COURT PROTECTS WORKER'S CASUAL DRUG USE

Will Workplace Safety Be Trumped By Human-Rights Law?

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 Cas-grain 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."