HRC v. Kellogg Brown & Root Co.,

• Judge: McFadyen, Ritter and Watson, JJ.A.
• Neutral Citation: 2007 ABCA 426
• Date: 28 December 2007
• Court: Court of Appeal (Alberta)

HRC v. Kellogg Brown & Root Co. (2007), 425 A.R. 35 (CA);

      418 W.A.C. 35

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JA.123

The Director of the Alberta Human Rights and Citizenship Commission and John Chiasson (respondents/appellants) v. Kellogg Brown & Root (Canada) Company (appellant/respondent) and Syncrude Canada Ltd., Suncor Energy Inc., Imperial Oil Limited, Nexen Inc. and Albian Sands Energy Inc. (intervenors/not parties to appeal) and Mining Association of British Columbia, Canadian Coalition of Open Shop Construction Associations and Coal Association of Canada (intervenors/not parties to appeal)

(0601-0281-AC; 2007 ABCA 426)

Indexed As: Human Rights and Citizenship Commission (Alta.) et al. v. Kellogg Brown & Root (Canada) Co.

Alberta Court of Appeal

McFadyen, Ritter and Watson, JJ.A.

December 28, 2007.

Summary:

An employer required all prospective non-unionized employees to undergo a pre-employment urinalysis drug test. The employer interpreted its policy to mean that failing the test automatically terminated employment. There was no provision for accommodation. Chiasson's employment was terminated after nine days when his drug test came back positive for marijuana. Chiasson's marijuana use was recreational, outside of work and was not the product of an addiction. Chiasson was not advised of the employer's policy that he could reapply in six months. Chiasson filed a discrimination complaint, submitting that the mandatory pre-employment drug testing discriminated against him on the basis of physical and mental disability. The Human Rights Panel held that Chiasson failed to establish discrimination of the basis of disability. Although unnecessary to decide the issue, the Panel opined that if there was discrimination, the employer met its burden of establishing that the policy was reasonably necessary to accomplish its work-related objectives, but did not meet the burden of establishing that it was impossible to accommodate Chiasson without undue hardship. Chiasson appealed.

The Alberta Court of Queen's Bench, in a judgment reported (2007), 399 A.R. 85, allowed the appeal. The drug testing policy discriminated against Chiasson as a non-addicted recreational user on the basis of a perceived disability (substance abuser). Although the policy was adopted for a purpose rationally connected to job performance and in a good faith belief that it was necessary to fulfil that legitimate work-related purpose, the policy was not reasonably necessary to accomplish that purpose. The employer failed to demonstrate that it was impossible to accommodate individual employees sharing the characteristics of Chiasson without undue hardship. The court ordered the employer to cease violating the Act and gave the parties leave to return to the court on the question of Chiasson's damages if agreement could not be reached. The employer appealed.

The Alberta Court of Appeal allowed the appeal, set aside the decision and restored the Panel's decision. The employer's drug testing policy did not discriminate against casual marijuana users based on perceived disability. The court further held that whether the drug testing policy discriminated against addicted drug users was not before the Panel and was left to be determined in the future when a proper factual matrix was before the court.

Civil Rights - Topic 999.8

Discrimination - Employment - Drug and alcohol policies - An employer required all prospective non-unionized employees to undergo pre-employment drug testing - Testing positive resulted in automatic termination and no accommodation - A Human Rights Panel ruled that the policy did not discriminate against casual users - A Chambers judge held that the drug policy prima facie discriminated against recreational users (non-addicted and non-impaired persons) on the basis of perceived disability (that they were substance abusers) - The policy relied on presumed personal traits without considering a potential employee's capacity, needs, merits and circumstances - The policy precluded employment for persons who may have used a drug away from work and well before the job interview, retroactively judging their employment suitability on the basis of an employment norm unknown to them when they engaged in the prohibited behaviour and without giving them an opportunity to comply with company policy - Although the policy was adopted for a purpose rationally connected to job performance and in a good faith belief that it was necessary to fulfil that legitimate work-related purpose, the policy was not reasonably necessary to accomplish that purpose - The Alberta Court of Appeal held that the Chambers judge committed palpable and overriding error - The court restored the Panel's decision, stating that "the evidence disclosed that the effects of casual use of cannabis sometimes linger for several days after its use. Some of the lingering effects raise concerns regarding the user's ability to function in a safety challenged environment. The purpose of the policy is to reduce workplace accidents by prohibiting workplace impairment. There is a clear connection between the policy, as it applies to recreational users of cannabis, and its purpose. The policy is directed at actual effects suffered by recreational cannabis users, not perceived effects suffered by cannabis users".

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - The Alberta Court of Appeal discussed the standard of review of decisions of human rights panels - See paragraphs 16 to 28.

Cases Noticed:

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 13].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 16].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 16].

United Nurses of Alberta, Local 115 v. Calgary Health Authority (Foothills Medical Centre) (2004), 339 A.R. 265; 312 W.A.C. 265; 2004 ABCA 7, refd to. [para. 16].

Health Sciences Association (Alta.) et al. v. Provincial Health Authorities (Alta.) et al. (2004), 348 A.R. 361; 321 W.A.C. 361; 2004 ABCA 185, refd to. [para. 16].

Alberta (Minister of Municipal Affairs) v. Municipal Government Board (Alta.) et al. (2002), 312 A.R. 40; 281 W.A.C. 40; 2002 ABCA 199, refd to. [para. 17].

Canadian Union of Public Employees Local 784 v. Board of Education of Edmonton School District No. 7 (2005), 363 A.R. 123; 343 W.A.C. 123; 2005 ABCA 74, refd to. [para. 17].

Gwinner et al. v. Alberta (2004), 354 A.R. 21; 329 W.A.C. 21; 2004 ABCA 210, refd to. [para. 18].

Canada Safeway Ltd. v. Human Rights and Citizenship Commission (Alta.) et al. (2003), 330 A.R. 340; 299 W.A.C. 340; 2003 ABCA 246, refd to. [para. 18].

Dickason and Human Rights Commission (Alta.) v. University of Alberta, [1992] 2 S.C.R. 1103; 141 N.R. 1; 127 A.R. 241; 20 W.A.C. 241, refd to. [para. 18].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1; 100 D.L.R.(4th) 658, refd to. [para. 18].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, refd to. [para. 19].

Workers' Compensation Board (Alta.) v. Workers' Compensation Appeals Commission (Alta.) (2005), 371 A.R. 318; 354 W.A.C. 318; 2005 ABCA 276, refd to. [para. 19].

Alberta (Minister of Human Resources and Employment) v. Director of the Human Rights, Citizenship and Multiculturalism Commission (Alta.) et al. (2006), 391 A.R. 31; 377 W.A.C. 31; 2006 ABCA 235, refd to. [para. 20].

Weller - see Alberta (Minister of Human Resources and Employment) v. Director of the Human Rights, Citizenship and Multiculturalism Commission (Alta.) et al.

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 21].

Lévis (City) v. Fraternité des policiers de Lévis Inc. et al., [2007] 1 S.C.R. 591; 359 N.R. 199; 2007 SCC 14, refd to. [para. 22].

Entrop et al. v. Imperial Oil Ltd. (2000), 137 O.A.C. 15; 50 O.R.(3d) 18; 189 D.L.R.(4th) 14 (C.A.), refd to. [para. 33].

Counsel:

J.R. Ashcroft and A.M. Chak, for the respondents/appellants;

A.R. Robertson, for the appellant/respondent;

B.B. Johnston, for the intervenors, Syncrude Canada Ltd., Suncor Energy Inc., Imperial Oil Limited, Nexen Inc. and Albian Sands Energy Inc.;

P.A. Gall, Q.C., and N. Iyer, for the intervenors, Mining Association of British Columbia, Canadian Coalition of Open Shop Construction Associations and Coal Association of Canada.

This appeal was heard on October 11, 2007, before McFadyen, Ritter and Watson, JJ.A., of the Alberta Court of Appeal.

On December 28, 2007, the following memorandum of judgment was delivered by the Court.