Two competing cases on the controversial practice of workplace drug testing show a growing schism in the courts on the validity of such actions, making it harder for employers to figure out when their practices are outside the bounds of the law.

Both cases deal with employees who were terminated after testing positive for marijuana use during pre-employment screening. Neither employee claimed to be drug dependent, which can be considered a disability under some provincial human-rights legislation. The cases also considered Entrop v. Imperial Oil, the leading Canadian drug- testing ruling, which came down hard on employers who test employees and prospective employees, even in safety-sensitive positions.

In the first case, Chiasson v. Kellogg Brown & Root (Canada) Company, Alberta Court of Queen’s Bench Justice Sheilah Martin rejected KBR’s pre-employment drug-testing policy and in the process essentially extended the umbrella of human-rights legislation over a self-avowed recreational marijuana user. In the second case, Chornyj v. Weyerhaeuser Company Limited, a three-member panel of Ontario Superior Court of Justice (Divisional Court) did the opposite, upholding Weyerhaeuser’s drug-testing policy and preventing Mr. Chornyj from bringing his complaint before the province’s human- rights tribunal.

Ironically, till now courts in western Canada have usually been more tolerant of drug testing than those in eastern Canada, especially Ontario. It’s an interesting reversal of the two jurisdictions’ approach to drug-testing and seems to further muddy the legal waters.

“We have very few clients in Ontario who even want to touch it,” said Anneli LeGault, a partner in the labour and employment group at Fraser Milner Casgrain LLP in Toronto. “Over the years they have become very anti-drug testing, but then they find themselves subcontracted to an Alberta oilsands project and their employees can’t enter the work site unless they go through a drug test.”

Alberta’s historical pro-testing approach owes a lot to the nature of its primary industry. Getting oil out of the ground is fairly risky work even when all involved are safety conscious and unimpaired. The U.S. influence is considerable as well. Many of the oilpatch companies have U.S. parents, and it is human-resources departments in Dallas and Houston, where drug-testing is acceptable, that send the first draft of the drug-testing policy up to Calgary and Fort McMurray.

“The Americans can definitely test, and, in many situations, it’s mandatory,” explains Michael Ford, a partner with the Calgary office of McCarthy Tetrault LLP. “When they come here, and the situation is different, it creates an interesting undercurrent.”

That is why Justice Martin’s reasoning in Chiasson rocked the boat so suddenly and why it has half the oilpatch, and a big chunk of heavy industry from B.C., scrambling to obtain intervener status when the case goes before the Court of Appeal of Alberta in October.

Interveners include Syncrude Canada Ltd., Suncor Energy Inc., Imperial Oil Limited, Nexen Inc. and Albian Sands Energy Inc. — represented by Barbara Johnston from the Calgary office of Stikeman Elliott LLP — and the Mining Association of British Columbia, the Canadian Coalition of Open Shop Construction Associations and the Coal Association of Canada, represented by Nitya Iyer and Jillian Frank from the Vancouver office of Heenan Blaikie LLP. KBR is represented by Andrew Robertson, of Macleod Dixon LLP, while Janice Ashcroft from the Alberta Human Rights and Citizenship Commission represents Mr. Chiasson.

“It caught a few people off guard, and it will be very interesting to see what the Court of Appeal of Alberta does with it,” said Brian Thiessen, head of the labour and employment group and privacy group at the Calgary office of Blake Cassels & Graydon LLP. “People are definitely watching the case.”

The anxiety of the interveners notwithstanding, Mr. Ford believes the Ontario court’s ruling on Weyerhaeuser “took some of the wind out of Chiasson’s sails.” There were notable differences of fact in the two cases. Mr. Chornyj initially lied about his drug use and under Weyerhaeuser’s policy, a positive drug test did not automatically lead to a termination or a refusal to hire. KBR had Mr. Chiasson working on site while waiting for the test results, and terminated him immediately after obtaining them.

“On facts, Chiasson (the Alberta case) is a pretty weak case,” says Mr. Ford, “and the Ontario court has said so. But it has developed a cause celebre here in Alberta.”

At least in part because of its un-Albertan flavour, and the implication that recreational drug use is somehow protected by human- rights legislation–a problem for many employers and their lawyers.

“I’m troubled with that jurisprudence,” said David Corry, a partner with the Calgary office of Gowling Lafleur Henderson LLP. “With their analysis, the courts have elevated casual drug use to a protected ground under human-rights legislation, and it was never meant to protect casual drug use. None of these employers perceive these employees as disabled. They just want a drug-free workplace.”

Ms. LeGault agreed. “I’ve been watching with horror as this area has evolved over the last few years,” she said. “What we have been doing in Ontario is using the human-rights process to attack something that people don’t like. They don’t like drug testing, and so they use human rights (legislation) to attack drug testing. But when you’ve got a guy who comes to a job interview and he’s been using drugs in the last few days — how is that a disability? What does that have to do with human rights? Zero.”

In Weyerhaeuser, Ms. LeGault said, “The employer finally got up and said, what does this have to do with human rights and the court agreed.”

Chiasson and Weyerhaeuser also underscore that some drug-testing jurisprudence is on a collision course with tougher occupational health and safety legislation.

“This is a gigantic issue,” said Mr. Ford. “Is safety of the entire workforce — or an even bigger group — more important than individual rights?” So far, Canadian courts, from Entrop on, have skirted this issue, he said. “They default to the technology of how do you gather the sample; how do you perform the test, rather than addressing this fundamental issue. And that is the issue that needs to be considered at the highest level.”

Mr. Thiessen said “it would be interesting to see the Supreme Court of Canada weigh in on this issue.” Better yet, he’d like to see a legislative solution to the conflict between the two areas of law.

“The policy-makers are letting the court make these decisions — making the courts make the decision, because they do not have the will to sit down and say whether human rights should be trumping health and safety laws or the other way around.”

Mr. Ford, who will be chairing a conference in September on the state of alcohol and drug testing in the workplace, agreed. “Someone has to jump into the policy issue of how do you balance the rights, and, for God’s sake, don’t do it on basis of the technology. Just deal with the fundamental issue.”

Credit: Financial Post

(Copyright National Post 2007)