TOP COURT ASKED TO SETTLE WORKER DRUG-TESTING BATTLE

Rights Commission Pushes For Clear Testing Standard

A clear national standard for worker drug and alcohol testing will
emerge from a battle over oilsands employment, if a new legal move by
the Alberta Human Rights Commission succeeds.

The agency has appealed to the Supreme Court of Canada to settle
conflict between Alberta doctrine supporting dismissals of substance
users for safety's sake and Ontario rules against such firings as
discrimination.

"It's to seek clarity," commission director Marie Riddle said in an
interview. "It really is confusing," she added.

"It makes a lot of sense to clarify how employers should behave. This
is the kind of situation where the Supreme Court can provide
guidance. I suspect all parties want to have this clarified."

The celebrated Alberta case of John Chiasson will get its fourth day
in court since 2002 if Riddle's agency persuades Canada's top
tribunal that the human rights dispute raises a national issue worth settling.

A commission panel initially supported global contractor Kellogg
Brown & Root's dismissal of Chiasson from a job at the Syncrude plant
for failing a pre-employment marijuana test.

Then the worker won a ruling that the dismissal was wrong in Alberta
Court of Queen's Bench.

The trial judge followed an Ontario precedent that says firing
narcotics users is a form of discrimination against the disabled.

But then a third ruling two months ago reversed the outcome again.
The Alberta Court of Appeal upheld drug and alcohol tests and
dismissals as a legitimate safety exception to the law against discrimination.

The safety-first doctrine prevailed again in a second landmark
decision that the Alberta rights watchdog made but did not announce
during the last days of the provincial election.

A commission panel ruled that electrician Donald Luka was not
discriminated against when he lost a job with Lockerbie & Hole Inc.
for failing a marijuana test required to work on a Syncrude contract.

Industry is following an 84-page drug and alcohol code devised by the
Construction Owners Association of Alberta, which includes virtually
all sponsors of large projects.

The document, titled the "Canadian model for providing a safe
workplace," lays out standardized tests, employer and wage-earner
rights, and formal legal and medical justifications for enforcing
rules against recreational or habitual use of intoxicating substances.

Desire for the law to catch up with industry has spread beyond the
oilsands. On the conventional drilling side of the oil and gas
industry, the Petroleum Services Association of Canada wants the
province to stop waiting for the courts.

The re-elected Conservative government will be asked to enact
legislation saying that worker drug and alcohol testing in the name
of safety overrides human rights codes, PSAC president Roger Soucy
said in an interview.

Testing is done by virtually all 270 employers in the association
when they fill potentially risky positions among more than 68,000
jobs they provide in oilfield services, supply and manufacturing, Soucy said.

Oil companies routinely demand screening out substance users as a
condition of hiring field contractor firms or letting their staff
onto exploration and production sites, he added.

"It's not an office situation. It can be truly dangerous," said
Soucy, who served as an army paratrooper before enlisting in
Alberta's biggest industry.

"For instance in drilling you've got heavy equipment moving at high
speed. It only takes somebody to be distracted for a moment, and you
lose a finger or worse. The consequences of this stuff can be very serious."

In letters to provincial cabinet ministers shortly before the
election, Soucy's PSAC said rights commission staff annoyed industry
by at times advocating employment rights for substance users.
Riddle's office participates in court appeals that prolong
discrimination cases, the association complained.

In mid-January, Tory ministers Iris Evans and Hector Goudreau wrote
back defending the agency's independence. Employers were warned the
province likely has no choice but to wait for final word from the
Supreme Court on the conflicts between Alberta and Ontario and safety
rules versus human rights.

Government work on the topic includes an expert study that cast doubt
on the effectiveness of drug and alcohol screening. Doubts were also
raised by a legal review of how Alberta industrial safety enforcement
squares with the Canadian Charter of Rights and Freedoms.

"This analysis leads to the conclusion that broad legislation
enabling workplace drug and alcohol testing would not likely survive
a charter challenge," Evans wrote.

She urged Soucy's association to let "case-by-case review" clarify
employer power under the Alberta Human Rights and Citizenship Act.
The provincial legislation allows discrimination deemed "reasonable
and justifiable in the circumstances" of job situations.

But the worker testing cases confront Alberta with a bigger
"fundamental question" than employer power, the rights commission
said in its latest ruling.

"The real issue is why are Albertans the highest consumers of drugs,
alcohol and tobacco. What is missing in our lives to make us have a
chemical dependency?"