Ontario Human Rights Commission v. Weyerhaeuser Company Limited, 2006 HRTO 23

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Alan Chornyj

Complainant

-and-

Weyerhaeuser Company Limited, c.o.b. as Trus Joist

Respondent

INTERIM DECISION

Adjudicator: Ian Anderson

Date: August 22, 2006

Citation: 2006 HRTO 23

Human Rights Tribunal of Ontario 400 University Avenue, 7th 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

INTRODUCTION

1This case involves a challenge to a pre-employment drug testing policy (hereafter the “Standard”) of the Respondent Weyerhaeuser Company Limited c.o.b. as TrusJoist (hereafter “Weyerhaeuser”) and an allegation that a job offer by Weyerhaeuser made to the complainant was improperly withdrawn as a result of a positive drug test.

2Pursuant to the schedule agreed to by the parties during a Pre-Hearing Conference Call held on June 20, 2006, the Commission sought production of certain documents from Weyerhaeuser. Weyerhaeuser agreed to produce some of the documents but resisted production of others. Specifically, Weyerhaeuser resists production of:

a. Documents showing the number of safety certification drug tests that have been administered under the Standard since its inception, for persons hired for Canadian positions outside Ontario and the number of those tests that have come back positive for controlled substances. (It has agreed to produce similar documents for positions inside Ontario.)

b. Documents, whether from the respondent’s Safety and Health Information Management System (SHIMS) or otherwise, containing information with respect to workplace incidents where drug use or abuse by an employee or contractor caused or contributed to the incident, at Canadian locations outside Ontario, for the entire period since the Standard was adopted. (It has agreed to produce similar documents for locations inside Ontario.)

c. Documents, whether from the respondent’s Safety and Health Information Management System (SHIMS) or otherwise, containing information with respect to workplace incidents where drug use or abuse by an employee or contractor caused or contributed to the incident, whether at the Kenora TrusJoist facility or elsewhere in Canada, for the ten years prior to the adoption of the Standard. (As noted, it has agreed to produce similar documents for locations inside Ontario since the Standard was adopted.)

3This decision addresses these production issues.

4In its letter of July 14, 2006, Weyerhaeuser objected to the production of documents that relate to positions and incidents outside Ontario on the grounds that the Tribunal’s scope of inquiry is limited to workplaces in Ontario. It objected to producing documents with respect to drug-related workplace incidents in the ten years before the Standard on the ground that it is too broad an inquiry and they are not relevant to these proceedings.

5By letter dated July 24, 2006, Commission maintained its request for production of these documents and filed submissions in support.

6By letter dated July 27, 2006, Weyerhaeuser filed submissions in response. Weyerhaeuser indicated that on July 26, 2006 it was informed that its application for judicial review of the Tribunal’s interim decision dated April 27, 2006 has been scheduled on October 11, 2006. Weyerhaeuser took the position that any documentary disclosure or any other procedural determination by the Tribunal should be held in abeyance pending the outcome of the Divisional Court proceeding. In the alternative, it took the position that in the absence of proof of prima facie discrimination (which it does not concede), the issue of whether the Standard is a bona fide occupational requirement (“BFOR”) does not arise. Weyerhaeuser asserts that at this stage the Commission has not established discrimination; rather discrimination is merely alleged without any factual foundation. Weyerhaeuser argues that only once the Commission has proved discrimination should the requested documents be produced, if relevant.

7This Tribunal (differently constituted) has already rejected Weyerhaeuser’s argument that the complaint fails to disclose any factual foundation for discrimination. Indeed that is one of the issues addressed in the Tribunal’s decision of April 27, 2006 which Weyerhaeuser seeks to have judicially reviewed. In the circumstances, I do not propose to address this issue further.

8The hearing on the merits in this matter is scheduled to commence on October 16, 2006. The parties have advised the Tribunal that they anticipate approximately twenty hearing days will be required. Nineteen hearing dates have been set between October 16, 2006 and February 2, 2007, in consultation with the parties. Both the Commission and Weyerhaeuser have indicated that they anticipate calling several expert witnesses to comment on the Standard. In recognition of this, Weyerhaeuser was directed to produce all documents which it agreed to produce, or was ordered by the Tribunal to produce, no later than September 5, 2006.

9In the ordinary course, a hearing on the merits would address all issues in dispute between the parties at the same time. That is, the Commission and Complainant would lead all of their evidence with respect to all issues in dispute, the Respondent would lead all of their evidence in response, and the Commission and the Complainant would then lead any evidence in reply. This approach is consistent with the goal of securing the just, most expeditious and cost-effective determination of the proceeding on the merits: see section 2 of the Statutory Powers Procedures Act (hereafter “SPPA”). No reason has been advanced by Weyerhaeuser as to why the Tribunal should depart from that procedure in this case, and I see no reason to do so.

10While Weyerhaeuser has requested only that any documentary disclosure or any other procedural determination by the Tribunal should be held in abeyance pending the outcome of its application for judicial review to the Divisional Court, the practical effect of this is to require a stay of the entire proceedings. Unlike an appeal, an application for judicial review does not automatically operate to stay proceedings before the Tribunal: see section 25 of the SPPA and Rule 74 of the Tribunal’s Rules of Practice, 2004. As a matter of discretion, the Tribunal may decide to stay its proceedings upon an application for judicial review. Such a stay, however, is an extraordinary remedy: Brillinger v. Brockie [1999] OHRBID No. 6. The materials submitted by Weyerhaeuser do not provide a basis on which the Tribunal would grant such a stay. Apart from anything else, there is no basis on which the Tribunal could conclude that Weyerhaeuser would experience irreparable harm if these proceedings were not stayed. I am not, therefore, prepared to accede to this argument of Weyerhaeuser which would have the practical effect of staying these proceedings pending the outcome of its application for judicial review.

11In its letter of July 27, 2006, Weyerhaeuser disputes the Commission’s contention that documents showing the number of safety certification drug tests performed since the adoption of the Standard and the number of positive results are arguably relevant to the question of whether the testing is reasonably necessary. Weyerhaeuser contends that the number of positive tests is “not determinative” of whether the introduction of the Standard was reasonably necessary. Further, it states that it is “arguable” that the Standard has deterred employees who previously used prohibited substances, so that test results since the introduction of the Standard cannot be used to assess the necessity of the Standard in the first place.

12In that letter, Weyerhaeuser also contends that the impact of the Standard on the number of workplace accidents since the introduction of the Standard is a matter of “sheer speculation”.

13It is worth noting that in its letter of July 14, 2006, Weyerhaeuser agreed to produce both the documents in relation to testing and in relation to the number of workplace accidents since the introduction of the Standard, in so far as they related to locations in Ontario. In any event, Weyerhaeuser’s submissions amount to arguments that that the documents are arguably not relevant or are of limited probative value. This is not the same as an argument that the documents are not arguably relevant, which is the test for production of documents.

14As Weyerhaeuser acknowledges, if prima facie discrimination is proved, then the burden will shift to it to establish that compliance with the Standard is a BFOR. Among other things, this will require Weyerhaeuser to prove that the Standard has a purpose rationally connected to job performance and that the provisions of the Standard are reasonably necessary to accomplish that purpose.

15The Commission’s position is that it is arguable that the lower the number of positive results, the less likely the pre-employment testing is reasonably necessary and that it is arguable that if the frequency of workplace accidents has stayed the same or increased since the implementation, the Standard is less likely to be reasonably necessary. These are not untenable propositions and they would be difficult, if not impossible, to explore in the absence of the information encompassed by its production request.

16This leaves the question of whether the scope (10 years) and the breadth (all of Weyerhaeuser’s Canadian operations, not only its operations in Ontario) of the Commission’s production request are overly broad.

17I accept Weyerhaeuser’s assertion that the scope of the Tribunal’s inquiry, and its remedial authority, is limited to workplaces in Ontario. In my view, however, it does not follow that it is beyond the jurisdiction of the Tribunal to hear evidence with respect to experience in workplaces outside of Ontario. If such evidence is probative, it is not apparent why the Tribunal would refuse to hear it. It would, for example, be odd indeed if a medical expert giving evidence on a particular medical condition was required to base his or her opinion solely on studies of patients who lived in Ontario. Equally, I see no a priori basis for concluding evidence of Weyerhaeuser’s experience before and since the application of the Standard in its operations outside Ontario is not arguably relevant to its experience in Ontario. It appears that it applies the same Standard to its operations across Canada. Further, it appears that Weyerhaeuser’s experience outside of Ontario may have formed part of the basis on which it adopted the Standard in the first place.

18Weyerhaeuser argues simply that accident and injury information that is 10 years old is irrelevant to whether the Standard was reasonably necessary. It does not assert that production of such information would cause it undue hardship. For the reasons stated above, in my view this information is arguably relevant. In the absence of an assertion of undue hardship or some suggestion that the information is not available, I see no reason not to order it produced.

19Accordingly, in addition to the documents which it agreed to voluntarily produce by its letter dated July 14, 2006, I order Weyerhaeuser to produce to the Commission on or before September 5, 2006:

a) Documents showing the number of safety certification drug tests that have been administered under the Standard since its inception, for persons hired for Canadian positions outside Ontario and the number of those tests that have come back positive for controlled substances