• Ontario court upholds pre-employment drug test
  • February 23, 2007 | Authors: Hugh J. D. McPhail; David J. Ross; Glenn D. Tait
  • Law Firms: McLennan Ross LLP - Edmonton Office ; McLennan Ross LLP - Yellowknife Office
  • In a decision issued this week, a three-member panel of the Ontario Divisional Court has provided useful guidance on pre-employment drug testing and given hope to employers who see value in such programs.

    Weyerhauser hired a stationary engineer (a safety sensitive position) on the condition that the applicant pass a drug/alcohol test. The test result was positive for marijuana. The applicant initially denied that he smoked marijuana but later changed his story and admitted he was a recreational user. He never claimed to have a dependence (disability). His dishonesty on the subject of his marijuana use led to the withdrawal of the offer of employment. The applicant filed a human rights complaint. Weyerhaeuser brought a motion to dismiss the complaint but when that failed they went to court.

    In a unanimous decision the Court issued an order preventing the Tribunal from hearing the complaint because it was plain and obvious it would not succeed. The similarity of these facts to the recent Chiasson/KBR decision by a judge of the Alberta Court of Queen's Bench is striking. Why was the result so different? The Ontario case expressly considered Chiasson. What did the Ontario Court say about it?

    First, the Ontario judges noted that in Chiasson there was evidence that KBR representatives and some of its employees subjectively believed Chiasson was drug dependent. In contrast, there was no evidence that Weyerhaeuser thought that of the applicant in its case. In fact, the evidence was that his offer was withdrawn because he lied about his marijuana use.

    Secondly, they observed that the automatic refusal to hire was a key part of the perceived disability finding in Chiasson whereas in their case a positive test did not automatically lead to a refusal to hire. Before the person with a positive test can commence work, Weyerhaeuser's Standard requires that the person provide a negative drug re-test and sign an agreement that includes recognition that they may be terminated if found to be (amongst other things) "using or possessing controlled substances (including marijuana) at any time" or in the event of a refusal to submit to an alcohol or drug test. Before a positive test is acted on, he/she must report to a substance abuse professional for evaluation and participate in any programs prescribed.

    As confirmed by this court decision, the decisions in "Entrop and Kellogg do not stand for the proposition that the mere existence of a drug testing policy is prima facie discriminatory on the ground of perceived disability."

    The lesson of this case is clear: do not have automatic consequences when there is a positive test. Consider the individual circumstances surrounding a positive test. Thoroughly quiz the employee or prospective employee about the reason for the positive test. If he/she lies about it, you may be able to fire him/her for that depending on the circumstances. Get an evaluation by a professional. Does this person need a rehabilitation program or not? Not all do. Then follow the recommendations of that professional. If your policy is along these lines, it has a good likelihood of being upheld.