Ruling that Drug-Testing Policy Discriminatory Upheld

Imperial Oil Ltd. v. Entrop (1998), 30 C.H.R.R. D/433 (Ont.Ct. (Gen.Div.))

This is an appeal by Imperial Oil Limited from a number of decisions issued by an Ontario Board of Inquiry in the case of Martin Entrop. The Board of Inquiry ruled that Imperial Oil's alcohol and drug policy violated ss. 5 and 17 of the Ontario Human Rights Code which protects Ontario residents from discrimination based on disability. It also ruled that Martin Entrop had been discriminated against by Imperial Oil. The policy required employees in safety-sensitive positions to disclose any "substance abuse problems," whether current or past. Employees who disclosed such problems were reassigned to positions that were not safety-sensitive and would not be reinstated to their original positions for a minimum of seven years. Employees were also required to undergo random testing.

After this policy was put in place, Martin Entrop disclosed that he had had an alcohol abuse problem in the past, but that he no longer used alcohol. He was removed from his position, reassigned, and subjected to various forms of evaluation and testing. The Board of Inquiry found that his treatment was discriminatory.

The Board of Inquiry ordered Imperial Oil to pay Mr. Entrop special damages to compensate him for the loss of overtime, to remove assessments of Mr. Entrop from his personnel files, to pay him $10,000 as general damages, and $10,000 as compensation for mental anguish based on the wilful and reckless manner of the infringement.

The Board of Inquiry also ruled that:

  • Imperial Oil's alcohol and drug policy, was too broad because it required employees in safety-sensitive positions to disclose any "substance abuse problems," whether current or past;
  • the provisions of the policy that set out a minimum seven-year period between reassignment and potential reinstatement violated the Code because this length of time was not necessary in all cases;
  • the mandatory conditions and undertakings for reinstatement were unlawful because this was more than was necessary in certain instances;
  • the provisions of the policy that provided for pre-employment and random testing were unlawful because Imperial Oil failed to prove that a positive test was correlated with impairment;
  • the provisions of the policy that provide for random alcohol testing were unlawful because Imperial Oil failed to prove that such screening was reasonably necessary to deter alcohol impairment on the job.

On appeal, Imperial Oil argues that:

  1. the Board of Inquiry erred in law by holding that s. 5 of the Human Rights Code had any application where an alcohol and drug policy is a reasonable work rule;
  2. the Board of Inquiry had no jurisdiction to expand the complaint into the area of drug testing;
  3. the Board of Inquiry erred in law in its analysis and application of ss. 5 and 17 of the Human Rights Code;
  4. the Board of Inquiry erred in its acceptance of certain evidence;
  5. the Board of Inquiry erred in determining the appropriate remedy for Mr. Entrop.

The Ontario Divisional Court finds at the outset that the standard of review to be applied is one of reasonableness because most of the arguments raised are questions of mixed fact and law. The Court notes that the Supreme Court of Canada ruled in University of British Columbia v. Berg (1993), 18 C.H.R.R. D/310 (S.C.C.) that the superior expertise of human rights tribunal relates to fact-finding, but does not extend to general questions of law. When questions of law are at issue, as with the Board of Inquiry's jurisdiction to consider the part of the policy that dealt with drug testing, the standard of review is correctness.

The Court rejects Imperial Oil's argument that s. 5 of the Code is inapplicable because its alcohol and drug policy was directed to the safety of the property of Imperial Oil and to the safety of the public. The Court finds that accepting this view would make s. 5 meaningless. Imperial Oil failed to prove that its treatment of Mr. Entrop was objectively justified as reasonably necessary for the safety of Imperial Oil's property and the public when all the facts, including the period of time since Entrop had conquered his former abuse problem, were taken into account.

The Court also finds that the Board of Inquiry was justified in considering whether the alcohol and drug policy, as a whole, was in violation of the Code, after it had determined that Mr. Entrop's treatment was discriminatory. The Court agrees with the Board of Inquiry that it would make a mockery of the prohibition against discrimination on the basis of handicap if employers were free to impose disadvantageous work rules so long as they did so universally.

With respect to the Board of Inquiry's conclusions regarding drug abuse as a handicap, the discriminatory effects of testing, and the failure to show a direct connection between testing and job performance, the Court finds that these were reasonable, as were its assessments of the evidence.

Finally, the Court finds that the award to Mr. Entrop was not excessive, in light of the ability of Imperial Oil to pay and the low maximum provided in the Code.

(For summary of the Board of Inquiry decision on the merits see Entrop v. Imperial Oil Ltd. (1995), 23 C.H.R.R. D/196 (Ont. Bd.Inq.).)

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