Dr. Adrian Wilkinson

The complainant, Martin Entrop, and the Ontario Human Rights Commission challenged Imperial Oil's Alcohol and Drug Policy, alleging it discriminated on the basis of handicap.

The Board of Inquiry found that drug abuse and dependence constitute a handicap under the Human Rights Code.

The Board held that the policy's requirements for mandatory disclosure of past substance abuse, reassignment, and onerous reinstatement conditions were overly broad and unlawful.

Furthermore, the Board ruled that pre-employment and random drug testing, as well as random alcohol testing, were unlawful because the employer failed to prove that positive tests correlate with actual impairment on the job, thus failing to establish a bona fide occupational requirement under section 17 of the Code.

The complainant, a senior operator in a safety-sensitive position, disclosed a past alcohol problem pursuant to the employer's new Alcohol and Drug Policy.

Despite having been abstinent for over seven years, he was reassigned to a lower position and later reinstated subject to rigorous, unannounced testing and controls.

The Board of Inquiry found that past alcoholism constitutes a handicap under the Human Rights Code.

The Board held that the employer's mandatory self-disclosure, automatic reassignment, and excessive reinstatement controls amounted to direct discrimination.

While freedom from alcohol impairment is a bona fide occupational requirement for safety-sensitive jobs, the employer failed to prove that the complainant was incapable of performing his duties or that the intrusive measures were reasonably necessary.

The employer also failed to meet its duty to accommodate, as less drastic means of assessment, such as supervisory monitoring, were available.