Imperial Oil Ltd. v. Entrop (No. 1), 1994 CanLII 18434

Imperial Oil Ltd. v. Entrop (No. 1)

1994-08-25

Ontario Board of Inquiry

Martin Entrop Complainant

v.

Imperial Oil Limited Respondent

Date of Complaint: January 16, 1992 Date of Decision: August 25, 1994 Before: Ontario Board of Inquiry, Constance Backhouse Comm. Decision No.: 639

Appearances by: James Hayes and Elizabeth Nurse, Counsel for the Complainant Mark Hart and Vandana Taxali (Student-at-Law), Counsel for the Commission James Noonan, Counsel for the Respondent

JURISDICTION — evidence considered goes beyond scope of complaint — complaint concerning safety orders and regulations

Summary: This is a preliminary decision in the matter of a complaint by Martin Entrop. Mr. Entrop, a senior operator at the Sarnia Refinery of Imperial Oil Limited, alleges that he was discriminated against because of a handicap or a perceived handicap under the company's Alcohol and Drug Policy.

The policy required employees in "safety-sensitive" positions to notify management if they had or had had a substance abuse problem. Mr. Entrop informed his employer in 1991 that he had had an alcohol problem about ten years earlier, that he had attended Alcoholics Anonymous, and that he had not used alcohol since 1984. Mr. Entrop was removed from his position and assigned to a different, less desirable one. In order to obtain reinstatement Mr. Entrop was required to comply with a process of certification, which entailed undergoing medical, and psychological evaluation, and to sign an undertaking that set out specific terms and conditions for reinstatement, including unannounced alcohol testing, mandatory disclosures and performance reviews not required of other employees.

The respondent, Imperial Oil, argues as a preliminary matter that the Board of Inquiry only has jurisdiction to deal with the effects of its policy on this particular complainant, not to inquire into the policy as a whole.

However, the Board of Inquiry finds that while its role is to inquire into the specific complaint before it, it is not prepared to make any sweeping decision in advance as to what evidence regarding the policy is relevant to the complaint. The Board of Inquiry declines to make the requested ruling on the exact scope of the proceeding at the outset on the grounds that it would be premature.

[See also preliminary decisions (1994), 1994 CanLII 18416 (ON HRT), 23 C.H.R.R. D/183, (1994), 1994 CanLII 18413 (ON HRT), 23 C.H.R.R. D/186, (1994), 1994 CanLII 18412 (ON HRT), 23 C.H.R.R. D/188, (1995), 1995 CanLII 18158 (ON HRT), 23 C.H.R.R. D/191, (1995), 1995 CanLII 18154 (ON HRT), 23 C.H.R.R. D/196 and (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213.]

Cases Cited

C.U.P.W. v. Canada Post Corp. (1991), 1991 CanLII 7245 (ON CTGD), 7 O.R. (3d) 598 (Ont. Div.Ct.): 9

Canada (Attorney-General) v. P.S.A.C., 1991 CanLII 88 (SCC), [1991] 1 S.C.R. 614, 80 D.L.R. (4th) 520: 9

Ontario (Human Rights Comm.) v. North American Life Assurance Co. (No. 2) (1992), 1992 CanLII 14243 (ON HRT), 17 C.H.R.R. D/472 (Ont. Bd.Inq.): 6

Legislation Cited

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

s. 5(1): 1

s. 9: 1

s. 39(1): 4

s. 39(1)(a): 10

s. 39(2): 4

s. 41(1)(a): 5

INTERIM DECISION

THE ALLEGED FACTS

1This complaint involves a claim by Martin Entrop that his right to equal treatment with respect to employment has been infringed because of his "handicap and perceived handicap," contrary to ss. 4(1) and 8 of the Human Rights Code, 1981, S.O. 1981, c. 53 as amended [now ss. 5(1) and 9, R.S.O. 1990, c. H.19].

2Martin Entrop (the "complainant") is employed as a senior operator at the Sarnia Refinery of Imperial Oil Limited (the "respondent"), where he has worked for over seventeen years. In the fall of 1991, the respondent company instituted an Alcohol and Drug Policy (the "Policy"), which set out work rules regarding the use and abuse of drugs and alcohol. The Policy also provided for mandatory testing of employees for drugs and alcohol, and various rehabilitation, reassignment and disciplinary options for those employees found to be in violation.

3Pursuant to this Policy, which required that employees in safety-sensitive positions notify management if they had "or have had a substance abuse problem," the complainant disclosed to the company, in October 1991, that approximately ten years ago he had experienced a problem with alcohol. Mr. Entrop also informed his employer that he had attended Alcoholics Anonymous and had maintained sobriety since the winter of 1984. In accordance with the terms of the Policy, Mr. Entrop was removed from his safety-sensitive position and reassigned to a different, "less desirable" position at the same rate of pay. In order to obtain reinstatement to his former job, Mr. Entrop was required to comply with a process of "certification," which entailed that he undergo medical and psychological evaluation at a hospital in Illinois and sign an "Undertaking Regarding Post Reinstatement Controls." This undertaking set out specific terms and conditions which included, among other things, unannounced alcohol testing, mandatory disclosures and performance reviews over and above those required of the other employees under the "Alcohol and Drug Policy." On January 16, 1992, Martin Entrop registered a complaint under the Code that he had been discriminated against because of "handicap and perceived handicap."

THE LEGAL ISSUES

4At the outset of the hearing, counsel for the respondent company sought a preliminary ruling regarding the scope and extent of the issues to be canvassed in the case. Mr. Noonan argued that this case should be limited solely to the portions of the Policy that affected Mr. Entrop specifically. He characterized the issue as one going to jurisdiction, noting that s. 39(1) of the Code requires that a board of inquiry "determine whether a right of the complainant under this Act has been infringed." The entire enforcement of the Code is premised on a complaint-driven model, he argued, which is dependent upon a complaint lodged by individual complainants or by the Commission itself. The Commission had not chosen to initiate a complaint against the Policy in this instance, but had relied upon Mr. Entrop to bring his individual complaint, based on the specific aspects of the Policy which had affected him personally. The ensuing investigation, conciliation and mediation process had focused upon Mr. Entrop's particular situation, and this is the only matter which is properly placed before the Board of Inquiry for determination. Section 39(2), Mr. Noonan noted, specifies the parties to a proceeding before the board to be the Commission, the complainant, the "person who the Commission alleges has infringed [a right of the complainant]" and "any person appearing to the board of inquiry to have infringed the right." This, argued Mr. Noonan, authorizes the Board to add additional respondents as parties, but not additional complainants. The substance of the inquiry should be restricted to the limited issues raised by Mr. Entrop's complaint, and not to the Policy as a whole.

5Mr. Hart, counsel for the Commission, argued that the whole Policy should be subjected to inquiry during this hearing. He characterized the issue as an evidentiary matter rather than a jurisdictional question, claiming that the hearing would have to canvass various aspects of the Policy, all of which are relevant to the Board's remedial responsibility under s. 41(1)(a). Once the Board has found that "a right of the complainant" has been infringed, this remedial provision of the Code authorizes the Board to "direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices." Mr. Hart argued that the broad terms of the legislative remedial authority require that the Board examine the whole Policy that is the subject matter of Mr. Entrop's specific complaint. Failure to do so would amount to a failure to ensure that the practices of the respondent company are in full compliance with the Code. Furthermore, according to Mr. Hart, the issues underlyng Mr. Entrop's case necessarily spill over to affect the viability of the Policy as a whole. Many of the matters raised by the individual complaint, he argued, are inextricably linked to the "fundamental themes & undercurrents" that inform the Policy as a whole.

6Both counsel agreed that there is very little relevant case law on this matter, and that the closest decision was Thornton v. North American Life Assurance Co. (No. 2)(1992), 1992 CanLII 14243 (ON HRT), 17 C.H.R.R. D/472 (Ont. Bd.Inq., Plaut). In that case, a complainant with AIDS was protesting the denial of long-term disability benefits, based upon a clause in the insurance policy which excluded pre-existing illnesses. Counsel for the Commission sought to introduce evidence regarding the impact of the clause on persons with medical conditions other than AIDS. Counsel for the respondent sought to limit the evidence to the issue of AIDS. The Board in that case decided to allow the broader evidence (at D/474, paras. 24–25]):

My appointment was indeed specific in that I am to deal with Mr. Thornton's complaint . . . and to determine whether the company discriminated against him. I was not appointed to try the insurance industry.

However, if the alleged discrimination is shown to arise from [the] clause . . . itself and not merely from its application, I must consider its impact on insured persons in a wider context. For if the clause itself is discriminatory, then the complainant had just cause for his complaint. If it is not, then I shall determine — by a full consideration of all "adjudicative facts" — whether in the application of the clause Mr. Thornton was unfairly treated, and not what would happen to other hypothetical persons. [Emphasis in original.]

7Mr. Noonan attempted to distinguish this case by suggesting that in Thornton, supra, the respondent was trying to argue that the Tribunal could only rule on the application of the clause to the complainant, and not upon the legality of the clause itself. The present respondents were not trying to argue that this Board could not consider the legality of the Policy, but merely to limit the inquiry to the portions of the Policy which directly apply to Mr. Entrop. Mr. Hart characterized this as a narrow reading of Thornton. He suggested that just as the Board in Thornton had concluded that it was within its authority to look at the whole scope of the application of the clause, so the Tribunal in this case should inquire into the human rights implications of the full Policy.

8In my view, the Thornton decision, supra, presents a useful precedent. The ruling in Thornton recognizes that a board needs to focus its inquiry specifically upon the complaint before it, but that the full and proper adjudication of the issues affecting the complainant may require consideration of wider context. This is an approach which I will attempt to follow in arriving at a decision in this present case.

THE DECISION

9The initial question is whether to characterize this matter as jurisdictional or evidentiary. Both Mr. Noonan and Mr. Hart agreed on the test that should be applied in determining whether a matter is jurisdictional. The test, as set out in Canada (Attorney-General) v. Public Service Alliance of Canada, 1991 CanLII 88 (SCC), [1991] 1 S.C.R. 614, 80 D.L.R. (4th) 520 at 529–30 and Canadian Union of Postal Workers v. Canada Post Corp.(1991), 1991 CanLII 7245 (ON CTGD), 7 O.R. (3d) 598 at 605 (Ont. Div.Ct.), reads as follows:

A pragmatic and functional analysis is to be applied in determining whether or not a question is within the jurisdiction of the tribunal. The factors to be considered in making this determination include: the wording of the enactment conferring jurisdiction on the tribunal, the purpose of the statute creating the tribunal, the reason for the existence of the tribunal, the expertise of the tribunal and the nature of the problem before the tribunal.

10A human rights board of inquiry under the Code is expressly authorized to "determine whether a right of the complainant under this Act has been infringed" (s. 39(1)(a)). Mr. Noonan is clearly right in noting that the enforcement provisions of the Code are complaint-driven, and that my jurisdiction is limited to adjudicating upon the issues raised by the specific complaint before me. In this case, my jurisdiction encompasses hearing evidence and argument concerning the situation of Mr. Entrop and his specific concerns regarding the terms of the "Alcohol and Drug Policy."

11However, the precise nature of Mr. Entrop's difficulties with the Policy is a matter which will require further scrutiny. The complaint form itself is not in the nature of a formal pleading, and at best outlines vaguely the broad issues which form the foundation for the alleged violation of the Code. The fuller details of the case will only become clear with the detailed testimony of witnesses and the legal argument which flows from their evidence. Mr. Hart has noted that Mr. Entrop's complaint raises issues about the failure of the company to link the substance use of employees to work performance, about the methodology of testing for substance use, and about the relationship between the company's response to violations of the Policy and the duty to accommodate. The extent to which these issues necessarily relate to various components of the Policy will be a matter which will only become clear as the hearing unfolds.

12The extent to which Mr. Entrop's employment situation will raise disputes about the Policy as a whole is a matter for evidentiary argument. The testimony must be considered in light of the probative relevance that each witness can offer to the issues that underlie Mr. Entrop's case. Objections to the relevance of any testimony proffered by either party must be considered in accordance with the normal rules of evidence during the course of the hearing. While I recognize that the parties would prefer a definitive ruling on the exact scope of this proceeding at the outset, in my view it is premature and imprudent to make such a sweeping decision at this stage.