevant Case Law
To download the PDF version of these summaries click here
Alcohol & Drug Testing
Entrop vs. Imperial Oil
Date of decision: July 21, 2000
Decision by: Ontario Court of Appeal
Relevance to A&D policies: After disclosing a
past alcohol dependency, an employee was removed from a
safety-sensitive position and later reinstated under specific
conditions, which included random alcohol and drug testing. A key
finding of the court was that random alcohol testing for employees
in safety-sensitive positions meets the tests for BFOR, provided
the consequences of a positive test are tailored to the employee's
circumstances. Employers are required to accommodate an employee
who tests positive for alcohol just as they are required to
accommodate other individual differences and capabilities to the
point of incurring undue hardship. Accommodations should include
sanctions less severe than dismissal and, where appropriate,
support of treatment or rehabilitation.
Link to detailed case
summary
Alberta vs. Elizabeth Metis Settlement
Date of decision: May 20, 2005
Decision by: Court of Appeal of Alberta
Relevance to A&D policies: Two administrative
employees of the Elizabeth Metis Settlement Council were fired for
refusing to undergo mandatory drug and alcohol testing after it was
introduced in a new policy intended, in part, to address ongoing
substance abuse problems in the community. The employees filed a
complaint that was later dismissed by a human rights panel. The
appeal court found that it could not uphold the terminations
because the settlement's alcohol and drug policy focused on
positions that had an elevated safety risk and did not provide for
a broader scope. The case was referred back to a human rights panel
for reconsideration.
Link to detailed case
summary
Bona fide Occupational Requirement (BFOR)
British Columbia (Public Service Employee
Relations Commission) v. British Columbia Government Service
Employees Union (BCGSEU)
Date of decision: September 9, 1999
Decision by: Supreme Court of Canada
Relevance to A&D policies: A firefighter was
terminated from her job when she failed to pass a test for aerobic
capacity. The test measured for a capacity that was later
determined not necessary to the safe and efficient performance of
the job. The outcome was a three-part test for determining bona
fide occupational requirements (BFOR).
- The employer must show that it adopted the standard for a
purpose rationally connected to the performance of the job.
- The employer must establish that it adopted the particular
standard in an honest and good faith belief that it was necessary
to the fulfillment of that legitimate work-related purpose.
- The employer must establish that the standard is reasonably
necessary to the accomplishment of that legitimate work-related
purpose. To show that the standard is reasonably necessary, it must
be demonstrated that it is impossible to accommodate individual
employees sharing the characteristics of the claimant without
imposing undue hardship upon the employer.
This test has been applied to subsequent cases in which alcohol
and drug policies and testing programs were and are being
considered.
Link to detailed case
summary
Disability/Dependence
Chiasson vs. Kellogg, Brown & Roots (Canada)
Company
Date of decision: December 28, 2007
Decision by: Court of Appeal of Alberta
Relevance to A&D policies: An individual was
terminated from employment after failing a pre-employment drug
test. The results of the test were provided after the individual
had begun work, but before the end of his probationary period. In
response to the original complaint file October 22, 2002, the
Alberta Human Rights and Citizenship Commission found that
pre-employment drug testing was a reasonable requirement for the
position offered because of safety hazards. It also found that
there was no evidence of drug dependency or perceived drug
dependency and therefore the employer had not discriminated against
the individual by terminating his employment.
The decision was appealed to the Court of Queen's Bench, which
found that the employer had in fact, discriminated against the
employee. The Court of Queen's Bench determined that although the
employee was only a recreational user of marijuana, he should have
been treated the same way as someone with a drug addiction. The
Court offered KBR two options: remove pre-employment testing from
its alcohol and drug policy; or provide a process of assessment or
accommodation to individuals who fail the testing, regardless of
their employment status.
In October 2007, the case was brought before the Court of Appeal
of Alberta, which reviewed and set aside the decision of the Court
of Queen's Bench in favour of the original decision reached by the
Commission.
Link to Court of Appeal of Alberta
decision
Link to Court of Queen's Bench
decision
Link to Human Rights Panel
summary
Link to Human Rights Panel
decision
Duty to Accommodate
Milazzo vs. Autocar Connaisseur
Date of decision: January 28, 2005
Decision by: Canadian Human Rights Tribunal
Relevance to A&D policies: A seasonal bus
driver was terminated after failing a drug test ordered by his
employer for employees in safety-sensitive positions. The employee
filed a complaint of discrimination and failure of the employers to
meet requirements for accommodation of his perceived drug
dependency. The Tribunal concluded that an employer might be
justified in terminating the employment of individuals who fail to
rehabilitate themselves after being afforded reasonable opportunity
to do so. However, each situation would have to be carefully
considered, on a case-by-case basis.
The Tribunal also considered "last chance agreements" that allow
for immediate termination if an employee fails an alcohol or drug
test after having gone through a rehabilitation program. It was the
Tribunal's opinion that these agreements are unenforceable because
each case needs to be analyzed separately to determine whether it
is impossible for the employer to accommodate the needs of the
employee to the point of undue hardship. A last chance agreement
cannot serve to nullify the duty of accommodation established under
human rights legislation.
Link to detailed case
summary
Duty to Accommodate
Halter vs. Ceda-Reactor Limited
Date of decision: June 6, 2005
Decision by: Alberta Human Rights and Citizenship
Commission
Relevance to A&D policies: A dredge operator
was terminated after failing two drug tests and refusing a third
test he was offered at his own expense. The employer initiated the
drug tests on the suspicion that all members of the work crew were
using and potentially abusing drugs. Because of the way the
employer administered the drug tests and who was included in the
testing, the Commission found that the employer perceived the
employee to have a substance abuse problem, and therefore a
disability. It further found that the employer did not demonstrate
any effort to refer the employee for further assessment and
rehabilitation, nor did the employer sufficiently accommodate the
employee to the point of undue hardship. Ceda was ordered to
reimburse the employee for lost wages as well as damages for injury
to dignity and self-respect.
Link to case summary
Link to complete decision
The United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and
Canada (Local 488), The International Association of Bridge,
Structural, Ornamental and Reinforcing Ironworkers (Local 720), and
The Construction and General Workers Union (Local 92) vs. Bantrel
Constructors Co.
Date of decision: October 4, 2007
Decision by: Court of Queen's Bench of
Alberta
Relevance to A&D policies: On December 24,
2004, three unions filed a grievance with a Labour Arbitration
Panel against a Bantrel policy that required pre-access alcohol and
drug testing of union members already working on a construction
site served by Bantrel. The policy was adopted by Bantrel in
compliance with the requirements of the site owner, Petro Canada,
which had updated its own policy to include pre-access testing.
Existing union members working on the Petro Canada site were given
up to two months from the date they were notified of the new
requirement to submit to drug tests. They were also provided
information about how long various drugs stayed in their bodies,
giving any who were using drugs plenty of opportunity to produce a
clean sample.
The unions asserted that enforcing pre-access testing on union
members already working on the site was a violation of existing
collective agreements. The collective agreements each agreed to
comply with the Canadian Model for Providing a Safe Workplace -
Alcohol and Drug Guidelines and Work Rule (2001). In their
grievance, the unions asserted that although the Model referred to
pre-employment testing as something that might be appropriate to
some situations, the Model did not specifically include
pre-employment or pre-access testing among its work rules. As a
result, the unions argued that the collective agreements already in
place did not allow for pre-access testing.
The unions also complained that because drug and alcohol testing
does not measure impairment, which it believed the only reason to
conduct testing, the tests were an unreasonable intrusion into
their members' privacy and therefore a violation of Alberta's human
rights legislation.
The majority of the Labour Arbitration Panel disagreed with the
union's complaints, finding instead that because the Model
specifically contemplated pre-employment testing and because the
unions' agreements committed to following the Model, pre-access
testing was acceptable under the existing collective agreements.
The panel also found that the purpose of alcohol and drug testing
is to manage risk and that there is abundant research to
demonstrate that pre-access testing policies have been successful
in improving workplace safety. It did not agree with the union's
assertion that the policy violated Alberta human rights
legislation. The panel also felt that the two-month notice period
provided union members ample time to prepare for the tests, and
anyone who had a non-negative test result was either unwilling or
unable to give up drug use for long enough to achieve a negative
test result. Those individuals represented the most significant
risks to the workplace.
The unions subsequently applied to the Court of Queen's Bench of
Alberta for a judicial review of the panel's decision. The Court
dismissed the request on October 4, 2007.
Link to Court of Queen's Bench
decision