Pubdate: Thu, 3 Jan 2008
Source: Edmonton Journal (CN AB)
Copyright: 2008 The Edmonton Journal
Contact:  http://www.canada.com/edmonton/edmontonjournal/
Details: http://www.mapinc.org/media/134
Author: Duncan Thorne, The Edmonton Journal
Bookmark: http://www.mapinc.org/mjcn.htm (Marijuana - Canada)
Bookmark: http://www.mapinc.org/testing.htm (Drug Testing)

DRUG TEST RULING MAY GO TO SUPREME COURT

Alberta Appeal Court Contradicts Decision in Ontario Case

Human rights in Canada have been muddied by an Alberta ruling that a 
contractor acted legally in firing a worker who failed a drug test, 
lawyers says.

Alberta's human-rights watchdog has yet to decide whether to appeal 
the Alberta Court of Appeal's precedent-setting decision to the 
Supreme Court of Canada.

But both sides on the drug-screening issue said Wednesday that 
there's a need to make the rules clear. It's a developing legal field 
and the Alberta judgment contradicts an Ontario decision.

The case began in the summer of 2002 when John Chiasson took a 
pre-employment drug test and began working for Syncrude construction 
contractor Kellogg Brown & Root as a receiving inspector. After nine 
days on the job, he was told he had failed the test.

Chiasson then admitted smoking marijuana five days before being 
tested. He was fired. He complained to the Alberta Human Rights and 
Citizenship Commission, alleging KBR had discriminated against him on 
the basis of disability.

Court of Queen's Bench sided with him in a 2006 decision, ruling the 
effect of KBR's policy was to treat recreational cannabis users, such 
as Chiasson, as addicts.

It held that KBR must therefore have perceived him to be a cannabis 
addict, and thus disabled. Discrimination on the basis of disability 
is contrary to provincial human rights law.

Earlier, the Ontario Court of Appeal, in a case involving a worker at 
Imperial Oil's Sarnia refinery, had ruled drug-screening illegal. The 
court found that the worker was discriminated against as an addict 
and that drug tests are unacceptable because they cannot reveal if a 
person is impaired.

The Alberta Court of Appeal said it declined to follow the Ontario 
ruling, at least as far as Ontario's reasoning that drug testing is 
discriminatory.

A three-judge panel of the Alberta court concluded that KBR's policy 
did not perceive Chiasson to be an addict. "Rather it perceives that 
persons who use drugs at all are a safety risk in an already dangerous place."

In their written decision, the judges -- Elizabeth McFadyen, Keith 
Ritter and Jack Watson -- said the evidence shows that the effects of 
cannabis linger for days.

"We see this case as no different than that of a trucking or taxi 
company which has a policy requiring its employees to refrain from 
the use of alcohol for some time before the employee drives one of 
the employer's vehicles," the judges said.

"Extending human rights protections to situations resulting in 
placing the lives of others at risk flies in the face of logic."

The Alberta Human Rights and Citizenship Commission argued before the 
court against KBR's policy.

Janice Ashcroft, commission legal counsel, said Wednesday the 
commission hasn't decided whether it will seek leave to appeal to the 
Supreme Court. It has until Feb. 26.

"The commission really just wants to clarify the human rights roles 
and implications with respect to drug testing," Ashcroft said.

"It's a new issue for sure. That's why the commission would like it 
clarified through the courts."

Andrew Robertson, a Calgary lawyer representing KBR, agreed the rules 
need to be clear. Robertson said it's up to the commission to decide 
whether to go to the Supreme Court, but he would welcome it.

The Alberta court's rejection of the Ontario ruling confuses human 
rights across Canada, he said.

"The Supreme Court has indicated human-rights law should be the same 
across the country."

Edmonton labour lawyer Leanne Chahley said she's disappointed by the 
appeal court decision and hopes the commission appeals.

Chahley said one problem is that the appeal court says its ruling 
deals specifically with the Chiasson case, not broader issues.

She said the trouble with that is the court establishes precedent for 
similar cases.

"Every decision-maker on this issue going forward will look at this 
decision, unless it's replaced by a higher-level court," she said.

"I don't know what they'll do with it. I have no idea."

She said it's a concern the Chiasson decision contradicts the Ontario ruling.

"I hope the case is taken on to the Supreme Court of Canada to 
resolve that conflict for us." 
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MAP posted-by: Richard Lake