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."

Condominium Complexes are Private; a Defense Against the creeping expansion of the Alberta Human Rights Commission

The distinction in law between "public" and "private" is a dynamic thing.  It is among many other legal concepts open to interpretation and some would say manipulation.  Where the line is drawn is significant for many reasons least of all the extent to which government can impose itself on the ordinary and private lives of our country's denizens.

Even if one does not critique the history and political philosophy of human rights legislation the incessant expansion of Human Rights Commissions in Canada is worthy of comment.  Particularly in this regard, it is important for those in condominium communities in Alberta to recognize that the Alberta Human Rights Commission (the "Commission") and many who support the shrinking of any societal space considered historically to be "private" hold the view that condominium corporations are bound by the Alberta Human Rights Act (the "AHRA").  The position articulated by the Commission is, notwithstanding the absence of any Court of Queen's Bench authority which supports the Commission's position, that section 4 of the AHRA applies to condominium corporations and prohibits discrimination against any person or class of person in respect of "accommodation or facilities" that are "customarily available to the public".

This position of the Commission is without support in law in Alberta; in this regard reference should be made to Condominium Plan No. 931 0520 v. Smith and the more recent Condominium Plan No. 9910225 v. Davis, both Court of Queen's Bench decisions.  Notwithstanding this clear enunciation of the law, an academic lawyer at the University of Calgary, Jennifer Koshan, has recently suggested that these decisions are wrongly decided.  The basis upon which Ms Koshan asserts this position is imaginative but is unfortunately illogical and lacks grounding in reality.  Ms Koshan's argument is based on a 1993 decision of the Supreme Court of Canada (the "SCC") in University of British Columbia v. Berg.  
Without wallowing in the details, the facts in Berg dealt with the failure of a student to receive a rating sheet and key from the University.  The SCC indicated that the focus of their legal inquiry at pages 373-74 would be in respect of the scope of the terms  "accommodations, services or facilities" and "public" (my emphasis):

"The courts below assumed, and the School conceded, that the key and rating sheet were "services" within the meaning of the Act.  The real issue between the parties was whether such services were, on the correct interpretation of s. 3 and the evidence, customarily available to the public.  This in turn entails two inquiries:  first, whether the student body of a university (or a faculty within the university) is the "public", and if so, second, whether the services in this case were, as a matter of law and fact, customarily available to that public."

The SCC concluded that the term public means more than its ordinary meaning.  The unusual conclusion made by the SCC in Berg is found at page 383:

"Therefore, I would reject any definition of "public" which refuses to recognize that any accommodation, service or facility will only ever be available to a subset of the public.  Students admitted to a university or school within the university, or people who enter into contracts of insurance with a public insurer, or people who open accounts with financial institutions, become the "public" for that service.  Every service has its own public, and once that "public" has been defined through the use of eligibility criteria, the Act prohibits discrimination within that public."

The idead of "a public" (rather than "the public") within a "private" setting and the application of the principal of "eligibility criteria" in this regard may make sense in context of large institutions like universities, insurance companies and financial institutions frequented by many persons in society.  However, this principal of "a public" and the application of "eligibility criteria" cannot be applied to all circumstances; curiously the SCC was silent on the issue of limitation.  Moreover, and I suggest critical in this regard, the SCC's conclusion and Ms. Koshan's reliance on this conclusion from the Berg decision overlooks the limitations based on ordinary meaning which had been determined by the SCC in respect of the scope of these same terms in the Gay Alliance Toward Equality v. Vancouver Sun decision.    With all due respect, this earlier decision does not strain the ordinary meaning of these terms.  It is worthy to note that this case was referred to by the SCC in the Berg decision; the SCC quoted from the Gay Alliance case at page 374:

"After briefly discussing the nature of freedom of the press in Canada, Martland J. wrote (at pp. 454-55):

In my opinion the general purpose of s. 3 was to prevent discrimination against individuals or groups of individuals in respect of the provision of certain things available generally to the public.  The items dealt with are similar to those covered by legislation in the United States, both federal and state.  "Accommodation" refers to such matters as accommodation in hotels, inns and motels.  "Service" refers to such matters as restaurants, bars, taverns, service stations, public transportation and public utilities.  "Facility" refers to such matters as public parks and recreational facilities.  These are all items "customarily available to the public".  It is matters such as these which have been dealt with in American case law on the subject of civil rights."

The SCC had also earlier in the decision at page 366 made reference to an important comment in the decision of the Honourable Justice Legg of the British Columbia Court of Appeal and which was subject of the Appeal to the SCC (my emphasis):

"Legg J.A. assumed, in his decision for the court, that the provision of a rating sheet or a key to the building was an "accommodation, service or facility", noting that the word "service" was to be interpreted broadly, he did not agree that it constituted a service "customarily available to the public" within the meaning of s. 3 of the Act.  In reaching that conclusion, he referred to decisions of this Court stating that human rights legislation should be interpreted so as to advance the broad policy consideration underlying it, but he also argued that this did not mean that the ordinary meaning of words should be strained."

I suggest, with all due respect, that the decision of the SCC does "strain" the ordinary meaning of these terms.  Ms. Koshan is now attempting to suggest that the AHRA should apply to a private condominium communities based on the unusual principal of "eligibility criteria".  Universities are facilities created by statute and funded partly via public funds.  All students with sufficiently high grades and the financial wherewithal may attend at a university.  Perhaps in this context the determination of the SCC that the failure to provide a rating form and a key was discriminatory.  However, condominium corporations are created by registration of a Plan of Subdivision at the Land Titles Office and are simply a means of dividing a parcel of land into smaller parcels all which are capable of being owned privately.  There is nothing public about a condominium corporation.  Only invitees are permitted to come onto either the common property or any particular unit.  It embraces incredulity to suggest that a condominium corporation in this regard is anything remotely like a university or in any manner is public.  Moreover, a condominium corporation does not provide services nor accommodation or facilities.

Those who support the shrinking of societal spaces historically considered to be "private" will suggest that the availability for sale of a condominium units in a particular condominium project is the "eligibility criteria" and upon units being purchased the owners in a condominium become the "public" which the AHRA would apply to.  This is nonsense and illogical.  This faulty logic is revealed by applying the "eligibility criteria" to single detached residences on individual lots.  It is nonsensical to suggest that once an owner purchases a single detached residence they now belong to the "public".  Moving across the continuum it is also nonsensical to apply this to bare land condominiums with single detached residences on it.  It is equally as nonsensical to apply the principal of "eligibility criteria" to duplexes and townhouses not part of condominium projects; by extension this should also make it nonsensical to duplexes and townhouses in condominium complexes.  Though novel and imaginative the application of the principal of "eligibility criteria" to condominiums fails by reductio ad absurdum.   Regardless of the unusual and in some ways illogical conclusion of the SCC in Berg it is suggested that the AHRA will continue to not apply to condominium corporations in Alberta.