Imperial Oil Ltd. v. Entrop (No. 5)

1995-06-02

Ontario Board of Inquiry

CHRR Doc. 95-113

Martin Entrop Complainant

v.

Imperial Oil Limited Respondent

Date of Complaint: January 16, 1992

Date of Decision: June 2, 1995

Before: Ontario Board of Inquiry, Constance Backhouse

Comm. Decision No.: 95-021-I

Appearances by: Jeffrey M. Andrew and Elizabeth Nurse, Counsel for the Complainant Marvin Huberman and Roger Townshend, Counsel for the Commission Colin Campbell and Monique Smith, Counsel for the Respondent

BOARDS OF INQUIRY / TRIBUNALS — authority to award remedy of change in employer policy — COMPLAINTS — amendment to include additional allegation — scope of complaint — JURISDICTION — complaint concerning employer policy and safety orders and regulations — PARTIES — standing for private individual — HUMAN RIGHTS — nature and purpose of human rights legislation

Summary: This is a fifth decision on points of procedure in the matter of a complaint by Martin Entrop alleging discrimination on the basis of a handicap or a perceived handicap under the terms of Imperial Oil's Alcohol and Drug Policy.

In earlier preliminary decisions the Board of Inquiry decided to proceed with a "phased" approach to hearing this complaint. It decided that Phase I of the hearing will deal with the complainant's concerns regarding the application of Imperial Oil's Alcohol and Drug Policy to him. Phase II will deal with Mr. Entrop's allegations that there were reprisals against him for filing a human rights complaint. To the extent that Mr. Entrop's complaint warrants it, Phase III will deal with larger legal questions about the features of the Alcohol and Drug Policy as a whole.

The Board of Inquiry concludes that, for a number of reasons, the evidence lead to date in Mr. Entrop's case, warrants inquiry into the policy as a whole and its operation.

First of all, Mr. Entrop takes a prescription medicine that contains codeine, one of the proscribed drugs that is tested for under Imperial Oil's alcohol and drug policy. Mr. Entrop may be questioned and penalized if a drug scan shows that he has codeine in his body and a medical review officer can decide that he is misusing the drug.

Secondly, as a term of reinstatement in his job Mr. Entrop was required to make an undertaking to be subject to the Alcohol and Drug Policy and submit to random testing. This means that the Policy as a whole is relevant to Mr. Entrop's complaint and he has standing to challenge it.

Thirdly, the Board of Inquiry has an important remedial role. Its task is not only to determine whether a violation of the Code has occurred and a remedy is appropriate for Mr. Entrop, but also to determine whether there are steps that should be taken to ensure that future violations of the Code will not occur. In order to discharge this broader duty, the Board of Inquiry must examine the policy as a whole and its potential application to employees who are both users and non-users of alcohol and drugs.

Finally, the Board of Inquiry decides to amend the complaint to include a reference to s. 13 of the Code at the instance of the complainant and the intervener, the Canadian Civil Liberties Association. They allege that Imperial Oil has violated s. 13 of the Code by circulating information to its employees regarding the Alcohol and Drug Policy, and thereby indicating an intention to discriminate contrary to the Code.

The Board orders supplementary documents regarding Imperial Oil's Alcohol and Drug Policy to be made available to the Commission, and amends the complaint form to include a reference to s. 13.

[See also preliminary decisions (1994), 1994 CanLII 18434 (ON HRT), 23 C.H.R.R. D/181, (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 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

A. v. Quality Inn (1993), 1993 CanLII 16432 (ON HRT), 20 C.H.R.R. D/230 (Ont. Bd.Inq.): 20

Canadian National Railway Co. v. Canada (Human Rights Comm.) and Action travail des femmes, 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, 40 D.L.R. (4th) 193, 8 C.H.R.R. D/4210: 20

Finlay v. Canada (Minister of Finance), 1986 CanLII 6 (SCC), [1986] 2 S.C.R. 607, 33 D.L.R. (4th) 321, 8 C.H.R.R. D/3789: 13

Morgoch v. Ottawa (City) (No. 2) (1989), 1989 CanLII 9067 (ON HRT), 11 C.H.R.R. D/80 (Ont. Bd.Inq.): 20

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.): 23

Legislation Cited

Ontario

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

s. 13(1): 17

s. 41(1)(a): 20

Authorities Cited

Cromwell, Thomas A., Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: Carswell, 1986): 13

INTERIM DECISION NO. 5

1At the conclusion of "Phase I" of this hearing, counsel brought a motion for direction regarding the scope of the proceeding and the structuring of future phases of the hearing. In earlier interim decisions of this case I ruled that, given the complexity of the issues, the hearing should proceed with a "phased" approach, beginning first with an inquiry into the complainant's (Mr. Entrop's) concerns regarding past alcohol dependency and the respondent's "Alcohol and Drug Policy." Evidence pertaining to alleged reprisals taken against Mr. Entrop was slated to be "Phase II." To the extent that Mr. Entrop's complaint necessitated an inquiry into larger legal questions about features of the "Alcohol and Drug Policy" (the "Policy") as a whole, these would be dealt with in "Phase III."

2The first phase of the hearing heard evidence that, under the terms of the Policy, Mr. Entrop was required to disclose to his employer his past alcohol abuse problem, he was reassigned from his safety-sensitive position, he was required to undergo a rigorous process of assessment for reinstatement, and he was subjected to specified controls in order to obtain reinstatement to his former position. The Board of Inquiry's decision regarding the human rights contraventions involved in these matters is contained in the interim decision No. 6 [1995 CanLII 18154 (ON HRT), 23 C.H.R.R. D/196] in this case.

GROUNDS FOR EXPANSION OF THE HEARING

I. The Complainant's Use of the Opiate Codeine

3During Phase I of the hearing, Mr. Entrop's counsel, Mr. Andrew, also introduced evidence that his client had a long-standing medical problem relating to a knee injury which originated from a traffic accident in 1971. Mr. Entrop's knee condition had necessitated a series of operations, resulting in medically-documented absences from work. Despite his ultimately successful return to work, the knee continues to pose problems. To deal with the chronic pain associated with the knee condition, Mr. Entrop's physician prescribed pain-killing medication, "Tylenol-3." One of the ingredients in the prescription is codeine, a drug specifically targeted under the employer's "Alcohol and Drug Policy." Mr. Andrew argued that in light of this evidence, the scope of the inquiry needed to be widened to include aspects of the respondent's Policy which touched upon random testing and prescription drugs.

4In my earlier preliminary rulings I recognized that, depending on the nature of the evidence adduced, an inquiry into Mr. Entrop's individual circumstances might necessitate a broader examination into certain wider aspects of the Policy. Evidence has now been presented about Mr. Entrop's injured knee, and his use of a prescription drug containing codeine. The question is whether this functions to expand and refocus the hearing to consider, in addition to the aspects of the Policy which deal with alcohol abuse, aspects which deal with employee drug use and random testing.

5Counsel for the complainant and the Commission argued for this larger scope for the inquiry. They noted that the work rules promulgated under the respondent's Policy prohibited the "presence in the body of illicit drugs [and] unprescribed drugs," as well as the "intentional misuse of prescribed medications" while on company business or premises. The Policy states as follows:

"Work Rules Concerning Possession, Use or Effects of Substances"

(1) In order to minimize the risk of impaired performance due to substance use, the following are strictly prohibited for employees in all job categories. Violations are grounds for disciplinary action up to and including termination of employment:

(e) intentional misuse of prescribed medications, over-the-counter medications or other substances while on company business or premises; and

(f) being unfit for scheduled work due to . . . the intentional misuse of medications.

(3) Employees in all job categories have a responsibility to manage potential impairments during working hours due to the legitimate use of medications, in consultation with their personal physician, pharmacist or one of the company's occupational health centres. In appropriate circumstances, a company health professional may issue medical work limitations requiring modified work or temporary reassignment. Employees working in safety-sensitive positions are required to report any use of listed medications (see policy supplements) to the appropriate company health centre or their supervisor before commencing work.

6Under the Policy, employees are screened for the presence of codeine in their systems through a program of random drug testing by urinalysis. The preliminary testimony before this Board indicates that evidence of opiate use (including codeine) remains in the body for one to two days after ingestion. Counsel noted that Mr. Entrop was subjected to random drug testing under the Policy, which left him at risk of registering a positive reading for codeine. Should Mr. Entrop be unable to produce evidence to legitimate his use of the pain-killing medication, he would expose himself to the potential for disciplinary action. For employees working in safety sensitive positions, as Mr. Entrop's job has been designated, the disciplinary penalty is termination of employment. Counsel for the complainant and the Commission argued that this discipline could potentially be imposed based solely upon the presence of codeine in the body, and without further evidence of actual impact upon job performance or physical impairment.

7Counsel for the respondent objected that the Policy contained safeguards to ensure that employees would not be disciplined for the authorized use of prescription drugs. Where positive readings of targeted substances were obtained, the medical review officer (an "independent" physician under contract with the respondent) would provide the employee with a full opportunity to explain. Where the medical review officer was satisfied that the medication was taken under prescription, the company would not be informed of the positive test result, and no disciplinary sanctions would flow from the incident.

8Dr. Katz, the Director of Occupational Health at Imperial Oil, testified that codeine "would be picked up on the opiate screen" during a urinalysis test for drugs. He explained the procedure which would ensue:

If the employee were able to tell the MRO, the medical review officer, that they have a prescription for Tylenol-3's, that'd be the end of it. And if they didn't have a scrip, that they be able to speak with the doctor who recommended this, and that would be the end of it.

Counsel for the respondent argued that Mr. Andrew's concerns were hypothetical ones, that Mr. Entrop had never tested positive in any of the random drug tests he had undergone, and that no disciplinary actions had been taken against him in this regard.

9After hearing the evidence of Mr. Entrop, I have concluded that the medical condition of his injured knee and the consequent use of prescription drugs does raise a live issue for this Board of Inquiry. Mr. Entrop testified that his physician had prescribed "Tylenol-3" to be taken "as needed" for the pain. Mr. Entrop described that the degree of pain he incurs varies considerably over time. Mr. Entrop also testified that one physician gave him a prescription for "Tylenol-3" to be taken "one every four hours when required." When he complained to his family physician about heightened chronic pain, his family doctor advised him verbally to take two tablets at a time. This was not reflected in the written prescription. Obviously, there is some elasticity here concerning the use and dosage that will be appropriate at any particular point.

10To the extent that the Policy prohibits an "intentional misuse" of prescription drugs, someone may potentially have to interpret the Policy to determine whether Mr. Entrop's use of "Tylenol-3" is warranted. Health bulletins circulated by Imperial Oil to its employees have advised that "prescription drugs may be misused even if taken in moderate amounts for the wrong reason, for example, codeine taken to solve psychological distress rather than to suppress a cough or mute pain." Dr. Katz conceded during cross-examination that the medical review officer would be called upon to make a "subjective determination" regarding a finding of intentional misuse of medication. Furthermore, given that there is no regularity in the medication regime that Mr. Entrop is following, there is at least some potential that he will be unable to provide specific information to the medical review officer of the exact dosage and time of medication, if this should become necessary. Indeed, Mr. Entrop testified that he was afraid that he might forget whether he took the pain killers, and afraid that he might fail to disclose the exact and precise details when such became necessary. Mr. Entrop further testified that he was so concerned about the dangers attendant upon a positive test, that he had decided against taking "Tylenol-3" prior to coming in to work even when the painfulness of his knee indicated its use. He testified that if the pain became so great while he was at work that he could not continue without the pain-killing medication, he would sign off early as ill, rather than run the risk of testing positive at work.

11Mr. Entrop has also testified that he believes he is at particular risk in connection with a positive codeine test because of his past history of alcohol dependency. He testified that he had already disclosed his past alcohol problem to Imperial Oil, and experienced reassignment to alternate duties as a consequence. He noted that given the employer's tendency to link past substance abuse with potential for future risk, he feared that his explanation for his use of codeine might not be considered credible. Mr. Entrop testified he has been warned by two physicians connected with Imperial Oil, as well as the Director of Human Resources at Imperial Oil, to be careful about his use of medications, precisely because of his past experience of dependency.

12At this stage, the evidence seems to suggest that as a consequence of Mr. Entrop's use of "Tylenol-3," he is being required to work under a set of employment rules which impact upon him in a way which differentiates him from other employees. All employees in "safety-sensitive" or "specified" positions are subjected to the random testing, but Mr. Entrop's situation renders him potentially subject to a differential impact. Because he must take medication for an injured knee, he appears to be at risk of registering positive in a laboratory test for the use of codeine. The existence of a positive test puts Mr. Entrop, at least potentially, in jeopardy of disciplinary sanctions under the employer's "Alcohol and Drug Policy." Mr. Entrop testified that his concerns about testing positive have caused him to worry about job security. His concerns about testing positive have caused him to alter the course of action he would otherwise take. These allegations appear, at first instance, to amount to something more than "hypothetical" concern, as the respondent has attempted to characterize it.

13On this basis, Mr. Andrews argues that Mr. Entrop has standing to raise questions as to the legality of Imperial Oil's random drug testing policy. The Finlaycase [Finlay v. Canada (Minister of Finance)(1986), 1986 CanLII 6 (SCC), 33 D.L.R. (4th) 321, 8 C.H.R.R. D/3789] described the proper test for standing in the area of administrative law as "a direct, personal interest," noting (at 333 [D/3794, para. 29959, quoting from Australian Conservation Foundation Inc. v. Australia (Commonwealth) 1980, 28 A.L.R. 257 (H.C. Aus.)]):

A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.

Thomas A. Cromwell notes in Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: Carswell, 1986) at 4, that:

[T]he question of standing in this sense is the question whether the litigant has a sufficient personal interest in getting the relief he seeks, or is a sufficiently appropriate representative of other interested persons, to warrant giving him the relief, if he establishes the illegality alleged — and, by the same token, to warrant recognizing him as entitled to invoke the court's decision on the issue of legality.

14In my opinion, this Board has now heard sufficient evidence and argument to make a ruling on the question of standing. Counsel for the respondent's position that Mr. Entrop's difficulties flow from a hypothetical and mistaken interpretation of the Policy's provisions raises important issues which will require further exploration and consideration upon the merits of this case. This is something which should be reviewed in depth as the hearing proceeds with evidence and full arguments on the merits. This decision holds that Mr. Entrop has standing to raise matters dealing with wider questions of substance abuse and random testing within the context of this hearing. It is restricted solely to the question of standing and the proper scope of this inquiry. Nothing in this decision should be taken to indicate that there have been any findings on the merits relating to the allegations within the expanded scope of the hearing. All that has been decided is that the new matter is a justiciable one under the provisions of the Code and within the confines of this complaint.

II. Incorporation of the Policy by Reference

15Even if this Board had ruled differently on the issue of the complainant's use of the opiate codeine, there would still be reason to expand this hearing to examine wider aspects of the Policy in "Phase III." As counsel for the Commission noted, when Mr. Entrop was reinstated to his original position in May 1992, following his "rehabilitation" from past alcohol dependency, he was required to sign an undertaking. In this undertaking Mr. Entrop was required to agree to "undergo an annual mandatory medical examination, including medical screening for alcohol and drug abuse, to be conducted by Imperial's Occupational Health Division (emphasis added [sic)]." He was also required to sign the following statement: "In addition to the terms and conditions of this undertaking, I shall comply with and am subject to Imperial's Alcohol and Drug Policy." Any violation of the Policy would thus constitute a breach of Mr. Entrop's reinstatement undertakings. This potential for a breach of the undertakings places Mr. Entrop in a different and additionally precarious position than other employees in safety-sensitive or "specified" positions who might also be subject to the Policy provisions themselves.

16In requiring Mr. Entrop to sign this undertaking, the respondent took a larger Policy, which admittedly applies more generally to many of its employees, and singled Mr. Entrop out for particular and individual treatment. By requiring Mr. Entrop to sign this undertaking as a precondition to reinstatement to his job as senior operator, the respondent itself expanded the scope of the hearing to include issues relating to drug abuse and random testing. In effect, this undertaking created an "incorporation by reference" of the entire Policy into the conditions of reinstatement specific to Mr. Entrop. It transformed a case of previous alcohol dependency into a larger case with matters of drug abuse and random testing inextricably tied into Mr. Entrop's reinstatement to the position of senior operator.

III. Alleged Violation of Section 13

17There is an additional ground upon which this proceeding should be extended to examine wider aspects of the respondent's Policy in "Phase III." Counsel for the complainant and the Commission raised s. 13(1) of the Human Rights Code, which provides as follows:

A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that it is intended by the person to incite the infringement of a right under Part I.

18The Commission and the complainant have argued that "drug dependency" constitutes a "handicap" within the meaning of the Code. While this remains to be determined, the allegation raises another justiciable issue for this Board. It is the position of the Commission and the complainant that the respondent "published" an announcement of its intention to discriminate when it distributed its Policy to the employees, and circulated educational awareness materials among the work force to explain how the Policy operates. Their counsel argued that an employee ought not to be required to wait for the "axe to fall" before bringing a complaint. Any findings regarding possible violations of s. 13 will, of course, be dependent upon the broader findings as to whether aspects of the Policy itself violate the Code. But the distribution of the Policy and its supporting literature does raise another live issue for this Board to consider.

19There was some argument as to whether it was necessary for this Board to amend the complaint to add s. 13 as a separate ground. The s. 13 issues do not raise new factual allegations, but arise by implication from the original matters raised in the complaint. On this basis, counsel for the complainant argued that there was no need to amend the complaint. However, for the reasons noted in my earlier interim decision No. 3 [1994 CanLII 18413 (ON HRT), 23 C.H.R.R. D/186] in this case, I would prefer to permit an amendment to the original complaint. The amended complaint should, in particular, address the specific details of the alleged publication. The requirements of fairness and natural justice entail notice of such additional grounds and an opportunity to respond. In this case, there is no prejudice to the respondent, since the issue was initially raised and argued months earlier, and I expressly reserved on this decision on October 21, 1994. Sufficient evidence has now been adduced that it is possible to render a decision to amend the complaint at this stage in the hearing. Consequently, in "Phase III" of this hearing, the Board will have to determine whether there has been any violation of s. 13(1) of the Code. A hearing into these additional issues is currently scheduled to begin in late summer, which should afford the respondents ample time to prepare. Should they require additional time, I will entertain a request for a further adjournment.

IV. Remedial Jurisdiction

20Even if this Board had concluded, based on the previous three grounds, that the hearing should not be expanded, there is another additional and separate basis upon which to continue a broader inquiry into "Phase III." Under s. 41(1)(a) of the Code, the remedial jurisdiction of the Board includes the power to "direct the party [who infringed a right] to do anything that, in the opinion of the board, the party ought to do to achieve compliance with the Act, both in respect of the complaint and in respect of future practices." The Supreme Court of Canada has recognized that such remedial powers are extremely broad: Action travail des femmes v. Canadian National Railway Co. (1987), 1987 CanLII 109 (SCC), 40 D.L.R. (4th) 193 [8 C.H.R.R. D/4210]. Where there is a written policy governing the alleged discrimination, the board's remedial order may potentially require the amendment of that policy: A. v. Quality Inn(1993), 1993 CanLII 16432 (ON HRT), 20 C.H.R.R. D/230 at D/237–D/238 (Ont. Bd.Inq.). In the case of Morgoch v. Ottawa (City) (No. 2)(1989), 1989 CanLII 9067 (ON HRT), 11 C.H.R.R. D/80 (Ont. Bd.Inq.), the Board of Inquiry recognized that in cases of this sort, it may be appropriate to fashion orders which require revision of employer policies to address future practices.

21In Morgoch, supra, the complainant had been denied employment with the Ottawa fire department based on a policy that prohibited the hiring of employees with allergies. The complainant was allergic to a specific substance, pine pollen. The remedy ordered by the Board was not confined to pine pollen, nor to substances that were breathed in, nor to the individual employee. The order extended to cover all allergy-producing substances. Counsel for the Commission drew analogies between the present case and Morgoch, arguing that confining any potential remedy solely to alcohol issues would be the same as if the Board in Morgoch had confined its remedy to pine pollen. Instead, in Morgoch the employer was required to amend the health standards in its recruitment manual to comply with the Code, in consultation with the Commission, under the continuing supervision of the Board of Inquiry.

22Morgoch, supra, is similar to our situation, where the present respondent maintains a policy which is not restricted to alcohol abuse but deals with substance abuse in general. Indeed, the evidence tendered before this Board indicates that the respondent deliberately developed its Policy to address alcohol and drug abuse as a unified whole. Although respondent's counsel attempted to produce exhibits which related solely to alcohol (deleting all references to drugs), they conceded that the two issues — drugs and alcohol — were so inextricably intertwined in all of the company's material that their separation became extremely time-consuming, and the effort was ultimately forsaken. Alcohol is defined as a "drug" under the respondent's own interpretive guidelines issued under the Policy. The Commission took the position that this inquiry should not be restricted to issues relating to alcohol alone, but should be expanded to consider substance abuse matters generally. The Commission argued that the hearing should consider the impact of the Policy upon both past and present substance abusers.

23In Thornton v. North American Life Assurance Co. (No. 2)(1992), 1992 CanLII 14243 (ON HRT), 17 C.H.R.R. D/472, a complainant with AIDS was protesting the denial of long-term disability benefits, based upon a clause in the insurance policy which precluded 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, such as endometriosis, fibroid tumours, etc. The Board accepted this evidence, holding that it was the policy itself which was alleged to be discriminatory, not just its application. Therefore, it was important to consider the effect of that clause upon individuals other than the complainant [at D/474, para. 24]:

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. [Emphasis in original.]

Thornton is analogous to this case, in that the Commission seeks to adduce evidence concerning the potential effect of the Policy upon other employees, who suffer from slightly different kinds of disabilities. As the Board ruled in Thornton, it is my opinion that it is proper for this inquiry to consider the wider impact of the respondent's Policy within the context of this complaint. Indeed, it would be difficult if not impossible to consider the remedial implications flowing from the evidence adduced in "Phase I" without examining the broader issues under the Policy more generally.

24To the extent that this Policy may be proven to violate the Code, at the conclusion of this hearing it may be more appropriate under the interpretive principles governing human rights legislation to make an order which is not restricted to one particular substance. There is now a sufficient evidentiary basis before me upon which to conclude that the remedial scope of this inquiry may need to consider issues relating to past and present drug abuse, and random testing. This Board has now heard substantial testimony concerning the development and implementation of the respondent's "Alcohol and Drug Policy." As a matter of judicial economy, it would be imprudent to confine this hearing to the narrow issues of Mr. Entrop's required disclosure of past alcohol abuse, reassignment and subsequent reinstatement. Both parties have indicated that the larger questions which relate to the legality of the Policy as a whole are extremely important matters to the individuals and organizations concerned, and to the public. If this Board does not go on with the current inquiry, some future board of inquiry will undoubtedly be required to adjudicate these matters in the future, at great duplication, cost and delay. The more judicious course of action is to consider the broader aspects of the Policy during Phase III of this inquiry, especially since the issues of alcohol and drug dependency appear to be so significantly interconnected, based on the evidence adduced so far in this hearing.

25In conclusion then, this Board rules that to the extent that Mr. Entrop's complaint may reveal larger problems concerning the impact of the Policy on past and present alcohol and drug abusers in general, including evidence relating to random testing, these would properly be considered during "Phase III." This decision is confined to the preliminary matters of standing, justiciability and the scope of the hearing. Counsel for the Commission and the complainant have raised live issues which require the introduction of evidence and considered legal argument. Whether they will be able to prove their allegations on the balance of probabilities is a matter which remains to be determined only upon the completion of "Phase III."

V. Principles of Due Process, Notice and Opportunity to Respond

26It should be noted that the arguments to expand the scope of this inquiry based on the evidence relating to Mr. Entrop's knee and his use of a prescription drug containing codeine were first raised some months after the commencement of this hearing. In accordance with the rules of natural justice and due process, it is essential that the respondent be given sufficient notice and full opportunity to respond. As Mr. Andrew pointed out, although the matter of Mr. Entrop's knee is a novel point in this case, the respondent has been on notice from the outset that the complainant intended to contest the drug testing provisions of the Policy in general. The matter of "Tylenol-3" was initially raised and argued months ago, and the Board of Inquiry reserved judgment on this point on December 5, 1994 [1994 CanLII 18412 (ON HRT), 23 C.H.R.R. D/188].

27Mr. Entrop's original complaint put the respondent on notice that he intended to contest their right to make him "subject to drug and alcohol testing unrelated to any performance or discipline problems or any evidence of on-the-job impairment." Consequently, there appears to be no prejudice to the respondent in deciding to widen the scope of the hearing at this stage. The parties first began to argue these issues in August 1994, and although the Board reserved its decision on these matters until more preliminary evidence had been adduced, there appears to have been ample notice regarding the potential for widening this hearing.

28The parties have scheduled dates in June for "Phase II" of the hearing, and tentatively reserved dates in late summer for "Phase III." Should the respondent find that it requires additional time to prepare for "Phase III," the Board will consider requests for additional adjournments.

VI. Production of Documents

29As requested by counsel for the Commission and the complainant, based on the decision to expand this hearing in "Phase III," this Board now orders production of the remaining documents listed in the subpoenas issued on August 8 and September 13, 1994.