Wednesday, November 16, 2016

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:

[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
[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
[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.
[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.


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