Should one have another drink? The legal basis upon which addicts are protected by Human Rights legislation

The recent celebration of the marijuana, more popularly referred to as cannabis, motivated me to look at how usage in the work place would be legally handled.   My research led me to cases involving alcholism, cannabis and drug testing, both before and after employment.  The conclusion is interesting.


Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company

The leading case on this issue is Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, 2007 ABCA 426.  The Alberta Court of Appeal established that an ordinary user of drugs is not protected by human rights legislation.  A person is protected only if they are drug addicted.  The Court of Appeal stated:

"Analysis
[29] 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.
[30] 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.
[33] 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.
[34] Although it might be argued that this analysis really deals with the issue of bona fide
occupational requirement we conclude that it also has a role to play in whether a workplace
policy is discriminatory under the Act. 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.
[37] 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 (bona fide occupational requirement)."

The Court allowed policy which required drug testing of employees.  The Alberta Court of Appeal considered the human rights implications of pre-employment drug testing.  The case related to a complaint regarding a hiring policy that required all persons seeking a position to take and pass a pre-employment drug test before being hired. The complainant was a “recreational user” of cannabis and there was no evidence that the employer considered him to be addicted to marijuana.  The Court concluded that the employer's testing policy did not discriminate against “casual cannabis users” based on perceived disability and that the policy was not prima facie discriminatory under the Human Rights legislation. 

The Court distinguished the Ontario Court of Appeal decision in Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18, 189 D.L.R. (4th)14 which decision extended the rights to casual users. The Alberta Court of Appeal upheld termination for a single failed test on the basis that drug users will create increased safety risks in hazardous workplaces. 

Luka v. Lockerbie & Hole Inc.

In another appeal of a Human Rights Commission decision [Luka v. Lockerbie & Hole Inc., 2008 AHRC 1 (CanLII)] the Court of Appeal of Alberta, followed the Kellogg Brown case finding that a casual drug user could be fired for refusing to undergo a drug test; Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3 (CanLII)

The Court declared that casual drug users are not afforded protection by human rights legislation.  The Court concluded that it is only when an employer actually believes that the individual complainant is an addict that the prohibited ground of perceived disability will be applicable.  For the employee to argue the employee is protected by human rights on the basis of perceived disability the employee must provide proof that the employer subjectively believed the employee suffered from a disability.

Accordingly, in Alberta a recreational cannabis user who provides a positive test result will not have any recourse under human rights legislation unless the employee can show that the employer subjectively believed the employee was addicted to drugs and was therefore disabled.  The following comments from the Human Rights Commission decision are instructive:

"[143] The Panel agrees that it is well established that alcoholism and drug dependency falls
within the meaning of a disability under the Act.
[144] Neither the director or Mr. Luka allege that Mr. Luka has a drug addition or dependency,
although Dr. Kadehjian’s opinion raised some issues that only an assessment could have
determined.
[145] However, given Mr. Luka’s testimony that he was not a drug user, that he never thought
he would fail the test and that he passed the pre-access alcohol and drug test in 2005 to work
for Casca Electric on the Syncrude site, the Panel accepts the director and Mr. Luka’s position
that he is not drug dependent and as such does not have a physical disability under the Act.
Conclusion
[170] The Panel concludes that the actions taken by the respondents did not constitute prima
facie discrimination on the ground of physical disability in the area of employment practices. As
a result this complaint is dismissed.
Turning to consider whether the Commission had established a prima facie case of
discrimination, the Panel found that the complainant did not suffer from an actual disability
as he was not an addict. It also found "no evidence of a subjective belief or perception on
[the respondents'] part that [the complainant] was disabled.""

Ofstedahl v. Comstock Canada Ltd.

In another Human Rights Commission decision in Ofstedahl v. Comstock Canada Ltd., 2010 AHRC 4 the panel dealt with similar circumstances but instead of cannabis the employee consumed alcohol. The facts centered on Mr. Ofstedahl who alleged that he had suffered discrimination in the area of employment contrary to section 7(1)(a) and (b) of the Human Rights, Citizenship and Multiculturalism Act (now the Alberta Human Rights Act) (the Act)3.  Mr. Ofstedahl went to work on the Syncrude UE-1 site in Fort McMurray and his foreman smelled alcohol on his breath.  He was then sent for drug and alcohol testing.

The Commission concluded that there was no evidence that Mr. Ofstedahl was an alcoholic.  Instead Mr. Ofstedahl showed up for work one day after drinking and was required to take and failed an alcohol test.  In accordance with the employer's Drug and Alcohol Policy, Mr. Ofstedahl was suspended from working for six months. The commission relied on the  Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company decision in concluding that these type of policies are not discriminatory when applied to employees who are not drug addicted or alcoholics.  This line of decisions supports the underlying safety concerns that the application of these type of policies address.  The policy was aimed at safety and was appropriate.  Drug and alcohol testing policies have a role in managing safety sensitive workplaces and as such are not discriminatory.

Conclusion

These decisions appear to be reasonable in a post-hiring circumstance but the application of this principal to a pre-employment circumstance may not be appropriate.  The decision suggests that an employer may chose not to hire recreational drug users without breaching Human Rights legislation but employers are obliged to not discriminate against addicts in the hiring process.

This perhaps illogical consequence of Human Right's legislation compels me to end this blog entry with a reference to Sigmund Freud who stated that:

"The liberty of the individual is no gift of civilization.  It was greatest before there was any

civilization."

The continuing saga of Physician Assisted Suicide; an ABCA in E.F. Sets the stage for the challenge of the Liberal Governments legislation

I  have followed the Carter decision for many years now.   The consequences of the Supreme Court of Canada's  decision in the Carter case have been noteworthy.    Most particularly Canada now has legislation which must comply with the parameters established by the Supreme Court of Canada:

An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)

The debate on Bill C-14 at openparliament.ca is also worthy of note.  Clear concerns were addressed to the Liberal government by many opposition MPs and one Liberal MP which appear to have been ignored by the Liberal government.   It is even more interesting to note that these concerns have manifested themselves in caselaw arising out of Alberta and addressed directly by the Court of Appeal of Alberta in the E.F. Decision:

Canada (Attorney General) v E.F., 2016 ABCA 155

I would have thought that given this decision's existence that the Liberal government would not create, what appears to be, an unnecessary challenge to the decision of the Supreme Court of Canada in Carter.   The Carter decision has determined the constitutionality of an individual's right to physician assisted suicide and it is now incumbent on the Liberal government to produce legislation that clearly complies with the constitutional determination made by the Supreme Court of Canada.

The politics are to be continued.

Mortgages, Increasing interest rates and the Canada Interest Act

The Supreme Court of Canada has weighted in on how the Canada Interest Act should be applied.  This article from the Lawyers Weekly summarizes the case:

http://www.lawyersweekly-digital.com/lawyersweekly/3551/MobilePagedReplica.action?pg=2#pg2

http://www.lawyersweekly-digital.com/lawyersweekly/3551/MobilePagedReplica.action?pg=4#pg4

Reblog of Devin Mylrea's article "Prepaid Rent or Security Deposit?"

Devin Mylrea has written an excellent summary of a recent Court of Queen's Bench decision relating to priority over monies paid by the tenant and held by a landlord:

https://issuu.com/cbaalberta/docs/law_matters_spring_2016_final/18?e=11945774/35726413

Landlords should be careful to ensure that money held by the Landlord is clearly characterized as prepaid rent and not as a security deposit.  Otherwise Landlords run the risk that secured parties will take priority over funds that would otherwise be used by landlords and applied against rent.

In Germany, if you buy a car from a dealer and the manufacturer misrepresents the specifications it is NOT the dealer's fault

I came across and interesting article on the BNN iPad app relating to the liability of a dealer being sued by a customer in respect of the manufacturer misrepresentations related to fuel efficiency.  The article states that the German Court dismissed the claim because the dealer was not at fault.  This is odd logic as the dealer communicates information provided by the manufacturer.  Should not some liability fall on the shoulders of the dealer and should the dealer not have to stand behind the representations that the dealer makes?  It will be interesting if the same claim will be asserted in Canada how our Courts may deal with this.  The better strategy would be to sue both the dealer and the manufacturer.

http://www.bnn.ca/News/2016/3/16/German-court-rejects-customers-bid-to-cancel-Volkswagen-purchase.aspx

Fraud as an Exception to the Indefeasiblity of a Land Title; the Usefulness of Title Insurance in Financings

As a lawyer who practices in the area of real estate (conveyancing, mortgages, foreclosures, and litigation) I have concluded that title insurance is an important tool to protect lenders.  This position is contrary to the position of many “real estate jockeys” who are satisfied relying exclusively on “protocol” and “real property reports” in closing real estate transactions.  A recent Ontario case, CIBC Mortgages Inc. v. Computershare Trust Co. of Canada, 2015 ONSC 543, is illustrative of the value of title insurance for lenders.

In the Computershare case the owners of the property were presumed by Justice Murray of the Supreme Court of Justice of Ontario to have fraudulently discharged the first mortgage which had been registered against the property.  Subsequent to discharging the first mortgage the owners continued to make payments under the first mortgage for over a year.  The owners then sought out a new first mortgage and a new second mortgage both of which were registered on the title.  Shortly after doing so the owners stopped making payments under the original first mortgage and the new first and second mortgages. This led to all three mortgages mortgagees bringing an application to court to settle priority.

Justice Murray of the Supreme Court of Justice of Ontario concluded that, notwithstanding the principles of indefeasibility, the first mortgage was discharged fraudulently and therefore should be re-registered in priority to the new first and second mortgages.  This result is quite shocking from the perspective of the new first mortgagee and second mortgagee.  The new first mortgagee (now second) and second mortgage (now third) are left to claim against any excess equity in the property after the original first mortgage and if this sum is insufficient to claim against the owners of the property personally.  The lender may have a claim against the "assurance fund" of the Land Titles Office but this was not addressed in the decision.  If this transaction occurred in Alberta the lender may have recourse to sections 168 and 170 of the Land Titles Act (Alberta) which provide:

Actions against Registrar 

168   Any person

                           (a)    who sustains loss or damage through an omission, mistake or misfeasance of the Registrar or an official in the Registrar’s office in the execution of the Registrar’s or official’s duties, or

                           (b)    who is deprived of any land or encumbrance or of an estate or interest in any land or encumbrance

                                 (i)    through the bringing of it under this Act,

                                (ii)    by the registration of another person as owner of the land or encumbrance, or

                               (iii)    by an error, omission or misdescription in a certificate of title,

                                    and who by this Act is barred from bringing an action for the recovery of the land or encumbrance or interest in the land or encumbrance,

may bring an action against the Registrar for the recovery of damages.

Protection of bona fide purchasers and mortgagees
170(1)  Nothing in this Act is to be so interpreted as to leave subject to action for recovery of damages, or to action of ejectment, or to deprivation of land in respect of which the purchaser or mortgagee is registered as owner, any purchaser or mortgagee bona fide for valuable consideration of land under this Act on the plea that the purchaser’s transferor or the mortgagee’s mortgagor has been registered as owner through fraud or error, or has derived title from or through a person registered as owner through fraud or error, except in the case of misdescription as mentioned in section 183(1)(e), if the purchaser or mortgagee has made all reasonable efforts to confirm that the transferor or mortgagor is the registered owner of the land.

(2)  The protection for a purchaser or mortgagee referred to in subsection (1) commences when the purchaser’s or mortgagee’s instrument is registered.

It is important to note that these sections do not make it automatic that the Registrar will pay out a claim and in fact section 170 creates an onus on lenders to have have ".. made all reasonable efforts to confirm that the transferor or mortgagor is the registered owner of the land".  This threshold might suggest that it might be prudent for lenders to obtaining appropriate title insurance.

The Computershare decision motivated me to look further about the principles of indefeasibility in Alberta. In this respect I reviewed the words of Professor Bruce Ziff in his text the Principles of Property Law .  At p.474 of his 5th Edition, Professor Ziff stated:  “A title is indefeasible when it cannot be vitiated by some antecedent act that might undermine the validity of the current rights.”  The principle of indefeasibility stems from our Torrens land titles registration system and more particularly from section 60(1) of the Land Titles Act (Alberta)

Obligation affecting land
60(1)  The owner of land in whose name a certificate of title has been granted shall, except in case of fraud in which the owner has participated or colluded, hold it, subject (in addition to the incidents implied by virtue of this Act) to the encumbrances, liens, estates and interests that are endorsed on the certificate of title, absolutely free from all other encumbrances, liens, estates or interests whatsoever except the estate or interest of an owner claiming the same land under a prior certificate of title granted under this Act or granted under any law heretofore in force and relating to title to real property.

I located a chapter dealing “Priorities and Registration” which explicated the Torrens land registration system (of which Alberta uses) and also explicate how fraud against title is an exception to the principle of indefeasibility.  Professor  Ziff reminds purchasers and lenders, and their legal counsel, of “Indefeasbility and its Qualifications”.  Professor Ziff identifies the constructs of “immediate” and “deferred” indefeasibility and reviews how fraud has been treated in the history of case law in Alberta.  Professor Ziff reviewed the Holt, Renfrew& Co. Limited v. Henry Singer Limited, 1982 ABCA 135 case.  The Holt case was in respect of a purchaser which asserted priority over an unregistered lease.  The majority of the Alberta Court of Appeal concluded that the determination of when a fraud has been perpetrated is dependent upon the alleged fraudster having “more than mere knowledge that there is an unregistered interest”.  In the Holt case the purchaser was not bound by the lease notwithstanding having some knowledge of its existence.

Professor Ziff contrasted the Holt case with the Alberta (Forestry,Lands and Wildlife) v. McCulloch, 1991 ABCA 291 case.    In the McCulloch case the Alberta Court of Appeal ordered that a Caveat giving notice of a right of repurchase which had been inadvertently discharged by the Registrar of the Land Titles Office should be reregistered against the title which had been transferred.  The Court concluded that “knowledge of the unregistered interest, by itself, does not constitute fraud” and stated “for there to be fraud, the knowledge must be used for an unjust or inequitable purpose”.  In the McCulloch case the Court concluded that such purpose was present.

This historical Alberta case law provides some insight into the recent result in the Computershare case.  In the Computershare case the owners of the property acted in such a manner that their fraud was an exception to the principle of indefeasibility.  In a recent exchange which I had with a “real estate jockey” I again insisted that many lawyers in Alberta relied too heavily on “real property reports” and protocol closing as a rationale for avoiding obtaining title insurance.  Having now reviewed the Computershare case and the historical Alberta cases mentioned above, I have concluded that lenders might be wise to better protect themselves against fraud by obtaining title insurance particularly if they are not instructing their legal counsel to take "all reasonable efforts".