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9 Hum. Rts. Dig. 1 (2008)

handle is hein.journals/hurtsdg9 and id is 1 raw text is: VOLUME 9 NUMBER 1

Human Rights Digest

January 2008

Decisions Noted

Drug Testing Policy Upheld  ........ 1
Treasury Board Discriminates Against
N urses  .. . . . . .. . . . . .. . . . . .. . .  3
Tribunal Refuses to Order Broad
Publication  Ban  ............... 4
TTC Discriminates Against Blind
Passengers................... 4

Tribunal Orders Systemic
Rem edies...............
Letter Incited Hatred Against
Homosexuals........... .

.. 5
.. 5

Flyers Spread Hatred and
Contem pt  ................... 6
Court Overturns Disclosure Order . . . 7
Board Rejects Claim of No
Jurisdiction  ..................8
Workplace Safety Does Not Oust
Hum an  Rights  ................ 8

Tribunal Decision on Pregnancy
Discrimination Overturned .

. . . . .9

Disability Complaint Dismissed ..... 10
Inside Page..................2
Briefly Noted ...............11
Ordering ................12

OCCUPATIONAL HEALTH AND SAFETY
- drug testing policy - drug use and po-
tential impairment - recreational drug
use and sufficient risk to safety - EM-
PLOYMENT EVALUATION AND TEST-
ING - drug testing as a condition of em-
ployment - discriminatory application of
drug testing - DISABILITY - perceived
disability
ADMINISTRATIVE     TRIBUNALS     -
COURTS - standard of review of court
over administrative tribunals - curial def-
erence - APPEALS AND JUDICIAL RE-
VIEW - error of law in findings on the ev-
idence and in interpreting case law
The Alberta Court of Appeal set aside the
decision of the Court of Queen's Bench (56
C.H.R.R. D/470), which found that Kellogg
Brown & Root (Canada) Co. (KBR) dis-
criminated against John Chiasson. It re-
stored the decision of the Human Rights
Panel (56 C.H.R.R. D/466).
When John Chiasson was interviewed
for employment as a receiving inspector at
the Syncrude plant in Fort McMurray, he
was told that he would have to pass a pre-
employment drug test. He took the re-
quired urine test, began work, and worked
for approximately nine days. His work was
considered excellent.
When his employer learned that he had
tested positive for cannabis, his employment
was immediately terminated. Mr. Chiasson
admitted that he had smoked marijuana for
recreation five days prior to taking the test.
There was no allegation that Mr. Chiasson
had used marijuana while at work for KBR.
The Human Rights Panel ruled that
KBR's drug testing policy discriminated on a
prima facie basis against drug dependent
individuals. However, it found no discrimi-
nation against Mr. Chiasson. The Panel fo-
cused on Mr. Chiasson's statement that he
was only a recreational user of marijuana.

The Panel found that his use of marijuana
was a matter of personal choice, not a dis-
ability. The Panel also found that Mr. Chias-
son was not perceived to have a disability
because his work was excellent and there
was nothing to show that the employer
suspected him of using drugs on the site.
The Panel concluded that there was no dis-
ability, real or perceived, and it dismissed
Mr. Chiasson's complaint.
The Court of Queen's Bench agreed
that the KBR policy was discriminatory on a
prima facie basis. The KBR policy combines
mandatory pre-employment testing for all
covered employees, automatic termination
for a positive result and no accommoda-
tion. The policy creates a class of people -
those who test positive - and then treats
them all the same by denying them em-
ployment, without taking their individual
characteristics and capacities into account.
Because of the limitations of urine tests as a
screening device, an individual can be re-
fused employment based on behaviour
that took place off-site and well before the
employment began.
The main issue, however, was whether
the policy discriminates on the basis of dis-
ability. The Court of Queen's Bench found
that it did. The policy treated all those who
test positive as though they were drug de-
pendent and likely to report to work im-
paired. Even though Mr. Chiasson is not
drug dependent, the policy treats him as
though he is. Mr. Chiasson was treated like
an addict, even though KBR admitted that
only a small percentage of those who test
positive are likely to be impaired at work.
The Court of Queen's Bench found that
the effect of the KBR policy was to exclude
addicted individuals on the basis of actual
disability and non-addicted and non-im-
paired employees on the basis of perceived
disability.

continued on page 3

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