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Every decision-maker will look at this decision, unless it’s replaced by a higher-level court
By Hempology | January 7, 2008
Edmonton Journal, AB
3 Jan 2008
Duncan Thorne
DRUG TEST RULING MAY GO TO SUPREME COURT
Alberta Appeal Court Contradicts Decision in Ontario Case
Human rights in Canada have been muddied by an Alberta ruling that a contractor acted legally in firing a worker who failed a drug test, lawyers says.
Alberta’s human-rights watchdog has yet to decide whether to appeal the Alberta Court of Appeal’s precedent-setting decision to the Supreme Court of Canada.
But both sides on the drug-screening issue said Wednesday that there’s a need to make the rules clear. It’s a developing legal field and the Alberta judgment contradicts an Ontario decision.
The case began in the summer of 2002 when John Chiasson took a pre-employment drug test and began working for Syncrude construction contractor Kellogg Brown & Root as a receiving inspector. After nine days on the job, he was told he had failed the test.
Chiasson then admitted smoking marijuana five days before being tested. He was fired. He complained to the Alberta Human Rights and Citizenship Commission, alleging KBR had discriminated against him on the basis of disability.
Court of Queen’s Bench sided with him in a 2006 decision, ruling the effect of KBR’s policy was to treat recreational cannabis users, such as Chiasson, as addicts.
It held that KBR must therefore have perceived him to be a cannabis addict, and thus disabled. Discrimination on the basis of disability is contrary to provincial human rights law.
Earlier, the Ontario Court of Appeal, in a case involving a worker at Imperial Oil’s Sarnia refinery, had ruled drug-screening illegal. The court found that the worker was discriminated against as an addict and that drug tests are unacceptable because they cannot reveal if a person is impaired.
The Alberta Court of Appeal said it declined to follow the Ontario ruling, at least as far as Ontario’s reasoning that drug testing is discriminatory.
A three-judge panel of the Alberta court concluded that KBR’s policy did not perceive Chiasson to be an addict. “Rather it perceives that persons who use drugs at all are a safety risk in an already dangerous place.”
In their written decision, the judges — Elizabeth McFadyen, Keith Ritter and Jack Watson — said the evidence shows that the effects of cannabis linger for days.
“We see this case as no different than that of a trucking or taxi company which has a policy requiring its employees to refrain from the use of alcohol for some time before the employee drives one of the employer’s vehicles,” the judges said.
“Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic.”
The Alberta Human Rights and Citizenship Commission argued before the court against KBR’s policy.
Janice Ashcroft, commission legal counsel, said Wednesday the commission hasn’t decided whether it will seek leave to appeal to the Supreme Court. It has until Feb. 26.
“The commission really just wants to clarify the human rights roles and implications with respect to drug testing,” Ashcroft said.
“It’s a new issue for sure. That’s why the commission would like it clarified through the courts.”
Andrew Robertson, a Calgary lawyer representing KBR, agreed the rules need to be clear. Robertson said it’s up to the commission to decide whether to go to the Supreme Court, but he would welcome it.
The Alberta court’s rejection of the Ontario ruling confuses human rights across Canada, he said.
“The Supreme Court has indicated human-rights law should be the same across the country.”
Edmonton labour lawyer Leanne Chahley said she’s disappointed by the appeal court decision and hopes the commission appeals.
Chahley said one problem is that the appeal court says its ruling deals specifically with the Chiasson case, not broader issues.
She said the trouble with that is the court establishes precedent for similar cases.
“Every decision-maker on this issue going forward will look at this decision, unless it’s replaced by a higher-level court,” she said.
“I don’t know what they’ll do with it. I have no idea.”
She said it’s a concern the Chiasson decision contradicts the Ontario ruling.
“I hope the case is taken on to the Supreme Court of Canada to resolve that conflict for us.”
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