Ontario Human Rights Commission v. Trus Joist, a Division of Weyerhaeuser, 2006 HRTO 10

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Alan Chornyj

Complainant

-and-

Trus Joist, a Division of Weyerhaeuser and Cathy Argue

Respondents

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: April 27, 2006

Citation: 2006 HRTO 10

Human Rights Tribunal of Ontario 400 University Avenue, 7^th^ Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

APPEARANCES

Ontario Human Rights Commission ) Brian Smith, Counsel Alan Chornyj, Complainant ) on his own behalf Trus Joist a Division of Weyerhaeuser, ) Gita Anand, Counsel Corporate Respondent ) Cathy Argue, Personal Respondent ) )

INTRODUCTION

1This is a complaint brought under the Human Rights Code, R.S.O. 1990, c. H.19 as amended (“the Code”), alleging an infringement of sections 5(1) and 9. The Complaint was filed on or about May 29, 2003 and was referred to the Human Rights Tribunal of Ontario (“the Tribunal”) on June 16, 2005. The case involves a challenge to a pre-employment drug testing policy and an allegation that a job offer made to the Complainant was improperly withdrawn as a result of a positive drug test.

2Subsequent to the Complaint being referred to the Tribunal, in accordance with the Tribunal’s Rules of Practice, July 2004 (“the Rules”), the Commission and the Respondents each filed pleadings. The Complainant indicated that he was content to rely on the pleadings filed by the Commission.

3In their pleadings, the Respondents raised a number of preliminary issues and indicated that they intended to bring a Motion addressing those issues. In consultation with the parties, the Tribunal set January 17, 2006 for an oral hearing of the Motion to be held in Sault Ste. Marie.

4In their written submissions filed for the January 17, 2006 Motion, the Respondents set out the issues they were advancing and the relief being sought. First, the Respondents argued that the Tribunal was without jurisdiction over the subject matter of the Complaint and therefore should dismiss the Complaint without a hearing on the merits. Second, the Respondents submitted that the Personal Respondent, Ms. Cathy Argue, should be removed as a responding party to the proceedings. (Ms. Argue was a management employee of the Corporate Respondent with human resources responsibilities). Third, the Respondents submitted that if the Tribunal did not dismiss the Complaint in its entirety, it should restrict the scope of the inquiry to a review of the Corporate Respondent’s pre-employment testing policy, solely as it relates to marijuana.

5At the commencement of the hearing on January 17, 2006, the Commission also raised a preliminary issue, asking that the name of the Corporate Respondent be amended.

6Following a brief discussion, the parties were able to reach agreement on two of the issues before the Tribunal.

Amendment of the Name of the Corporate Respondent

7Counsel for the Commission advised that an inadvertent error had been made in the name of the Corporate Respondent in the original Complaint. The parties agreed to an amendment. The correct name of the Corporate Respondent is and shall be amended to read: Weyerhaeuser Company Limited, c.o.b. as Trus Joist.

The Removal of the Personal Respondent Cathy Argue

8The parties advised the Tribunal that they had agreed to remove Ms. Cathy Argue as a Respondent, on certain terms and wished to have that agreement incorporated into an Order of the Tribunal.

9The parties’ agreement is as follows:

a) The Respondents agree that, within the meaning of subsection 45(1) of the Code:

i) Ms. Argue was, at all material times, an "employee" of the Corporate Respondent.

ii) every act or thing done or omitted to be done by Ms. Argue in her dealings with Mr. Chornyj was done or omitted to be done in the course of her employment

iii) any act or thing done or omitted to be done by Ms. Argue in the course of her employment shall be deemed to be an act or thing done or omitted to be done by Weyerhaeuser

b) Weyerhaeuser agrees that it will be responsible for any compensation or other remedy that the Tribunal may order arising out of any of Ms. Argue's conduct.

c) The Respondents agree that Ms. Argue has had notice of these proceedings.

10Having regard to the agreement of the parties, the Tribunal orders that Ms. Argue be removed as a Respondent in these proceedings, on the terms set out above.

BACKGROUND

11The Respondent owns and operates a wood manufacturing facility in Kenora, Ontario. It is not disputed that the Complainant had applied for a position as a maintenance associate, had been interviewed for that position, and by letter dated November 5, 2002, was offered the position with a start date of November 12, 2002. It is also not disputed that the position offered to the Complainant was deemed by the Respondent to be a “Safety Sensitive Position.”

12The November 5, 2002 letter of offer advised the Complainant that “prior to your start date we need you to complete the following procedures.” Those “procedures” included a requirement that the Complainant undergo a pre-employment medical examination, which included a drug screening test, as well as an audiology test and a criminal record check.

13The letter of offer also required the Complainant to read an attached document entitled “Weyerhaeuser Health and Safety Standard – Substance Abuse” (the “Standard” or the “policy”) and sign an acknowledgment and consent form. The acknowledgement and consent form, which was “Schedule A” to the Standard, read in part:

As with all other employees at Weyerhaeuser ("the Company"), I understand that I am governed by this standard and that I may be required to submit to a For Cause, Post Accident, Return to Duty or Follow Up drug and alcohol test in the circumstances described in the standard….

In addition to the above, it is further recognized that if I have been offered a Safety Sensitive Position (either as a new hire or by way of a transfer from within the Company) that I will be required to undergo a Safety Certification test before I can commence Safety Sensitive duties. As well, I understand that I must be free from the effects of alcohol and all drugs which may impair my motor or mental skills at such time as I report for duty. Furthermore, I understand and agree that if I am working in a Safety Sensitive Position that I must not drink any alcohol within eight (8) hours prior to reporting for or returning to duty.

14The Complainant complied with the various requests, including the pre- employment medical and the drug screening test.

15On November 11, 2002 the Complainant received a phone call from Ms. Argue requesting that he call the testing lab where the drug test had been done and then call her back. He called the lab as instructed, and was informed that he had tested positive for marijuana. He then called Ms. Argue.

16There is a dispute between the parties as to what was actually said during this telephone conversation between Mr. Chornyj and Ms. Argue.

17The Complainant alleges that when Ms. Argue asked him if he smoked marijuana, he initially hesitated, then admitted that he had been an occasional user. He alleges that Ms. Argue then told him that he would not be permitted to start work on November 12, 2002 as originally planned. It is not disputed that the offer of employment was ultimately withdrawn by the Respondent.

POSITION OF THE PARTIES

18The Respondent alleges that it withdrew the offer of employment not because of the positive drug test, but because the Complainant lied about his use of marijuana. The Respondent submits that termination of employment (or withdrawal of a job offer) because of dishonesty is not a violation of the Code and therefore the Tribunal lacks jurisdiction over the subject matter of the Complaint.

19The Complainant and the Commission dispute the asserted rationale for the withdrawal of the employment offer. They allege that the decision of the Respondent was based, in whole or in part, on the positive drug test. They also submit that the Standard was contrary to the Code and the requirement of the Respondent that the Complainant submit to its terms is itself a violation of the Code. They submit that the material facts set out in the Complaint and the pleadings, if assumed to be true, are sufficient to establish a case of discrimination on the ground of perceived disability. Alternatively they say, it would be open to the Tribunal after considering the evidence, to infer that the decision to withdraw the job offer was tainted by a discriminatory reason.

20On the issue of the proper scope of the inquiry before the Tribunal, the Respondent asserts, based on the reasoning in Entrop v. Imperial Oil Ltd., 2000 CanLII 16800 (ON CA), 37 C.H.R.R. D/481 (Ont. C.A.), any challenge to the Respondent’s Standard should be restricted to pre-employment drug testing as it relates to marijuana.

21As will be noted below, after hearing the Commission’s oral submissions, it does not appear that the parties are in significant disagreement on this latter issue.

ISSUES

22The issues remaining to be decided are as follows:

1. Does the Tribunal lack jurisdiction to deal with this Complaint and as a result, should the Complaint be dismissed without a hearing on the merits?

2. Should the Tribunal restrict the scope of the hearing to only the marijuana elements of the Respondent's pre-employment drug testing policy?

DECISION AND REASONS

General Legal Principles

23After careful consideration of the submissions of the parties, for the reasons set out below, I have decided that the Motion should be dismissed.

24In considering a motion to dismiss a case without a hearing, or to strike pleadings, or to otherwise narrow the inquiry into a complaint, it is important to bear in mind certain fundamental and well established principles of human rights law. Human rights tribunals and the Courts have long recognized the special “quasi-constitutional” status of human rights legislation. The Code must be interpreted and applied in a large, liberal and purposive manner. The approach to human rights adjudication should never be overly legalistic and technical, but rather should enhance accessibility and ensure that determinations are made on the true merits of the case. As the Court said in Action Travail des Femmes v. Canadian National Railway Co., [1987] 1.S.C.R. 1114, “[w]e should not search for ways and means to minimize those rights and to enfeeble their proper impact (at 1134). (See also: Ontario Human Rights Commission et al. v. Simpsons-Sears Ltd. (O’Malley) 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, at 546-547; Toneguzzo v. Kimberly Clark, 2005 HRTO 45)

25It has been said that for a Respondent to succeed in having a complaint dismissed without a hearing, it must be “plain and obvious” that the complaint will fail. The Honourable Mr. Justice Peter Cory, sitting as a panel of this Tribunal noted that the usual standard applied in civil proceedings for dismissal without a hearing, ought to be even more rigorous in human rights cases:

A stringent test must be met if this motion is to succeed. That is to say, it must be “plain and obvious” that the Coroners Act is consistent with the Code and the Complainants are certain to fail. See Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263 at para. 15. It is indeed appropriate that this stringent test be applied to proceedings taken pursuant to the Human Rights Code which are frequently taken by individuals seeking to have their basic rights recognized and enforced…. (Braithwaite v. Ontario (Chief Coroner), [2005] HRTO 31 at para. 13)

26He went on to say that the form and sufficiency of pleadings in a human rights case should not be scrutinized in the same manner as in civil proceedings. Rather, “complainants should simply be required to meet standards of basic fairness” (See: Braithwaite, supra at para 14. See also: Toneguzzo, supra).

27In my view, these general principles are applicable in addressing both issues raised in this Motion.

Issue 1

28In its Notice of Motion, the Respondent set out the grounds for its request that the Complaint be dismissed as follows:

[T]he Respondents submit that the Tribunal lacks the jurisdiction to hear and determine this complaint for the following reasons:

a) Marijuana use, without evidence of disability, is not a protected ground under the Code;

b) The complaint asserts, but provides no factual foundation for asserting, that the Respondents perceived the Complainant to be suffering from a disability or perceived disability;

c) As the Code does not protect or create any right to lie, the Commission’s jurisdiction does not extend to dismissal because of lying.

29While the Respondent has advanced three grounds in support of its position that the Tribunal lacks jurisdiction to hear and determine this matter, with respect, I am of the view that only ground “c” truly raises a jurisdictional question. Grounds “a” and “b” raise questions of law and/or sufficiency of pleadings. The question there is not one of jurisdiction, but rather whether the Tribunal ought to dismiss the Complaint without a hearing on the merits because there is no prima facie case to be met – that is even if all of the material facts alleged by the Commission and the Complainant are assumed to be true, no violation of the Code is made out.

30Dealing first with ground “c”, the Respondent is correct that the Code does not create or protect a right to lie, and the Tribunal has no jurisdiction over a Complaint that asserts that a person was dismissed from employment because he or she lied. However, the Complaint does not assert that the Respondent dismissed the Complainant because he lied. The Complaint alleges that the Respondent withdrew the offer of employment on the basis of a perceived disability. The original Complaint and the Commission’s pleadings also allege that the Standard which was imposed upon the Complainant constituted discrimination in employment on the grounds of disability and/or perceived disability.

31Employment is a social area covered by the Code. Disability (which includes perceived disability) is a ground of discrimination covered by the Code. The subject matter of the Complaint falls within the jurisdiction of the Code and the Tribunal.

32It is true that the Respondent’s position, and one of its defences is that it withdrew the job offer because of dishonesty. There is an obvious and critical factual dispute between the parties. It is an issue that will have to be determined by the Tribunal after hearing the testimony of witnesses and a consideration of relevant documentary evidence. It is not appropriate to dismiss the Complaint without a hearing on the merits on the basis of ground “c”.

33Turning next to Ground “a”, the Respondent submits that marijuana use, without evidence of disability, is not a protected ground of discrimination under the Code. It relies on Entrop, supra; Chiasson v. Kellogg, Brown & Root (Canada) Company, June 7, 2005, Board File No. 2002/10/0224 (Alta. H.R.C.); Milazzo v. Autocar Connaisseur Inc., [2003] C.H.R.T. 37.

34Without limiting the positions of the parties, it appears to the Tribunal that the essence of this case is the allegation that the pre-employment drug testing policy (and more generally the entire Standard) violates the Code on the basis of disability and perceived disability. Further, and as a consequence, it is alleged that the requirement placed on the Complainant to submit to the provisions of the policy was in violation of the Code. Finally, it is alleged that the withdrawal of the job offer constituted discrimination on the grounds of perceived disability.

35The Complainant does not assert that he suffers from substance abuse or that he is disabled. Whether that is fatal to all or any part of the Complaint is a legal question to be determined after hearing the parties evidence and argument. It is not “plain and obvious” that the Complaint will fail. It is not appropriate to dismiss the Complaint without a hearing on this ground.

36Turning finally to ground “b”, the Respondent submits that the Complaint should be dismissed without a hearing on the merits because the Complaint does not provide sufficient factual foundation for the assertion that the Respondent perceived the Complainant to have a disability. There are a number of reasons why this ground is not sufficient to warrant the dismissal of the Complaint without a hearing.

37First, the Respondent’s view of the purpose of a human rights complaint is not consistent with Tribunal and Court jurisprudence. A human rights complaint is not in the nature of a criminal indictment. It is a general notice to a respondent of a proceeding that has been commenced. The complaint form need not set out each and every material fact upon which the complainant or the Commission will rely. (See: Cousens v. Canadian Nurses Assn. (1981), 1981 CanLII 4331 (ON HRT), 2 C.H.R.R. D/365 (Ont. Bd. Inq.); Smith v. Mardana Ltd. (No. 2) (2002), 2002 CanLII 46512 (ON HRT), 44 C.H.R.R. D/142 at para. 26 (Ont. Bd. Inq.), (varied on other grounds: (2005), CHRR Doc. 05-434 (Ont. Div. Ct.)); Toneguzzo, supra.

38The Respondent’s position is also inconsistent with the general approach to be taken in human rights adjudications (as discussed above). In seeking to dismiss this Complaint on the basis of insufficient detail in the self-drafted Complaint, the Respondent takes an approach which is overly technical and in my view inappropriate given the objects of the Code. I again refer to the words of Mr. Justice Cory in Braithwaite, supra, where he wrote at para 14:

…Those taking steps pursuant to the Code are often of limited means and members of the most vulnerable groups in our society. It is neither necessary nor appropriate to subject the procedure taken under the Code to the same scrutiny as that applied to pleadings exchanged in complex civil actions. Rather, complainants should simply be required to meet standards of basic fairness.… (Emphasis added)

39Second, this Complaint is not solely about the decision by the Respondent to withdraw the job offer made to the Complainant. It includes a challenge to the Standard and the requirement placed on the Complainant to submit to that Standard. The Commission asserts that the provisions of the Standard themselves constitute discrimination on the ground of perceived disability. Likewise, the application of the Standard to the Complainant in the circumstances of this case is claimed to constitute discrimination on the basis of perceived disability. Without in anyway ruling on the merits of the Commission’s assertions, there are sufficient facts pleaded to support these claims. Indeed, while the characterization and legal effect is hotly disputed, the actual evidence with respect to this aspect of the case (the Standard, the requirement to submit to the Standard) is not particularly in dispute.

40Third, it is true that the Complainant does not have “direct evidence” to show that the Respondent perceived him to be disabled. He does not allege, for example, that Ms. Argue said to him “Alan, I believe that you are a substance abuser, and I will not hire you.” This however is not fatal to the Complaint. It is not uncommon in human rights complaints that the complainant does not have direct evidence of discrimination. As was noted in Basi v. Canadian National Railway Co. (No.1) (1988), 1988 CanLII 108 (CHRT), 9 C.H.R.R. D/5029 (C.H.R.T.), at para. 38481, “Discrimination is not a practice which one would expect to see displayed overtly.” (See also: Canada (Attorney General) v. Grover (No. 1)(1992), 1992 CanLII 629 (CHRT), 18 C.H.R.R. D/1 (C.H.R.T.), upheld at (1994), 1994 CanLII 18487 (FC), 24 C.H.R.R. D/390 (F.C.T.D.))

41In a typical human rights case, the Commission and the complainant will lead evidence to establish a prima facie case of discrimination. The onus then shifts to the respondent to provide a non-discriminatory explanation for its actions. The onus then shifts back to the Commission and complainant to prove that the explanation is pretexual, that the real reason for the impugned action was tainted by discrimination. (See: O’Malley, supra)

42The Respondent submits that it is insufficient for the Commission or the Complainant to merely raise the possibility that the Respondent perceived the Complainant to be disabled. In this regard it relies on Ericson v. Collagen Canada Ltd., (1999), CHRR Doc. 99-050 (B.C.H.R.T.).

43Significantly, the Ericson case relied on by the Respondent was a decision of the B.C. Human Rights Tribunal made after a hearing on the merits, not on a preliminary motion to dismiss. In reaching its decision, the Tribunal said (at para 87):

The onus is on the Complainant to prove her allegations on a balance of probabilities, even in the absence of testimony from Mr. Berchtold. Her allegation that Mr. Berchtold perceived her to have a physical disability is based on her speculation about what went on in his mind. To prove her allegation, she must present evidence from which I can draw an inference that, on a balance of probabilities, Mr. Berchtold did, indeed, perceive her to have a physical disability. It is not sufficient for the Complainant merely to raise as a possibility that he so perceived her. [Emphasis Added]

44I agree with the approach of the adjudicator in the Ericson case. It recognizes that adjudicators are entitled to draw inferences about discriminatory motive or intent, and need not have direct evidence of such motive or intent. It recognizes that adjudicators will have to carefully consider all of the evidence in a hearing to determine whether, on a balance of probabilities, a violation of the Code has been established. It is entirely consistent with the general approach to human rights adjudication I have discussed earlier.

45In my view, neither the Ericson case, nor any other authority provided by the Respondent supports dismissing a complaint without a hearing simply because the complaint does not assert direct evidence of each element of the Code violation alleged.

ISSUE 2

46The Respondent takes the position that the present inquiry should be restricted to pre-employment drug testing only as it relates to marijuana. It asserts that any broader inquiry would be an improper expansion of the subject matter of the Complaint.

47During its oral submissions, the Commission confirmed that (in these proceedings) it was challenging the Respondent’s substance abuse Standard solely as it related to safety sensitive positions, and in pre-employment situations. It appears therefore that the parties are not far apart on this issue.

48The Respondent argues that the “non-marijuana elements” of the policy never formed part of the “factual underpinnings” of the Complaint. It relies on the decision in Entrop, supra, to argue that if the Tribunal were to consider the Standard as it relates to other drugs, that would constitute an improper expansion of the Complaint.

49I disagree with the Respondent’s position. The “factual underpinnings” of this case are that the Complainant was offered employment, and as a condition of employment was required to submit to drug testing, which he did. He had to read and agree to be bound to the Standard, which he did. I can see how there is no “factual underpinning” for a challenge to the Standard as it relates to non safety sensitive positions, to alcohol testing, to for cause, post accident, return to work or other kinds of drug testing. Mr. Chornyj was not subjected to those aspects of the policy. But he was subjected to pre-employment drug testing for safety sensitive positions. It is not evident that the Standard makes a material distinction between marijuana and other types of drugs. I was not directed to a “marijuana element” in the Standard. It is not clear how the Tribunal could separate the “marijuana element” as suggested by the Respondent.

50The Commission argued that Entrop supports an inquiry into all aspects of the pre-employment drug testing policy, rather than a restriction. I agree. The Court of Appeal in Entrop rejected the decision of the Tribunal to expand the Complaint to include all aspects of Imperial Oil’s alcohol and drug testing policy, where the Complainant was only identified as having an alcohol related disability. The Court however affirmed the propriety of expanding the inquiry to examine all aspects of the alcohol testing program, notwithstanding that had not been part of the original subject matter of the Complaint.

51Also, of particular concern to the Court was that the decision to expand the inquiry was made several years after the hearing on the merits had commenced.

52This situation is entirely different. There is no improper attempt to expand the Complaint. Indeed, I find that the issue as framed by the Commission falls squarely within the “subject matter of the Complaint” as those words are used in Section 39 of the Code.

53It will of course be open to the Respondent to lead evidence and argue that there is a relevant and material distinction to be drawn between marijuana and other drugs, and how the Standard distinguishes between the two. It will also be open to the Respondent to argue, if liability for a breach of the Code is ultimately found, that the Tribunal should restrict any Order to only marijuana testing, or to otherwise make a distinction when fashioning its remedy.

54For all of the reasons set out above, except for the removal of Ms. Argue as Respondent on agreed upon terms, and the amendment of the name of the Respondent, the Motion is dismissed.

55I am not seized of this matter.