Imperial Oil Ltd. v. Entrop (No. 8)

1996-09-12

Ontario Board of Inquiry

Martin Entrop and Ontario Human Rights Commission Complainants

v.

Imperial Oil Limited Respondent

and

Canadian Civil Liberties Association Intervener

Date of Complaint: January 16, 1992

Date of Decision: September 12, 1996

Before: Ontario Board of Inquiry, Constance Backhouse

Decision No.: 96-030-I

Appearances by: Marvin Huberman and Roger Townsend, Counsel for the Commission Jeffrey Andrew, Elizabeth Nurse (student-at-law), Leilani Farha (student-at-law) and Adelle Blackett (student-at-law), Counsel for the Complainant and Canadian Civil Liberties Association Colin Campbell and Monique Smith, Counsel for the Respondent

DISABILITY — discriminatory treatment on the basis of alcoholism — handicap includes alcoholism — EMPLOYMENT EVALUATION AND TESTING — drug testing as a condition of employment — BONA FIDE OCCUPATIONAL QUALIFICATION — absence of alcoholism for refinery employee — Etobicoke test — OCCUPATIONAL HEALTH AND SAFETY — safety orders and regulations — COMMUNICATIONS — posters — definition of notice — videotape

EQUALITY — equal treatment — DISCRIMINATION — direct discrimination — definition of discrimination — JURISDICTION — complaint concerning employer policy — REASONABLE ACCOMMODATION — duty to accommodate where bona fide occupational exists — duty to accommodate where employment rule has discriminatory effect — BOARDS OF INQUIRY / TRIBUNALS — authority to award remedy of change in employer policy — INTERPRETATION OF STATUTES — definition of "because of handicap", "handicap", "notice"

Summary: Having found that Imperial Oil Ltd. discriminated against Martin Entrop on the basis of disability when it applied its drug and alcohol policy to his employment circumstances, in this decision the Board of Inquiry addresses the lawfulness, in general, of the Imperial Oil drug and alcohol policy.

The Board of Inquiry finds that drug abuse and drug dependence are handicaps within the meaning of the Ontario Human Rights Code and that Imperial Oil's drug and alcohol policy discriminates directly against persons who are substance abusers. Imperial Oil's policy requires employees in safety-sensitive positions to disclose if they have, or have ever had, a substance abuse problem. If they do, they are reassigned to other work, must satisfy complex and onerous conditions to attain reinstatement, and must submit to ongoing monitoring.

While freedom from drug and alcohol impairment on the job is a bona fide occupational requirement, the Board of Inquiry finds that certain elements of Imperial Oil's policy are not closely related to preventing impairment on the job.

Specifically, the unlawful elements of Imperial Oil's policy are: mandatory disclosure of past or present substance abuse problems; the minimum seven years abstinence to qualify for reinstatement; other mandatory conditions of reinstatement; pre-employment and random drug testing; random alcohol testing. The Board of Inquiry finds that these methods of screening and testing do not reliably assist in preventing impairment on the job or go farther than is necessary to ensure no impairment on the job.

The Board of Inquiry permits the parties to consult among each other to try to reach agreement on how Imperial Oil's policy might be amended. It retains jurisdiction to make a more detailed ruling if an agreement is not reached within a reasonable time.

[Ed. Note: See also related board of inquiry decisions (No. 1) (1994), 1994 CanLII 18434 (ON HRT), 23 C.H.R.R. D/181, (No. 2) (1994), 1994 CanLII 18416 (ON HRT), 23 C.H.R.R. D/183, (No. 3) (1994), 1994 CanLII 18413 (ON HRT), 23 C.H.R.R. D/186, (No. 4) (1994), 1994 CanLII 18412 (ON HRT), 23 C.H.R.R. D/188, (No. 5) (1995), 1995 CanLII 18158 (ON HRT), 23 C.H.R.R. D/191, (No. 6) (1995), 1995 CanLII 18154 (ON HRT), 23 C.H.R.R. D/196, (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213.]

Cases Cited

Ahluwalia v. Toronto (Metro) Commissioners of Police (1983), 1983 CanLII 4719 (ON HRT), 4 C.H.R.R. D/1757 (Ont. Bd.Inq.): 121

Belliveau v. Steel Co. of Canada (1988), 1988 CanLII 8876 (ON HRT), 9 C.H.R.R. D/5250 (Ont. Bd.Inq.): 29

Bone v. Hamilton Tiger Cats Football Club (August 16, 1979), (Ont. Bd.Inq.) [unreported]: 122

Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 29

Chamberlin v. 599273 Ontario Ltd. (1989), 1989 CanLII 9081 (ON HRT), 11 C.H.R.R. D/110 (Ont. Bd.Inq.): 29

Entrop v. Imperial Oil Ltd. (No. 1)(1994), 1994 CanLII 18434 (ON HRT), 23 C.H.R.R. D/181 (Ont. Bd.Inq.): 1

Entrop v. Imperial Oil Ltd. (No. 4)(1994), 1994 CanLII 18412 (ON HRT), 23 C.H.R.R. D/188 (Ont. Bd.Inq.): 1

Entrop v. Imperial Oil Ltd. (No. 5)(1995), 1995 CanLII 18158 (ON HRT), 23 C.H.R.R. D/191 (Ont. Bd.Inq.): 1, 113, 119

Entrop v. Imperial Oil Ltd. (No. 6)(1995), 1995 CanLII 18154 (ON HRT), 23 C.H.R.R. D/196 (Ont. Bd.Inq.): 2, 17, 21, 37

Entrop v. Imperial Oil Ltd. (No. 7)(1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 (Ont. Bd.Inq.): 2

Morgoch v. Ottawa (City) (No. 2) (1989), 1989 CanLII 9067 (ON HRT), 11 C.H.R.R. D/80 (Ont. Bd.Inq.): 29

Saskatchewan (Human Rights Comm.) v. Engineering Students' Society (1989), 1989 CanLII 286 (SK CA), 10 C.H.R.R. D/5636 (Sask. C.A.): 110

Central Alberta Dairy Pool v. Alberta (Human Rights Comm.), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489, 72 D.L.R. (4th) 417, 12 C.H.R.R. D/417: 98

Legislation Cited

Ontario

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

s. 5: 24, 113

s. 5(1): 1, 16

s. 9: 1

s. 10(1): 16

s. 13(1): 110, 112

s. 17: 28, 45

s. 17(1): 37, 42, 57, 98

s. 17(2): 42

s. 39(1): 108

s. 41: 108

s. 41(1)(a): 107

Authorities Cited

Butler, Barbara, Alcohol and Drugs in the Workplace (Toronto: Butterworths, 1993): 58, 67, 86

Canada, Parliament, House of Commons, Standing Committee on Transport, Report (pursuant to Order of Reference dated March 16, 1990): 54

Coshan, Margaret, "A Comprehensive Workplace Approach to Substance Abuse: Employee Assistance Programmes and Safety-Sensitive Employees" (1994) 2 Can. Lab. L.J. 391: 87

Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (Washington: American Psychiatric Association, 1994): 18

Hawks, Richard L. and C. Nora Chiang "Urine Testing for Drugs of Abuse" (NIDA Research Monograph, No. 73, 1986): 74

International Labour Organization, Report of the ILO Inter-Regional Tripartite Experts Meeting on Drug & Alcohol Testing in the Workplace (Oslo, Norway, May 1993): 74

Jaffe, Jerome, "Commentary: NIDA's Role in Applied Research" in Drugs in the Workplace: Research and Evaluation Data, vol. 2 (Rockville, Md.: U.S. Dept. of National Heath and Human Services) (NIDA Research Monograph Series, No. 100, 1990): 64

Kapur, B.M., "Drug-testing methods and clinical interpretations of test results" (1993) XLV:2 Bulletin on Narcotics 115: 13

Moyer, Howard, "Ontario Law Reform Commission's Report on Drug and Alcohol Testing in the Workplace: A Critique" (1994) 2 Can. Lab. L.J. 535: 68, 75

Normand, Jacques, et al., Under the Influence? Drugs and the American Work Force (Washington, D.C.: National Academy Press, 1994): 83

Ontario, Report of the Pharmaceutical Inquiry of Ontario (Toronto: Queen's Printer, July 1987): 60

Vaillant, George E., Archives of General Psychiatry, vol. 53 (Chicago: Amercian Medical Assn.,1996): 40

Walsh, J. Michael & Jeanne G. Trumble, "The Politics of Drug Testing", in Coombs & West, eds., Drug Testing: Issues and Options (New York: Oxford University Press, 1991): 49

Walsh, J. Michael & Stephen C. Yohay, Drug and Alcohol Abuse in the Workplace: A Guide to the Issues (National Foundation for the Study of Equal Employment Policy, 1987): 62, 96

Walsh, J. Michael & Steven W. Gust, "Drug Abuse in the Workplace", Seminars in Occupational Medicine, vol. 1 (New York: Thieme Medical Publishers, 1986): 63

Wilkinson, A. The Employers Guide to Drinkwise (Guelph: Homewood Health Services, 1992): 58

INTERIM DECISION NO. 8: CONCLUSION OF PHASE THREE OF THE INQUIRY

I. BACKGROUND

1This complaint involves a claim registered on January 16, 1992, by Martin Entrop (the "complainant"), 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 of R.S.O. 1990, c. H.19]. The complaint challenges various aspects of the "Alcohol and Drug Policy" of Imperial Oil Limited (the "respondent"). Due to the complexity of the issues raised, this inquiry has been divided into discrete phases (for discussion of the "phased" approach, see the earlier interim decisions in this case, Interim Decision No. 1 — Entrop v. Imperial Oil, August 1994 [reported 1994 CanLII 18434 (ON HRT), 23 C.H.R.R. D/181], Interim Decision No. 4 — December 6, 1994 [reported 1994 CanLII 18412 (ON HRT), 23 C.H.R.R. D/188], and Interim Decision No. 5 — June 2, 1995 [reported 1995 CanLII 18158 (ON HRT), 23 C.H.R.R. D/191]). Phase Two heard evidence that Imperial Oil took reprisals against Mr. Entrop for filing this human rights complaint (see the Interim Decision No. 7 — August 10, 1995 [reported 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213]).

2Phase One considered Mr. Entrop's problems with the Policy due to his prior alcoholism: the circumstances under which he was forced to disclose information about his past alcohol abuse, his removal from his safety-sensitive position at Imperial Oil, and the process by which he was subsequently reinstated to that position under specified terms and conditions (see the Interim Decision No. 6 — June 23, 1995 [reported 1995 CanLII 18154 (ON HRT), 23 C.H.R.R. D/196]).

3This decision (Interim Decision No. 8) considers evidence adduced in Phase Three, concerning the provisions of the Policy which relate to drug use. Phase Three also considers the legality of the portions of the Policy which provide for alcohol and drug testing of the refinery employees. As a senior operator on the control board at the Sarnia Refinery of Imperial Oil, Mr. Entrop is subject to all of the alcohol and drug testing provisions of the Policy, including those specifically directed at employees in "safety-sensitive" positions.

4The jurisdictional issues raised by counsel during Phase Three of the hearing are considered in Appendix A of this decision.

II. THE PROVISIONS OF THE POLICY

5Imperial Oil's Alcohol and Drug Policy, first implemented in January 1992, contains some of the most far-reaching and rigorous work rules against drug and alcohol abuse ever promulgated in Canada. The Policy explicitly recognizes that the use of illicit drugs and the inappropriate use of alcohol and medications can have "serious adverse effects on the safety and well-being" of employees, sales associates, contractors, customers, the public and the environment. Its expressed objective is "to minimize the risk of impaired performance due to substance use".

6The Policy prohibits the use, possession, distribution, or offering for sale of illicit drugs while on company business or premises. There is a similar prohibition on the use, possession, offering or sale of alcoholic beverages on company premises, except for approved social functions. Employees are required 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". It is a violation of the Policy intentionally to misuse prescribed medications or over-the-counter medications, or to be unfit for scheduled work due to the use or after-effects of alcohol or drugs.

7The Policy mandates pre-employment drug testing, with every offer of employment conditional on a negative test for specified drugs. All employees are subject to mandatory testing for alcohol and specified drugs after "a significant work accident, incident or near miss", or if there is "reasonable cause" to suspect alcohol or drug use or possession. Tests screen for a blood alcohol concentration of .04 percent or higher, or presence in the body of illicit drugs, unprescribed drugs for which a prescription is required, or their metabolites. Any employee who tests positive is subject to discipline.

8A sub-group of employees is also subjected to bi-annual medical examinations to determine if alcohol or drug abuse is present, drug and alcohol tests administered as part of a certification and review process, and unannounced, random testing thereafter. The sub-group consists of employees working in "safety sensitive" and "specified executive" positions. Imperial Oil defines a "safety sensitive" position as one where an employee has "a key and direct role in an operation where impaired performance could result in a catastrophic incident, affecting the health or safety of employees, sales associates, contractors, customers, the public or the environment" and where the employee has "no direct or very limited supervision available to provide frequent operational checks". Imperial Oil defines a "specified executive" position as one in which an employee has "significant ongoing responsibilities for decisions or actions likely to affect the safe operations, finances or reputation of the company".

9Employees in safety-sensitive positions are singled out for other specific obligations. Employees in safety-sensitive (but not specified executive or other) positions must limit their alcohol consumption prior to working hours so that there is no alcohol in the body while at work. Employees working in safety-sensitive (but not specified executive or other) positions are required to report any use of specified prescription and over-the-counter medications to the appropriate company health centre or their supervisor before commencing work. They must also disclose to management if they have ever experienced a problem with alcohol or drug abuse, presently or in the past. Individuals who disclose past or present problems are removed from their safety-sensitive positions and reassigned. The Policy stipulates the following minimum conditions for reinstatement:

An employee with a past substance abuse problem who wishes to enter or return to a safety-sensitive position must initiate and successfully complete a rigorous reinstatement/entry review process. Eligibility for reinstatement/entry is at the sole discretion of a corporate review panel. The onus is on the employee to apply. At a minimum, the employee must meet the following conditions:

(i) successful completion of a company-approved rehabilitation program, including primary treatment and an individually-tailored, mandatory aftercare program for a minimum of two years, followed by sustained abstinence from alcohol or drugs for a further five years;

(ii) comprehensive clinical assessment;

(iii) favourable prognosis from the Occupational Health Division;

(iv) agreement to specified written post-reinstatement/ entry controls;

(v) supervisor/management endorsement;

(vi) favourable personal records check, e.g., driving record, professional licences.

10At a minimum, these post-reinstatement controls must include:

(a) a commitment to frequent and unannounced testing, in addition to random testing;

(b) a commitment to continued abstinence from alcohol or drugs;

(c) a commitment to report to Imperial's Occupational Health Division any changes in his/her circumstances that may significantly increase the risk of relapse;

(d) a commitment to notify management immediately of any alcohol or drug-related charges;

(e) a commitment to report any alcohol or drug relapses to immediate supervisor;

(f) a commitment to report to his/her supervisor/manager compliance with the above conditions on a periodic basis to be determined by the review panel;

(g) a commitment to undergo annual medical examinations, including screening for alcohol and drug abuse, conducted by Imperial's Occupational Health Division.

11Violation of any provision of the Policy may result in progressive discipline up to and including termination. For employees in safety-sensitive (but not specified executive or other) positions, a single positive test in violation of the Policy necessitates dismissal. Disciplinary action cannot be avoided by requesting treatment after a positive test. Refusal to submit to a test is also ground for disciplinary action.

12Alcohol tests are administered with a breathalyzer, while drug testing is accomplished through urinalysis. Employees provide their breath and urine specimens on company premises under the supervision of a nurse. The Policy calls for "rigorous sample collection, storage and chain-of-custody procedures". Urine samples are analyzed by a fully qualified laboratory, using a "two-step process with initial screening by immunoassay and all confirmations performed by gas chromatography/mass spectrometry", a test which is regarded as the most sophisticated available and described as a "gold standard". Confirmed positive tests are reviewed by a "medical review officer", who provides employees with an opportunity to explain the result prior to communication with management.

13At least one of the scientific articles which was filed as an exhibit indicates that "despite the existence of sophisticated drug-testing methods, it is still possible to obtain incorrect test results" (see B.M. Kapur, "Drug-testing methods and clinical interpretations of test results" Bulletin on Narcotics vol. XLV:2 (1993) at 115). However, the majority of the witnesses testified positively about the reliability of testing, noting that within the past few years the Standards Council of Canada has established technical controls for accredited laboratories which alleviate earlier concerns.

14The Human Rights Commission expressly reserved its right to contest the reliability of drug testing by urinalysis in future cases, but called no evidence in this hearing to question its scientific accuracy. For the purpose of this inquiry, the Commission conceded that a positive test correctly indicates "the presence of drugs or drug metabolites in the urine of the person tested". Consequently, it would be inappropriate to make any rulings based on the methodology of testing here.

15Between the introduction of the Policy in January 1992 and March 1996, Imperial Oil conducted more than seven thousand tests upon its employees, which company officials estimate cost more than $800,000 to administer. Positive tests were confirmed on .38 percent of those administered.

III. DRUG DEPENDENCE AND THE DEFINITION OF "HANDICAP"

16Discrimination on the basis of "handicap" is prohibited under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, s. 5(1):

5(1) Every person has [a] right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offen[c]es, marital status, family status or handicap.

Section 10(1) defines "because of handicap" to mean:

10(1) ... for the reason that the person has or has had, or is believed to have or have had,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, including diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or on a wheelchair or other remedial appliance or device,

(b) a condition of mental retardation or impairment,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the Workers' Compensation Act; [Emphasis added.]

17In the Interim Decision No. 6, supra, in this case, this Board found that alcoholism is a "handicap" within the meaning of the Code, in that it is "an illness or disease creating physical disability or mental impairment, and interfering with physical, psychological and social functioning". The expert evidence led during this phase of the inquiry similarly establishes that a drug abuse problem constitutes a "handicap" as defined by the Code.

18The Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (1994), compiled by the American Psychiatric Association, defines "substance abuse" as:

A maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:

(1) recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home ...

(2) recurrent substance use in situations in which it is physically hazardous ...

(3) recurrent substance-related legal problems ...

(4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance ...

Severe substance abuse is classified as "substance dependence".

19Dr. Kalant, a Professor Emeritus in Pharmacology from the University of Toronto, and Director Emeritus of Biobehavioral Research, Addiction Research Foundation, testified that drug abuse and drug dependence are diseases, illnesses, malfunctions and mental disorders, which can create mental impairment and result in mental disorder and physical disability. He testified to a range of physical and mental responses which can result from the use of various categories of drugs including central nervous system depressants and stimulants, opiods, and hallucinogens. This is sufficient to conclude that drug abuse and drug dependence both constitute a "handicap" within the meaning of the Code, in that they encompass "an illness or disease creating physical disability or mental impairment, and interfering with physical, psychological and social functioning".

20The definition of "handicap" under the Code includes persons who "have had" a "handicap". This ensures that individuals who may have been drug abusers in the past, but who no longer suffer from an on-going disability, are included within the protection of the Code. The language of the Code also ensures that complainants who allege discrimination because of past or present drug abuse problems are not required to establish that their condition actually creates mental or physical disability. To the extent that an employer perceives that the drug use causes disability and then acts on the basis of this perception to discriminate against employees, this also falls within the ambit of the legislative protection.

IV. VIOLATION OF SECTION 5 OF THE CODE

21The respondent's Policy directly discriminates against employees with alcohol and drug abuse problems. The legal analysis underlying this conclusion with respect to alcohol is set out in the Interim Decision No. 6, supra. The reasoning in that decision applies equally to drug abuse. Employees in safety-sensitive positions are required to notify management if they "have or have had a substance abuse problem". Guidelines issued under the Policy define "substance abuse problem" as follows:

For the purposes of the Policy, an employee has or has had a substance abuse problem if he or she meets one or more of the following criteria:

(a) Episodic Abuse

Has continued to use alcohol or drugs despite knowledge or recurring disturbances in health, work or social functioning.

Disturbances include but are not limited to:

(i) Policy violations or administrative actions in the course of employment that are related to alcohol or drug abuse;

(ii) convictions for alcohol or drug-related offences under the Criminal Code or provincial statutes; or

(iii) alcohol or drug use in situations where it is physically hazardous, e.g. driving while impaired.

(b) Dependence

Has developed a physical and/or psychological dependence characterized by:

(i) progressive loss of control despite either a desire to reduce intake or knowledge of recurring disturbances in health, work or social functioning; or

(ii) a pattern of tolerance and withdrawal.*

• Tolerance means that increased amounts of a substance are needed to produce the same effect, or there is markedly diminished effect with regular use of the same amount. Withdrawal means the development, within several hours of stopping or reducing substance intake, of physical symptoms related to the change in intake.

(c) Treatment

Has participated in a structured program of counselling, therapy or other treatment for alcohol or drug abuse (episodic or dependence);

It does not matter whether the treatment program is full-time, part-time or periodic; institutional (e.g. hospital detoxification), out-patient or self-help (e.g. Alcoholics Anonymous, Narcotics Anonymous); or whether it is accessed via referral from the company or the employee or family members directly. However, this does not include initial consultations with the EAP [Employee Assistance Program], health professionals or treatment agencies for purposes of assessment.

22Employees who self-declare or are otherwise "suspected of having a current or past substance abuse problem" are required to undergo clinical assessment. Where "a current or past problem" is confirmed, the employee is removed from a safety-sensitive position, reassigned, and directed to complete a rigorous reinstatement process under company supervision (for details regarding the application of this procedure to Mr. Entrop, see the Interim Decision No. 6, supra). Employees who violate the Alcohol and Drug Policy, or fail to meet "satisfactory standards of work performance as a result of substance abuse" are also subject to discipline and termination.

23The Policy provisions requiring self-disclosure, reassignment and a complex and lengthy reinstatement process for individuals experiencing "substance abuse" all constitute forms of direct discrimination on the basis of "handicap" or "perceived handicap".

24The various testing provisions of the Policy also run afoul of s. 5 of the Code, as measures which assist the employer in designating workers who are to be disciplined on the basis of "handicap" or "perceived handicap". Since the purpose of testing is to identify those employees who are using or have used alcohol or specified drugs, testing has the effect of discriminating against those who are identified by a prohibited ground of discrimination under s. 5 of the Code, namely discrimination on the basis of "handicap". The discipline of individuals who refuse to submit to a test is also a violation of s. 5.

25The evidence indicates that the tests would identify not only individuals with serious drug dependencies, but also those who might be classified as social drinkers or casual drug users who do not suffer from problems of addiction. Dr. Kalant testified that the occasional use of substances listed under the Policy would not indicate an illness or mental disorder. From a medical standpoint, he explained, the occasional use of cannabis is not appreciably different from the occasional use of alcohol. Occasional users are also protected under the Code even though they do not obviously fall within the prescribed definition of suffering from "an illness or disease creating physical disability or mental impairment which interferes with physical, psychological and social functioning". If the respondent perceives such alcohol or drug use to constitute a "handicap", this is sufficient to trigger the protection of the Code.

26Howard Moyer, the Manager of Imperial Oil's Alcohol and Drug Policy, testified that the company characterized a variety of groups as "substance abusers" under the Policy: experimenters, recreational users, regular users, binge users and dependent users. Company regulations define an experimenter as "an individual who experiments with alcohol or drugs, usually out of curiosity". A recreational user includes "a person who uses and gets ”˜high' on alcohol or drugs at special occasions, e.g. parties". A binge user is defined as "an individual who consumes alcohol or drugs in an uncontrolled manner for short periods of time and then abstains until the next binge". Mr. Moyer stated that the company's objective was "to have zero positives in our random [testing] program", adding:

The major objective of that program is to deter the use of alcohol or drugs amongst our safety-sensitive workplace ... Fitness for duty in [a safety-sensitive or a specified executive position] is defined by the company as not having drugs in your body at the time of that test.

A positive test result for the employees subjected to random testing prompts disciplinary action on the part of the company. Mr. Moyer's testimony confirms the company's clear perception that regardless of the circumstances surrounding the usage of alcohol or drugs, employees who are found with such substances in their bodies at work are not fit for duty. Since the perception of unfitness is grounded in the alcohol or drug use, this constitutes discrimination on the basis of "handicap".

27The respondent attempted to argue that the testing provisions are not designed to catch alcohol and drug users but to deter substance abuse. The overwhelming majority of the tests administered by the company have resulted in negative results, prompting the respondent to assert that the tests are utilized to prove the absence of drug and alcohol abuse in the workforce, rather than the presence of substance abuse. "The random testing process is not founded on a perception that any of Imperial's employees may be handicapped, but rather that they are not", argued respondent's counsel: "Imperial does not perceive a person who tests positive for drugs or alcohol to be handicapped, but rather that he or she is not fit for duty". This analysis seems to me to be something of a verbal slight of hand. Whether the respondent disclaims use of the work "handicap" in preference for "fitness for duty" is not the point. In the final result, the testing process treats workers as if alcohol and drug use constitutes a "handicap" on the job. The tests are intended to aid in the removal of individuals with such conditions from Imperial's workforce. As such, the testing constitutes a clear form of discriminatory treatment.

V. RESPONDENT'S DEFENCE: SECTION 17

28The only defence to a prima facie case of direct discrimination on the basis of "handicap" is found in s. 17 of the Code. Section 17 reads:

17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap.

(2) The Commission, a board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating these needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

29The onus of proof of incapacity lies on the respondent: Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.); Belliveau v. Steel Co. of Canada(1988), 1988 CanLII 8876 (ON HRT), 9 C.H.R.R. D/5250 (Ont. Bd.Inq.); Morgoch v. Ottawa (City) (No. 2)(1989), 1989 CanLII 9067 (ON HRT), 11 C.H.R.R. D/80 (Ont. Bd.Inq.). To prove that the Alcohol and Drug Policy falls within the exception of s. 17, the respondent must establish on an objective basis, by a preponderance of evidence, that the "handicap" in question precludes performance or fulfilment of essential duties or requirements in respect of the prospective employment: Cameron v. Nel-Gor Castle Nursing Home at D/2192; Morgoch v. Ottawa (City) (No. 2) at D/90. The respondent must prove with clear and convincing evidence that the rules and requirements set out in the Alcohol and Drug Policy are directly connected to job performance. In Chamberlin v. Stirling Honda (1989), unreported decision (Ont. Bd.Inq.) [reported 1989 CanLII 9081 (ON HRT), 11 C.H.R.R. D/110], it was stipulated that the employer's assessment of the employee's incapacity must be both "fair" and "accurate". The language of s. 17 was first enacted in 1988, and sets forth a more burdensome standard of defence than existed under earlier legislation.

30The respondent's position is that the Alcohol and Drug Policy is designed to minimize the risk of impaired performance due to alcohol and drug use within the workplace. Imperial Oil claims that it is a "bona fide occupational requirement" that employees in safety-sensitive positions be substance-free on the job. Company officials testified that their objective is to ensure a workplace that is "free from substance abuse".

31In Phase One of the hearing, this Board rules that Imperial Oil has the right to attempt to ensure that employees in safety-sensitive positions are not impaired by alcohol, and that freedom from impairment by alcohol is a bona fide occupational requirement for such jobs. In Phase Three, this Board is called upon to determine whether freedom from impairment by drugs is a bona fide occupational requirement as well.

1. The Effect of Drugs on Impairment

32Considerable expert testimony was called concerning the effects that drugs may have on motor co-ordination, perceptual abilities, physical and mental capacity. Dr. Kalant testified that drugs that function as central nervous system depressants (barbiturates, benzodiazepines, methaqualone, and at most levels of use, cannabinoids) tend to produce relaxation and greater ease of social contact when taken in very low doses. As concentrations increase, these drugs affect motor co-ordination, level of arousal, awareness of and ability to react quickly to sudden changes and circumstances, judgment of distances and times, and the ability to interpret other people's behaviour. Withdrawal symptoms include hyper-arousal, jitters, nervousness, sleeplessness, exaggerated reaction to minor stimuli, increased reflexes, seizures, loss of appetite and nausea. The opiates (morphine, codeine, heroin, Demerol, Talwin, benzedrine, methadone and propoxyphene) have similar effects: an initial intense automatic nervous system reaction, then drowsiness, a dreamy state, relaxation, the suppression of digestion, constriction of pupils. Withdrawal can cause cramps, diarrhea, hair to stand on end, skin to stand up around the hair follicle (cold turkey), the dilation of pupils, anxiety and agitation.

33Drugs which function as central nervous system stimulants (such as amphetamines and cocaine) can cause prolonged wakefulness, increased speed of reaction and mental processes, the inability to sustain a continuous line of reasoning, dilated pupils, increased heart speed and slowed digestion. Withdrawal produces depression, profound sleepiness and hunger. Hallucinogens (phencyclidine, very high doses of methaqualone and cannabinoids) have similar effects: increased heart rate and blood pressure, dilated pupils, alterations of conscious perceptions of sensations, loss of touch with reality, panic and acute schizophrenia. Withdrawal symptoms may include depression, agitation, sleeplessness and hyper-irritability.

34Dr. Kalant testified that all of the drugs discussed above have the potential to affect job performance, either adversely or beneficially. In higher doses, all have the capacity to impair performance during the stage of acute action or withdrawal. Dr. Scott Macdonald, a social epidemiologist from the Addiction Research Foundation, testified that although the research is not definitive, the literature suggests that drug users as a group may have higher rates of on-the-job accidents.

35It was uncontested that the oil industry is a high risk business, and that an accident at an oil refinery could create a catastrophic incident involving danger to employees, the public and the environment. Counsel for all parties also agreed that employees who come to work impaired by alcohol or drugs would pose an increased risk of accident. Since impairment by drugs would be dangerous to the safe operation of the respondent's business, it follows that freedom from impairment by drugs is a bona fide occupational requirement. Employees impaired by either alcohol or drugs would be "incapable of performing or fulfilling the essential duties or requirements" of the job.

36The next question is whether the respondent's Alcohol and Drug Policy is directed specifically at employees who are impaired, or whether it targets some other categories of employees as well. Based on the evidence adduced, the Policy provisions developed by the respondent appear to overreach the legitimate goal of ensuring an impairment-free workplace in certain significant respects. In other respects, the Policy also appears under-inclusive, in that it fails to pick up certain categories of employees who may be equally impaired.

2. Disclosure, Reassignment and Reinstatement Provisions

37To establish objective proof of "incapability", an employer must provide substantive evidence that an employee's physical or mental condition is having a negative impact on job performance. In its Interim Decision No. 6, supra, this Board found that the disclosure, reassignment and reinstatement provisions of the Policy were not justified under s. 17(1), as they related to alcohol. The evidence tendered during Phase Three indicates that a similar ruling is in order for these provisions as they relate to drugs.

38The respondent's Policy requires that employees in safety-sensitive positions must disclose to management any "substance abuse problems" they have had, whether current or past. The sweeping definition of "substance abuse", which includes anyone who has ever participated in any treatment for drug abuse, is overly broad. The expert evidence indicates that it is possible to be completely rehabilitated from some forms of drug dependence such that an individual poses no greater risk of impairment than someone in the general population. Hence there is no justification for such an unlimited and wide-ranging rule of disclosure. This provision must be declared inoperative as a violation of the Human Rights Code.

39The Policy also sets out a minimum seven-year period between the date of reassignment and potential reinstatement: two years of a rehabilitation program and five additional years of abstinence. This is unduly long for some individuals. The mandatory conditions and undertakings for reinstatement may also be more than necessary in certain instances.

40Dr. Kalant testified that the prognosis for recovery from drug abuse depends on many variables. For persons in treatment for drug abuse, the risk of relapse is highest in the first two years. After that, it is a difficult task to delineate how long a period of abstinence is required before one can say with confidence that a former drug abuser is "cured". By "cured", Dr. Kalant stated that he meant that the individual's risk of relapse is no greater than the risk of someone in the general population becoming an abuser. Dr. Kalant testified that individuals who are dependent upon psycho-active medications obtained under a physician's prescription would be regarded as cured once they have been off the drug for four to five years. This is comparable to the remission period for alcoholics, as Dr. Kalant noted: "A former alcoholic who has been sober continuously for four to five years can be regarded as cured". Dr. Kalant's evidence was reinforced by a recent study published in the Archives of General Psychiatry (George E. Vaillant, M.D., (1996) vol. 53 at pp. 243–49), which concluded that "after abstinence had been maintained for five years" alcohol relapse is "rare". Individuals who are dependent upon illicit drugs need somewhat longer. For illicit drugs, six years of abstinence, treatment and follow up would be "as good an indicator of probable continued good outcome as one can find", explained Dr. Kalant. In contrast, for street addicts of heroin without jobs or family support, the likelihood of complete recovery is minimal, with the best outcome usually a shift to some program of methadone maintenance.

41The mandatory seven-year waiting period in Imperial Oil's Policy contrasts quite starkly with the reinstatement periods for commercial pilots who have experienced alcohol or drug problems. The evidence adduced at the hearing indicates that pilots who seek a return to duty after treatment are assessed on an individual, case-by-case basis. For pilots not employed by the major airlines, the minimum time out is two years. Pilots employed by Air Canada and Canadian Airlines may return even earlier if their individual assessment warrants.

42Imperial Oil has failed to justify the disclosure, reassignment and reinstatement provisions under the s. 17(1) "incapability" defence. Strictly speaking, there is no necessity to go on to consider s. 17(2), which stipulates that a board of inquiry shall not find a person incapable unless it is satisfied that the needs of the person "cannot be accommodated without undue hardship". However, counsel for the respondent made full argument on this issue. Imperial Oil argued that its Policy contains ample accommodation for members of its workforce who suffer from alcohol or drug abuse. Individuals who self-declare their problems are not fired from their jobs, but reassigned, usually to alternative and comparable positions at no loss in pay for five years. Where such individuals follow approved treatment programs, disability benefits are paid for any time lost from work. The respondent led evidence that since the establishment of the Policy, no employee who filed a self-declaration has ever been involuntarily terminated from the job.

43However, the Policy does not mandate reassignment to comparable positions in every case. The Policy states:

Where an employee must be reassigned due to a confirmed substance abuse problem, a reasonable effort will be made to offer an alternative position at a comparable level if the employee is qualified for an available position. Otherwise a lower-level position will be offered, with maintenance of the employee's original pay rate until:

i) a comparable or higher-level position is offered;

ii) employment is terminated for any reason; or

iii) five years has [sic] passed from the date of reassignment;

whichever occurs first.

Notwithstanding the above, the maintenance of an employee's original pay rate does not apply should organizational changes affecting compensation be implemented.

This is quite different from a hard and fast rule to substitute comparable positions in every situation, especially given the significant "down-sizing" that has occurred at Imperial Oil in recent years. The unfairness is especially obvious for employees who may have abstained from alcohol or been drug-free for many years prior to the mandatory self-disclosure. Substantial evidence was introduced to show the detrimental impact of reassignment and recertification in Mr. Entrop's individual case. The position to which Mr. Entrop was reassigned was significantly less preferable for him than his original safety-sensitive position. According to Mr. Entrop, the lengthy and intrusive procedures he had to undertake prior to reinstatement to his safety-sensitive job were also highly demeaning and unnecessarily invasive.

44Furthermore, there is little evidence of accommodation for employees who fail to self-declare past or present substance abuse problems. Based on the evidence of positive alcohol and drug tests accumulated since the implementation of the Policy, Imperial Oil has refused to hire ten individuals who tested positive in their pre-employment screening. Under its Policy, Imperial Oil also had grounds to discipline or terminate eight employees who registered positive in random tests, four employees who registered positive in "certification or periodic" tests, six employees who registered positive in "reasonable cause" tests, and one employee who registered positive in "post-rehabilitation" tests.

45Based on all of the evidence, it is my conclusion that the mandatory disclosure, reassignment and reinstatement provisions of the Policy are unlawful. The respondent has not met the onus of proving incapability or accommodation under s. 17.

3. Alcohol and Drug Testing Provisions

A. The History and Development of Testing

46Imperial Oil is one of the first corporations in Canada to administer extensive alcohol and drug tests upon its employees. The first data compiled on the prevalence of workplace testing in 1989 found only 1 percent of large Ontario corporations (fifty or more employees) had such programs. These numbers grew very slowly, increasing to 4 percent by 1993. According to Barbara Butler, a consultant on alcohol and drug policies who testified on behalf of the respondent, by 1996 "more and more" Canadian companies had begun to develop alcohol and drug policies with certain forms of testing, although she also indicated that testing was not "in regular use". The caution which Canadian employers have exhibited towards drug and alcohol testing is replicated throughout most of Europe and Australia, where testing remains both controversial and rare.

47The same cannot be said of the United States, where drug testing has become "standard business practice", according to Dr. Michael Walsh, the former Executive Director of the U.S. President's Drug Advisory Council, and Director of the Division of Applied Research, U.S. National Institute on Drug Abuse (NIDA), who was called as an expert witness for Imperial Oil. Testing was first introduced in the U.S. military in the early 1980s, after the Armed Forces Appropriation Committee threatened to reduce budgets unless something was done about the large number of enlisted personnel who were addicted to illicit drugs. According to Dr. Walsh, "There was a great deal of rhetoric at the time about not wanting to expend millions of dollars for weapons of destruction where some druggy might have their finger on the button that might destroy the world".

48By 1983, the publicity surrounding testing in the military had sparked the interest of employers in the power, utilities and transportation sectors, who began to implement their own drug testing programs. Many large employers such as General Motors, I.B.M., Mobil and Exxon followed, and by 1985 25 percent of the Fortune 500 companies were screening job applicants for drug use.

49In September 1986, as part of his expanding "War on Drugs", President Reagan issued an Executive Order requiring all federal agencies to establish compulsory drug testing for current and prospective employees. Dr. Walsh explained the motivation behind this initiative (J. Michael Walsh and Jeanne G. Trumble, "The Politics of Drug Testing", in Coombs & West, eds., Drug Testing: Issues and Options (New York: Oxford University Press, 1991) at 22–23):

[T]he Reagan and Bush administrations ... argued that the key to reducing the demand for drugs is to hold the individual drug user responsible for his or her behavior — to develop societal contingencies that censure and penalize the individual user with stiff sanctions (e.g., seizing assets or withholding the opportunity for employment). The environment in which this technique has been most effectively used is in the American workplace. Beginning with the military experience in the early 1980s, workplace programs have been developed to send a simple and direct message that drug use by employees will not be tolerated. Clearly, one of the key elements of such policies has been the use of drug-detection technology to identify drug users.

The Republican "War on Drugs" initiative set off an unprecedented and "exponential growth" in drug-free workplace programs that spread rapidly throughout large and mid-sized firms. By 1986, according to Dr. Walsh, the question was not "If" but "How". One year later federal regulations were issued to ensure some degree of quality control over the laboratories evaluating drug test specimens. The "Mandatory Guidelines for Federal Workplace Drug Testing Programs" set out requirements for the certification of laboratories, stipulating detailed testing protocols and minimum qualifications for laboratory personnel.

50In 1988, the U.S. Congress passed legislation requiring all federal contractors who received $25,000 or more of contract funds in a year and all federal grand recipients to have a drug-free workplace policy. Nothing in the act required drug testing, but most employers included it in their new policies. By 1990, the proportion of large firms (250 employees or more) with drug-testing programs reached 46 percent, with mid-sized firms (50–249 employees) testing at a rate of 26 percent.

51Between 1988 and 1990, the U.S. Department of Transportation issued regulations requiring the airlines, mass transit, maritime, pipeline and trucking industries to implement programs to conduct pre-employment, post-accident, reasonable suspicion and random testing of operating personnel. These regulations were expanded in 1991 to cover intra-state transportation and to include testing for alcohol as well as drugs. In its 1993 survey, the American Management Association reported that 85 percent of major U.S. firms were now testing employees, job applicants, or both for drug use.

52In Canada, the cross-border influence of the United States has been considerable. One source of pressure comes from the many linkages between Canadian and American businesses. Barbara Butler explained: "Dr. Walsh talked about what's happening in the United States, and I think he used the quote, ”˜It's become a way of doing business.' Well, a lot of American firms have Canadian subsidiaries and they want to know what the Canadian subsidiary is doing with respect to this issue". Indeed, this seems to have been one of the main factors insipring the introduction of alcohol and drug testing at Imperial Oil. Exxon Corporation, the majority share-holder for Imperial Oil, apparently advised Imperial Oil to implement an alcohol and drug policy in 1989. Imperial Oil expended considerable resources on an independent policy-development process, but the policy finally implemented at Imperial in 1992 was substantially similar to that of the parent company.

53Cross-border governmental pressures have been equally visible. Influenced by President Reagan's 1986 Executive Order, Prime Minister Mulroney announced a National Drug Strategy in 1987, and established an all-party Committee of the House of Commons to study the matter. The Committee recommended against the introduction of random drug screening of job applicants or employees except where drug use constitutes a "real risk to public safety". Even then, the Committee advised that samples should only be requested for cause, where there is evidence of impairment or performance difficulties.

54In 1990, another report was issued by the House of Commons Standing Committee on Transport. The Committee endorsed drug and alcohol testing only under the following circumstances: pre-employment, post-accident, for cause, and periodic testing at the time of regular medical examinations for employees in safety-sensitive positions. The Committee explicitly ruled out random testing, noting as follows ( Report to the House, House of Commons Standing Committee on Transport, pursuant to Order of Reference dated March 16, 1990):

Many witnesses were adamantly opposed to random mandatory testing for philosophical, moral and practical reasons. They said it was a totally unwarranted, wholesale intrusion into people's rights to privacy and the security of the person ... The Committee recognizes the force of the argument of deterrence but is persuaded by the weight of the evidence that mandatory random testing should not be endorsed. To begin with, as we have noted, substance use is not a problem in the industry, nor, apparently is it causing a risk to safety. Certainly it is not a problem that would, in our view, justify such a draconian infringement of individual rights.

Several witnesses stated categorically that they believed the reason for the Canadian strategy at this time, is because of the American threat of the extraterritorial application of their drug testing regime to Canada. Some saw it as nothing more than an attempt to appease the Americans and harmonize the two regimes. While they recognized that because we share the longest common border in the world and the United States is our largest trading partner that this puts us in a more difficult position than other countries, they firmly believed that the substance use situation is different in our country and for that reason we should have a "Made in Canada" strategy. We agree, and believe that the Canadian strategy should reflect the Canadian reality. Clearly from the evidence and our review of it, we can only conclude that we do not have a drug and alcohol problem in the transportation industry of the apparent magnitude and seriousness in the United States. Certainly, whatever the extent of our problem, we do not feel it warrants the introduction of random mandatory testing which is really the major point where we part company with the American regime.

55The tension between the different American and Canadian positions has been exacerbated by the expanding reach of the United State Department of Transportation regulations. Between July 1996 and July 1997, these regulations will be phased in to cover Mexicans and Canadians whose commercial vehicles cross the border into the United States. Testing must cover alcohol, marijuana, cocaine, amphetamines, opiates and PCP, and be conducted under the following circumstances: pre-employment, post-accident, reasonable suspicion, random, return to duty, and on a follow-up basis after a policy violation.

56To date, the Canadian federal government continues to take the general position that workplace alcohol and drug testing is unwarranted. Consequently it has refused to introduce any legislation which would address the issue of mandatory testing. Nor has the government issued laboratory standards for use in workplace testing programs. The only development of laboratory standards has been pursued by a panel of government, scientific and technical experts working with the Standards Council of Canada to develop guidelines for the accreditation of substance abuse testing laboratories. Just four or five laboratories have been certified in Canada so far. Summing up the differences between the two countries, Dr. Walsh concluded: "I believe that Canada has moved very slowly and cautiously at a time where the United States has ... moved ahead more rapidly."

B. The Evidence of Relationship Between Testing and "Incapability"

57The respondent is under an obligation to prove that its testing provisions under the Policy are necessary to determine "incapability" under s. 17(1) of the Code. The law also requires that an employer's assessment of the employee's incapacity must be both "fair and "accurate". Considerable expert evidence was introduced by all the parties at the hearing on matters which relate to these points. The following questions were addressed by witnesses:

(1) What is the prevalence of alcohol and drug use/ abuse?

(2) Is there any way of predicting with reliability and accuracy when a specific individual who has taken alcohol or drugs will become impaired?

(3) Is there any reliable and accurate way of measuring impairment due to drugs and alcohol?

(4) Is there evidence that testing programs deter alcohol and drug use on the job?

(1) PREVALENCE OF ALCOHOL AND DRUG USE/ABUSE

58Extensive evidence was introduced regarding the prevalence of alcohol and drug usage in the general population and at Imperial Oil specifically. A national study done by Health Canada in 1994 found that 72.3 percent of Canadians are "current drinkers" (used alcohol in the past year). This represents some reduction from the figure of 77.7 percent in 1984, but is slightly higher than the comparable figure for the United States, where 66.9 percent reported being current drinkers in 1994. Based on consumption data, sales data and clinical research, one study estimated that out of 1,000 typical Canadian employees, approximately 20 percent will be non-drinkers, and about 54 percent can be classified as responsible drinkers, consuming fewer than twelve drinks per week on average. The study estimated that the drinking habits of the remaining 26 percent of employees pose some concern (Barbara Butler, Alcohol and Drugs in the Workplace (Toronto: Butterworths, 1993) at 14, citing A. Wilkinson, The Employers Guide to Drinkwise (Guelph: Homewood Health Services, 1992)):

3.2% are extremely heavy drinkers, at levels consistent with alcoholism, and 22.4% drink more than can be considered responsible, but are not appropriately classified as alcoholics. Together these groups represent more than one in four employees in the typical workplace, and their drinking habits are likely to result in personal problems and to a decline in work performance, posing a threat to productivity, safety and liability exposure for the employer.

59As for illegal drugs, 1994 data show 23.9 percent [of] Canadians report ever having used such substances during their lives. This figure is up marginally from the comparable figure in 1988 (23.5 percent), but significantly lower than the American data of 34.4 percent. The current use of illegal drugs has declined over the past few years in the United States. Dr. Walsh indicated that in 1979, about 14 percent of the U.S. population over the age of 12 reported using an illicit drug in the previous month. By 1993, that had dropped to approximately 6 percent. In contrast, Barbara Butler testified that the current use of illegal drugs in Canada has been increasing slightly over the past few years, and that the two countries now have similar data for current rates of use for some illicit drugs. The 1994 statistics for current cannabis use in Canada indicate 7.4 percent, up from 6.8 percent in 1988 but still lower than the comparable American figure of 8.5 percent. The 1994 statistics for current cocaine use in Canada indicate 0.7 percent, down from 1.4 percent in 1988 and lower than comparable American figures (1.7 percent cocaine use excluding crack, and 0.6 percent crack). The 1994 data for current use of speed, LSD and heroin register at 1.1 percent, up from 0.4 percent in 1988 (comparable American data are not available). When Barbara Butler published her book in 1993, she reported that illicit drug use had clearly "not reached epidemic proportions among the Canadian populace" (Barbara Butler, supra, at 13). At the time she gave her testimony in April 1996, she expressed concern that the most recent statistics showed some overall increase in usage over the past few years, although she advised that there is no way of knowing whether the increases would "continue, become stable, or revert to previous lower levels" in future.

60When Imperial Oil was first embarking upon the development of its Alcohol and Drug Policy, it was not content to rely upon general statistics regarding substance use. Instead, it hired a team of external consultants to prepare a survey on the use and effect of alcohol, street drugs and medication within its own workplace. The census survey, developed by Dr. Adrian Wilkinson, was completed in April 1991. The findings indicate that in the previous twelve months, 93 percent of Imperial Oil employees had used alcohol, an incidence of drinking "somewhat higher" than the general population of employed individuals. The company's percentage of above average drinkers (defined as eight to twenty drinks a week) and heavy drinkers (twenty-one drinks or more a week) is also somewhat higher than the general population. Seventy-eight percent of those replying to the survey had used medication within the past twelve months, with 73 percent reporting the use of cough or cold remedies, 24 percent tranquillizers and 1 percent "pep pills etc." Although physicians prescribe medications primarily for their beneficial effects, the Pharmaceutical Inquiry of Ontario has suggested that at least a portion of such users may misuse such prescriptions. Thirty percent of the respondents of an Ontario study believe "abuse of these drugs" is "prevalent in the workplace" (see Province of Ontario Report of the Pharmaceutical Inquiry of Ontario (Toronto: Queen's Printer, July 1987). The incidence of street drug use at Imperial Oil, 7 percent in the previous twelve months, is lower than that reported in other national surveys. Subsequent analysis determined that the differences between usage rates at Imperial Oil and the national survey data are fully explainable due to the fact that the company workforce is slightly older than the Canadian average and predominantly male. When the Imperial statistics are considered against comparable population data in the wider community, the statistics are by and large indistinguishable.

61The survey also sought opinions about the impact of alcohol and drugs on the job. Of the respondents, 0.5 percent report accidents and 1.7 percent "near misses" caused by their own use of a specified substance. Alcohol is the most frequently reported substance involved in both situations. Employees were also questioned about problems associated with substance use by members of their immediate work group. Here 3.3 percent of those responding attribute accidents to substance use, 7.2 percent attribute near misses. Other negative effects are reported by 22.5 percent. There was some critique of these statistics, in that the survey did not clarify whether the figures evolve from separate incidents or whether a number of employees may have been reporting the same incident. There was also some debate at the hearing over the relative risks posed by each of the substances studied: alcohol, medication and street drugs. Although the experts do not agree on which substance actually poses the greatest risk at Imperial Oil, the employees themselves are quite clear on the subject. Seventy-eight percent of those replying cite alcohol as the substance causing the greatest number of problems at work; 5 percent cite medications, and 4 percent cite street drugs. In conclusion, Dr. Wilkinson testified that the data indicate that substance abuse is causing "some problems in this particular workplace". However, it is important to stress that Imperial Oil management was at great pains to reassure employees and others that the problem is not unusual or severe. Robert Peterson, the Chief Executive Officer of Imperial Oil, advised that "the vast majority, 99 plus percent of our employees, do not have a substance abuse problem". Howard Moyer further testified at the hearing that Imperial Oil is not aware of any serious workplace incident in which alcohol or drug abuse has been a contributing factor.

(2) PREDICTION OF INDIVIDUAL IMPAIRMENT

62All of the expert witnesses who testified confirm that the effects of drugs and alcohol vary considerably from person to person. Dr. Walsh has outlined many factors which affect the body's response to drugs (J. Michael Walsh and Stephen C. Yohay, Drug and Alcohol Abuse in the Workplace: A Guide to the Issues (National Foundation for the Study of Equal Employment Policy, 1987) at 20–21):

The physiological effects of drugs vary considerably from one individual to another, and even within the same individual on different occasions. A wide variety of physiological factors interact with one another ultimately to determine the precise effect of a drug. Age, weight, sex, disease state, and tolerance are examples of the variables that can interact to affect drug disposition. These physiological factors will, in turn, interact with pharmacological factors of dose, potency, route, and time of administration. The processes by which the body handles a drug (absorption, distribution, metabolism, and excretion) are enormously complex and interrelated; each is dependent on its precursor. Physiological changes that alter these "pharmacodynamic" processes will alter the behavioral effect of the drug

The behavioral effects of drugs are generally dose dependent ... Simple motor tasks are less affected by drugs than are complex, skilled tasks ... Repetitive work is less affected by drugs than work requiring learning or problem solving skills ... For many of the most frequently abused substances, it is difficult to state precisely how long performance will be impaired after a drug is used.

63Dr. Walsh indicated that it is virtually impossible to predict with any specificity the degree of impairment which will result from drug use (J. Michael Walsh and Steven W. Gust, "Drug Abuse in the Workplace" Seminars in Occupational Medicine vol. 1 (New York: Thieme Medical Publishers, 1986) at 238):

Currently, the ability to predict the behavioral consequences of taking a drug is somewhat limited ... Although generalizations regarding drug effects on performance have been established, the specificity within which one can predict whether an individual is capable of performing a specific task under the influence of a drug remains minimal. The question that is often asked is, "If I have an employee who uses cocaine or smokes marijuana on Saturday night, will he be able to perform his job on Monday morning?" The answer to this seemingly straightforward question is, "It depends!!!"

64In comparison with other drugs, alcohol is a fairly simple pharmacological compound, and the way in which it is absorbed, metabolized and excreted does not vary much from one individual to the next. However, the actual effects of alcohol still depend on many different factors: the size, age and sex of the individual, the amount of food in the stomach, the amount of body fat, body metabolism, daily physical conditions such as stress and fatigue, and the level of acquired tolerance an individual has developed. Governments have found it convenient to create definitive rules regarding drinking and driving, and have enacted legislation such as the Criminal Code to stipulate that certain levels of blood alcohol concentration ("BAC") will be legally determinative of impairment. Even so, the expert witnesses testified that despite the legal cut-off, having a blood alcohol concentration in excess of 0.08 percent is not always indicative of actual impairment. As Dr. Walsh indicated:

[T]he fact is we know that there are a lot of individuals who can perform quite well at double that level ... A lot of research [was] done going back into the 70s and 80s, for example, on interlock systems in automobiles to try and keep drunks from getting behind the wheel of a car ... [T]here were literally billions of dollars spent. And what they found was an eighteen year old who was pretty drunk could still punch ... a set of numbers into an interlock, when an eighty-eight year old or a seventy-five year old individual who was stone sober was often unable to perform that same task.

Dr. Jerome Jaffe, a senior scientist with the National Institute on Drug Abuse, has explained further (Dr. Jerome Jaffe, "Commentary: NIDA's Role in Applied Research" in Drugs in the Workplace: Research and Evaluation Data, vol. II (NIDA Research Monograph Series, No. 100 (1990) at 233):

[T]he difference between individuals is probably far greater than the difference between the very competent people slightly impaired and the least competent people not impaired at all. Michael Jordan, legally intoxicated, could outplay any two people at the National Institute on Drug Abuse on the basketball court when they are stone sober.

65Dr. Ross Homel, an Australian criminologist who is an expert on drinking and driving, also commented on the impossibility of drawing hard and fast distinctions: "I've seen and heard heavy drinkers say that they think they're better drivers when they're drunk than when they're sober, and for some of them it may even be true, if they're habituated to the use of alcohol."

(3) MEASUREMENT OF IMPAIRMENT

66There are stark difficulties in attempting to measure impairment with any degree of certainty, reliability or accuracy. One of the most obvious hurdles involves the concept of "impairment", which experts testified has elicited "no universal accepted definition". The measurement of alcohol impairment has moved somewhat further than testing for drug impairment, and the parties agreed to consider the two issues separately.

67Barbara Butler discussed the reliability of breathalyzer testing for alcohol (Barbara Butler, Alcohol and Drugs in the Workplace, supra, at 230):

Breath testing for alcohol is a widely used and accepted technology. Current generation breath-alcohol analyzers generally have excellent accuracy, precision, sensitivity, and selectivity or specificity for ethanol in breath specimens, and the concentration of alcohol in end-expiratory breath accurately reflects the alcohol in the blood and can appropriately interpret the presence and degree of intoxication or impairment at the time the sample is taken.

68The direct link between blood alcohol levels and impairment still remains elusive, however. Barbara Butler admitted that it is not possible to correlate blood alcohol concentration ("BAC") directly with impairment, noting for example, that "a heavy drinker may not be physically impaired at a high BAC, while a modest drinker, when fatigued, may be impaired at levels only slightly above zero". Howard Moyer has published an article reiterating this point (Howard Moyer, "Ontario Law Reform Commission's Report on Drug and Alcohol Testing in the Workplace: A Critique" (1994) 2 Can. Lab. L.J. 535 at 539)

Tests for alcohol use are more specific [than tests for drugs] on the degree and timing of impairment in relation to an established standard, but are not able to take account of tolerance effects or individual differences in alcohol metabolization. They do not provide information on frequency, pattern or legitimacy of use, or the presence of clinical dependency. Although the correlation between test results and impairment is stronger for alcohol than for drugs, neither alcohol nor drug tests are definitive proof of an individual level of impairment at an exact point in time.

69Despite this, experts have agreed to establish bright-line tests for drinking and driving, which prohibit blood alcohol concentrations of 0.08 percent or over. Barbara Butler explained that the rationale for this threshold level comes primarily from legal considerations: at 0.08 percent impairment is fairly easy to observe and if visible detection of impairment is possible, then there exists sufficient reasonable suspicion or probable cause for sobriety tests to be conducted. Lower thresholds have been established in the workplace. Butler indicated that studies have found that at 0.04 percent BAC, there are "discernible signs of impairment for most, although not all, individuals". Given that measurable changes in performance start to occur in the average individual around this point, Imperial Oil chose this cut-off to register a positive test for alcohol use under its Policy.

70Despite the inability to draw an exact linkage between a specified BAC and impairment in a specified individual, most of the expert witnesses who testified were willing to confirm the utility of breathalyzer tests for measuring alcohol impairment. The Human Rights Commission explicitly conceded that breathalyzer tests indicate impairment, and took the position that such tests are permissible in the workplace "for cause" and "post-incident". The intervener in this hearing, the Canadian Civil Liberties Association, declined to take any position on this point. Consequently, this decision will make no ruling concerning the reliability or accuracy of breathalyzer testing. Nor will this decision rule on the legality of breathalyzer tests when done "for cause" or "post-incident".

71The expert evidence on the linkage between testing and impairment for drugs, as opposed to alcohol, is considerably more complex. Dr. Bhushan Kapur, a consultant in toxicology at the Division of Clinical Pharmacology and Toxicology at the Hospital for Sick Children, stated that drug-testing techniques measure the presence of a drug or drugs but are "not sophisticated enough to measure impairment from drug use". Even at "high levels of concentration", Dr. Kapur noted that "neither blood nor urine tests are sufficiently accurate to indicate impairment" from drugs. Dr. Kapur used the example of marijuana to illustrate. Indicating that the clinical effects of marijuana peak in "about thirty-to thirty-five minutes", and last "the first few hours [after use] at the most", Dr. Kapur testified that a positive test can continue to show up in the urine for much longer. "I have seen positives for as ... few as four to five days [and] as many as twenty days", he stated, adding that in one exceptional case the urine actually tested positive for "about four months".

72In the case of heroin, Dr. Kapur testified that the drug breaks down to morphine, which is generally detectable in the urine up to five days. He described one exceptional case in which the urine tested positive for nine days. Cocaine typically registers positive for thirty to forty hours, but Dr. Kapur noted that his own studies showed ranges of up to seven days. For amphetamines and phencyclidine, detection is usually possible for a few days. Barbiturates register positive for approximately a week to ten days, benzodiazepines for two to three weeks, and methadone for four to five days. Dr. Kapur concluded that drugs can be detected in a positive urine test long after any active effects of the drug have ceased.

73Experts called by Imperial Oil disagreed with Dr. Kapur's testimony to some degree. Dr. Walsh testified that the hang-over effects of marijuana could last into the next day. "The effect on behaviour and the ability to perform work lasts at least eight to ten hours", he indicated, and for highly skilled tasks such as the flight performance of pilots, effects can linger for up to twenty-four hours or more. Dr. Walsh testified that "at the threshold level that Imperial Oil uses, the detectability of the average marijuana user smoking the average marijuana joint is roughly three days". Dr. Robert E. Willette, a chemist with expertise in the area of drug testing and laboratory certification, claimed that if tests indicate the presence of metabolites in the urine, this proves the presence of the "active drug" in the body. Depending on a number of factors such as the individual's "sensitivity to the drug" and the "levels" detected, this could indicate that the person was "still subject to the effects of the drug". Dr. Walsh took issue with Dr. Kapur's position on testing generally: "I think it's a bit of hyperbole to say [that a positive drug test] tells you nothing. Any good toxicologist can look at the level and make some educated interpretations about that level."

74Despite the discrepancies in testimony on these points, all of the experts confirmed that there is no definitive correlation between a positive urine test and impairment by drugs. Dr. Walsh admitted that it is clear that a positive drug test "does not prove impairment", Dr. Willette conceded that there are no clinical studies documenting a relationship between job-related impairment and positive test results. These observations are confirmed in the documentary exhibits filed at the hearing (see Richard L. Hawks and C. Nora Chiang "Urine Testing for Drugs of Abuse" (1986) NIDA Research Monograph 73 54 at 57):

If the test was properly performed and the results from the laboratory are valid, the result means that the drug indicated was present in the urine. A positive result does not mean that the individual tested was under the influence of the drug at the time the specimen was collected.

There is international recognition that although drug testing may indicate the use of a particular substance, "no adequate tests currently exist which can accurately assess the effect of ... drug use on job performance (Report of the ILO Inter-Regional Tripartite Experts Meeting on Drug & Alcohol Testing in the Workplace, Oslo, Norway, May 1993).

75Howard Moyer, the Manager of the Imperial Oil Alcohol and Drug Policy, has also acknowledged this (Howard Moyer, "A Critique, supra, at 539–40):

A confirmed positive test for drugs, following medical review officer review, indicates with a high degree of specificity which drug(s) were ingested recently and can provide data about their concentration. It is true that the test does not provide information on the degree or timing of impairment, frequency or pattern of use, whether clinical dependency or addiction exists, or whether the person was under the influence of the drug when the sample was collected ... Drug testing technology available today is not perfect. Although accurate, it can only identify past drug use and not level of impairment at any point in time. The link between test results and job performance has not been definitively established, as it is difficult if not impossible to isolate testing in the workplace and measure its impact.

76There is also considerable debate about the reliability of methods other than testing for detecting impairment from alcohol and drugs in the workplace. Dr. Martin Shain, Head of the Workplace Program and Senior Scientist at the Addiction Research Foundation, claimed that properly trained supervisors have a "very high likelihood of being able to detect impairment". Dr. Shain testified that even limited opportunities for direct observation of employees, as minimal as five minutes at the outset of the shift, five minutes in the middle, and five minutes at the end of the shift, would be sufficient to permit a supervisor to detect the physical manifestations associated with impairment. Queried about problems posed when supervisory levels were less than this, Dr. Shain specifically objected to the use of breathalyzers as a substitute for supervisor observation. "If you can get a breathalyzer to a person", he noted, "you can presumably get a [supervisory] person to the person."

77These views are bolstered by Dr. Kalant, who testified that impairment is observable by supervisors and co-workers alike. Dr. Kalant noted that it is possible that small doses that are sufficient to produce some impairment might escape detection by a casual observer who did not know the person well. "But when you get the level of use which produces impairment", he stated, "it would almost certainly be visible to other people." In the workplace, which involves regular contact with the same group of fellow workers, Dr. Kalant explained that their powers of detection would be comparable to members of an abuser's own family.

78Dr. Shain testified that employee assistance programs ("EAPs"), health promotion programs and peer intervention offer effective alternative mechanisms of detection. He also argued that testing can impede the effective operation of these other programs, deterring abusers from seeking voluntary treatment. This is something which appears to have been considered by Imperial Oil, at least in the early stages of the development of the Policy. Dr. Jonas Kalnas of the Occupational Health Division noted in an inter-office memo in July 1989, that "trust in our employees does not appear to be consistent with a testing program which inherently implies mistrust". Other members of Imperial Oil management have also recognized that the introduction of testing may contribute to adverse consequences. Some of these, specified in internal management documents, include: negative employee relations/industrial relations impact due to implied lack of trust, an indirect negative impact on the services offered to employees through the company's medical division, and a reduction in use of the employee assistance program due to confidentiality concerns.

79Dr. Walsh, who candidly admitted that he is a long-time proponent of drug testing, made light of any such concerns. He testified that employee assistance programs ("EAPs") have failed to work effectively for drug abusers and that supervisors are "not very good gatekeepers". He claimed that in the United States, testing programs have functioned effectively alongside employee assistance and health promotion programs, noting that the latter programs "maintained their therapeutic approach to the problem, whereas the testing program was used to drive folks who normally would not come in through either self-referral or through supervisory referral processes". Barrie Robinson, Operations Manager at the Sarnia Refinery, testified that in his opinion, testing is significantly more effective than supervisory observation. Dr. Katz, the Director of Occupational Health at Imperial Oil, agreed, stating: "It's my opinion that by any standard our EAP is robust. But as far as being able to pick up all the employees who require help, it's not the complete answer." His views were echoed by Dr. Samuel Klarreich, the director of Imperial Oil's EAP for its first ten years:

An EAP is an EAP, it is not a deterrent. Supervisory training is supervisory training, it is not a deterrent. There is also no assurance that supervisory training transfers into the workplace. We can run the best training program we've ever run on constructive confrontation ... and there is no assurance whatsoever that it will be practi[s]ed properly in the workplace ... We need that deterrent [of testing] as well as a helping hand.

(4) EVIDENCE OF DETERRENCE

80Imperial Oil officials were clear that one of the major objectives of the testing component of the Policy is to deter alcohol and drug use. Howard Moyer explained that his goal is to achieve "zero positives" in the random testing program, thus reducing the potential that impairment could affect work performance. Imperial Oil argued that it is justified in implementing a testing program because of its deterrence value alone.

81However, the experts who testified on the issue of deterrence were unanimous in attesting to the difficulties of measuring the real-life impact of programs such as alcohol and drug testing. Dr. Robert Schnatter, the Section Head of Epidemiology, Occupational Health Division, Exxon Biomedical Sciences Inc., was particularly emphatic on this point. He testified that most events are dependent on a host of interrelated factors, and that attempting to identify causality with any degree of certainty is fraught with peril. This is especially true, Dr. Schnatter noted, of studies relating to alcohol and drug use, where the stigma (and legal consequences) associated with substance abuse may inhibit full and accurate reporting of usage. Furthermore, workplaces are not equivalent to scientific laboratories. Often the only data compiled is gathered after the introduction of the new program, preventing any comprehensive "before and after" comparison. Attempting to dissect cause-and-effect analysis is virtually impossible when complex interrelationships exist between a host of distinct causes. Most studies only prove correlation and not causality, falling far short of the causal proof that could be obtained from a randomized double blind control experiment, something which is not practically achievable in this particular field.

82Despite the unanimous agreement on the paucity of definitive research, the parties did attempt to introduce a number of individual studies which have considered the linkages between substance abuse, accidents and testing. Calvina Fay, Executive Director of Houston's Drug-Free Business Initiative, described a study that found companies doing pre-employment and random drug testing in Houston, Texas have experienced a reduction in a worker's compensation claims. Dr. Ross Homel, an Australian criminologist, described the successes achieved by a stringent program of random roadside breathalyzer testing introduced in New South Wales. Dr. Walsh outlined a series of American studies undertaken in industries such as railroad transportation and the postal service which suggest a number of positive effects from workplace drug-testing. Dr. Walsh noted that there are "warts and blemishes" and other "shortcomings" with each of the studies. None of these studies, as the witnesses themselves conceded, offers definitive evidence of causality.

83Barbara Butler conceded in cross-examination that there is "no Canadian study" of which she is aware that has concluded whether drug testing is effective or ineffective. The ILO Inter-Regional Tripartite Experts Meeting on Drug & Alcohol Testing in the Workplace, held in Oslo, Norway in May 1993, heard from American researchers who had reviewed a host of studies and determined that there is "not much scientific evidence supporting the efficacy of [drug] testing". Based on the research presented, the meeting concluded that:

The scientific evidence linking the use of alcohol and drugs to negative consequences in the workplace is equivocal ... The available data do not produce sufficient evidence to show that alcohol and drug testing programmes improve productivity and safety in the workplace.

The 1995 American Management Association Survey, "Workplace Drug Testing and Drug Abuse Policies", concludes: "No finding of AMA's nine-year survey efforts can confirm with statistical certainty that testing deters drug use." A 1994 publication of the National Academy Press agrees, noting (Jacques Normand et al., Under the Influence? Drugs and the American Work Force (Washington, D.C.: National Academy Press, 1994) "Summary: Conclusions and Recommendations" at 10):

Despite beliefs to the contrary, the preventive effects of drug-testing programs have never been adequately demonstrated. Although there are some suggestive data (e.g., [certain studies drawn from] military data ...) that allude to the deterrent effect of employment drug-testing programs, there is as yet no conclusive scientific evidence from properly controlled studies that employment drug-testing programs widely discourage drug use or encourage rehabilitation.

84Additional evidence was introduced to show that the Imperial Oil Policy, in particular, may be ill-designed to promote deterrence. Dr. Homel testified that deterrence depends not on the severity of the penalty, but the perceived risk of detection. Harsh penalties may in fact detract from any potential for deterrence. Asked his opinion of the provision in the Policy which sets out termination for safety-sensitive employees who test positive, Dr. Homel stated: "I would not regard dismissal as an essential part of a deterrent mode ... In fact, the more you ask me about it, the more I think they would be better off without that." As for the discrepancy in penalty between safety-sensitive and designated executive positions who test positive, Dr. Homel concluded that this was "obviously not fair". "If it's widely believed within the workforce that there's one role for the management and one role for the workers ... I think it could lead to resentment and to an undermining of the effectiveness of the program," he explained.

C. The Legal Argument on Testing and "Incapability"

85The Commission argued that the evidence adduced at the hearing warranted a number of findings. First, the prevalence data indicate that neither drug nor alcohol impairment in the workplace is sufficiently common to constitute a significant problem. Second, the evidence shows that there is no accurate and reliable way to measure drug impairment. Third, the disciplinary results which flow from testing indicate that the Policy is significantly over-inclusive in its reach. Individuals who test positive may exhibit no performance detriment on the job whatsoever. Fourth, the evidence is entirely inconclusive as to whether testing is effective in reducing drug use, job accidents or performance problems in the workplace.

86The Commission argued that breathalyzer and urinalysis tests are potentially under-inclusive as well. A severe episodic drinker may have a good likelihood of blowing "clean" when subjected to a random alcohol test, but still pose a substantial risk of impaired work performance at other times. Breathalyzer tests do not catch people coming in to work "hung over", who may show up negative on the breathalyzer but still present serious performance difficulties due to impairment. Barbara Butler's book corroborates this, noting (Butler, Alcohol and Drugs in the Workplace, supra, at 23 and 30):

Alcohol-related negative effects on work performance were more likely to be reported in relation to having a hangover than to use of alcohol during working hours ... [One study done on pilots found] a single episode of moderate to heavy drinking had harmful effects on flight performance many hours after alcohol consumption, even when the BAC had returned to 0.0% ... [Another study] examined the after-effects of alcohol in a simulated industrial work environment. Motion patterns and eye/hand co-ordination were drastically changed, even several hours after BAC's had returned to 0% and subjects were legally sober.

The survey conducted at Imperial Oil reveals that 6 percent of employees reported coming to work with a hangover in the past month, and that the negative effects of coming to work with a hangover are reported more frequently than negative effects from consuming alcohol during regular working hours. Imperial Oil's Policy prohibits coming to work unfit due to the "after effects of alcohol", but depends upon "documented visual observations" from random job performance checks to substantiate violations of this rule.

87Furthermore, as noted by another expert on employee assistance programs: "An employee upset about a recent separation or divorce, depressed about other life changes or simply suffering from the flu, may have impaired performance to the same extent as someone who has abused alcohol or drugs" (see Margaret Coshan, "A Comprehensive Workplace Approach to Substance Abuse: Employee Assistance Programmes and Safety-Sensitive Employees" (1994) 2 Can. Lab. L.J. 391 at 407). Factors such as conflicts at work, fatigue and sleep problems (especially where exacerbated by shift work), stress and other emotional problems can also serve as significant sources of impairment that cannot be detected through testing. In evaluating whether Imperial Oil is justified in implementing testing programs which discriminate against individuals on the basis of "handicap" and "perceived handicap", the Commission stated that one must take account of what other sorts of risks the company is prepared to assume as inherent in the work site. Singling out persons with alcohol and drug disabilities, when other individuals who may pose equal or more serious risk are overlooked, is unjustifiable.

88The Commission claimed that mechanisms other than testing, such as employee assistance programs, health promotion programs, supervisory assessment, peer control programs, comprehensive work rules prohibiting impairment, and constructive confrontation, are all effective in controlling impairment on the job. The Commission argued that programs such as these, which do not discriminate on the basis of "handicap", ought to be utilized instead of testing. In addition, the Commission claimed that discipline (and in some cases automatic discharge) after a positive drug or alcohol test is insufficient accommodation. Instead, cases ought to be considered on an individual basis, and treatment and rehabilitation utilized wherever possible.

89Based on this, the Commission argued that drug testing through urinalysis is not justified in the following circumstances: pre-employment, random, and "post-incident". The Commission conceded that drug testing is permissible "for cause" or during the "certification" process for safety-sensitive positions, but only as one part of a larger inquiry to determine whether the employee has a drug abuse problem. In and of itself, the test does not indicate impairment per se. Similarly, the Commission conceded that testing is permissible "post-reinstatement", but only in the discretion of a physician in the context of monitoring whether remission is successful. The intervener, the Canadian Civil Liberties Association, opposed universal random and pre-employment drug testing, but did not take a position on other forms of drug testing.

90The Commission also challenged the use of random breathalyzer tests as insufficiently related to job performance. The Commission argued that there are alternate, acceptable ways of managing the risks of alcohol impairment, that the respondent had failed to establish proof of deterrence, and that the real issue — whether an employee has an alcohol abuse problem — is not established through a random positive breathalyzer reading. The Commission also argued that breathalyzer tests for "certification" for safety-sensitive positions should be permitted only in the discretion of a physician, in the overall context of determining if alcohol abuse is present. The Commission did not challenge "for cause" and "post-incident" breathalyzer testing, and the intervener took no position on this either. Consequently, this decision will make no ruling concerning the legality of "for cause" and "post-incident" breathalyzer tests.

91In contrast, Imperial Oil pointed out that the alternate mechanisms recommended by the Commission, such as employee assistance programs, health promotion programs, supervisory assessment, peer control programs and constructive confrontation, are already in operation. Imperial Oil argued that the alcohol and drug testing provisions in the Policy constitute an additional and necessary component of a comprehensive effort to ensure the health and safety of employees, the public and the environment.

92This Board agrees that an employer has the right to ensure that its business operations are conducted safely, and a corresponding right to assess whether employees are incapable of performing their essential duties. For safety-sensitive jobs, Imperial Oil also has the right to assess whether its employees are free from impairment on the job, whether caused by alcohol or drug abuse or otherwise. The sticking point in this case, however, is that the evidence is unequivocal that drug testing cannot establish impairment. The respondent conceded as much, and expressly adopts such reasoning itself in the guidelines published pursuant to the Policy, which state: "ADPAG 030-005: It is recognized that a positive post-incident test does not indecently prove that substance use was the ”˜root cause' or a contributing factor in a particular incident."

93Imperial Oil wrestled with the conundrum that testing cannot establish impairment by arguing that it is precisely because of the limits in testing technology that its testing program ought to be endorsed. Testing might not prove impairment, the respondent argued, but a negative test proves with certainty that the person is not under the influence of drugs. Dr. Homel, the Australian expert on drinking and driving, made this point explicitly:

If we had a technology which was like the breathalyzer, which was cheap and could be mass produced, which could be used on the roadside to detect the use of cannabis, I'd have to say I would support its use, even though at the time when someone was tested, they may not have been actually impaired by the substance ... [W]e can't link usage ... directly with impairment, but we do have evidence that cannabis impairs driving ability. So I would use the uncertainty in the physiology and the pharmacology and the technology to support a stricter regime of testing ... because you can't be sure when the impairment has ceased. I wouldn't want people to be driving with measurable amounts in their blood ... provided there is any risk of impairment ... and I guess the same would be true in the workplace ... [G]iven that you can't pinpoint the time of impairment, you've got to adopt a policy of requiring a drug free situation while at work.

94The difficulty with this point of view, however, is that the law places the onus of proof upon the respondent to demonstrate with clear and convincing evidence that the people it disciplines, discharges or refuses to hire on account of a positive urinalysis test are "incapable" of doing the job. The lack of accurate technology available to accomplish this through current testing mechanisms is something which rebounds to the detriment of the respondent, not the Commission.

95Imperial Oil's argument went beyond this, however, in insisting that despite the inability to link testing to impairment in any empirical manner, the company remains justified in utilizing a testing program. The thinking behind this decision is reflected in a memorandum written by Kenneth Smith, of Imperial Oil's Human Resources Department, dated July 17, 1989:

[T]he lack of a clear link between a positive test result and job impairment is fundamentally a technological problem, which should not force us to create/revise guiding principles to accommodate it. Our intent is to focus purely on job impairment, and in the absence of conclusive testing technology we do the best we can with what we have. That means we do test randomly and we do remove those who test positive from designated positions, not because they have committed an illegal act or because they are definitely impaired on the job, but because there is a reasonable apprehension of current impairment or impairment in the future. If and when testing technology allows us to tighten up the link to job impairment, we will do so.

96Dr. Walsh, who testified on behalf of Imperial Oil, explained why, in his opinion, the company is justified in linking past drug use with the "reasonable apprehension" of impairment. He advised that to consider only the pharmacological effects of illicit drugs is "too narrow a focus" and filed as an exhibit this extract from one of his publications (J. Michael Walsh and Stephen C. Yohay, supra, at 22):

The sociopathy (drug seeking, drug dealing, drug using, etc.) associated with drug abuse can have serious adverse effects on job performance, teamwork, cohesiveness of the workforce, and morale. The various legal, financial, ethical, and moral issues that are involved place considerable pressure on the substance abuser. Avoiding detection, generating sufficient funds to purchase drugs, and associating with other substance abusers for support and approval are activities which consume a considerable portion of a substance abuser's day. Given these impulses, drug abuse should be viewed as a kind of "infectious" disorder, in that it can spread rapidly through the workforce by employees who are known to be using drugs, but who appear to the casual observer to be doing well. Indeed, organizations often report that generally, when an individual using drugs is found, the whole unit in which that individual works is involved in drug abuse as well.

97These are the types of stereotypical assumptions that are precisely the kind that human rights legislation is intended to prohibit. The problems Dr. Walsh documents may indeed arise, but it is grossly unfair to assume that all illicit drug users exhibit them. It is entirely improper for an employer to fashion work rules which discriminate against such individuals on the basis of unpredictable risks.

98In Central Alberta Dairy Pool v. Alberta (Human Rights Commission)(1990), 1990 CanLII 76 (SCC), 72 D.L.R. (4th) 417 at 433 [12 C.H.R.R. D/417 at D/433, para. 46], the Supreme Court of Canada noted that "justification of a rule manifesting a group stereotype depends on the validity of the generalization and/or the impossibility of making individualized assessments". In this case, Imperial Oil has failed to establish that drug testing is relevant in determining whether the individual has the capacity to perform the essential components of the job safely, efficiently and reliably. The evidence indicates that the Policy is unfair in authorizing discipline and discharge on the basis of a testing program which is neither fair nor accurate in assessing the capacity of workers to do the job. The respondent has failed to meet its onus of proving "incapability" under s. 17(1).

VI. CONCLUSIONS

99(1) The provision of the respondent's Policy that requires that employees in safety-sensitive positions disclose to management any "substance abuse problems" they have had, whether current or past, is unlawful because the definition of "substance abuse problem" is too broad and unlimited in duration.

100(2) The provisions of the Policy that set out a minimum seven year period between the date of reassignment and potential reinstatement pursuant to such disclosure are unlawful because this length of time is not necessary in all cases.

101(3) The mandatory conditions and undertakings for reinstatement are unlawful since the evidence shows this is more than is necessary in certain instances.

102(4) The provisions of the Policy that provide for pre-employment and random drug testing are unlawful because the respondent failed to prove that a positive test is correlated with impairment. Drug testing which takes place "for cause", "post-incident", upon "certification for safety-sensitive position" and "post-reinstatement" may be permissible, but only if the respondent can establish that the testing is necessary as one facet of a larger process of assessment of drug abuse.

103(5) The provisions of the Policy that provide for random alcohol testing are unlawful because the respondent failed to prove that such screening is reasonably necessary to deter alcohol impairment on the job. Alcohol testing pursuant to "certification" for safety-sensitive positions and "post-reinstatement" may be permissible, but only if the respondent can establish that testing is necessary as one facet of a larger process of assessment of alcohol abuse.

104The remedial powers set out in the Human Rights Code are very broad, and authorize a board of inquiry to direct a party to do anything that, in the opinion of the board a party ought to do to achieve compliance with the act, both in respect of the complaint and in respect of future practices. In cases such as this, where the respondent may need to make substantial revisions to a detailed and lengthy Policy, boards of inquiry should be very careful to exercise their remedial jurisdiction with caution and due regard to the complexity of the task. At this point in the hearing, Imperial Oil has not yet had an opportunity to file detailed legal argument concerning the revisions that may be required in the language of its Policy pursuant to this ruling. The parties should be given an opportunity to consult amongst themselves and attempt to come to some agreement concerning the specific changes to [sic] may be required. This Board will retain jurisdiction to hear fuller argument and to issue a more detailed ruling in the event that the parties are unable to agree upon the requisite revisions within a reasonable time.

105This Board will also retain jurisdiction to hear evidence relating to further allegations made by Mr. Entrop that he has been subjected to additional reprisals in his employment at the respondent's Sarnia Refinery. The parties have agreed that these allegations will be considered as Phase Four, in the final stage of this proceeding.

APPENDIX A: JURISDICTIONAL ISSUES

106From the outset of the hearing, counsel have argued over the scope and extent of the issues raised in Mr. Entrop's complaint. The respondent has conceded that it may be proper for a board of inquiry to consider the whole of the "Alcohol and Drug Policy" under certain circumstances. However, this particular complainant, its counsel argues, is not someone who has standing to challenge the Policy in its entirety. The respondent has argued that Mr. Entrop's specific complaints raise matters that relate solely to the alcohol provisions of the Policy — that Mr. Entrop's concerns involve his past alcohol dependence, his required disclosure under the Policy of this condition, and his removal from and reinstatement to a "safety sensitive" position at the Sarnia Refinery. The respondent has contested this Board's jurisdiction to examine the portions of the Policy which deal with drugs, and with testing for either drugs or alcohol. The respondent has argued that Mr. Entrop does not suffer from a drug dependence, has not been singled out with respect to the testing provisions of the Policy in anyway differently than other employees, and cannot not [sic] challenge the drug or testing provisions under the Code.

107In contrast, the Commission and the complainant have argued that the complaint encompasses an inquiry into the whole of the "Alcohol and Drug Policy", and that this Board should consider whether any or all of its provisions violate the Code. They have argued that the problems Mr. Entrop faces under the Policy go far beyond removal from his position due to a prior alcohol problem. They claim that he is subjected to random drug testing, which creates a serious potential problem due to his use of medication prescribed for a knee condition. They claim that this Board has already found certain portions of the respondent's Policy in violation of the Code, and that s. 41(1)(a) 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." The alcohol and drug provisions in the Policy, they argue, are inextricably linked, and to attempt to sever one portion of the Policy from the rest is an artificial and impossible task. The issues surrounding Mr. Entrop's case, they claim, necessarily spill over to affect the viability of the Policy as a whole.

108In earlier interim decisions, I ruled that there was sufficient evidence before me to embark upon an inquiry into the drug and testing provisions of the Policy, and reserved upon the ultimate question of whether there is sufficient jurisdiction to make findings on these matters. The respondent's application for judicial review of this decision was quashed as premature, and the hearing went ahead, with various witnesses called to testify. After hearing all of the evidence, I have now concluded that this Board does have jurisdiction to make findings about the provisions of the Policy which relate to drugs and testing. Section 39(1) of the Code require that a board of inquiry "determine whether a right of the complaint under this Act has been infringed". The remedial powers set out under s. 41 clearly indicate that a board of inquiry has jurisdiction to consider potential breaches of the Code as well. The evidence indicates that Mr. Entrop suffers from the handicap of a knee condition for which he takes medication which places him at risk of testing positive under the Policy. I can see no rational basis for concluding that the drug provisions and the testing provisions should be artificially severed from the alcohol provisions dealt with in earlier interim rulings. There are no issues of natural justice raised here, since the respondent has had notice from the outset that the Commission intended to challenge the Policy as a whole.

109More specifically, I have reached this conclusion concerning the jurisdiction of this Board of Inquiry on four separate and distinct grounds.

I. PUBLICATION UNDER SECTION 13

110Section 13(1) of the Human Rights Code provides as follows:

13(1) 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 is intended by the person to incite the infringement of a right under Part I.

Counsel for the respondent argued that the words "notice, sign, symbol, emblem, or other similar representation" do not encompass the impugned Policy, but ought to be limited to pictorial or graphic representations, citing Saskatchewan (Human Rights Comm.) v. Engineering Students' Society(1989), 1989 CanLII 286 (SK CA), 10 C.H.R.R. D/5636 (Sask. C.A.), in which the majority of the Court refused to classify a student newspaper as falling within the scope of this phrase.

111As counsel for the Commission pointed out, the dissenting judge in the Saskatchewan case objected to the narrow and restrictive interpretation used by the majority, and argued that a broad and purposive reading of the words would encompass the printed articles in a newspaper. While I prefer the argument of the dissenting judge, I also believe that the Saskatchewan case is distinguishable from the facts at hand, since there the Court had to consider a challenge brought against a newspaper as a whole. The judgment of the majority noted at D/5647 [para. 41313]:

[T]he phrase does not embrace the content, generally, of a newspaper. It certainly includes the publication in a newspaper of a notice, sign, symbol, emblem or other representation having the prohibited effects, but it does not include the content, generally, of a newspaper.

112In this case, what is impugned is far more specific than the general content of a newspaper. When the respondent first implemented its "Alcohol and Drug Policy", the company embarked upon an extensive communication program to ensure that all employees were fully informed about the provisions. The Policy was disseminated in printed booklet format to all members of the Imperial Oil workforce. Further details were posted on company bulletin boards, published in company newspapers and magazines, and announced in company videotapes. Webster's Ninth New Collegiate Dictionary (1989) defines "notice" as a "warning or intimation of something", and as a "written or printed announcement". The posting, printing and dissemination of the Policy constitutes "the publication or display" of a "notice", "before the public", as required under s. 13(1). To the extent that the Policy's drug and alcohol testing provisions contravene the Code, such publication and display announces an intention "to infringe a right" under the statute.

II. REMEDIAL JURISDICTION

113In earlier phases of this hearing, I concluded that in its implementation of the Alcohol and Drug Policy, the respondent had discriminated against Mr. Entrop on the basis of "handicap", constituting a breach of s. 5 of the Code. After reviewing all of the evidence submitted, I have also concluded that certain provisions of the Policy are themselves in violation of the Code. For the reasons set out in the Interim Decision No. 5, supra, it is my view that this Board of Inquiry has jurisdiction to consider whether it is appropriate to make orders concerning the provisions of the Policy that relate to substance abuse matters generally, where such provisions contravene the Code.

III. THE COMPLAINANT'S USE OF THE OPIATE CODEINE

114As set out in the Interim Decision No. 5, supra, Mr. Entrop suffers from a chronic knee condition, the result of a traffic accident some years ago. The pain associated with this condition occasionally requires Mr. Entrop to take medication administered under prescription. The evidence indicates that a physician prescribed "Tylenol-3" for Mr. Entrop, to be taken "one every four hours when required". When this dosage was insufficient to mask the chronic pain, Mr. Entrop complained to his family physician, who advised him verbally to take two tablets at a time. This is not reflected in the written prescription.

115"Tylenol-3" contains codeine, one of the drugs specifically targeted under the "Alcohol and Drug Policy". Indeed, the respondent's "Medical Review Officer ("MRO"), Dr. Barry Kurtzer, testified the "most common positive result" he receives from the laboratory relates to prescription medicines, such as Tylenol-2, Tylenol-3, and 292s. The evidence indicates that codeine may register positive for opiate use even three to five days after ingestion. The Commission argued that the use of this medication creates a risk that drug tests administered to Mr. Entrop at work could register positive for codeine, thus subjecting him to immediate termination.

116The respondent argued that there is no evidence that Mr. Entrop had developed a drug dependence upon pain killing medication, in the sense of exhibiting a "handicap" as defined in the Code. While this is true, it is not determinative of the issue, since the legislation also includes a "perceived" handicap within its scope. To the extent that an employer fears that its employees may be drug dependent, and acts in a discriminatory fashion towards them because of that perception, there may be a violation of the Code. The respondent also asserted that employees would not be disciplined for the authorized use of prescription drugs, and noted that Mr. Entrop has never tested positive for codeine or been disciplined for such.

117Dr. Kurtzer testified that he is obligated under the Policy to contact any individual who tested positive. A telephone interview would be set up to determine whether there is any "medical justification" for the presence of the impugned substance. Where the individual is able to prove that the substance was taken under medical prescription, Dr. Kurtzer testified that he would report back to Imperial Oil that the test result is "negative". Even where the individual is not able to confirm a medical prescription, Dr. Kurtzer explained that in the specific case of opiates, he would investigate further. If a subsequent physical examination by a physician failed to detect "signs or symptoms of substance abuse", Dr. Kurtzer would report the test result as negative. To date, Dr. Kurtzer noted that he has received more than a hundred positive laboratory tests for opiates under the Imperial Oil Policy. After further investigation, including physical examinations of some donors conducted by company physicians, Dr. Kurtzer has never returned a "positive" test result for opiates. While this testimony goes some distance towards allaying fears that Mr. Entrop's use of Tylenol-3 might result in a violation of the Policy, it is not conclusive. The evidence indicates that Mr. Entrop's prescribed dosage is not fixed, and that the Policy prohibits an "intentional misuse" of prescription drugs. In determining whether to report a positive laboratory finding to Imperial Oil, Dr. Kurtzer stated that it is the MRO's role to research proper prescribing patterns and medical usage patterns for medications. Dr. Arnold Katz, the Director of Occupational Health at Imperial Oil, conceded in cross-examination that this entailed a degree of "subjective determination". Although Dr. Kurtzer was less willing to use the adjective "subjective", he has admitted in company health bulletins that his role requires him to "exercise considerable judgment" based on experience. Other company educational literature indicates:

Among today's most misused medications are the opiates such as codeine ... 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 ... Misuse of a prescription drug can also be perpetrated by a prescribing physician.

Under cross-examination, Dr. Kurtzer conceded:

There will always be room for interpretation once it gets outside the straight scientific review of scientific data ... I suppose if you put different MROs in charge of looking at very unusual circumstances ... you could get different responses.

118Given that there is no regularity in the medication regime that Mr. Entrop is following, the MRO's interpretive role is even greater than usual. When coupled with Mr. Entrop's past addiction, he appears to be at additional risk. Mr. Entrop testified that 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 history of alcohol dependency. Mr. Entrop testified that his concerns about testing positive for codeine have caused him to worry about job security and to sign off early from work when his knee is causing sufficient pain to require medication. In addition, under the terms of the Policy, employees in safety-sensitive positions are under an obligation to report the use of specified medications (including those containing codeine) to the company health centre or a supervisor. Consequently, Mr. Entrop is under an obligation to declare his use of Tylenol-3 before he starts work. For all of these reasons, I have concluded that Mr. Entrop's use of the codeine-based medication also provides justification for this Board to consider the provisions of the Policy concerning drugs and random testing.

IV. INCORPORATION OF THE POLICY BY REFERENCE

119As part of Mr. Entrop's reinstatement to his original position as senior operator, he was required to undergo medical screening for alcohol and drug abuse conducted by the company's Occupational Health Division. He was also required to signify his agreement to comply with the Alcohol and Drug Policy. In the Interim Decision No. 5, supra, I held that this undertaking created an "incorporation by reference" of the entire Policy into the conditions of reinstatement specific to Mr. Entrop. I held that "this transformed a case of previous alcohol dependency into a larger case with matters of drug abuse and random testing inextricably linked into Mr. Entrop's reinstatement".

120In final argument, the respondent took issue with this ruling, noting that all employees in safety-sensitive positions at Imperial Oil are required to sign certification forms which stipulate that they agree to be bound by the provisions of the Alcohol and Drug Policy. Mr. Entrop, they argued, is in no different position than any other Imperial Oil employee:

A violation of the Policy which also constitutes a breach of the undertaking will result in no greater ramifications or repercussions than any other breach of the Policy ... The certification form that Mr. Entrop now signs as a safety-sensitive employee is no different in form or content from the certification form signed by every other safety-sensitive employee at Imperial.

121Even if the respondent is correct that the undertaking creates no additional substantive burdens on Mr. Entrop with respect to drug testing, this is not determinative of the jurisdictional analysis. The issue is whether "discrimination" exists in respect of Mr. Entrop, notwithstanding the fact that he may not have been treated differently (in the sense of less favourably) than other employees. The case of Ahluwalia v. Metropolitan Toronto Board of Commissioners of Police (1983), 1983 CanLII 4719 (ON HRT), 4 C.H.R.R. D/1757 (Ont. Bd.Inq.), a complaint of racial harassment in the workplace, addresses this specifically at D/1765 [paras. 15078–80]:

If one argues that the meaning of "discriminate" in s. 4(1)(g) [now s. 5(1)] is restricted to the sense of being treated differently, such conduct, no matter how offensive to reasonable sensibilities, would not be unlawful so long as the offensive conduct was maintained consistently throughout the workplace. This appears to be the logical consequence of the meaning of "discriminate" as used by Chairman Krever in Simms (at p. 18 [Simms v. Ford Canada (June 4, 1970), unreported decision, Ont. Bd.Inq.]). However, there is another meaning of the word "discriminate" which is equally comprehended by the use of that word in s. 4(1)(g) [now s. 5(1)] of the Code. Chairman J.D. McCamus in Bone v. The Hamilton Tiger-Cats Football Club [(August 16, 1979), unreported decision, Ont. Bd.Inq.] stated (at p. 8):

The essence of the concept, I would suggest, is the act of "stereotyping," by which I mean the making of judgments about people on the basis of their membership in a particular group rather than on the basis of their individual merit. An American judge has expressed the point in similar terms: "Discrimination" means the act of making a distinction in favour of or against a person or thing based on the group, class or category to which that person or thing belong rather than on an individual merit. (Courtacy v. The National Cash Register (1970), 262 N.E. 2d 586.)

Given the purpose of the Code as stated in its preamble, Prof. McCamus' meaning to the use of the word "discriminate" in s. 4(1)(g) seems to reflect the legislative intent underlying the provision.

The issue is not whether all employees are equally subjected to a psychologically oppressive or offensive environment, but rather whether the employee or group of employees in question are subjected to a psychologically oppressive environment which is related to race, creed, colour, age, sex, marital status, nationality, ancestry or place of origin.

122I believe that the interpretation of the word "discriminate" utilized in the Bone [Bone v. Hamilton Tiger Cats Football Club (August 16, 1979) (Ont. Bd.Inq.)] and Ahluwalia decisions, supra, is a proper reflection of the legislative intent underlying the Code. It would make a mockery of the provisions purporting to protect employees from discrimination on the basis of "handicap" if employers were free to impose disadvantageous work rules so long as they did so on a universal basis across the entire workforce. Mr. Entrop was required to sign an undertaking to comply with the drug abuse and random testing provisions of the Policy. That all the other employees in safety-sensitive positions are required to sign similar undertakings does not insulate the respondent from a complaint of discrimination by Mr. Entrop.