Many Alberta employers are awaiting the ruling of the Alberta Court of Appeal in Chiasson v. Kellogg Brown & Root. This case involves pre-employment drug testing of a job applicant who admittedly used marijuana on a recreational basis prior to submitting to the test. The job applicant was not hired because of the positive test results.

The appeal was heard on October 11, 2007 before Justices Ritter, McFayden and Watson

Employer counsel argued that job applicants who use drugs on a recreational basis were not protected under human rights legislation. As such, there was no duty to accommodate a job applicant. Moreover, recreational drug users in high risk jobs, particularly in the energy sector, posed safety risks that could trigger occupational health and safety as well as Criminal Code violations

Counsel for the Alberta Human Rights Commission argued that the employer’s policy discriminated on the basis of perception of disability which triggered a duty to accommodate the job applicant. Counsel also relied on the Supreme Court of Canada decision in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City)

A number of questions were raised by the Justices in the course of the appeal. The Court clearly raised the issue of balancing safety obligations with human rights obligations. The Court also inquired about what protection, if any, is afforded "recreational drug users" who engage in activity which contravenes the Criminal Code

This decision is important as it appears that the conflicting employer duties of providing a safe workplace with human rights obligations to accommodate will be squarely confronted in resolving the appeal

Due to the complexity of this issue the Court has reserved judgment. McCarthy Tétrault LLP will issue a further e-alert when the decision is delivered.