DATE: 20000721
DOCKET: C29762
COURT OF APPEAL FOR ONTARIO
MORDEN, LASKIN and GOUDGE JJ.A.
IN THE MATTER OF the Ontario Human Rights
Code, R.S.O. 1990 c. H.19, as Amended;
AND IN THE MATTER OF the complaint dated
January 16, 1992, as subsequently amended, by
Martin Entrop alleging discrimination on the
basis of handicap by Imperial Oil Limited;
AND IN THE MATTER OF an appeal from the
decision of the Ontario Court of Justice
(General Division) Divisional Court dated
February 6, 1998.
BETWEEN:
MARTIN ENTROP and THE ) W. Niels F. Ortved
ONTARIO HUMAN RIGHTS ) and Jenny P. Stephenson
COMMISSION ) for the appellant Imperial Oil
)
Complainants/ )
Respondents )
)
–and– ) Marvin J. Huberman and
) H.W. Roger Townshend
IMPERIAL OIL LIMITED ) for the Ontario Human Rights
) Commission
Respondent/ )
Appellant )
) Paul J.J. Cavalluzzo and
–and– ) Jeffrey M. Andrew
) for Martin Entrop and the
CANADIAN CIVIL LIBERTIES ) intervener
ASSOCIATION )
)
Intervener )
) Heard: January 18, 1999
On appeal from the Divisional Court (Flinn, Kent and Feldman JJ.)
dated February 6, 1998.
LASKIN J.A.:
Introduction
[1] In 1992 the appellant Imperial Oil Limited instituted a
comprehensive alcohol and drug testing policy (the “Policy”) for
its employees at its two Ontario refineries. The main question
on this appeal is whether the provisions of the Policy
discriminate on the ground of handicap or whether they are bona
fide occupational requirements.
[2] The respondent Martin Entrop suffered from alcohol abuse in
the early 1980s. Although he had not had a drink for over seven
years, because he worked in what Imperial Oil classified as a
safety-sensitive job, the Policy required him to disclose his
previous alcohol abuse problem to management. When he disclosed
it, he was automatically reassigned to another job. Although he
was eventually reinstated to his former position, he filed a
complaint with the respondent the Ontario Human Rights Commission
(the “Commission”), alleging that Imperial Oil discriminated
against him in his employment because of his handicap contrary to
s.5(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as
amended (the “Code”). On the Commission’s recommendation, the
Minister of Labour appointed a Board of Inquiry to hear the
complaint.
[3] The Board chair, Constance Backhouse, (the “Board”)
broadened the scope of the inquiry to deal not just with Entrop’s
specific complaint but with all aspects of alcohol and drug
testing under the Policy. In a series of decisions she concluded
that the challenged provisions of the Policy were prima facie
discriminatory and could not be justified as bona fide
occupational requirements. She awarded Entrop damages in the
amount of $21,241.93, including $10,000 for mental anguish. An
appeal from her decision was dismissed by the Divisional Court.
[4] Imperial Oil appeals to this court with leave. It submits
that the provisions of the Policy are not discriminatory, that
the Board had no jurisdiction to expand the scope of the inquiry
into all aspects of alcohol and drug testing under the Policy,
and that the award of damages to Entrop for mental anguish is not
supportable.
II. The Alcohol and Drug Policy
[5] Following a number of incidents, such as the Exxon Valdez
oil spill in Alaska, in which alcohol and drugs were thought to
be contributing factors, Imperial Oil became concerned that
substance abuse threatened the safety of its employees, the
public and the environment. It decided to implement a
comprehensive alcohol and drug policy at its two Ontario
refineries. In developing the Policy, Imperial Oil consulted
widely with its employees and with experts in alcohol and drug
addiction and occupational health and safety. The stated
objective of the Policy was “to minimize the risk of impaired
performance due to substance abuse.” The Policy was announced to
the employees on October 19, 1991 and implemented on January 1,
1992.
[6] The Policy principally targeted employees in safety-
sensitive positions, about ten per cent of Imperial Oil's
workforce. Safety-sensitive positions “have a key and direct
role in an operation where impaired performance could result in a
catastrophic incident affecting the health or safety of
employees, sales associates, contractors, customers, the public
or the environment”; and “have no direct or very limited
supervision available to provide frequent operational checks.”
[7] Under the Policy, as amended in February 1992, the following
key work rules applied to employees in safety-sensitive
positions:
No presence in the body of illicit drugs or their
metabolites, nor a blood-alcohol concentration exceeding
.04 per cent (.04 grams per 100 millilitres) while at work.
Unannounced random alcohol and drug testing, alcohol testing
by breathalyzer and drug testing by urinalysis.
On a positive test or other Policy violation, automatic
dismissal.
To remain in or qualify for a safety-sensitive position,
completion of a certification process, including a medical
examination, a negative test for alcohol and drugs, and a
signed acknowledgement of compliance with the Policy.
Mandatory disclosure to management of a current or past
“substance abuse problem”.
On disclosure of a substance abuse problem, reassignment to
a non-safety-sensitive position.
Reinstatement to a safety-sensitive position only on
completing a company approved two-year rehabilitation program
followed by five years of abstinence, and on signing an
undertaking to abide by specified post-reinstatement controls.
[8] Although the Policy mainly focused on employees in safety-
sensitive positions, it also provided for mandatory alcohol and
drug testing for all job applicants and all employees in the
following circumstances:
Pre-employment testing for specified drugs for all job
applicants, as a condition of employment.
Testing for alcohol and specified drugs for all employees:
- after a significant work accident, incident or near
miss (“post-incident”)
- where reasonable cause existed to suspect alcohol or
drug use (“for cause”)
III. The Facts Giving Rise to the Complaint Before the Board
[9] Martin Entrop has worked for Imperial Oil at its Sarnia
Refinery since the mid-1970s. In 1987 he was promoted to the
position of senior control board operator, responsible for
controlling various oil refining processes.
[10] Entrop is a recovered alcoholic. He testified that he had a
previous alcohol abuse problem but that he had not had a drink
since 1984. The Board accepted his testimony.
[11] In October 1991 Imperial Oil announced its Policy. As I
have said, the Policy required employees in safety-sensitive
positions to disclose to management a past or current substance
abuse problem. Entrop’s position, senior control board operator,
was classified as a safety-sensitive position. On October 26,
1991, in accordance with the provisions of the Policy, Entrop
notified management that he had previously been an alcoholic and
that he had been sober continuously since 1984. Imperial Oil
immediately reassigned him to a non-safety-sensitive position at
the same rate of pay. Entrop claimed that his new position was
“less desirable”.
[12] On January 16, 1992, he filed with the Commission a
complaint of discrimination alleging that “his right to equal
treatment in employment without discrimination has been infringed
because of my handicap and perceived handicap contrary to s.5(1)
of the Ontario Human Rights Code.”
[13] Shortly after Entrop filed his complaint, Imperial Oil
amended its Policy to permit employees with past substance abuse
problems to be reinstated to safety-sensitive positions under
specified conditions. In March 1992 Entrop applied for
reinstatement. He underwent several medical evaluations, all of
which showed that his alcohol dependence was in remission and
that he had no psychological or psychiatric problems preventing
him from resuming his old job. On May 15, 1992, Imperial Oil
agreed to reinstate Entrop to his former position as senior
control board operator if he signed “an undertaking regarding
post-reinstatement controls.” The undertaking required Entrop to
agree to unannounced alcohol tests and to comply with and be
subject to the Policy. Entrop signed the undertaking on May 26,
1992 and he was then reinstated.
[14] In March 1995 after Entrop had continuously tested negative,
Imperial Oil removed several of the post-reinstatement controls.
However, on June 1, 1995, after his hearing before the Board of
Inquiry had started, Entrop amended his complaint to include an
allegation that Imperial Oil had engaged in a series of reprisals
against him for initiating his complaint to the Commission,
contrary to s.8 of the Code.
[15] On June 2, 1995, in her fifth interim decision, the Board
permitted Entrop to further amend his complaint to allege that,
when Imperial Oil distributed the Policy to its employees and
circulated “educational awareness materials” to explain how the
Policy operated, it violated s.13(1) of the Code, because it
published a notice that indicated an intention to infringe a
right under the statute. A new “amended amended complaint”
containing an allegation that Imperial Oil had breached s.13(1)
was filed on December 7, 1995.
IV. The Decision of the Board of Inquiry
[16] The “Decision” of the Board of Inquiry consisted of eight
interim decisions delivered over a two-year period from August
25, 1994 to September 12, 1996. Of these, the most significant
are decisions 5 through 8, which deal with the expanded scope of
the hearing, Entrop’s original complaint of discrimination, the
allegations of reprisal against Entrop, the remedies for Imperial
Oil’s breaches of the Code, and the legality of the Policy
provisions for alcohol and drug testing. Because many of the
Board’s findings and her jurisdiction to expand the scope of the
hearing are in issue in this appeal, I will briefly summarize the
substance of each of her eight interim decisions.
Interim Decision No. 1, August 25, 1994
[17] The parties asked for a preliminary ruling on the scope of
the hearing. Imperial Oil sought to limit the Board’s inquiry to
the portion of the Policy that applied to Entrop, that is the
provisions for disclosure of a previous substance abuse problem,
reassignment and reinstatement. The Commission took the position
that, in addition to dealing with Entrop’s specific complaint,
the Board should inquire into the entire Policy. The Board
declined to rule, saying that it was premature to do so. In the
Board’s view the scope of the hearing had to await further
scrutiny.
Interim Decision No. 2, September 27, 1994
[18] On a Commission motion for the production of documents, the
Board ruled that she would take a “phased” approach to the
hearing. In the first phase she would consider Entrop’s
complaint. She again refused to rule on whether the entire
Policy would be in issue, saying that would become clear as the
hearing progressed.
Interim Decision No. 3, October 21, 1994
[19] In this third interim decision the Board dealt with three
matters. First, she ruled that she would consider whether the
terms of Entrop’s reinstatement to his previous position violated
the Code. Because the Policy, as originally promulgated,
contained no provision for reinstatement, Entrop’s original
complaint contained no allegation about reinstatement. When
Imperial Oil amended its Policy in February 1992 to permit
reinstatement. Entrop sought and obtained reinstatement to his
former position. He did not, however, apply to amend his
complaint to allege discrimination in connection with his
reinstatement. Nonetheless the Board held that the inquiry would
cover Entrop’s reinstatement because “the issue of reinstatement
is not severable from the issue of job loss.”
[20] Second, the Board allowed the Commission to amend the
complaint of discrimination to add allegations of reprisal
against Entrop for filing his complaint, contrary to s.8 of the
Code.
[21] Third, under her “phased” approach, the Board deferred her
ruling on whether the Commission could further amend the
complaint to allege that Imperial Oil’s distribution of its
Policy to its employees violated s.13 of the Code.
Interim Decision No. 4, December 5, 1994
[22] The Commission asked to widen the scope of the inquiry to
include random drug testing. The request was made because
Entrop’s doctor had provided a pain killer (Tylenol 3) containing
codeine for Entrop’s injured knee, and codeine is a drug
specifically targeted under the Policy. The Board ruled that it
would reserve its decision on the Commission’s request until
after the first phase of the inquiry.
Interim Decision No. 5, June 2, 1995
[23] In this fifth interim decision, the Board decided that she
would hear the complaint in three phases. Phase one would deal
with Entrop’s complaint of discrimination concerning his previous
alcohol dependency; phase two would deal with the allegations of
reprisal; and phase three would deal with the Policy as a whole.
Thus the Board decided to expand the hearing into all aspects of
alcohol and drug testing under the Policy. She justified her
decision to do so on four separate bases:
1. Entrop’s use of Tylenol 3;
2. The undertaking Entrop was required to sign to be
reinstated “incorporated the Policy by reference”;
3. The Board’s broad remedial jurisdiction under s.41(1)(a)
of the Code; and
4. The distribution of the Policy and supporting literature
to Imperial Oil’s workforce raised an alleged violation
of s.13(1) of the Code.
[24] The Board also indicated that she would consider in phase 3
whether Imperial Oil had breached s.13(1) and, as I have already
said, she permitted Entrop to amend his complaint to allege a
breach of s.13(1).
[25] Having determined that she had jurisdiction to inquire into
all aspects of alcohol and drug testing under the Policy, she
then reserved her decision on whether she would make findings on
these issues. The Board’s jurisdiction to inquire into all the
testing provisions in the Policy and eventually to make findings
on them was one of Imperial Oil’s grounds of appeal both in the
Divisional Court and in this court.
Interim Decision No. 6, June 23, 1995
[26] In this interim decision the Board made its findings on
phase one, Entrop’s complaint of discrimination on the ground of
handicap because of his past alcohol dependence. The Board found
on expert evidence that alcohol abuse was a “handicap” under the
Code. She then concluded, relying on the broad definition of
“handicap”, that Entrop had established a prima facie case of
discrimination contrary to s.5. In her view, by requiring Entrop
to disclose his past alcohol abuse, by removing him from a safety-
sensitive position, and by imposing conditions on his
reinstatement, Imperial Oil had directly discriminated against
him on the basis of “perceived handicap”.
[27] The Board held that the only defence to a prima facie case
of direct discrimination was s.17 of the Code. She held that to
establish “incapability” under s.17(1) Imperial Oil had to meet a
subjective standard of good faith and an objective standard of
reasonable necessity. She found that Imperial Oil had met the
subjective standard of good faith. She also found that Imperial
Oil had the right to insist that employees in safety-sensitive
positions be unimpaired by alcohol. However, Imperial Oil failed
to meet the objective standard of reasonable necessity because it
could not establish that Entrop’s previous alcoholism had
adversely affected his job performance. Therefore Imperial Oil
was not justified in treating him differently.
[28] The Board also found that even if Imperial Oil’s treatment
of Entrop was objectively justified, the company had not met its
duty to accommodate him under s.17(2) of the Code. The mandatory
obligation to disclose his past alcohol dependency, his automatic
reassignment and his subsequent reinstatement under the
conditions specified in his undertaking all failed the
accommodation requirement.
Interim Decision No. 7, August 10, 1995
[29] In this interim decision the Board dealt with phase two of
the hearing, the allegations of reprisal against Entrop for
filing his complaint, and with the remedy for the breaches of the
Code she found in phases one and two. The Board held that
Imperial Oil had retaliated against Entrop contrary to s.8 of the
Code. She found that after he filed his human rights complaint
he had been subjected to a series of acts, actual and threatened,
that detrimentally affected him in his job at Imperial Oil. She
listed a number of incidents, which in her view amounted to an
ongoing pattern of reprisal. In some of the incidents she found
that Imperial Oil intended to retaliate against Entrop; for
others she could find no proof of intent but still held that s.8
had been breached because the “reasonable human rights
complainant” in Entrop’s position would be justified in
perceiving that Imperial Oil had retaliated.
[30] The Board awarded Entrop $10,000 in general damages to
compensate him for the “intrinsic value” of the infringement of
his rights, $10,000 in damages for mental anguish, for his rights
being infringed wilfully and recklessly, and $1,241.93 in special
damages for lost overtime because of his reassignment. Only the
award of damages for mental anguish is in issue on this appeal.
Interim Decision No. 8, September 12, 1996
[31] In this eighth and last interim decision the Board
considered the legality of the parts of the Policy dealing with
alcohol and drug testing. She found that drug abuse, like alcohol
abuse, was a handicap under the Code. She also found that
Imperial Oil’s Policy directly discriminated against employees
who were using or had used drugs, on the ground of handicap
contrary to s.5 of the Code. Although she accepted that
employees impaired by drugs were incapable of fulfilling the
essential requirements of the job, she held that the expert
evidence unequivocally showed that drug testing cannot establish
impairment. Therefore, a positive drug test could not
substantiate an incapability defence under s.17(1) of the Code.
She also found that the Policy provisions on disclosure of drug
use, reassignment and reinstatement were not justified under
s.17(1). Further, she found that the Policy provisions on
reassignment and reinstatement did not satisfy Imperial Oil’s
duty to accommodate under s.17(2).
[32] Although this eighth interim decision mainly dealt with drug
testing, the Board also considered the legality of random alcohol
testing. During the hearing the Commission conceded that, in
contrast to urinalysis for drug impairment, breathalyzer testing
does show alcohol impairment. The Commission also conceded that
alcohol testing may be permissible “for cause” and “post-
incident”. The Board, however, declined to rule on the accuracy
or reliability of breathalyzer testing or on its legality for
cause or post-incident.
[33] But the Board apparently accepted the Commission’s argument
that breathalyzer testing was not necessary to detect or deter
alcohol impairment on the job because other less intrusive
measures were available. These methods included employee
assistance programs, health promotion programs, supervisory
assessment and peer control programs.
[34] The Board ended her decision with five general conclusions,
all of which are in issue on this appeal. They are:
1. The Policy’s requirement that employees in safety-
sensitive positions disclose any current or past
“substance abuse problem” contravenes the Code because
the definition of “substance abuse problem” is too broad
and is unlimited in duration.
2. The Policy provisions that prescribe a minimum of seven
years between reassignment following disclosure of a
substance abuse problem and potential reinstatement
breach the Code because this length of time is not
necessary in all cases.
3. The mandatory conditions of reinstatement breach the Code
because they are more than necessary in some cases.
4. The Policy provisions for pre-employment and random drug
testing breach the Code because Imperial Oil failed to
prove that a positive drug test shows impairment.
However, drug testing “for cause”, “post-incident”, on
“certification for safety-sensitive positions” and “post-
reinstatement” may be permissible, but only if Imperial
Oil establishes that this “testing is necessary as one
facet of a larger process of assessment of drug abuse”.
5. The Policy provisions for random alcohol testing breach
the Code because Imperial Oil failed to establish that
this testing is reasonably necessary to deter alcohol
impairment on the job. Alcohol testing for
“certification” for safety-sensitive positions and “post-
reinstatement” may be permissible but again only if
Imperial Oil establishes that this testing “is necessary
as one facet of a large process of assessment of alcohol
abuse”.
[35] The Board also included in this decision an appendix in
which she set out in more detail her reasons for concluding that
she had jurisdiction not only to inquire into the drug and random
alcohol testing provisions of the Policy but to make findings on
them as well. In this appendix she added one further conclusion
to her five general conclusions. She held that the posting,
printing and dissemination of the Policy constituted “the
publication or display for the public” of a “notice” under
s.13(1) and that to the extent the testing provisions contravened
the Code they announced an intention to infringe a right contrary
to the section.
[36] On this appeal Imperial Oil asks that we set aside the
Board’s five general conclusions, that we declare the Board had
no jurisdiction concerning her fourth and fifth conclusions, and
that we set her aside her conclusion on s.13(1).
[37] Following this eighth interim decision the Board indicated
that if necessary she would conduct a fourth phase of the hearing
to address revisions to Imperial Oil’s Policy and further
allegations of reprisal. However, the record before the
Divisional Court and this court included only the eight interim
decisions that I have summarized.
V. The Decision of the Divisional Court (Flinn, Kent and Feldman
JJ.)
[38] The Divisional Court upheld the Board of Inquiry and
dismissed Imperial Oil’s appeal. Flinn J., writing for the
court, held that most of the submissions made by Imperial Oil
raised questions of mixed fact and law, and therefore the
applicable standard of review was reasonableness. However, on
the question of the Board’s jurisdiction to consider the entire
Policy, he held that the standard was correctness.
[39] Flinn J. then addressed Imperial Oil’s five main arguments.
First, he agreed with the Board’s interpretation of ss.5 and 17
of the Code and held that the Board’s finding that Entrop’s
rights were infringed on the ground of handicap was reasonably
supported by the evidence. Second, he concluded that the broad
remedial jurisdiction in the Code and the undertaking to comply
with the Policy signed by Entrop as a condition of his
reinstatement gave the Board jurisdiction to consider the Policy
as a whole. Third, he saw no reason to interfere with the
Board’s findings that drug abuse was a handicap and drug testing
under the Policy breached the Code, holding that these findings
were “reasonable and based on the evidence”. Fourth, he held
that the Board had not erred in her assessment of the expert
evidence. Fifth, he held that the award of damages to Entrop was
not excessive. In summary, Flinn J. held that all the Board’s
orders and conclusions were supportable on the evidence.
VI. Grounds of Appeal
[40] In this court Imperial Oil raised six grounds of appeal.
1. The Divisional Court erred by applying the wrong standard
of review to the Board’s findings.
2. The Divisional Court erred in holding that the Board had
jurisdiction to inquire into all aspects of alcohol and
drug testing under the Policy.
3. The Divisional Court erred in upholding the Board’s
conclusion that the Policy’s provisions for alcohol and
drug testing violate the Code.
4. The Divisional Court erred in upholding the Board’s
conclusion that the Policy’s provisions for mandatory
disclosure, reassignment, reinstatement and certification
violate the Code.
5. The Board erred in holding that Imperial Oil infringed
s.13(1) of the Code by distributing its Policy to its
employees.
6. The Divisional Court erred in holding that the Board’s
finding that Imperial Oil infringed Entrop’s rights
“wilfully and recklessly” was reasonably supported by the
evidence.
VII. Discussion
First Issue - Did the Divisional Court apply the wrong
standard of review?
[41] The Divisional Court held that the standard of review of the
Board’s jurisdiction to expand the scope of its inquiry to deal
with the entire Policy was correctness, but that all other
findings and conclusions of the Board were on issues of mixed
fact and law, for which the standard of review was
reasonableness. Imperial Oil submits that the Divisional Court
erred because it applied the reasonableness standard to questions
of law, such as the concept of perceived handicap under s.10 of
the Code. Imperial Oil contends that these questions should have
attracted the correctness standard.
[42] Under s.42(3) of the Code, an appeal from a Board decision
to the Divisional Court may be made on questions of law or fact
or both and the Divisional Court has wide powers to affirm,
reverse or substitute its opinion for that of the Board. The
standard of review applicable to a human rights tribunal subject
to such a broad right of appeal has been settled by the Supreme
Court of Canada in Canada (A.G.) v. Mossop, [1993] 1 S.C.R. 554
at 583-5 and University of British Columbia v. Berg, [1993] 2
S.C.R. 353 at 368-9. The standard of review of general questions
of law, including the interpretation of the governing human
rights statute is correctness; the standard of review of the
Board’s findings of fact and the application of the law to those
findings of fact is reasonableness.
[43] Thus, in this appeal, the Board’s jurisdiction to expand the
scope of the inquiry is, as the Divisional Court held, a question
of law to which the correctness standard applies. But so too is
the interpretation of the definition of “handicap” under s.10 of
the Code, and the test to justify a prima facie case of
discrimination under ss.11 and 17 of the Code. For the other
issues raised in the appeal the reasonableness standard applies.
In my view, this is the appropriate approach to the substantive
issues raised by Imperial Oil.
Second Issue – Did the Divisional Court err in holding that the
Board had jurisdiction to inquire into all aspects of alcohol and
drug testing under the Policy?
[44] Entrop’s human rights complaint alleged that Imperial Oil
discriminated against him on the ground of handicap because the
company required him to disclose his previous alcohol abuse, and
once he had disclosed it, reassigned him out of his safety-
sensitive position. Entrop’s complaint thus focused on the
provisions of the Policy for mandatory disclosure of past alcohol
abuse and reassignment on disclosure. Nonetheless, the Board
decided part way through the hearing that she would broaden the
inquiry into all aspects of alcohol testing and even into drug
testing under the Policy. Imperial Oil submits that she had no
jurisdiction to do so. The Divisional Court rejected this
submission.
[45] For reasons that I will outline, the Board’s decision to
inquire into all aspects of alcohol testing can be justified.
However, the Board had no jurisdiction to inquire into drug
testing. Moreover, I think that the Board was unwise to have
done so, especially in the way that she did, even though Imperial
Oil did not claim that it was prejudiced. That said, because
both the Board and the Divisional Court have considered whether
the drug testing provisions of the Policy violate the Code,
practically I see no alternative but to do so as well.
[46] The jurisdiction of a board of inquiry under the Code is
provided for in Part IV of the statute, titled “Enforcement”.
Under s.36(1) the Commission may refer “the subject
matter of the complaint to a board of inquiry.”1 Under s.39(1)
the board of inquiry shall hold a hearing to determine whether a
right of the complainant under the Act has been infringed and if
so by whom, and to decide an appropriate remedy. Thus the board
of inquiry’s jurisdiction is circumscribed by “the subject matter
of the complaint.” The subject matter of Entrop’s complaint was
the mandatory disclosure of his past alcoholism, his
reassignment, and, fairly, the conditions of his reinstatement.
His complaint, admittedly, contains a general statement that if
he again obtains a safety-sensitive position he will be subject
to drug and alcohol testing. But what prompted his complaint and
its real subject matter was the mandatory disclosure of his past
alcohol abuse and the consequences of disclosing it. His
complaint was properly amended to add allegations of reprisal.
[47] As I have said, the Board justified her decision to go
beyond the parameters of Entrop’s original complaint on four
separate grounds: Entrop’s use of Tylenol 3; the distribution
of the Policy and supporting literature to Imperial Oil’s
workforce allegedly violated s.13(1) of the Code; the undertaking
Entrop was required to sign as a condition of his reinstatement
incorporated the entire Policy by reference; and a board of
inquiry’s broad remedial jurisdiction under s.41(1)(a) of the
Code. The Division Court relied on the last two grounds to
dismiss Imperial Oil’s jurisdictional argument. In my view, only
the undertaking signed by Entrop affords a plausible basis for
expanding the scope of the Board’s inquiry into alcohol testing.
None of the four grounds justifies inquiring into drug testing.
I shall, however, discuss each of the four grounds relied on by
the Board.
[48] Entrop was taking Tylenol 3, a pain killer prescribed by his
doctor, for a knee injury that he had sustained. Tylenol 3
contains codeine, and codeine is a drug targeted by the Policy.
The Policy prohibits not only the use of illicit drugs and non-
prescribed drugs but also the intentional misuse of prescribed
medications. The Board therefore concluded that Entrop’s use of
Tylenol 3 put him in jeopardy of discriminatory action by
Imperial Oil and thus raised a live issue before her of the
validity of Imperial Oil’s random drug testing.
[49] To invoke jurisdiction over Imperial Oil’s entire drug
testing policy because of Entrop’s use of Tylenol 3 is
unsupportable. He never alleged in his complaint to the
Commission that he had been discriminated against because he took
this medication and he had never been subjected to a random drug
test. Moreover, the Policy does not sanction an employee for
using a prescribed medication legitimately for medical reasons
and Imperial Oil never suggested Entrop had misused this
medication. In short, Entrop was not at risk for his use of
Tylenol 3.
[50] Invoking jurisdiction over all aspects of Imperial Oil’s
alcohol and drug testing because the company distributed the
Policy to its employees stands on no firmer foundation. Section
13(1) of the Code provides that the right to equal treatment is
infringed by the publication of a “notice, sign, symbol, emblem,
or other similar representation” indicating an intention to
infringe a protected right. The Commission argued that by
distributing the Policy and explanatory literature to its
employees Imperial Oil exposed its entire Policy to review by the
board of inquiry. The Board accepted that argument.
[51] I do not think that the Board could properly rely on an
alleged violation of s.13(1) to confer jurisdiction over all
aspects of alcohol and drug testing when the entire Policy was
not the subject matter of Entrop’s complaint. Had Entrop’s
complaint put all the provisions of the Policy in issue then the
Board might legitimately have considered whether the distribution
of the Policy to Imperial Oil’s workforce infringed s.13(1).
Alternatively, under s.32(2) of the Code, the Commission could
have initiated its own complaint alleging that the entire Policy
was discriminatory, including an allegation that its distribution
violated s.13(1). But the Commission did not do so.
[52] In June 1995 the Board did permit Entrop to amend his
complaint to allege an infringement of s.13(1). That amendment
was not filed until December 1995, long after the Board decided
she had jurisdiction to expand the scope of the inquiry. She did
not rely on this “amended amended complaint” and it was not
referred to by counsel in this court. In my view, it does not
advance the respondents’ position on the Board’s jurisdiction.
Thus, I do not think s.13(1) provides any support for the Board’s
decision to inquire into all aspects of alcohol and drug testing
under the Policy.
[53] I now come to the two grounds relied on by the Divisional
Court for upholding the Board’s jurisdiction. When Entrop filed
his original complaint the Policy did not provide for
reinstatement of an employee taken out of a safety sensitive
position because of a substance abuse problem. However, as I
have said, Imperial Oil amended the Policy to provide for
reinstatement. Entrop took advantage of this amendment and he
was reinstated, but on conditions, including a condition that he
sign an undertaking to comply with and be subject to the Policy.
The Board held that this undertaking “incorporated by reference”
the entire Policy into the conditions of Entrop’s reinstatement
and thus gave the Board jurisdiction over the entire Policy. In
her words the undertaking “transformed a case of previous alcohol
dependency into a larger case with matters of drug abuse and
random testing inextricably linked into Mr. Entrop’s
reinstatement.” On a generous view, I think that the undertaking
entitled the Board to assert jurisdiction over alcohol testing
but not drug testing.
[54] An employee of Imperial Oil was always subject to and
obliged to comply with the Policy. The undertaking affirmed that
obligation. Indeed, all the employees in safety-sensitive jobs
were required to certify in writing that they agreed to be bound
by the terms of the Policy. Although Entrop was bound by the
Policy when he filed his complaint with the Commission he did not
allege then that the other provisions of the Policy dealing with
random alcohol testing and drug testing discriminated against
him. He did not suggest, for example, that random drug testing
put him at risk or placed him in jeopardy. Nor did Entrop or the
Commission ask to amend the complaint to cover the undertaking
and by reference the Policy as a whole.
[55] However, Entrop did have an alcohol abuse problem. And the
undertaking addressed that problem by imposing additional
“controls” on Entrop. For example, in the undertaking, Entrop
had to agree to “undergo unannounced alcohol testing, at a
frequency of at least twice per quarter … in addition to any
testing … required … as an employee in a safety-sensitive
position in accordance with the Alcohol and Drug Policy.” This
provision and the undertaking as a whole were rooted in Imperial
Oil’s concern that Entrop might again become an alcoholic.
Viewed expansively, therefore, the undertaking gave the Board
jurisdiction to inquire into all aspects of alcohol testing under
the Policy.
[56] But Entrop never had a drug abuse problem. The undertaking
was not directed at drug abuse. Thus, the undertaking did not
justify a broad ranging inquiry into drug testing. Indeed the
Board even inquired into pre-employment drug testing, to which
Entrop was not and could never be subjected since he was already
an employee when the Policy was introduced, and into drug testing
“post-incident” and “for cause”, though Entrop had not been
tested after an incident or for cause.
[57] Finally, the Board relied on its broad remedial jurisdiction
in s.41(1)(a) of the Code to give it jurisdiction to inquire into
the legality of the entire Policy. Section 41(1)(a) is indeed a
broad remedial provision. Once the board of inquiry finds that a
complainant’s rights have been infringed the Board may direct the
infringing party “to do anything that, in the opinion of the
board, the party ought to do to achieve compliance with this Act,
both in respect of the complaint and in respect of future
practices”. But it seems to me the proposition that the Board’s
broad remedial power can be used to expand its jurisdiction is
logically flawed. The Board cannot work backwards from its
remedial powers to enlarge the subject matter of the complaint.
In other words the Board’s remedial powers cannot confer
jurisdiction over a matter if the Board had no jurisdiction over
it at the outset. The range of remedies available to the Board,
though broad enough to include future practices, must be linked
to the subject matter of the complaint. In this case the Board’s
remedy could properly address Entrop’s complaint and Imperial
Oil’s future practices concerning the subject matter of his
complaint, that is the disclosure of past alcohol abuse,
reassignment, reinstatement and unannounced alcohol testing. To
go further and conduct what amounted to a freestanding inquiry
into drug testing cannot be justified by s.41(1)(a) of the Code.
[58] I thus conclude that the Board had jurisdiction to expand
the scope of the inquiry into all aspects of alcohol testing but
not drug testing. Also, expanding the scope of the inquiry in
the way that she did caused two practical difficulties. First
the scope of the inquiry became a moving target. The hearing
began in August 1994 as an inquiry into Entrop’s complaint of
handicap discrimination because of his previous alcohol abuse.
Not until June 1995, ten months into the hearing, in her fifth
interim decision, did the Board decide to broaden the scope of
the inquiry to deal with the issues of drug and alcohol testing.
Not until her eighth and last interim decision in September 1996,
over two years after the hearings began, did she decide that she
had jurisdiction to make findings on these broader issues.
Broadening the scope of the inquiry in this way did not prejudice
Imperial Oil. Nonetheless, ordinarily hearings proceed much more
efficiently and effectively when the parties know what the issues
are at the outset.
[59] Second, the inquiry into the Policy’s provisions on drug
testing lacked a proper factual underpinning. Entrop had never
been tested for drugs. Apart from his use of Tylenol 3 under
prescription, he did not consume drugs. Thus, his complaint did
not raise a live dispute about drug testing. The courts have,
with good reason, been wary about resolving disputes that do not
have a proper factual or evidentiary foundation. The Board
justified her inquiry into drug testing on the ground of
“judicial economy”. Because she had heard a good deal of
evidence about the development and implementation of the Policy
and because the Commission’s resources were limited, she
concluded that broadening her inquiry into drug testing would be
economical. However, judicial economy was a debatable
justification for turning Entrop’s narrow complaint about how
Imperial Oil dealt with his past alcohol abuse into a wide-
ranging inquiry into drug testing. Moreover, the inquiry into
drug testing took place in phase three. The Board could simply
have ended the inquiry after phase two.
[60] However, with some misgivings, I will address the merits of
the various aspects of Imperial Oil’s Policy on drug testing. I
do so because the Board and the Divisional Court did so and
because Imperial Oil has not asserted that it was prejudiced by
the broadening of the inquiry. Indeed, the Board gave both sides
a fair opportunity to lead evidence and make submissions on all
contested issues. In these circumstances, to avoid the merits
would be of little solace to any of the parties.
Third Issue – Did the Divisional Court err in upholding the
Board’s conclusion that the Policy’s provisions for alcohol and
drug testing violate the Code?
[61] This is the main issue on the appeal. Imperial Oil submits
that the provisions in the Policy for pre-employment drug
testing, random alcohol and drug testing for safety-sensitive
positions, and testing post-incident and for cause are not
discriminatory. Alternatively, Imperial Oil contends that, even
if these provisions are prima facie discriminatory, they are
justified as bona fide occupational requirements (“BFORs”).
[62] I will first discuss the legal principles to be applied to a
complaint that a workplace standard or rule is discriminatory,
and then apply these principles to the challenged provisions of
the Policy.
1. The legal principles
[63] Determining whether a workplace rule violates the Code is a
two-stage process. At the first stage, the complainant must show
that the workplace rule is prima facie discriminatory on a
prohibited ground. If a prima facie case of discrimination is
made out, at the second stage the burden shifts to the employer
to justify the rule.
[64] Therefore, the complainant must first show that the
workplace rule contravenes s.5(1) of the Code. Section 5(1)
provides:
5.– Every person has a right to equal treatment with
respect to employment without discrimination because
of race, ancestry, place of origin, colour, ethnic
origin, citizenship, creed, sex, sexual orientation,
age, record of offences, marital status, family status
or handicap.
[65] For years, courts and human rights tribunals held that a
contravention of s.5(1) could occur in one of two ways: the
contravention was characterized as “direct” discrimination if the
workplace rule was discriminatory on its face; and “adverse
effect” discrimination if the rule was neutral on its face but
discriminatory in its effect on an employee or group of
employees. Adverse effect discrimination has also been termed
“indirect” or “constructive” discrimination. The distinction
between direct and adverse effect discrimination was first
recognized by the Supreme Court of Canada in Ontario (Human
Rights Commission) v. Simpsons-Sears Ltd. (1985), 23 D.L.R. (4th)
321. McIntyre J. discussed the distinction in the following
passage at 332:
A distinction must be made between what I would describe
as direct discrimination and the concept already referred
to as adverse effect discrimination in connection with
employment. Direct discrimination occurs in this
connection where an employer adopts a practice or rule
which on its face discriminates on a prohibited ground.
For example, “No Catholics or no women or no blacks
employed here.” There is, of course, no disagreement in
the case at bar that direct discrimination of that nature
would contravene the Act. On the other hand, there is no
concept of adverse effect discrimination. It arises where
an employer for genuine business reasons adopts a rule or
standard which is on its face neutral, and which will
apply equally to all employees, but which has a
discriminatory effect upon a prohibited ground on one
employee or group of employees in that it imposes, because
of some special characteristic of the employee or group,
obligations, penalties, or restrictive conditions not imposed
on other members of the work force. For essentially the same
reasons that led to the conclusion that an intent to
discriminate was not required as an element of discrimination
contravening the Code, I am of the opinion that this court
may consider adverse effect discrimination as described in
these reasons a contradiction of the terms of the Code. An
employment rule honestly made for sound economic or business
reasons, equally applicable to all to whom it is intended to
apply, may yet be discriminatory if it affects a person or
group of persons differently from others to whom it may
apply. From the foregoing I therefore conclude that the
appellant showed a prima facie case of discrimination based
on creed before the board of inquiry.
[66] After this decision, much of the human rights case law on
employment discrimination centred on whether the discrimination
was direct or indirect. The distinction was important because
what the employer had to show to justify the prima facie
discriminatory rule and the appropriate remedy differed depending
on whether the rule was discriminatory on its face or facially
neutral but discriminatory in its effect.
[67] Ontario’s Code gives an employer two separate defences to a
prima facie case of handicap discrimination. Under s.11, an
employer may justify a workplace rule that has the effect of
discriminating against a person or group of persons on a
prohibited ground by showing that the rule is a BFOR:
11.–(1) A right of a person under Part I is infringed
where a requirement, qualification or factor exists that
is not discrimination on a prohibited ground but that
results in the exclusion, restriction or preference of a
group of persons who are identified by a prohibited
ground of discrimination and of whom the person is a
member, except where,
(a) the requirement, qualification or factor is
reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in
section 17, that to discriminate because of such
ground is not an infringement of a right.
(2) The Commission, a board of inquiry or a court
shall not find that a requirement, qualification or
factor is reasonable and bona fide in the circumstances
unless it is satisfied that the needs of the group of
which the person is a member cannot be accommodated
without undue hardship on the person responsible for
accommodating those needs, considering the cost,
outside sources of funding, if any, and health and
safety requirements, if any.
[68] Under s.17, an employer may justify a prima facie case of
handicap discrimination by showing that the complainant is
incapable of performing the essential duties of the job:
17. – (1) A right of a person under this Act is not
infringed for the reason only that the person is
incapable of performing or fulfilling the essential
duties or requirements attending the exercise of the
right because of handicap.
(2) The Commission, a board of inquiry or a court shall
not find a person incapable unless it is satisfied that
the needs of the person cannot be accommodated without
undue hardship on the person responsible for accommodating
those needs, considering the cost, outside sources of
funding, if any, and health and safety requirements, if any.
[69] This court held in Ontario Nurses’ Assn. v. Orillia Soldiers
Memorial Hospital (1999), 42 O.R. (3d) 692 that s.11 applies to
cases of adverse effect discrimination and s.17 applies to cases
of direct discrimination.
[70] Though important, characterizing the discrimination as
direct or indirect was often difficult. This case is a good
example. Is the rule requiring all employees in safety-sensitive
positions to undergo random alcohol and drug testing facially
neutral because it applies to an entire segment of the workforce,
or discriminatory on its face because it targets substance
abusers and perceived substance abusers? The Board of Inquiry
held that these Policy provisions were discriminatory on their
face and constituted direct discrimination on the ground of
handicap. In this court, Imperial Oil contended that the Policy
was neutral on its face and that if it discriminated at all, the
discrimination was indirect. Because the Board found that the
discrimination was direct, she held the only defence available to
Imperial Oil was under s.17. Imperial Oil, on the other hand,
argued that it could rely on s.11 of the Code.
[71] The development of human rights jurisprudence was well-
served by the distinction between direct and adverse effect
discrimination, or, more accurately, by the recognition of
adverse effect discrimination as a form of discrimination. The
Code aims to remove discrimination in Ontario. Its main purpose
is not to punish the wrongdoer but to provide relief for the
victim of discrimination. Recognizing adverse effect
discrimination furthers this purpose. It focuses not on the
intention of the employer but on what is most important, the
effect or the result of the employer’s conduct. Indeed, few
modern employers openly discriminate directly by advertising, for
example, “No Blacks or Jews employed here.” Even those employers
with a discriminatory intent will invariably use neutral language
to frame their employment rules. Thus, in most cases, the
inquiry focuses on the effect of the employer’s actions.
[72] However, increasingly, tribunals, courts and academics have
doubted the continuing validity of the distinction between direct
and adverse effect discrimination. Then, late last year, after
this appeal was argued, the Supreme Court of Canada, in two
ground-breaking decisions – British Columbia (Public Service
Employee Relations Commission) v. B.C.G.S.E.U. (“Meiorin”)
(1999), 176 D.L.R. (4th) 1 and British Columbia (Superintendent
of Motor Vehicles) v. British Columbia (Council of Human Rights)
(“Grismer”) (1999), 181 D.L.R. (4th) 385 – erased the distinction
between direct and adverse effect discrimination and prescribed a
single three-step test, which the employer must meet to justify a
prima facie case of discrimination. Meiorin was a sex
discrimination case, Grismer a handicap discrimination case.
Both cases were decided under the British Columbia Human Rights
Code and in both the reasons were written by McLachlin J.
[73] In Meiorin, McLachlin J. gave seven reasons for abandoning
the distinction between direct and adverse effect discrimination:
1. The distinction is artificial. Few cases “can be so neatly
characterized”; and the distinction is unrealistic because
today most employers use neutral words whatever their intent.
2. The remedies could differ depending on the kind of
discrimination. If the employer could not justify a
workplace rule that was discriminatory on its face, the
rule would ordinarily be struck down. The employer,
however, could maintain a rule that was neutral on its
face but discriminatory in its effect, by accommodating
individuals affected by the discrimination to the point
of undue hardship. A different result flowing from a
questionable initial classification is difficult to justify.
3. The rationale for the remedy for adverse effect
discrimination is questionable. Facially-neutral workplace
rules were permitted to remain in effect because ordinarily
they affected a minority of employees. But permitting a
neutral rule to stand because it did not adversely affect
the majority of employees is difficult to defend. Moreover,
the size of the “affected group” can be manipulated and, in
some cases, can actually constitute a majority of the
workforce.
4. Although the defences to direct and adverse effect
discrimination differed, the differences were hard to define;
in practice, probably no meaningful distinction existed.
5. The distinction between direct and adverse effect
discrimination may legitimize systemic discrimination. If a
workplace rule is characterized as neutral on its face, its
legitimacy is not questioned. Instead, the inquiry focuses
on whether the complainant can be accommodated.
6. Permitting a workplace rule to be questioned only if it is
discriminatory on its face does not permit human rights
statutes “to accomplish their purpose as well as they might
otherwise do”.
7. The court’s approach to human rights legislation should not
differ from the court’s approach to the equality guarantee
in s.15(1) of the Canadian Charter of Rights and Freedoms.
Eliminating the distinction between direct and adverse
effect discrimination is more consistent with the Court’s
interpretation of s.15(1), which principally focuses on the
effect of the challenged law.
[74] For these reasons, the Supreme Court abandoned the
problematic distinction between direct and adverse effect
discrimination. Instead, the Court adopted in Meiorin and
affirmed in Grismer a “unified approach” that avoids this
distinction. This new approach requires employers setting
workplace rules to accommodate affected employees as much as
reasonably possible, but permits employers to maintain
discriminatory rules reasonably necessary to achieve legitimate
work-related objectives.
[75] In Meiorin, at pp. 24-25, the Court proposed that an
employer could justify a prima facie discriminatory workplace
rule or standard by meeting a three-step test:
Having considered the various alternatives, I propose
the following three-step test for determining whether a
prima facie discriminatory standard is a BFOR. An employee
may justify the impugned standard by establishing on the
balance of probabilities:
(1) that the employer adopted the
standard for a purpose rationally connected
to the performance of the job;
(2) that the employer adopted the
particular standard in an honest and good
faith belief that it was necessary to the
fulfilment of that legitimate work-related
purpose; and
(3) that the standard is reasonably
necessary to the accomplishment of that
legitimate work-related purpose. To show
that the standard is reasonably necessary, it
must be demonstrated that it is impossible to
accommodate individual employees sharing the
characteristics of the claimant without
imposing undue hardship upon the employer.
If the three-step test is met, the workplace rule is a BFOR.
[76] The significance of eliminating the distinction between
direct and adverse effect discrimination and of the three-step
justification for a prima facie discriminatory workplace rule is
that now the rule itself must accommodate individual differences
to the point of undue hardship. If it does, the rule is a BFOR.
If it does not, the rule is discriminatory. McLachlin J.
discussed the significance of her unified approach in Grismer at
393:
Meiorin announced a unified approach to adjudicating
discrimination claims under human rights legislation.
The distinction between direct and indirect discrimination
has been erased. Employers and others governed by human
rights legislation are now required in all cases to
accommodate the characteristics of affected groups within
their standards, rather than maintaining discriminatory
standards supplemented by accommodation for those who
cannot meet them. Incorporating accommodation into the
standard itself ensures that each person is assessed
according to her or his own personal abilities, instead
of being judged against presumed group characteristics.
[Emphasis in original.]
[77] The Supreme Court’s three-step test was formulated in the
context of a discrimination complaint under the British Columbia
Human Rights Code, R.S.B.C. 1996, c.210. The wording of the
statutory defences available to an employer under Ontario’s Code
differs from the wording under the British Columbia Code.
Section 11 of Ontario’s Code sets out in detail the elements of a
BFOR; the comparable provision of the British Columbia Code,
s.13(4), provides simply that “subsections (1) and (2) do not
apply with respect to a refusal, limitation, specification or
preference based on a bona fide occupational requirement.”2 In
the case of handicap discrimination, s.17 of the Ontario Code has
no counterpart in the British Columbia Code. The difference in
wording in the two statutes raises the question whether the
Supreme Court’s three-step test for justifying a prima facie
discriminatory workplace rule should be applied in this case. In
my view, the unified approach and the three-step test adopted in
Meiorin should be applied. Applying the unified approach means
that Imperial Oil can rely on s.11 of the Code as well as s.17.
Under either section, however, to justify its workplace rules it
must satisfy the three-step test in Meiorin. I rely on the
following reasons for applying Meiorin in this case.
[78] First, although the Supreme Court in Grismer said only that
the Meiorin test applies to all claims for discrimination under
the British Columbia Code, it seems to me the Court contemplated
that the test would apply generally to discrimination claims
under human rights legislation unless precluded by the applicable
statutory provisions. Thus, at 393 of Grismer, McLachin J.
wrote: “Meiorin announced a unified approach to adjudicating
discrimination claims under human rights legislation.”
[79] Second, as McLachlin J. observed in Meiorin, the Ontario
statute already reflects the unified approach she advocates.
Section 11(2) of the Code provides that a board of inquiry shall
not find a rule is a BFOR “unless it is satisfied that the needs
of the group of which the person is a member cannot be
accommodated without undue hardship”. Similarly, the statutory
defence under s.17 imposes a duty to accommodate to the point of
undue hardship and a prima facie discriminatory rule not saved by
s.17 will be struck down. See Central Alberta Dairy Pool v.
Alberta (Human Rights Commission), [1990] 2 S.C.R. 489.
[80] Third, though the language of s.11 does reflect the
distinction between direct and adverse effect discrimination –
because it provides a BFOR defence “where a requirement … exists
that is not discrimination on a prohibited ground but that
results in the exclusion, restriction or preference of a group of
persons who are identified by prohibited ground of
discrimination” – I would limit the situations to which s.11 does
not apply to those few cases that can be “neatly characterized”
as cases of direct discrimination. I have in mind the kinds of
cases referred by McIntyre J. in Ontario v. Simpson Sears, supra
– “No Catholics or no women or no blacks are employed here” –
where the requirement expressly includes a prohibited ground of
discrimination. So limiting the cases to which s.11 does not
apply is consistent with the reasoning underlying the Supreme
Court’s unified approach in Meiorin. The case before us,
however, is the kind of case where characterizing whether the
discrimination is direct or indirect is problematic and thus
where s.11 should be applied using the Meiorin test. The focus
should be, as s.11 mandates, on the effect or the result of the
challenged provisions of the Policy.
[81] Fourth, the three-step justification test proposed by the
Supreme Court is consistent with both the language of ss.11 and
17 of the Code and the jurisprudence under these provisions. See
Ontario (Human Rights Commission) v. Borough of Etobicoke, [1982]
1 S.C.R. 202 and Large v. Stratford (1995) 128 D.L.R. (4th) 193
(S.C.C.). Indeed, the Supreme Court’s new three-step test
combines the elements of the previous test for justifying adverse
effect discrimination with the elements of the previous test for
justifying direct discrimination. And, as McLachlin J. observed
in Meiorin, there is little difference between the two previous
tests, other than semantics.
[82] As I have said, eliminating the distinction between direct
and adverse effect discrimination and adopting Meiorin’s unified
approach allows Imperial Oil to rely on s.11 of the Code as a
defence to Entrop’s claim, a defence the Board held was not
available to it. But that defence, which is an express BFOR
defence, must now be assessed against the Meiorin test.
[83] The language of s.17 differs from the language of s.11.
Under s.17 Imperial Oil can legitimately assert, as the Board
held, that an employee impaired by alcohol or drugs “is incapable
of performing the essential duties or requirements” of safety-
sensitive jobs. But, unless Imperial Oil shows that its methods
for establishing impairment – random alcohol and drug testing,
mandatory disclosure and automatic reassignment – are themselves
BFORs, then its s.17 defence will fail.
[84] The elements of the Meiorin test for establishing a BFOR
closely parallel the elements of the incapability defence
developed in the case law under s.17 and applied by the Board in
this case. Relying on Ontario v. Borough of Etobicoke, supra,
the Board held that, to show Entrop was incapable of performing
the essential requirements of the job under s.17(1), it had to
meet a subjective standard of good faith and an objective
standard of reasonable necessity. In substance, these comprise
the second step and one aspect of the third step in the Meiorin
test. The Board also applied the other aspect of the third step,
the duty to accommodate to the point of undue hardship, as it is
prescribed by s.17(2) of the Code. The first step in the new
test in Meiorin – the workplace rule is rationally connected to
the performance of the job – is drawn from the jurisprudence on
adverse effect discrimination. The need for a rational
connection, though not expressly adverted to by the Board, was
implicit in her analysis and, as I have said, is consistent with
the wording of s.17.
[85] For these reasons, I propose to analyze whether the
challenged provisions of the Policy breach the Code using the new
three-step test in Meiorin. I do not believe that doing so
causes any unfairness to the parties. Because the Meiorin test
and the test applied by the Board are so similar, both sides
addressed the relevant questions. Thus, the new test can be
applied to the findings of the Board.
2. Pre-employment drug testing and random alcohol and drug
testing for employees in safety-sensitive positions
[86] The workplace rules that lie at the heart of Imperial Oil’s
Policy are the provisions for pre-employment drug testing and
random alcohol and drug testing for employees in safety-sensitive
positions. The Board concluded that these provisions breached
the Code, and her conclusion was upheld by the Divisional Court.
Imperial Oil submits that these provisions do not breach s.5 but
that, even if they do, they are justified because they are bona
fide occupational requirements. I agree that the drug testing
provisions of the Policy violate the Code. However, I disagree
with the Board and the Divisional Court on random alcohol
testing. The important difference between alcohol and drug
testing is that a positive drug test does not demonstrate
impairment; a positive breathalyzer reading does. I therefore
think that random alcohol testing for safety-sensitive positions,
though prima facie discriminatory, can be justified providing the
sanctions for a positive test are individually tailored. With
this brief background, I will discuss the application of the
Meiorin test to these provisions.
(a) Are these provisions prima facie discriminatory on
the ground of handicap?
[87] Section 5(1) of the Code guarantees every person “a right to
equal treatment with respect to employment without discrimination
because of … handicap.” Handicap is defined very broadly in s.10
of the Code, both in respect of what conditions constitute a
handicap and who can claim protection against handicap
discrimination:
“because of handicap” means for the reason
that the person has or has had, or is
believed to have or have had,
(a) any degree of physical disability,
infirmity, malformation or disfigurement that
is caused by bodily injury, birth defect or
illness and, without limiting the generality
of the foregoing, including diabetes
mellitus, epilepsy, any degree of paralysis,
amputation, lack of physical coordination,
blindness or visual impediment, deafness or
hearing impediment, muteness or speech
impediment, or physical reliance on a guide
dog or on a wheelchair or other remedial
appliance or device,
(b) a condition of mental retardation or
impairment,
(c) a learning disability, or a
dysfunction in one or more of the processes
involved in understanding or using symbols or
spoken language,
(d) a mental disorder, or
(e) an injury or disability for which
benefits were claimed or received under the
Workers’ Compensation Act;
[88] This definition provides protection to persons who have a
handicap, persons who had a handicap but no longer suffer from
it, persons believed to have a handicap whether they do or not,
and persons believed to have had a handicap, whether they did or
not. In other words, the definition protects those who have or
have had an actual or perceived handicap.
[89] The Board found, on uncontradicted expert evidence, that
drug abuse and alcohol abuse – together substance abuse – are
each a handicap. Each is “an illness or disease creating
physical disability or mental impairment and interfering with
physical, psychological and social functioning.” Drug dependence
and alcohol dependence, also separately found by the Board to be
handicaps, are severe forms of substance abuse. Therefore, on
the findings of the Board, which are not disputed on this appeal,
substance abusers are handicapped and entitled to the protection
of the Code.
[90] A person who tests positive on a random alcohol or drug test
may be a casual user, not a substance abuser, and may, therefore,
not actually be handicapped. But the Policy treats even casual
or recreational users as substance abusers. The Policy’s
Administrative Guidelines, which are “intended to provide
additional details, interpretative guidance and administrative
procedures” in support of the Policy list the following
categories of substance abusers:
CATEGORIES OF SUBSTANCE ABUSERS
EXPERIMENTER An individual who experiments with
alcohol or drugs, usually out of
curiosity.
RECREATIONAL USER A person who uses and gets “high” on
alcohol or drugs at special
occasions, e.g. parties.
REGULAR USER One who adopts a constant pattern of
alcohol or drug abuse while
attempting to maintain normal day-to-
day activities.
BINGE USER An individual who consumes alcohol or
drugs in an uncontrolled manner for
short periods of time and then
abstains until the next binge.
DEPENDENT USER A dependent, or addicted, user has
become psychologically or physically
dependent on the use of drugs,
characterized by a progressive loss
of control despite either a desire to
reduce intake or knowledge or
recurring disturbances in health,
work of social functioning.
[91] The Guidelines then state: “In the cycle of substance abuse,
users frequently begin by experimenting with drugs and progress
to the dependent user stage later on.”
[92] Thus, though the social drinker and casual drug user are not
substance abusers and, therefore, not handicapped, Imperial Oil
believes them to be substance abusers for the purpose of the
Policy. In other words, Imperial Oil believes that any person
testing positive on a pre-employment drug test or a random drug
or alcohol test is a substance abuser. Because perceived as well
as actual substance abuse is included in the definition of
handicap under the Code, anyone testing positive under the
alcohol and drug testing provisions of the Policy is entitled to
the protection of s.5 of the Code. Imperial Oil applies
sanctions to any person testing positive – either refusing to
hire, disciplining or terminating the employment of that person –
on the assumption that the person is likely to be impaired at
work currently or in the future, and thus not “fit for duty.”
Therefore, persons testing positive on an alcohol or drug test –
perceived or actual substance abusers – are adversely affected by
the Policy. The Policy provisions for pre-employment drug
testing and for random alcohol and drug testing are, therefore,
prima facie discriminatory. Imperial Oil bears the burden of
showing that they are bona fide occupational requirements. See
Canadian Civil Liberties Assn. v. Toronto-Dominion Bank (1998),
163 D.L.R. (4th) 193 (Fed. C.A.).
(b) Are these testing provisions justified as BFORs?
[93] The question is whether Imperial Oil can justify these prima
facie discriminatory workplace rules as BFORs under the three-
step test in Meiorin. The Board held that, because these
provisions were discriminatory on their face – the discrimination
was direct – Imperial Oil could not rely on the BFOR defence
under s.11 of the Code; the only defence available was under
s.17. However, Meiorin has eliminated the distinction between
direct and adverse effect discrimination for the provisions of
the Policy challenged in this case, thus permitting Imperial Oil
to rely on s.11 as well as s.17. As I have said earlier, the
three-step test in Meiorin applies to either defence. As in most
cases, whether Imperial Oil can meet the test turns on the third
step.
(i) Has Imperial Oil adopted alcohol and drug testing for a
purpose rationally connected to the performance of the job?
[94] Meiorin tells us that the first step focuses not on the
validity of the particular challenged workplace rules but on
their more general purpose. The stated purpose or objective of
the Policy “is to minimize the risk of impaired performance due
to substance use” in order “to ensure a safe, healthy and
productive workplace.” This general purpose is rationally
connected to the performance of the work at Imperial Oil’s two
refineries. Common sense and experience suggest that an accident
at a refinery can have catastrophic results for employees, the
public and the environment. Promoting workplace safety by
minimizing the possibility employees will be impaired by either
alcohol or drugs while working is a legitimate objective.
Imperial Oil has met the first step of the Meiorin test.
(ii) Did Imperial Oil adopt these testing provisions in an honest
and good faith belief that they were necessary to accomplish
the company’s purpose?
[95] The second step is the subjective element of the test. The
Board found that Imperial Oil developed and implemented the
challenged provisions of the Policy honestly and in good faith.
That finding is reasonably supported by the evidence. Imperial
Oil consulted widely with its employees and with experts in both
occupational health and safety and substance dependency. It
assembled one of Canada’s most comprehensive databases on
workplace alcohol and drug abuse. Imperial Oil has met the
second step of the Meiorin test.
(iii) Are these testing provisions reasonably necessary to
accomplish Imperial Oil’s purpose?
[96] This third step of the Meiorin test focuses on the means
Imperial Oil has used to accomplish its purpose. The question is
whether Imperial Oil has shown that the alcohol and drug testing
provisions of the Policy are reasonably necessary to identify
those persons who cannot perform work safely at the company’s two
refineries, because they are impaired by alcohol or drugs. To
meet this third requirement Imperial Oil must show that it cannot
accommodate individual capabilities and differences without
experiencing undue hardship. The phrase “undue hardship”
suggests that Imperial Oil must accept some hardship in order to
accommodate individual differences.
[97] An employer’s workplace rule may fail to satisfy the third
step in the Meiorin test in several ways. For example the rule
may be arbitrary in the sense that it is not linked to or does
not further the employer’s legitimate purpose; the rule may be
too broad or stricter than reasonably necessary to achieve the
employer’s purpose; the rule may unreasonably not provide for
individual assessment; or the rule may not be reasonably
necessary because other means, less intrusive of individual human
rights, are available to achieve the employer’s purpose.
[98] I turn now to whether Imperial Oil’s alcohol and drug
testing provisions are reasonably necessary. As the Board held,
Imperial Oil has the right to assess whether its employees are
capable of performing their essential duties safely. An employee
working in a safety-sensitive position while impaired by alcohol
or drugs presents a danger to the safe operation of Imperial
Oil’s business. Therefore, as the Board found, “freedom from
impairment” by alcohol or drugs is a BFOR. An employee impaired
by alcohol or drugs is incapable of performing or fulfilling the
essential requirements of the job. The contentious issue is
whether the means used to measure and ensure freedom from
impairment – alcohol and drug testing with sanctions for a
positive test – are themselves BFORs. Are they reasonably
necessary to achieve a work environment free of alcohol and
drugs?
[99] I deal with drug testing first. The drugs listed in the
Policy all have the capacity to impair job performance, and
urinalysis is a reliable method of showing the presence of drugs
or drug metabolites in a person’s body. But drug testing suffers
from one fundamental flaw. It cannot measure present impairment.
A positive drug test shows only past drug use. It cannot show
how much was used or when it was used. Thus, the Board found
that a positive drug test provides no evidence of impairment or
likely impairment on the job. It does not demonstrate that a
person is incapable of performing the essential duties of the
position. The Board also found on the evidence that no tests
currently exist to accurately assess the effect of drug use on
job performance and that drug testing programs have not been
shown to be effective in reducing drug use, work accidents or
work performance problems. On these findings, random drug
testing for employees in safety-sensitive positions cannot be
justified as reasonably necessary to accomplish Imperial Oil’s
legitimate goal of a safe workplace free of impairment.
[100] The random drug testing provisions of the Policy suffer
from a second flaw: the sanction for a positive test is too
severe, more stringent than needed for a safe workplace and not
sufficiently sensitive to individual capabilities. This aspect
of the Policy’s provisions on random drug testing was not
addressed by the Board. However, the Administrative Guidelines
specify the consequences of a Policy violation. Employees in non-
safety-sensitive jobs who test positive are subject to
progressive discipline, which consists of a warning, a three-to-
five day suspension without pay, and termination. But for
employees in safety-sensitive positions who test positive for
drugs or alcohol, the Guidelines provide only one sanction:
termination of employment.
[101] Howard Moyer, the manager of Imperial Oil's Policy,
acknowledged in his evidence before the Board that employees in
safety-sensitive positions testing positive for drugs or alcohol
would be given no individual accommodation. In his view “certain
corporate minimums” had to be maintained. According to Moyer,
unless the employee can explain a positive finding, the employee
is fired.
Q. For safety-sensitive positions, the
automatic consequence for a first violation
for presence in the body would be termination
of employment.
A. I would quarrel with the use of the
term “Automatic”. We certainly go through an
in-depth investigative process with each
random position that we have, but if there
isn't a reasonable explanation of that, then
the result for a person in a safety-sensitive
job is termination.
[102] Automatic termination of employment for all employees
after a single positive test is broader than necessary. In some
cases termination may be justified; but in others, the employee's
circumstances may call for a less severe sanction. Imperial Oil
failed to demonstrate why it could not tailor its sanctions to
accommodate individual capabilities without incurring undue
hardship.
[103] Pre-employment drug testing suffers from the same two
flaws: a positive test does not show future impairment or even
likely future impairment on the job, yet an applicant who tests
positive only once is not hired.
[104] In this court Imperial Oil submitted that the Board
mischaracterized the underlying workplace standard the company
sought to achieve by drug testing. The Board characterized the
standard as “freedom from impairment.” Imperial Oil argued that
the standard is what the Policy says, “no presence” of drugs or
their metabolites. Imperial Oil contended that in the interests
of safety it is legitimately entitled to adopt a “no presence”
standard, that does not depend for its efficacy on the discovery
of impairment.
[105] There are two answers to Imperial Oil’s submission.
First, the Board’s finding that the standard was “freedom from
impairment” by drugs is a finding of fact, which is reasonably
supported by the evidence and thus is entitled to deference.
Second, the “no presence” standard does not assist Imperial Oil
because it too is arbitrary, again for the reason that a positive
drug test does not demonstrate incapability to perform the work
safely. Therefore, the drug testing provisions of the Policy are
not BFORs.
[106] The provisions for random alcohol testing for employees
in safety-sensitive positions stand on a different footing.
Breathalyzer testing can show impairment. The expert evidence at
the hearing confirmed the reliability and utility of breathalyzer
testing to measure alcohol impairment, and the Commission
conceded its reliability and utility. The Commission also took no
issue with the standard used by Imperial Oil, .04 per cent.
Studies indicated that with a blood alcohol concentration of .04
per cent most individuals show discernible signs of impairment.
Admittedly the effects of alcohol on an individual will vary
depending on a wide array of factors: size, age, sex, body
metabolism, body fat, the amount of food in the stomach, acquired
tolerance, stress and fatigue. Despite individual variability,
we use a bright line standard – 80 milligrams of alcohol in 100
mililitres of blood – in the criminal law for drinking and
driving offences. The standard used by Imperial Oil was
reasonable to ensure workplace safety.
[107] Despite the overwhelming expert evidence and the
Commission's concession, the Board seemed unconvinced of the
utility of breathalyzer testing to measure impairment. Moreover,
she disagreed that random alcohol testing was reasonably
necessary for employees in safety-sensitive positions. She held
that “the provisions of the Policy that provide for random
alcohol testing are unlawful because [Imperial Oil] failed to
prove such screening is reasonably necessary to deter alcohol
impairment on the job.” In her opinion other less drastic means
existed to deter alcohol impairment on the job. Those means
included various kinds of employee supervision and assessment
programs.
[108] I find the evidence the Board relied on weak and her
reasoning unpersuasive. The Board gave great weight to the
evidence of Dr. Shain, the head of workplace programs at the
Addiction Research Foundation, even though he had no practical
experience with drug and alcohol testing in the workplace. Dr.
Shain thought that other programs were more effective in
eliminating alcohol abuse. In his opinion, properly trained
supervisors had a “very high likelihood of being able to detect
impairment” on the job. His opinion fails to appreciate that
Imperial Oil does use trained supervisors to detect impairment,
but in conjunction with breathalyzer testing. Most important,
however, Dr. Shain's opinion fails to adequately appreciate that
a safety-sensitive position is one that by definition has no
direct or very limited supervision.
[109] Relying exclusively on supervisors to detect impairment
raises additional concerns, also addressed in the expert evidence
before the Board. Supervisors have other duties; at Imperial Oil
their primary focus is to direct the manufacture of petroleum
products. Supervisors are often unwilling to confront employees
with an alcohol problem, or at least to do so constructively.
And, increased supervision may lead to harassment of or even
discrimination against some employees. Random testing is seen by
many experts to be fairer to employees because of its
objectivity.
[110] Imperial Oil can legitimately take steps to deter and
detect alcohol impairment among its employees in safety-sensitive
jobs. Alcohol testing accomplishes this goal. For employees in
safety-sensitive jobs, where supervision is limited or non-
existent, alcohol testing is a reasonable requirement.
[111] The Commission’s “Policy Statement on Drugs and Alcohol
Testing” recognizes that an employer can administer alcohol
testing to its employees without contravening the Code. The
Commission’s Policy Statement provides:
If workers will be required to undergo drug and alcohol
testing during the course of their employment – on the
grounds that such testing, at the time that it is
administered, would indicate actual impairment of
ability to perform or fulfil the essential duties or
requirements of the job, as opposed to merely detecting
the presence of substances in the system – the employer
should notify them of this requirement at the beginning
of their employment.
Because alcohol testing does indicate “actual impairment of
ability to perform or fulfil the essential duties or requirements
of the job, as opposed to merely detecting the presence of
substances in the system” and because Imperial Oil’s Policy
fairly notifies employees in safety-sensitive positions that they
will have to undergo random alcohol testing, such testing is
consistent with the Commission’s Policy Statement. I think it
significant that the intervener, who vigorously opposed drug
testing, took no position on alcohol testing in the workplace.
[112] However, random alcohol testing though reasonable for
employees in safety-sensitive jobs, will not satisfy the third
step of the Meiorin test unless Imperial Oil has met its duty to
accommodate the needs of those who test positive. The Policy's
Guidelines provide for dismissal from employment following a
single positive test. The Board did not discuss the question of
individual accommodation following a positive breathalyzer test.
However, for the reasons I discussed in connection with drug
testing, dismissal in all cases is inconsistent with Imperial
Oil's duty to accommodate. To maintain random alcohol testing as
a BFOR, Imperial Oil is required to accommodate individual
differences and capabilities to the point of undue hardship. That
accommodation should include consideration of sanctions less
severe than dismissal and, where appropriate, the necessary
support to permit the employee to undergo a treatment or a
rehabilitation program.
[113] I would therefore set aside the Board’s conclusion that
random alcohol testing for employees in safety-sensitive
positions breaches the Code and in its place hold that this
testing is a BFOR provided the sanction for an employee testing
positive is tailored to the employee’s circumstances.
(c) Drug testing post-incident and for cause
[114] The Policy provides testing for alcohol and specified
drugs “after a significant work accident, incident or near miss
as determined by management” and “where reasonable cause exists
to suspect alcohol or drug use or possession in violation of this
Policy.” The Commission accepted that alcohol testing was
sufficiently related to job performance to justify its use post-
incident or for cause and the Board made no ruling on this issue.
The Board did, however, conclude that drug testing post-incident
or for cause was permissible only if Imperial Oil could establish
that it was “necessary as one facet of a larger assessment of
drug abuse.” Although the Board did not elaborate on what larger
assessment is required, her conclusion is consistent with the
evidence and her finding that drug testing cannot accurately
measure impairment. I would, therefore, not interfere with the
Divisional Court’s order upholding the Board’s conclusion on drug
testing post-incident and for cause.
Fourth Issue – Did the Divisional Court err in upholding the
Board’s conclusion that the Policy’s provisions for mandatory
disclosure, reassignment, reinstatement and certification violate
the Code?
[115] Entrop’s original complaint of discrimination was
directed at the Policy provisions for mandatory disclosure,
reassignment and reinstatement. The Board concluded that the
mandatory disclosure, reassignment and reinstatement provisions
violated the Code. She concluded that alcohol and drug testing
for certification for safety-sensitive positions and post-
reinstatement may be permissible if Imperial Oil “can establish
that testing is necessary as one facet of a larger process of
assessment” of alcohol or drug abuse. The Divisional Court
upheld her conclusions and I would too.
(a) Are the provisions for mandatory disclosure, reassignment
and reinstatement prima facie discriminatory?
[116] The Policy requires any employee in a safety-sensitive
position to disclose a current or past substance abuse problem.
On disclosure, that employee is automatically reassigned to a non-
safety-sensitive job. The employee can only be reinstated to a
safety-sensitive position by undergoing two years of
rehabilitation, followed by five years of abstinence and by
agreeing to a set of post-reinstatement controls.
[117] A substance abuse problem – which triggers the
provisions for disclosure, reassignment and reinstatement – is
defined in the Policy’s Administrative Guidelines to include:
For purposes of the Policy, an employee has or
has had a substance abuse problem if he or she
meets one or more of the following criteria:
(a) Episodic Abuse
Has continued to use alcohol or drugs despite
knowledge of recurring disturbances in health,
work or social functioning.
…
(b) Dependence
Has developed a physical and/or psychological
dependence characterized by:
(i) progressive loss of control despite
either a desire to reduce intake or knowledge
of recurring disturbances in health, work or
social functioning;
(ii) a pattern of tolerance and withdrawal.
…
(c) Treatment
Has participated in a structured program
of counselling, therapy or other treatment
for alcohol or drug abuse (episodic or
dependence).
[118] The Board found that a “substance abuse problem” is a
handicap. That finding is supported by the expert evidence and
is not challenged on appeal. Entrop had a previous substance
problem as defined in the Policy. He therefore had a handicap as
defined in the Code. Although he had not a drink since 1984, the
Policy required him to disclose his substance abuse problem, his
past handicap, to management. On disclosure, he was reassigned
to a less desirable job, though at comparable pay, and was
reinstated only after agreeing to a rigorous medical evaluation
and ongoing controls. Entrop therefore was adversely affected in
his employment because of his past handicap. Imperial Oil’s
treatment of him and the Policy’s provisions for mandatory
disclosure, reassignment and reinstatement are, therefore, prima
facie discriminatory.
(b) Are the provisions for mandatory disclosure, reassignment
and reinstatement BFORs?
[119] Imperial Oil has met the first two steps of the Meiorin
test. A workforce unimpaired by alcohol or drugs is rationally
connected to – indeed is essential to – the work done by Imperial
Oil employees in safety-sensitive jobs, and Imperial Oil adopted
these Policy provisions honestly and in good faith.
[120] The contentious question is whether Imperial Oil has
shown that the Policy provisions for mandatory disclosure,
automatic reassignment and reinstatement are reasonably necessary
to ensure that employees working in safety-sensitive jobs are not
impaired by alcohol or drugs. In my view, the provisions as
drafted are not reasonably necessary to accomplish Imperial Oil’s
purpose. The provisions fail the third step in the Meiorin test
for at least four reasons.
[121] First, requiring an employee to disclose a past
substance abuse problem, no matter how far in the past, is an
unreasonable requirement. As the Commission acknowledged,
Imperial Oil is entitled to require disclosure of a current
substance abuse problem and a past substance abuse problem to a
point. That point is reached when the risk of relapse or
recurrence is no greater than the risk a member of the general
population will suffer a substance abuse problem. On the expert
evidence before her, the Board found that the cut-off point is
five to six years of successful remission for a person with a
previous alcohol abuse problem and six years of successful
remission for a person with a previous drug abuse problem. Had
the Policy provisions on mandatory disclosure been tailored to
these cut-off points, I would have found them unobjectionable.
[122] Second, automatic reassignment out of a safety-
sensitive position following disclosure of a past substance abuse
problem is not reasonably necessary either. Automatic
reassignment cannot be justified because it follows a mandatory
disclosure obligation that itself is too broad. More important,
automatic reassignment fails to accommodate individual
differences and capabilities. Although Imperial Oil may be
justified in temporarily removing an employee with an active or
recently-active substance abuse problem from a safety-sensitive
job, it failed to establish that a single rule, automatic
reassignment, was reasonably necessary in all cases. To use the
words in Meiorin at p. 28, Imperial Oil failed to show that it
could not accommodate “individual testing against a more
individually sensitive standard” without imposing undue hardship
on the company.
[123] Entrop’s case is a good example of why the Policy
provisions for mandatory disclosure and automatic reassignment
are not reasonably necessary. The evidence showed that his risk
of relapse was extremely low and that his past alcohol abuse had
not adversely affected his performance as a control board
operator. In short, he was not incapable of performing his job
because of his past alcohol abuse. Even so, and though he had
been in remission for over seven years, once he disclosed his
previous handicap, he was automatically reassigned. In applying
the Policy provisions to Entrop without considering his
individual circumstances, Imperial Oil’s treatment of him was
unjustified.
[124] A third and related reason why these Policy provisions
are not reasonably necessary is that the requirement of two
years’ rehabilitation followed by five years’ abstinence is
overly broad. The Board concluded that “a minimum seven year
period between the date of reassignment and potential
reinstatement” contravenes the Code “because this length of time
is not necessary in all cases.” I agree with that conclusion,
which again is supported by the expert evidence led at the
hearing. Indeed, the seven year period is required even for
those who have successfully completed a treatment program because
“substance abuse problem” as defined in the Policy includes
participation in a “structured program of counselling, therapy or
other treatment.” Imperial Oil did not show that a single seven
year rule was needed and that it could not without undue hardship
accommodate differences in how quickly individuals recover from a
substance abuse problem.
[125] Fourth, as the Board also concluded, “the mandatory
conditions and undertakings for reinstatement are unlawful since
the evidence shows this is more than is necessary in certain
instances.” Imperial Oil may legitimately insist on placing
special controls for a period of time on an employee with a
previous substance abuse problem who is returned to a safety-
sensitive position. But the controls must be tailored to the
individual’s circumstances to meet the accommodation requirement.
[126] The controls initially demanded by Imperial Oil apply
to all employees reinstated to a safety-sensitive position after
disclosure of a past substance abuse problem. Many are onerous.
For example, the employee must attend a self-help group
(apparently indefinitely), must commit “to report to Imperial
Oil’s Occupational Health Division any changes in his/her
circumstances that may significantly increase the risk of
relapse”, must commit “to report to his/her supervisor/manager
compliance with the above conditions on a periodic basis to be
determined by the review panel”, and must commit “to undergo
annual medical examinations, including screening for alcohol and
drug abuse, conducted by Imperial's Occupational Health
Division”. These controls can be modified over time but to
require them at all for employees like Entrop cannot be
justified.
[127] For these reasons, Imperial Oil has failed to meet the
third step of the Meiorin test. The provisions for mandatory
disclosure, reinstatement and reassignment cannot, therefore, be
justified as BFORs.
(c) Testing for certification and post-reinstatement
[128] Under the Policy, employees hired into, promoted to or
transferred to safety-sensitive jobs are required to
satisfactorily complete a certification process, which includes a
negative result on an alcohol and drug test. Employees with a
past substance abuse problem wishing to be reinstated into a
safety-sensitive job must also complete the certification process
and “post-reinstatement” may be required to undergo “frequent and
unannounced testing in addition to random testing.”
[129] The Board concluded that testing for certification or
post-reinstatement did not contravene the Code provided it was
part of a larger assessment to determine whether an employee was
not merely using but was abusing alcohol or drugs. Under the
Policy, however, alcohol and drug testing is but one part of the
certification process and but one of the post-reinstatement
controls. Both certification and reinstatement controls are
intended to ensure that employees in safety-sensitive positions
are not impaired by alcohol or drugs on the job. The Board did
not discuss or make any findings whether either the certification
process as a whole or the post-reinstatement controls as a whole
was a satisfactory method of assessing substance abuse. I
therefore think it unnecessary to interfere with the Board’s
conclusions on testing for certification and post-reinstatement.
Fifth Issue – Did the Board err in concluding that Imperial Oil
infringed s.13(1) of the Code by distributing its Policy to its
employees?
[130] In her last interim decision, in an appendix to her
reasons, the Board concluded that Imperial Oil infringed s.13(1)
of the Code by distributing the Policy and supporting literature
to its employees. Section 13(1) provides:
13. – (1) A right under Part I is infringed by a
person who publishes or displays before the public or
causes the publication or display before the public of
any notice, sign, symbol, emblem, or other similar
representation that indicates the intention of the
person to infringe a right under Part I or that is
intended by the person to incite the infringement of a
right under Part I.
[131] The Board concluded that the posting and printing of
the Policy and its distribution together with educational
awareness materials to Imperial Oil’s workforce amounted to “the
publication or display before the public” of a “notice” under
s.13(1). She then held that, to the extent the Policy violated
the Code, this publication and display “indicated the intention …
to infringe a right” under the statute. The Divisional Court did
not expressly address the Board’s conclusion that Imperial Oil
infringed s.13(1).
[132] In my view, the Board’s conclusion that Imperial Oil
infringed s.13(1) should be set aside. The possible breach of
s.13(1) only became an issue before the Board as one of the
grounds she relied on to confer jurisdiction over the alcohol and
drug testing provisions of the Policy. Earlier in these reasons,
I expressed the view that s.13(1) could not be used to expand the
Board’s jurisdiction. However, even if the Board could properly
consider s.13, in my view, the respondents have failed to
establish that Imperial Oil breached this provision.
[133] Even accepting that the posting of the Policy and its
distribution to Imperial Oil’s employees amounted to the
publication of a “notice”, to contravene s.13(1), the notice must
indicate an intention to infringe a right under the Code. The
evidence does not reasonably support the conclusion that the
Policy indicates an intention to discriminate. The Board did not
discuss the question of intention. Intention might be inferred
from the Board’s finding that alcohol and drug testing under the
Policy amounted to direct discrimination on the ground of
handicap. However, in her sixth interim decision, the Board
found that Imperial Oil was justified in insisting that its
employees in safety-sensitive positions not be impaired by
alcohol or drugs and that the company had developed and
implemented the Policy in good faith to achieve a workplace free
of impairment. These findings are inconsistent with the finding
that the Policy indicates an intention to discriminate.
[134] Also, the Board did not even consider s.13(2) of the
Code, which provides that s.13(1) “shall not interfere with
freedom of expression or opinion.”3 Even apart from s.13(2),
however, for the reasons I have stated, I would set aside the
Board’s finding that Imperial Oil infringed s.13(1) of the Code.
Sixth Issue – Did the Divisional Court err in holding that the
Board’s finding that Imperial Oil infringed Entrop’s rights
“wilfully and recklessly” was reasonably supported by the
evidence?
[135] In her seventh interim decision, the Board dealt with
monetary compensation for Entrop. She awarded him $1,241.93 in
special damages for lost overtime because of his reassignment,
$10,000.00 in general damages to compensate him for “the
intrinsic value” of the infringement of his rights, and
$10,000.00 for mental anguish, for “the wilful and reckless
manner” of the infringement. Imperial Oil attacks only the award
for damages for mental anguish. It submits the evidence does not
show that the company’s conduct was “wilful and reckless”. The
Divisional Court rejected this submission and I would too.
[136] Two aspects of Imperial Oil’s conduct support the
award. First, the Board accepted Entrop’s evidence of the
adverse effect on him of the job reinstatement process. This
process was lengthy and intrusive for a problem, alcohol abuse,
that Entrop fairly believed he had conquered. The process
demeaned him and ostracized him with his co-workers, thus causing
him stress and anxiety. At the very least, Imperial Oil acted
recklessly in subjecting Entrop to this process.
[137] Second, Imperial Oil took a number of actions, which
the Board ruled amounted to acts of reprisal against Entrop for
having brought a human rights complaint. These actions included
the aggressive monitoring of his work performance, pressuring him
to withdraw his complaint, interfering with his ability to
function as an elected delegate to the Joint Industrial Council,
the organization that represents non-unionized employee
interests, unfairly refusing to assign him to light duties
because of his injured knee, and unfairly issuing him a warning
letter when he was unavoidably delayed in reporting for a random
test. The Board found that at least some of these actions were
taken deliberately by Imperial Oil in retaliation for Entrop’s
filing of a complaint. That finding is reasonably supported by
the evidence. In my view, the evidence on Entrop’s reassignment
together with the finding of reprisal support the Board’s
conclusion that Imperial Oil’s conduct was wilful and reckless
and thus justifies the award of damages for mental anguish. I
would therefore not give effect to this ground of appeal.
CONCLUSION
[138] I would allow Imperial Oil’s appeal on three issues:
(i) I would hold that the Board had no jurisdiction to
inquire into the drug testing provision of the Policy;
(ii) I would set aside the Board’s conclusion that random
alcohol testing for employees in safety sensitive
positions violates the Code, and in its place I would
hold that such testing is a BFOR provided the sanction
for an employee testing positive is tailored to the
employee’s circumstances; and
(iii) I would set aside the Board’s conclusion that Imperial
Oil infringed s.13(1) of the Code and would dismiss that
part of Entrop’s complaint.
[139] In all other respects, I would dismiss the appeal.
Because success has been divided, I would make no order for
costs.
RELEASED: July 21, 2000
_______________________________
1 S.O. 1994, c. 27, s.65(12). Under the previous provisions in
force when Entrop’s complaint was dealt with by the Commission,
the Commission requested the Minister to appoint a Board and the
Minister was required to do so. Under the new provisions the
Minister’s role in the appointment of boards of inquiry, which
was purely formal, has been eliminated.
2 Section 13(1) of the B.C. statute is comparable to s.5 of
Ontario’s Code. Section 13(1) states:
13 (1) A person must not
(a) refuse to employ or refuse to continue to employ
a person,
or
(b) discriminate against a person regarding employment
or any term or condition of employment
because of the race, colour, ancestry, place of origin,
political belief, religion, marital status, family status,
physical or mental disability, sex, sexual orientation or
age of that person or because that person has been convicted
of a criminal or summary conviction offence that is
unrelated to the employment or to the intended employment of
that person.
3 The constitutionality of s.13(1), that is whether it contravenes
the guarantee of freedom of opinion and expression in s.2(b) of
the Charter, was not raised before the Board or before us. |