METIS SETTLEMENT BROKE LAW FIRING PAIR OVER DRUG TESTING

Human-Rights Case Has Wound Its Way Through The Courts For Seven Years

EDMONTON - A northern Alberta Metis settlement breached the
province's human-rights laws when it fired two staff who refused to
take drug and alcohol tests, a human-rights panel has ruled.

The Elizabeth Metis settlement erred by enforcing universal drug
testing even in administrative positions, an Alberta human-rights panel found.

It is the latest ruling in a legal challenge that has been winding
its way through the system for seven years. Observers say it is in
line with other court decisions that should make employers cautious
about when and who they test for drugs.

"This particular case affirms a series of decisions in Canada that
say you cannot have universal drug testing," University of Calgary
labour relations professor Daphne Taras said. "Whereas there are
situations in the United States where companies can say they have
universal testing, in Canada, it's clear you can't do that."

The Elizabeth Metis settlement introduced its
drug-and-alcohol-testing policy after a general meeting of its
members in 1998 called for everyone working for the settlement to be
tested. The goal was to have employees show leadership in tackling
substance abuse problems in the community.

Cassandra Collins, who ran the land membership and resources office,
and Sonia Jacknife, community services director, refused to be
tested. Both women were fired.

They took their case to the Alberta Human Rights and Citizenship
Commission in 1999. Such cases are important in Alberta because there
are no laws that govern drug testing in the workplace. Instead, the
rules are being sorted out through a growing body of case law.

Both Collins and Jacknife, contacted by The Journal this week, said
they refused to take the tests because they felt they were invasive
and inappropriate. They said they weren't worried about testing
positive for illegal substances.

"I knew the way that they did it was wrong," said Jacknife, who still
lives on the settlement. "And the way they enforced it, they violated
their policies in so many places. They did blanket testing and the
worst part was it was supposed to be confidential and they just
herded us in a line in the reception area of the foyer for everyone
to see. To this day, I feel like people treat me as though I did
something wrong."

In 2002, an initial human-rights panel dismissed both complaints.

The panel ruled the policy was discriminatory, but said
discrimination was a justified occupational requirement.

The women, who were joined in their case by the director of human
rights and citizenship, appealed to the Court of Queen's Bench.
Again, a judge dismissed the case and said although the settlement's
drug testing policy was discriminatory, it was allowed because
employees needed to set a positive example for the community.

They appealed again to Alberta's Court of Appeal.

In May 2005, the three-judge panel found the two women were not
covered by the settlement's policy, given their administrative
positions. The Appeal Court gave the settlement a chance to justify
the testing on other grounds and sent it back to a second human
rights panel for consideration and to determine compensation.

That second human rights hearing was held last January.

In a written decision released in mid-May, panel chairwoman Brenda
Scragg ordered the settlement to stop future drug testing in the
administrative offices without cause and do a full review of its policy.

She also ordered the settlement to pay Collins for 19 months of lost
wages and Jacknife for 31 months of lost wages. Both women also were
awarded $5,000 for injury to dignity and self-respect.

Suzanne Thomas, lawyer for the settlement, said she has filed an appeal.

"From our perspective, the Queen's Bench decision still stands and it
was good law," Thomas said.

Others, including Taras, called those initial decisions "errors of
interpretation."

Audrey Dean, senior legal counsel with the Alberta Human Rights
Commission, said Collins's and Jacknife's recent victory is important
because it acknowledged that the women were treated poorly by their employer.

Collins, now 35, said she is frustrated to hear that the case will be
appealed again. The former teen AADAC ambassador first challenged the
drug testing policy because she felt someone had to take a stand.

At the time, she was single and felt she was in a better position to
fight than were her colleagues.

Now married with children, she lives on the nearby Kehewin Reserve.
But she says she still loves the Elizabeth Metis community, southeast
of Cold Lake near the Saskatchewan border, which is why she
challenged the testing in the first place.

"What's even more difficult on me is my community is still feeling
the impact, because financially they feel it," she said. "The money
spent on lawyers, it could go towards an AADAC program."

This case will likely not have the same impact on workplaces as other
recent drug testing decisions, such as the Chiasson case. There, an
Alberta justice ruled that a construction company discriminated
against a man when it fired him from an oilsands project after his
pre-employment drug screening tested positive for marijuana.

But Jason Foster, who monitors workplace drug-testing issues in his
role as the Alberta Federation of Labour's director of policy
analysis, said the Elizabeth Metis case is an example of an important trend.

"In very quick succession, we've seen two decisions trying to place
clearer boundaries about what is allowed and what is not allowed,"
Foster said. "We're attempting to draw a circle around what is
appropriate and an inappropriate invasion of privacy."