Drug-Testing Policy to be Reconsidered

Canada (Human Rights Comm.) v. Toronto Dominion Bank (1996), 25 C.H.R.R. D/373 (F.C.T.D.)

This is an application for judicial review, in which the Canadian Human Rights Commission seeks an order quashing a decision of the Human Rights Tribunal made August 16, 1994. In the decision below, the Tribunal dismissed a complaint brought by the Canadian Civil Liberties Association alleging that employee drug-testing by the Toronto Dominion Bank constitutes discrimination based on disability. The disability in issue was described as perceived drug-dependence.

The Tribunal decided there was no discrimination because termination of employment under the policy applied to both drug-dependent employees, who are protected by the Act, and to persistent casual users, who are not protected by the Canadian Human Rights Act. The Tribunal concluded that any termination as a result of the policy was not based on discrimination, but rather resulted from an employee's breach of the policy which the Tribunal described as a condition of employment.

The Tribunal then considered what the outcome would be if it were mistaken in its initial analysis. In obiter, the Tribunal found the discrimination, if any, was adverse effect discrimination because all new and returning employees were required to undergo drug-testing, and only those who tested positive more than once would be negatively affected. The Tribunal also decided that the employer satisfied the obligation of reasonable accommodation by providing for rehabilitation at its expense. Also in obiter, however, the Tribunal observed that if the drug-testing constituted direct discrimination the Bank had not established that it had a bona fide occupational requirement to justify the policy because it had not shown that being drug-free was necessary for the efficient and safe performance of jobs in the Bank.

The Federal Court holds that this is a case of adverse effect discrimination, and that in cases of adverse effect discrimination there will be a group that is negatively affected by an apparently neutral rule, and within that group a sub-group to which the rule applies in a negative and illegal fashion. In this case, all those facing termination because of drug use are negatively affected, but there is a sub-group who experience adverse effect discrimination because they are drug-dependent, and are persons with disabilities under the Canadian Human Rights Act.

The Court finds further that the Tribunal erred in failing to explicitly identify a rational connection between drug-testing and job performance. The Tribunal decision is set aside and the matter is referred back to the Tribunal to deal with the question of whether the drug-testing policy is rationally related to the employment.

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