Landmark Decision on Pre-employment Drug Testing
Court of Appeal Allows Pre-employment Drug Testing
The Court of Appeal of Alberta has reversed a decision that held an employer liable to compensate a recreational drug user.
In 2002, a prospective employee of Kellogg Brown & Root ("KBR"), who had been hired to work near Fort McMurray, Alberta, failed a pre-employment drug screen. KBR had allowed him to start before the results of the drug test came back, but when they did, he was found to have tested positive for marijuana, and was dismissed.
He filed a Human Rights Complaint, alleging that he had been discriminated against on the basis of a perceived disability - addiction; however, he admitted that he is not addicted.
Macleod Dixon LLP, as counsel for KBR, submitted that Mr. Chiasson did not have a disability, because he was not drug dependent or addicted. He was merely a recreational user of this illegal drug. The Human Rights Panel Member agreed.
On May 29, 2006, The Honourable Justice Sheila Martin reversed this decision, and found KBR liable for damages to Mr. Chiasson for violating his human rights. Following a leading decision of the Ontario Court of Appeal, Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18, she held that the fact that KBR had automatically fired Mr. Chiasson, without inquiring into whether or not he had an addiction, amounted to treating him as if he were an addict. She held that the employee had been the victim of discrimination.
KBR appealed that decision to the Court of Appeal of Alberta, and the decision was released on December 28, 2007.
The Court of Appeal reversed the decision of Madam Justice Martin, and restored the decision of the Human Rights Panel Member. The panel of the Court, writing as one, made it clear that "[e]xtending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic."
On the central point that a testing policy that targets those who test positive for drugs automatically offends human rights, the Court declined to follow the Ontario Court of Appeal's decision in Entrop.
This case has been followed closely by many members of the energy and construction industries, their human resources department members, and their legal counsel. The decision that a recreational user of drugs does not have a human rights complaint is an important decision for these industries.
For further information, contact Andy Robertson.