HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mike Khoury Applicant
-and-
Scott Strang Applicant
-and-
AMEC Americas Ltd. Respondent
INTERIM DECISION
Adjudicator: David Muir Date: September 3, 2013 Citation: 2013 HRTO 1481 Indexed as: Khoury and Strang v. AMEC Americas Ltd.
APPEARANCES
Mike Khoury, Applicant Yu-Sung Soh, Counsel
Scott Strang, Applicant Eli Gedalof, Counsel
AMEC America Ltd, Respondent(s) Daniel Fogel, Counsel
Introduction
1These are two Applications filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of disability.
2On its own initiative the Tribunal directed that a Summary Hearing be held to determine whether Tribunal File 2013-12748-I (the" Khoury Application") should be dismissed because it had no reasonable prospect of success.
3In a Case Assessment Direction issued by the Tribunal on March 28, 2013 the Tribunal directed that the Khoury Application be scheduled with another case raising similar issues (Tribunal file 2012-12482-I – the "Strang Application")
4A summary hearing was held by telephone conference call on May 23, 2013. The respondent and applicants attended by counsel. The employer of the applicant Khoury attended as well on a watching brief.
5In my view, having reviewed the materials filed and the parties' submissions I am unable to conclude at this stage that these Applications should be dismissed because they have no reasonable prospect of success. The Tribunal's Rule 19A.4 provides that where such a request is denied the Tribunal need not release reasons, however in the circumstances the following comments are appropriate.
6The dispute in this case arises from the application of the respondent's Drug & Alcohol – Fit for Work policy )the "Policy") which requires that everyone on the work site be "fit for duty" . The Policy is a comprehensive attempt to ensure the health and safety of everyone who enters the work site including visitors. It provides for mandatory alcohol and drug testing in certain circumstances. The refusal or failure of a person to take a drug or alcohol test under the Policy requires that person's site privileges being revoked which as a practical matter requires the individual's removal from the work site. The Policy itself is not in issue however it is the manner in which it was implemented or applied in these two cases that has given rise to the applicant's complaints.
7The applicant Khoury was employed by a contractor, Blais, on the respondent's Detour Lake worksite. He is an electrician and overhead crane operator. He arrived on the site on July 11, 2012. On July 20, 2012 he returned to his room after his shift and observed that it appeared to have been searched. The applicant's allegations continue as follows:
At around 8 am, representatives of the respondent and Blais, a number of security guards, and a Union steward visited the applicant's room. A representative of the respondent notified the applicant that they suspected he had drugs in his room. The applicant immediately denied that he had any drugs in his possession.
One of the personnel asked if they could search the applicant's room. The applicant agreed but before the security personnel entered the room to begin their search, a representative of the respondent stopped them and requested that the applicant submit to a drug test.
The applicant questioned the basis on which he would be subject to such a test and reiterated his willingness to permit the security personnel to search his room. In response the respondent's representative asked the applicant if he was refusing to take the drug test.
The applicant then admitted that he had consumed marijauana prior to his arrival at the Detour Project on his own personal time. As a result, he suggested that it would be pointless to take the drug test, as his urine would likely reveal evidence of marijuana consumption. However he had not consumed any drugs on site and had not been impaired at any time while on site.
8Khoury alleges that he was promptly informed that his site privileges were revoked and that his luggage would be searched before his departure from the site and effectively the termination of his employment.
9In his Application the applicant Strang describes the background facts as follows. He began his return to work on the Detour Lake site at some unspecified time on Sunday Jan 22, 2012. He drove to Temgami where he met another worker, St. J who was driving a vehicle owner by their employer, The two continued to Cochrane in separate vehicles arriving at 11:00 p.m.. The applicant parked his vehicle and the two men continued to together in their employer's vehicle driven by St. J:
At around 1:00 a.m. on January 23, 2012, approximately 15 km from the Detour campsite, the TESC truck caught a snow bank on the shoulder of the road and became stuck in the ditch. St. Jacques made an attempt to contact security at the Detour Project by cell phone but there was no reception. The two employees checked the vehicle for damage, cleared snow away from the vehicle so that it would not overheat, and waited in the vehicle for several hours.
Finally, at 5:30 am on January 23, 2012, a snowplow came by. The snowplow driver called Detour Project security on behalf of Strang and St. Jacques. Security arrived and the two employees were driven to the Detour Project site.
At the Detour Project site, Strang and St. Jacques were taken to the medical office to be examined. Neither employee suffered any injuries and the TESC vehicle was also undamaged. Nonetheless, both employees were told by site personnel that they were required to undergo drug and alcohol testing under AMEC's drug and alcohol policy ("the Policy").
Strang was subsequently taken by AMEC managers to a truck where he was detained for around 3.5 hours without access to food, despite not having eaten since the night before.
Strang contacted Emile Hamelin, his Union representative, and explained the situation. Strang felt that he should not be required to take the test because he was only a passenger in the vehicle. Hamelin agreed. Further, the Union was not previously aware of the Policy, had never received any documents related to the policy, and had never agreed to its terms. Hamelin, through Strang, attempted to speak with someone from AMEC to discuss the issue but was refused.
In the circumstances, Strang declined to provide a urine sample for testing.
Later that same morning, Kevin Rogers, an AMEC superintendent, sent an e-mail to Jamie Ross, TESC's Health and Safety Coordinator, requiring Strang to be removed from the Detour Site for failing to comply with the Policy. Strang left the Detour site that day and has not been allowed to return to work at the Detour Project since that time.
10The applicants submit that it cannot be said that there is no reasonable prospect that these Applications can succeed primarily because of their allegations that there was no reasonable basis for the request that they submit to the drug and alcohol testing.
11In this regard Khoury alleges that there was no legitimate health and safety purpose for the request: he was not working at the time there was no evidence of drug use. The applicant also relies on what he claims that the respondent has fabricated the allegation that he refused the test. As set out above he alleges that he did not refuse the request but acknowledged that the test might be positive because he had consumed marijuana on or before July 11, 2012, the date he arrived at the site. The applicant argues that the respondent treated this as a refusal to avoid the consequences of their Policy which includes a process for assessment and accommodation of a potential disability. The applicant argues that if he proves this fact the only reasonable inference is that the respondent was seeking to avoid their own Policy.
12I accept the applicant's contention that at this preliminary stage it cannot be said that these Applications have no reasonable prospect of success. I appreciate that there are likely a number of possible inferences that can be drawn from the circumstances of these requests to submit to drug and alcohol testing and the one the applicant's seek to have drawn may not be the most obvious one. However I find that at this stage the inference the applicant asserts is an inference that might be drawn from the circumstances of the requests. This of course does not mean that these Applications have a reasonable prospect of success, but to put it another way, if the allegations of the applicant are established would the burden shift to the respondent to explain its actions in requesting that these two individuals submit to drug and alcohol testing. In my view having regard primarily to the circumstances of the requests it may.
13The respondent also argued that it was not the employer of either of the applicants and according it cannot be said to have caused any disadvantage to the applicant as a consequence of the application of its Policy to them. The respondent argues that only the applicants' employers and their unions control their terms and conditions of employment and only they can respond to any alleged employment consequences for the applicants.
14In my view this issue is better determined on the basis of a more fulsome record but at this preliminary stage I find that there appears to be merit to the applicants' argument that their employment was subject to the Policy which was imposed by the respondent. The application of the Policy by the respondent allegedly had consequences for their employment. The applicant argues that the use of the language "in respect of employment" in the Code contemplates a much broader range of relationships than merely the employer/employee relationship, including in some cases third parties in a position to influence or effect an employment relationship. That said it may be that there will be issues in terms of the appropriate remedies flowing from the fact that the respondent was not the applicant's employer.
Orders and Directions
15For all of these reasons the respondent's Request are denied and these cases should proceed to the next step in the Tribunal's process. The Strang Application has been to mediation at the Tribunal, the Khoury case has not. The respondent has not indicated whether it agrees to attend mediation of that case. If the respondent is agreeable to mediation it will so advise within 7 days of the date of this Interim Decision failing which these Applications will be scheduled for hearing.
16Given the issues involved it seems to me appropriate that they be scheduled to be heard together in a two day hearing. If any party objects to the cases being heard together they may do so in writing whithin 14 days of the date of this Interim Decision.
17I am not seized of this case.
Dated at Toronto, this 3rd day of September, 2013.
"Signed By"
__________________________________
David Muir Vice-chair