The law relating to drug and alcohol testing and the application of human rights legislation to recreational drug users continues to develop in Canada. Two cases involving failed preemployment drug tests by admitted users of marijuana, one from Alberta and one from Ontario, are reviewed below. The conflicting decisions of the respective human rights tribunals and the courts in these two provinces demonstrate the potential hurdles an employer may face if an employee or prospective employee proceeds with a human rights complaint in this area.

In Weyerhaeuser Co. (c.o.b. Trus Joist) v. Ontario (Human Rights Commission)1 (the “Chornyj” decision), the Ontario Superior Court of Justice issued an order preventing the Ontario Human Rights Tribunal from hearing the complaint of Alan Chornyj. Weyerhaeuser had offered Mr. Chornyj a position at its plant in Kenora, Ontario. The position was considered “safety sensitive” and the offer of employment was conditional on Mr. Chornyj passing a drug test. Mr. Chornyj tested positive for marijuana and the offer of employment was withdrawn. There was some disagreement in the evidence as to the nature of the conversation that took place between Weyerhaeuser’s human resources department and Mr. Chornyj before the offer was withdrawn, but both parties agreed that Mr. Chornyj admitted he was an occasional user of marijuana. Mr. Chornyj filed a human rights complaint claiming that Weyerhaeuser discriminated against him on the grounds of disability or perceived disability. Weyerhaeuser claimed that the job offer was withdrawn because Chornyj lied, and brought an application to dismiss the complaint without a hearing because the tribunal lacked jurisdiction to hear it.

The human rights tribunal dismissed Weyerhaeuser’s motion to dismiss the complaint without a hearing and found that it had jurisdiction to hear the complaint. Weyerhaeuser applied to the court to have the tribunal’s decision reviewed. The court disagreed with the tribunal and held that it had erred by failing to dismiss Mr. Chornyj’s complaint. The court stated that the only evidence before the tribunal was that Mr. Chornyj claimed to be a recreational user of marijuana. He did not claim that he abused marijuana or that he used marijuana because he suffered from an existing disability. Therefore, his complaint did not meet the definition of “disability” under Ontario’s Human Rights Code. On the issue of perceived disability, Mr. Chornyj did not allege that anyone at Weyerhaeuser perceived him to be disabled and all of the evidence of Weyerhaeuser’s representatives indicated that they did not perceive him as having a disability. Furthermore, the court held that the effect of Weyerhaeuser’s drug testing policy did not support the inference that the company perceived him as having a disability. The court pointed out that prohibiting a human rights claim to proceed was an extraordinary remedy, but stated that it was “plain and obvious” that Weyerhaeuser did not treat Mr. Chornyj as if he were disabled by drug dependency.

In the Chornyj decision, the court referred to Alberta (Human Rights and Citizenship Commission, Director) v. Kellogg Root & Brown (Canada) Co.2, (the “Chiasson” decision), a case which has received much attention in Alberta following its release in 2006. Mr. Chiasson was offered employment with Kellogg, Root & Brown (Canada) Co. at a Syncrude plant in Fort McMurray, Alberta. He was required to take and pass a pre-employment drug test as part of his employment. Mr. Chiasson took the required test, began working, and was immediately terminated after approximately 9 days of work when his employer learned that he had tested positive for marijuana. Mr. Chiasson challenged the practice of mandatory pre-employment drug testing, as discrimination on the basis of disability, before an Alberta Human Rights Panel. Throughout the proceedings Mr. Chiasson claimed that he was not, and never had been, dependent on any drug and he characterized his use of marijuana as recreational. The Panel held that there was no discrimination because Mr. Chiasson did not suffer from a disability and there was no perceived disability because the employer did not allege that he had used drugs while at work. Accordingly, his complaint was dismissed.

The Alberta Court of Queen’s Bench reversed the decision of the Alberta Human Rights Panel. It found that the policy was discriminatory because the employer treated the employee as if he were drug dependent and terminated him on the basis of a perceived and general statistical risk that he is likely to be impaired on the job in the future. The policy called for automatic termination without accommodation. Since the employer did nothing to accommodate the employee, it fell short of the standard of making every possible accommodation to the point of undue hardship. In the absence of accommodation, the policy could not be justified, nor could the treatment of Mr. Chiasson. As a result, the employer was directed to cease its pre-employment drug testing in its current form.

The court in Chornyj indicated that the Chiasson case decided earlier in Alberta was similar in many respects to the facts in Chornyj but the Ontario court reached a different conclusion. It distinguished the Chiasson decision on the fact that there was evidence that Kellogg, Root & Brown (Canada) Co.’s representatives subjectively believed that Mr. Chiasson was drug dependent and the automatic dismissal of the employee after a positive drug test indicated that the employer subjectively believed that any person testing positive was a substance abuser. The Alberta Court of Queen’s Bench decision in Chiasson has been described by some as extending human rights protection to self-avowed recreational drug users. This is in stark contrast to the contention of most employers that human rights legislation should not apply to these individuals who freely admit that they do not suffer from any sort of disability.

The Chiasson decision has been appealed to the Alberta Court of Appeal and, at the time of writing, was scheduled to be heard in October 2007. Two industry groups (one of which includes Syncrude Canada Ltd., Suncor Energy Inc., Imperial Oil Limited, Nexen Inc. and Albian Sands Energy Inc.) have been granted intervener status in this appeal to address, from the perspective of an owner/operator, what constitutes undue hardship in terms of an employer’s duty to accommodate in the context of a unique and highly safety-intensive environment. As interveners, these industry groups have an opportunity to present arguments at the appeal even though they were not directly involved in the original complaint. The approach the Alberta Court of Appeal will take in determining whether human rights protection ought to be extended in this case, is difficult to predict.