The court held that a policy requiring employees to undergo drug or alcohol testing, where the potential consequences of a positive test include the loss of employment, was considered a prima facie violation of section 7(1) of the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000 c. H-14 (the “Act”). However, where testing constitutes a bona fide occupational requirement, the section 7(1) prohibition against discrimination based on a physical or mental disability does not apply. The Court held that being drug and alcohol free is a bona fide requirement for employees of a small remote Metis Settlement with ongoing concerns about serious drug and alcohol abuse by community members.

Administrative law – Human rights complaints – Discrimination – Disability – Drug and alcohol testing – Aboriginal issues – Judicial review – Standard of review – Correctness

Alberta (Human Rights and Citizenship Commission) v. Elizabeth Metis Settlement, [2003] A.J. No. 484, Alberta Court of Queen’s Bench, April 17, 2003, Bielby J.

Elizabeth Metis Settlement (“the Settlement”) is a small, relatively isolated Metis settlement incorporated pursuant to the Metis Settlements Act, R.S.A. 2000 c. M-14 (the “Settlements Act”). The Elizabeth Metis Settlement Council (the “Council”) was responsible for the administration of the settlement pursuant to the Settlements Act. In response to widespread concerns about drug and alcohol abuse by employees of the Settlement, Settlement members unanimously passed a resolution requiring drug and alcohol testing to be implemented for all Settlement employees. The policy provided a number of possible consequences for failing a drug and alcohol test including suspension without pay. Two employees of the Settlement refused to be tested and were suspended from their employment without pay. Both of the employees submitted a complaint of discrimination against the Settlement on the grounds of discrimination for physical disability, contrary to section 7(1) of the Act. The matter was referred to human rights panel (the “Panel”) which dismissed both complaints. At the hearing the Complainants maintained that random drug and alcohol testing was discriminatory within the meaning of the Act because a person’s employment may be terminated because of drug or alcohol dependence. Any use is treated as if it were an addiction because the consequences of testing positive were the same for social users as for addicts. Alcohol or drug addiction is arguably a physical or mental disability, bringing with it the section 7(1) prohibition against discrimination. Further, terminating the employment of those who refused random testing is discriminatory because the consequence may be the same as for those who take the test and fail. This similarity of treatment creates the perception that anyone who refuses testing is an alcoholic or drug addict and that perception is enough to trigger protection under the Act. The Panel concluded that random drug and alcohol testing is prima facie discriminatory; however, it also held that the Settlement was justified in its position that sobriety is a bona fide occupational requirement in a community with serious drug and alcohol problems.

An appeal brought to the Alberta Court of Queen’s Bench was dismissed. The court held that the standard of review in regard to the decision of the Panel was correctness. The court held that an employee who loses her job for refusing to undergo random drug and alcohol testing is entitled to the protection of section 7(1) of the Act and that the Panel erred in determining that the employee had not shown a disability under the Act.

The court went on to consider whether the Settlement’s drug and alcohol testing, if discriminatory, was excluded from the Act as such testing was a bona fide occupational requirement. The court considered whether the testing was adopted for (1) a purpose rationally connected to the performance of the job; (2) whether the employer established that it adopted the standard in an honest and good faith belief that it was necessary for the fulfilment of legitimate work-related purposes; and (3) whether the employer established that the standard was reasonably necessary to the accomplishment of that legitimate work-related purpose. First, the court held that the policy was adopted on the grounds that the Settlement employees by their sobriety and substantial abstinence from drug and alcohol use would become role models for the rest of the community. The court concluded that the Panel was correct in concluding that the expectation of exemplary behaviour by Settlement employees was a purpose rationally connected to the employment performance. Second, the court held that the policy was adopted in good faith. Third, the court held that expert evidence was not required before the Commission to allow it to conclude that sober employees would by that condition alone be supportive of the public purpose of encouraging public sobriety, and that the possibility of drug and alcohol testing would result in employees more likely to report to work in a sober condition.

To stay current with the new case law and emerging legal issues in this area, subscribe here.