Entrop et al. v. Imperial Oil Limited et al.; Canadian Civil Liberties Association, intervenor [Indexed as: Entrop v. Imperial Oil Ltd.]

50 O.R. (3d) 18

[2000] O.J. No. 2689

Docket No. C29762

Court of Appeal for Ontario

Morden, Laskin and Goudge JJ.A.

July 21, 2000

Human rights -- Human Rights Commission -- Board of inquiry -- Jurisdiction -- Employer's alcohol and drug testing policy requiring employees in safety-sensitive positions to disclose past substance-abuse problems -- Policy providing for automatic transfer to non-sensitive position and reinstatement to safety- sensitive position only upon meeting rigorous requirements -- Employee in safety-sensitive position reassigned after disclosing past alcohol abuse -- Employee filing complaint of discrimination on basis of handicap -- Employer reinstating employee on condition that he undertake to abide by and be governed by policy -- Board of Inquiry erring in expanding scope of inquiry to include all aspects of employer's drug and alcohol testing policy -- Incorporation of policy into conditions of employee's reinstatement giving Board jurisdiction to inquire into all aspects of alcohol testing under policy but not giving it jurisdiction to inquire into drug testing aspects of policy -- Broad remedial powers of Board under s. 41(1)(a) of Code could not be used to expand Board's jurisdiction -- Human Rights Code, R.S.O. 1990, c. H.19, s. 41(1)(a).

Human rights -- Discrimination -- Handicap -- Employer's policy of random alcohol testing for employees in safety- sensitive positions prima facie discriminatory on basis of actual or perceived handicap of alcohol abuse -- Random alcohol testing bona fide occupational requirement provided that sanction for employee testing positive tailored to employee's circumstances -- Employer's policy of requiring disclosure of past substance abuse problem by employees in safety-sensitive positions and automatically reassigning those employees to non- sensitive position is prima facie discriminatory and is not bona fide occupational requirement.

In 1992, the appellant instituted a comprehensive alcohol and drug testing policy ("the policy") for its employees at its two Ontario oil refineries. The policy principally targeted employees in safety-sensitive positions. Those employees were subject to unannounced, random alcohol and drug testing. A positive test or other policy violation would lead to automatic dismissal. The policy called for mandatory disclosure to management of a current or past "substance abuse problem". On disclosure of a substance abuse problem, the employee would be reassigned to a non-safety-sensitive position. Reinstatement to a safety-sensitive position would be permitted only on the completion of a company-approved two-year rehabilitation program followed by five years of abstinence and on signing an undertaking to abide by specified post-reinstatement controls.

The respondent worked in a safety-sensitive position. He had suffered from alcohol abuse in the early 1980s but had not had a drink for seven years. As required by the policy, he disclosed his previous alcohol abuse problem to management. He was automatically reassigned to another job. Although he was eventually reinstated to his former position, he filed a complaint with the Ontario Human Rights Commission alleging that the appellant had discriminated against him because of his handicap contrary to s. 5(1) of the Human Rights Code, R.S.O. 1990, c. H.19. Shortly after the complaint was filed, the appellant amended the policy to permit employees with past substance abuse problems to be reinstated to safety-sensitive positions under specified conditions. The respondent applied for reinstatement, and the appellant agreed to reinstate him to his former position if he signed an undertaking regarding post- reinstatement controls. The undertaking required the respondent to agree to unannounced alcohol tests and to comply with and be subject to the policy. The respondent signed the undertaking and was reinstated.

A Board of Inquiry was appointed to hear the respondent's complaint. The chair of the Board ("the Board") broadened the scope of the inquiry to deal not just with the respondent's specific complaint but with all aspects of alcohol and drug testing under the policy. She justified her decision to do so on four separate bases: the respondent's medically supervised use of a painkiller containing codeine, a drug targeted by the policy, for an injured knee; the incorporation of the policy by reference in the undertaking the respondent was required to sign to be reinstated; the Board's broad remedial jurisdiction under s. 41(1)(a) of the Code; and the distribution of the policy and supporting literature to the appellant's workforce, which raised an alleged violation of s. 13(1) of the Code. The Board also permitted the Commission to amend the complaint of discrimination to add allegations of reprisal against the respondent for filing the complaint, contrary to s. 8 of the Code.

In a series of decisions, the Board found on expert evidence that alcohol abuse was a "handicap" under the Code and concluded that the respondent had established a prima facie case of discrimination contrary to s. 5 of the Code. She held that the only defence to a prima facie case of direct discrimination was s. 17 of the Code. Under s. 17, an employer may justify a prima facie case of handicap discrimination by showing that the complainant is incapable of performing the essential duties of the job. (By contrast, in a case of adverse effect discrimination, the employer must show that the rule which has a discriminatory effect is a bona fide occupational requirement ("BFOR") under s. 11 of the Code). She held that to establish "incapacity" under s. 17(1), the appellant had to meet a subjective standard of good faith and an objective standard of reasonable necessity. She found that the appellant met the subjective standard of good faith and that it had the right to insist that employees in safety-sensitive positions be unimpaired by alcohol. However, the appellant failed to meet the objective standard of reasonable necessity because it could not establish that the respondent's previous alcoholism had adversely affected his job performance. Therefore, the appellant was not justified in treating the respondent differently. She found that the appellant had retaliated against the respondent contrary to s. 8 of the Code because he had filed the human rights complaint. She awarded the respondent damages in the amount of $21,241.93, including $10,000 for mental anguish.

Finally, she considered the legality of the parts of the policy dealing with alcohol and drug testing. She found that drug abuse, like alcohol abuse, was a handicap under the Code. She also found that the policy directly discriminated against employees who were using or had used drugs on the ground of handicap contrary to s. 5 of the Code. Although she accepted that employees impaired by drugs were incapable of fulfilling the essential requirements of the job, she held that the expert evidence unequivocally showed that drug testing cannot establish impairment. Therefore, a positive drug test could not substantiate an incapability defence under s. 17(1) of the Code. She also found that the policy provisions on disclosure of drug use, reassignment and reinstatement were not justified under s. 17(1). Further, she found that the policy provisions on reassignment and reinstatement did not satisfy the appellant's duty to accommodate under s. 17(2) of the Code. She also considered the legality of random alcohol testing. During the hearing, the Commission conceded that, in contrast to urinalysis for drug impairment, breathalyzer testing does show alcohol impairment, and that alcohol testing may be permissible "for cause" and "post-incident". The Board declined to rule on the accuracy or reliability of breathalyzer testing or on its legality for cause or post-incident. She accepted the Commission's argument that breathalyzer testing was not necessary to deter alcohol impairment on the job because other less intrusive measures were available. These methods included employee assistance programs, health promotion programs, supervisory assessment and peer control programs.

The Divisional Court upheld the Board of Inquiry and dismissed the appellant's appeal. The appellant appealed.

Held, the appeal should be allowed in part.

The Board's jurisdiction to expand the scope of the inquiry was a question of law to which the standard of correctness applied. So, too, was the interpretation of the definition of "handicap" under s. 10 of the Code and the test to justify a prima facie case of discrimination under ss. 11 and 17 of the Code. For the other issues raised in this appeal, the appropriate standard of review was that of reasonableness.

The Board had no jurisdiction to inquire into the drug testing provisions of the policy. Under s. 39(1) of the Code, the Board's jurisdiction is circumscribed by "the subject matter of the complaint". The subject-matter of the respondent's complaint was the mandatory disclosure of his past alcoholism, his reassignment and the conditions of his reinstatement. None of the four grounds relied on by the Board justified inquiring into drug testing. To invoke jurisdiction over the drug testing policy because of the respondent's use of a painkiller containing codeine was unsupportable as the respondent never alleged that he had been discriminated against because he took this medication and the policy does not sanction an employee for using a prescribed medication legitimately for medical reasons. The Board could not rely on an alleged violation of s. 13(1) of the Code to confer jurisdiction over all aspects of alcohol and drug testing when the entire policy was not the subject-matter of the complaint. The undertaking to comply with and be subject to the policy which the respondent was required to sign as a condition of reinstatement entitled to Board to assert jurisdiction over alcohol testing, but not drug testing. The respondent never had a drug problem. The undertaking was not directed at drug abuse. Thus, the undertaking did not justify a broad-ranging inquiry into drug testing. Finally, the Board erred in relying on its broad remedial jurisdiction in s. 41(1)(a) of the Code to give it jurisdiction to inquire into the legality of the entire policy. The Board cannot work backwards from its remedial powers to enlarge the subject-matter of the complaint. The Board's remedial powers cannot confer jurisdiction over a matter if the Board had no jurisdiction over it at the outset. The range of remedies available to the Board, though broad enough to include future practices, must be linked to the subject-matter of the complaint. In this case, the Board's remedy could properly address the respondent's complaint a nd the appellant's future practices concerning the subject matter of the complaint, that is, the disclosure of past alcohol abuse, reassignment, reinstatement and unannounced alcohol testing. To go further and conduct what amounted to a freestanding inquiry into drug testing could not be justified by s. 41(1)(a) of the Code.

The Supreme Court of Canada has erased the distinction between direct and adverse effect discrimination and prescribed a single three-step test which the employer must meet to justify a prima facie case of discrimination. The employer may justify a prima facie discriminatory standard by establishing that the employer adopted the standard for a purpose rationally connected to the performance of the job; that the employer adopted the standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

The significance of eliminating the distinction between direct and adverse effect discrimination and of the three-step justification for a prima facie discriminatory workplace rule is that now the rule itself must accommodate individual differences to the point of undue hardship. If it does, the rule is a BFOR. If it does not, the rule is discriminatory.

Substance abusers are handicapped and entitled to the protection of the Code. A person who tests positive on a random alcohol or drug test may be a casual user, not a substance abuser, and may, therefore, not actually be handicapped. But the policy treats even casual or recreational users as substance abusers. Because perceived substance abuse as well as actual abuse is included in the definition of handicap under the Code, anyone testing positive under the alcohol and drug testing provisions of the policy is entitled to the protection of s. 5 of the Code. Persons testing positive on an alcohol or drug test are subject to sanctions under the policy. The policy provisions for pre-employment drug testing and for random alcohol and drug testing are, therefore, prima facie discriminatory. The appellant bore the burden of showing that they were bona fide occupational requirements.

The stated purpose of the policy is "to minimize the risk of impaired performance due to substance use" in order "to ensure a safe, healthy and productive workplace". This general purpose is rationally connected to the performance of the work at the appellant's oil refineries. Common sense and experience suggest that an accident at a refinery can have catastrophic results for employees, the public and the environment. Promoting workplace safety by minimizing the possibility employees will be impaired by either alcohol or drugs while working is a legitimate objective. The appellant met the first step of the test.

The Board found that the appellant developed and implemented the challenged provisions of the policy honestly and in good faith. That finding was reasonably supported by the evidence. The appellant met the second step of the test.

The appellant has the right to assess whether its employees are capable of performing their essential duties safely. Therefore, "freedom from impairment" by alcohol or drugs is a BFOR. An employee impaired by alcohol or drugs is incapable of performing or fulfilling the essential requirements of the job. However, random drug testing for employees in safety-sensitive positions cannot be justified as reasonably necessary to accomplish the appellant's legitimate goal of a safe workplace free of impairment. Drug testing suffers from the fundamental flaw that it cannot measure present impairment. A positive drug test shows only past drug use. It does not demonstrate that a person is incapable of performing the essential duties of the position. Moreover, drug testing programs have not been shown to be effective in reducing drug use, work accidents or work performance problems.

The random drug testing provisions of the policy suffer from a second flaw in that the sanction for a positive test is too severe, more stringent than needed for a safe workplace and not sufficiently sensitive to individual capabilities. Automatic termination of employment for all employees after a single positive test is broader than necessary. In some cases, termination may be justified, but in others, the employee's circumstances may call for a less severe sanction. The appellant failed to demonstrate why it could not tailor its sanctions to accommodate individual capabilities without incurring undue hardship. Pre-employment drug testing suffers from the same flaws: a positive test does not show future impairment or even likely future impairment on the job, yet an applicant who tests positive only once is not hired. The drug testing provisions of the policy are not BFORs.

The provisions for random alcohol testing for employees in safety-sensitive positions stand on a different footing. Breathalyzer testing can show impairment. The appellant can legitimately take steps to deter and detect alcohol impairment among its employees in safety-sensitive jobs. Alcohol testing accomplishes this goal. For employees in safety-sensitive jobs, where supervision is limited or non-existent, alcohol testing is a reasonable requirement. However, random alcohol testing will not satisfy the third step of the test unless the appellant has met its duty to accommodate the needs of those who test positive. Dismissal in all cases is inconsistent with the appellant's duty to accommodate. To maintain random alcohol testing as a BFOR, the appellant is required to accommodate individual differences and capabilities to the point of undue hardship. That accommodation should include consideration of sanctions less severe than dismissal and, where appropriate, the necessary support to permit the employee to undergo a treatment or a rehabilitation program. The Board's conclusion that random alcohol testing for employees in safety-sensitive positions breaches the Code should be set aside. This testing is a BFOR provided the sanction for an employee testing positive is tailored to the employees' circumstances.

The Board's conclusion that drug testing post-incident or for cause was permissible only if the appellant could establish that it was necessary as one facet of a larger assessment of drug abuse was consistent with the evidence and should be upheld.

The mandatory disclosure, reassignment and reinstatement provisions of the policy violate the Code. The respondent was adversely affected in his employment because of his past handicap. The appellant's treatment of him and the policy's provisions for mandatory disclosure, reassignment and reinstatement are, therefore, prima facie discriminatory. A workforce unimpaired by alcohol or drugs is rationally connected to the work done by the appellant's employees in safety-sensitive jobs, and the appellant adopted these policy provisions honestly and in good faith. However, the appellant failed to show that the policy provisions for mandatory disclosure, automatic reassignment and reinstatement are reasonably necessary to ensure that employees working in safety-sensitive jobs are not impaired by alcohol or drugs. Requiring an employee to disclose a past substance abuse problem, no matter how far in the past, is an unreasonable requirement. The appellant is entitled to require disclosure of a current subs tance abuse problem and a past substance abuse problem to a point. That point is reached when the risk of relapse or recurrence is no greater than the risk that a member of the general population will suffer a substance abuse problem. On the expert evidence before her, the Board found that the cut-off point is five to six years of successful remission for a person with a previous alcohol abuse problem and six years of successful remission for a person with a previous drug abuse problem. Had the policy provisions on mandatory disclosure been tailored to these cut-off points, they would have been unobjectionable.

Automatic reassignment out of a safety-sensitive position following disclosure of a past substance abuse problem is not reasonably necessary either. Automatic reassignment cannot be justified because it follows a mandatory disclosure obligation that itself is too broad. More important, automatic reassignment fails to accommodate individual differences and capabilities. The appellant failed to show that it could not accommodate individual testing against a more individually sensitive standard without imposing undue hardship on the company.

The reinstatement provisions of the policy are overly broad. The appellant did not show why the provisions were needed and that it could not without undue hardship accommodate differences in how quickly individuals recover from a substance abuse problem. The mandatory conditions and undertakings for reinstatement are unlawful since they go further than is necessary in certain instances. The appellant may legitimately insist on placing special controls for a period of time on an employee with a previous substance abuse problem who is returned to a safety-sensitive position. But the controls must be tailored to the individual's circumstances to meet the accommodation requirement.

The provisions for mandatory disclosure, reinstatement and reassignment cannot be justified as BFORs.

It is unnecessary to interfere with the Board's conclusion that testing for certification or post-reinstatement do not contravene the Code provided it is part of a larger assessment to determine whether an employee is not merely using but is abusing alcohol or drugs.

The Board's conclusion that the appellant infringed s. 13(1) of the Code through the posting and printing of the policy and its distribution to the workplace together with educational awareness materials should be set aside. The possible breach of s. 13(1) only became an issue before the Board as one of the grounds she relied on to confer jurisdiction over the alcohol and drug testing provisions of the policy. For the reasons stated above, s. 13(1) could not be used to expand the Board's jurisdiction. However, even if the Board could properly consider s. 13, the respondent failed to establish that the appellant breached that provision. Even accepting that the posting of the policy and its distribution to the appellant's employees amounted to the publication of a "notice", to contravene s. 13(1), the notice must indicate an intention to infringe a right under the Code. The evidence does not reasonably support the conclusion that the policy indicates an intention to discriminate. The Board's finding that the appellant developed and implemented the policy in good faith to achieve a workplace free of impairment was inconsistent with the finding that the policy indicates an intention to discriminate.

The Board awarded the respondent $10,000 for mental anguish for the "wilful and reckless manner" of the infringement of his rights. The Divisional Court did not err in holding that the Board's finding that the appellant infringed the respondent's rights "wilfully and recklessly" was reasonably supported by the evidence. Two aspects of the appellant's conduct supported the award of damages for mental anguish. First, the Board accepted the respondent's evidence of the adverse effect on him of the job reinstatement process. This process was lengthy and intrusive for a problem that the respondent fairly believed he had conquered. The process demeaned him and ostracized him with his co-workers, thus causing him stress and anxiety. At the very least, the appellant was reckless in subjecting the respondent to this process. Second, the appellant took a number of actions which the Board ruled amounted to acts of reprisal against the respondent for having brought a human rights complaint. That finding was reasonably supported by the evidence.

APPEAL by an employer from a judgment of the Divisional Court ((1998), 35 C.C.E.L. (2d) 56, 98 C.L.L.C. 230-012) dismissing an appeal from a decision of the Board of Inquiry.

British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, 66 B.C.L.R. (3d) 253, 176 D.L.R. (4th) 1, 244 N.R. 145, [1999] 10 W.W.R. 1, 68 C.R.R. (2d) 1, 46 C.C.E.L. (2d) 206, 99 C.L.L.C. 230-038, apld Other cases referred to Berg v. University of British Columbia, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353, 79 B.C.L.R. (2d) 273, 102 D.L.R. (4th) 665, 152 N.R. 99; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, 70 B.C.L.R. (3d) 215, 181 D.L.R. (4th) 385, 249 N.R. 45, [2000] 1 W.W.R. 565, 47 M.V.R. (3d) 167; Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] 1 S.C.R. 554, 100 D.L.R. (4th) 658, 149 N.R. 1, 13 C.R.R. (2d) D-5, 46 C.C.E.L. 1, 93 C.L.L.C. 17,006; Canadian Civil Liberties Assn. v. Toronto-Dominion Bank, 1998 CanLII 8112 (FCA), [1998] 4 F.C. 205, 154 F.T.R. 101n, 163 D.L.R. (4th) 193, 229 N.R. 135, 38 C.C.E.L. (2d) 8, 98 C.L.L.C. ô230-030 (C.A.) (sub nom. Canada (Human Rights Commission) v. Toronto-Dominion Bank); Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489, 76 Alta. L.R. (2d) 97, 72 D.L.R. (4th) 417, 113 N.R. 161, [1990] 6 W.W.R. 193, 33 C.C.E.L. 1, 90 C.L.L.C. 17,025; Large v. Stratf ord (City), 1995 CanLII 73 (SCC), [1995] 3 S.C.R. 733, 26 O.R. (3d) 160n, 128 D.L.R. (4th) 193, 188 N.R. 124, 14 C.C.E.L. (2d) 177, 95 C.L.L.C. 230-033; Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 52 O.R. (2d) 799, 12 O.A.C. 241, 23 D.L.R. (4th) 321, 64 N.R. 161, 17 Admin. L.R. 89, 9 C.C.E.L. 185, 86 C.L.L.C. 17002; Ontario (Human Rights Commission) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, 132 D.L.R. (3d) 14, 40 N.R. 159; Ontario Nurses' Assn. v. Orillia Soldiers Memorial Hospital (1999), 1999 CanLII 3687 (ON CA), 42 O.R. (3d) 692, 169 D.L.R. (4th) 489, 40 C.C.E.L. (2d) 263, 99 C.L.L.C. ô230-007 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 2(b) Human Rights Code, R.S.B.C. 1996, c. 210, s. 13(1), (4) Human Rights Code, R.S.O. 1990, c. H.19 (am. 1994, c. 27, s. 65), ss. 5, 8, 10, 11, 13(1), 17, 32(2), 36(1), 41(1)(a)

W. Niels F. Ortved and Jenny P. Stephenson, for appellant, Imperial Oil Limited. Marvin J. Huberman and H.W. Roger Townshend, for Ontario Human Rights Commission. Paul J.J. Cavalluzzo and Jeffrey M. Andrew, for Martin Entrop and intervenor.

The judgment of the court was delivered by

LASKIN J.A.: --

I. INTRODUCTION

1In 1992 the appellant Imperial Oil Limited instituted a comprehensive alcohol and drug testing policy (the "policy") for its employees at its two Ontario refineries. The main question on this appeal is whether the provisions of the policy discriminate on the ground of handicap or whether they are bona fide occupational requirements.

2The respondent Martin Entrop suffered from alcohol abuse in the early 1980s. Although he had not had a drink for over seven years, because he worked in what Imperial Oil classified as a safety-sensitive job, the policy required him to disclose his previous alcohol abuse problem to management. When he disclosed it, he was automatically reassigned to another job. Although he was eventually reinstated to his former position, he filed a complaint with the respondent the Ontario Human Rights Commission (the "Commission"), alleging that Imperial Oil discriminated against him in his employment because of his handicap contrary to s. 5(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). On the Commission's recommendation, the Minister of Labour appointed a Board of Inquiry to hear the complaint.

3The Board chair, Constance Backhouse (the "Board"), broadened the scope of the inquiry to deal not just with Entrop's specific complaint but with all aspects of alcohol and drug testing under the policy. In a series of decisions she concluded that the challenged provisions of the policy were prima facie discriminatory and could not be justified as bona fide occupational requirements. She awarded Entrop damages in the amount of $21,241.93, including $10,000 for mental anguish. An appeal from her decision was dismissed by the Divisional Court [reported (1998), 35 C.C.E.L. (2d) 56, 98 C.L.L.C. 230-012].

4Imperial Oil appeals to this court with leave. It submits that the provisions of the policy are not discriminatory, that the Board had no jurisdiction to expand the scope of the inquiry into all aspects of alcohol and drug testing under the policy, and that the award of damages to Entrop for mental anguish is not supportable.

II. THE ALCOHOL AND DRUG POLICY

5Following a number of incidents, such as the Exxon Valdez oil spill in Alaska, in which alcohol and drugs were thought to be contributing factors, Imperial Oil became concerned that substance abuse threatened the safety of its employees, the public and the environment. It decided to implement a comprehensive alcohol and drug policy at its two Ontario refineries. In developing the policy, Imperial Oil consulted widely with its employees and with experts in alcohol and drug addiction and occupational health and safety. The stated objective of the policy was "to minimize the risk of impaired performance due to substance abuse." The policy was announced to the employees on October 19, 1991 and implemented on January 1, 1992.

6The policy principally targeted employees in safety- sensitive positions, about 10 per cent of Imperial Oil's workforce. Safety-sensitive positions "have 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 "have no direct or very limited supervision available to provide frequent operational checks."

7Under the policy, as amended in February 1992, the following key work rules applied to employees in safety- sensitive positions:

-- No presence in the body of illicit drugs or their metabolites, nor a blood-alcohol concentration exceeding 0.04 per cent (0.04 grams per 100 millilitres) while at work.

-- Unannounced random alcohol and drug testing, alcohol testing by breathalyzer and drug testing by urinalysis.

-- On a positive test or other policy violation, automatic dismissal.

-- To remain in or qualify for a safety-sensitive position, completion of a certification process, including a medical examination, a negative test for alcohol and drugs, and a signed acknowledgement of compliance with the policy.

-- Mandatory disclosure to management of a current or past "substance abuse problem".

-- On disclosure of a substance abuse problem, reassignment to a non-safety-sensitive position.

-- Reinstatement to a safety-sensitive position only on completing a company approved two-year rehabilitation program followed by five years of abstinence, and on signing an undertaking to abide by specified post- reinstatement controls.

8Although the policy mainly focused on employees in safety-sensitive positions, it also provided for mandatory alcohol and drug testing for all job applicants and all employees in the following circumstances:

-- pre-employment testing for specified drugs for all job applicants, as a condition of employment;

-- testing for alcohol and specified drugs for all employees:

-- after a significant work accident, incident or near miss ("post-incident"),

-- where reasonable cause existed to suspect alcohol or drug use ("for cause");

-- on a positive test, progressive discipline up to and including dismissal could be imposed.

III. THE FACTS GIVING RISE TO THE COMPLAINT BEFORE THE BOARD

9Martin Entrop has worked for Imperial Oil at its Sarnia Refinery since the mid-1970s. In 1987 he was promoted to the position of senior control board operator, responsible for controlling various oil refining processes.

10Entrop is a recovered alcoholic. He testified that he had a previous alcohol abuse problem but that he had not had a drink since 1984. The Board accepted his testimony.

11In October 1991 Imperial Oil announced its policy. As I have said, the policy required employees in safety-sensitive positions to disclose to management a past or current substance abuse problem. Entrop's position, senior control board operator, was classified as a safety-sensitive position. On October 26, 1991, in accordance with the provisions of the policy, Entrop notified management that he had previously been an alcoholic and that he had been sober continuously since 1984. Imperial Oil immediately reassigned him to a non-safety- sensitive position at the same rate of pay. Entrop claimed that his new position was "less desirable".

12On January 16, 1992, he filed with the Commission a complaint of discrimination alleging that "his right to equal treatment in employment without discrimination has been infringed because of my handicap and perceived handicap contrary to s. 5(1) of the Ontario Human Rights Code."

13Shortly after Entrop filed his complaint, Imperial Oil amended its policy to permit employees with past substance abuse problems to be reinstated to safety-sensitive positions under specified conditions. In March 1992 Entrop applied for reinstatement. He underwent several medical evaluations, all of which showed that his alcohol dependence was in remission and that he had no psychological or psychiatric problems preventing him from resuming his old job. On May 15, 1992, Imperial Oil agreed to reinstate Entrop to his former position as senior control board operator if he signed "an undertaking regarding post-reinstatement controls". The undertaking required Entrop to agree to unannounced alcohol tests and to comply with and be subject to the policy. Entrop signed the undertaking on May 26, 1992 and he was then reinstated.

14In March 1995 after Entrop had continuously tested negative, Imperial Oil removed several of the post- reinstatement controls. However, on June 1, 1995, after his hearing before the Board of Inquiry had started, Entrop amended his complaint to include an allegation that Imperial Oil had engaged in a series of reprisals against him for initiating his complaint to the Commission, contrary to s. 8 of the Code.

15On June 2, 1995, in her fifth interim decision, the Board permitted Entrop to further amend his complaint to allege that, when Imperial Oil distributed the policy to its employees and circulated "educational awareness materials" to explain how the policy operated, it violated s. 13(1) of the Code, because it published a notice that indicated an intention to infringe a right under the statute. A new "amended amended complaint" containing an allegation that Imperial Oil had breached s.13(1) was filed on December 7, 1995.

IV. THE DECISION OF THE BOARD OF INQUIRY

16The "decision" of the Board of Inquiry consisted of eight interim decisions delivered over a two-year period from August 25, 1994 to September 12, 1996. Of these, the most significant are decisions five through eight, which deal with the expanded scope of the hearing, Entrop's original complaint of discrimination, the allegations of reprisal against Entrop, the remedies for Imperial Oil's breaches of the Code, and the legality of the policy provisions for alcohol and drug testing. Because many of the Board's findings and her jurisdiction to expand the scope of the hearing are in issue in this appeal, I will briefly summarize the substance of each of her eight interim decisions.

Interim Decision No. 1, August 25, 1994

17The parties asked for a preliminary ruling on the scope of the hearing. Imperial Oil sought to limit the Board's inquiry to the portion of the policy that applied to Entrop, that is the provisions for disclosure of a previous substance abuse problem, reassignment and reinstatement. The Commission took the position that, in addition to dealing with Entrop's specific complaint, the Board should inquire into the entire policy. The Board declined to rule, saying that it was premature to do so. In the Board's view the scope of the hearing had to await further scrutiny.

Interim Decision No. 2, September 27, 1994

18On a Commission motion for the production of documents, the Board ruled that she would take a "phased" approach to the hearing. In the first phase she would consider Entrop's complaint. She again refused to rule on whether the entire policy would be in issue, saying that would become clear as the hearing progressed.

Interim Decision No. 3, October 21, 1994

19In this third interim decision the Board dealt with three matters. First, she ruled that she would consider whether the terms of Entrop's reinstatement to his previous position violated the Code. Because the policy, as originally promulgated, contained no provision for reinstatement, Entrop's original complaint contained no allegation about reinstatement. When Imperial Oil amended its policy in February 1992 to permit reinstatement. Entrop sought and obtained reinstatement to his former position. He did not, however, apply to amend his complaint to allege discrimination in connection with his reinstatement. Nonetheless the Board held that the inquiry would cover Entrop's reinstatement because "the issue of reinstatement is not severable from the issue of job loss."

20Second, the Board allowed the Commission to amend the complaint of discrimination to add allegations of reprisal against Entrop for filing his complaint, contrary to s. 8 of the Code.

21Third, under her "phased" approach, the Board deferred her ruling on whether the Commission could further amend the complaint to allege that Imperial Oil's distribution of its policy to its employees violated s. 13 of the Code.

Interim Decision No. 4, December 5, 1994

22The Commission asked to widen the scope of the inquiry to include random drug testing. The request was made because Entrop's doctor had provided a pain killer (Tylenol 3) containing codeine for Entrop's injured knee, and codeine is a drug specifically targeted under the policy. The Board ruled that it would reserve its decision on the Commission's request until after the first phase of the inquiry.

Interim Decision No. 5, June 2, 1995

23In this fifth interim decision, the Board decided that she would hear the complaint in three phases. Phase one would deal with Entrop's complaint of discrimination concerning his previous alcohol dependency; phase two would deal with the allegations of reprisal, and phase three would deal with the policy as a whole. Thus the Board decided to expand the hearing into all aspects of alcohol and drug testing under the policy. She justified her decision to do so on four separate bases:

1. Entrop's use of Tylenol 3;

2. The undertaking Entrop was required to sign to be reinstated "incorporated the policy by reference";

3. The Board's broad remedial jurisdiction under s. 41(1)(a) of the Code; and

4. The distribution of the policy and supporting literature to Imperial Oil's workforce raised an alleged violation of s. 13(1) of the Code.

24The Board also indicated that she would consider in phase 3 whether Imperial Oil had breached s. 13(1) and, as I have already said, she permitted Entrop to amend his complaint to allege a breach of s. 13(1).

25Having determined that she had jurisdiction to inquire into all aspects of alcohol and drug testing under the policy, she then reserved her decision on whether she would make findings on these issues. The Board's jurisdiction to inquire into all the testing provisions in the policy and eventually to make findings on them was one of Imperial Oil's grounds of appeal both in the Divisional Court and in this court.

Interim Decision No. 6, June 23, 1995

26In this interim decision the Board made its findings on phase one, Entrop's complaint of discrimination on the ground of handicap because of his past alcohol dependence. The Board found on expert evidence that alcohol abuse was a "handicap" under the Code. She then concluded, relying on the broad definition of "handicap", that Entrop had established a prima facie case of discrimination contrary to s. 5. In her view, by requiring Entrop to disclose his past alcohol abuse, by removing him from a safety-sensitive position, and by imposing conditions on his reinstatement, Imperial Oil had directly discriminated against him on the basis of "perceived handicap".

27The Board held that the only defence to a prima facie case of direct discrimination was s. 17 of the Code. She held that to establish "incapability" under s. 17(1) Imperial Oil had to meet a subjective standard of good faith and an objective standard of reasonable necessity. She found that Imperial Oil had met the subjective standard of good faith. She also found that Imperial Oil had the right to insist that employees in safety-sensitive positions be unimpaired by alcohol. However, Imperial Oil failed to meet the objective standard of reasonable necessity because it could not establish that Entrop's previous alcoholism had adversely affected his job performance. Therefore Imperial Oil was not justified in treating him differently.

28The Board also found that even if Imperial Oil's treatment of Entrop was objectively justified, the company had not met its duty to accommodate him under s. 17(2) of the Code. The mandatory obligation to disclose his past alcohol dependency, his automatic reassignment and his subsequent reinstatement under the conditions specified in his undertaking all failed the accommodation requirement.

Interim Decision No. 7, August 10, 1995

29In this interim decision the Board dealt with phase two of the hearing, the allegations of reprisal against Entrop for filing his complaint, and with the remedy for the breaches of the Code she found in phases one and two. The Board held that Imperial Oil had retaliated against Entrop contrary to s. 8 of the Code. She found that after he filed his human rights complaint he had been subjected to a series of acts, actual and threatened, that detrimentally affected him in his job at Imperial Oil. She listed a number of incidents, which in her view amounted to an ongoing pattern of reprisal. In some of the incidents she found that Imperial Oil intended to retaliate against Entrop; for others she could find no proof of intent but still held that s. 8 had been breached because the "reasonable human rights complainant" in Entrop's position would be justified in perceiving that Imperial Oil had retaliated.

30The Board awarded Entrop $10,000 in general damages to compensate him for the "intrinsic value" of the infringement of his rights, $10,000 in damages for mental anguish, for his rights being infringed wilfully and recklessly, and $1,241.93 in special damages for lost overtime because of his reassignment. Only the award of damages for mental anguish is in issue on this appeal.

Interim Decision No. 8, September 12, 1996

31In this eighth and last interim decision the Board considered the legality of the parts of the policy dealing with alcohol and drug testing. She found that drug abuse, like alcohol abuse, was a handicap under the Code. She also found that Imperial Oil's policy directly discriminated against employees who were using or had used drugs, on the ground of handicap contrary to s. 5 of the Code. Although she accepted that employees impaired by drugs were incapable of fulfilling the essential requirements of the job, she held that the expert evidence unequivocally showed that drug testing cannot establish impairment. Therefore, a positive drug test could not substantiate an incapability defence under s. 17(1) of the Code. She also found that the policy provisions on disclosure of drug use, reassignment and reinstatement were not justified under s. 17(1). Further, she found that the policy provisions on reassignment and reinstatement did not satisfy Imperial Oil's duty to accommodate under s. 17(2).

32Although this eighth interim decision mainly dealt with drug testing, the Board also considered the legality of random alcohol testing. During the hearing the Commission conceded that, in contrast to urinalysis for drug impairment, breathalyzer testing does show alcohol impairment. The Commission also conceded that alcohol testing may be permissible "for cause" and "post-incident". The Board, however, declined to rule on the accuracy or reliability of breathalyzer testing or on its legality for cause or post- incident.

33But the Board apparently accepted the Commission's argument that breathalyzer testing was not necessary to detect or deter alcohol impairment on the job because other less intrusive measures were available. These methods included employee assistance programs, health promotion programs, supervisory assessment and peer control programs.

34The Board ended her decision with five general conclusions, all of which are in issue on this appeal. They are:

1. The policy's requirement that employees in safety-sensitive positions disclose any current or past "substance abuse problem" contravenes the Code because the definition of "substance abuse problem" is too broad and is unlimited in duration.

2. The policy provisions that prescribe a minimum of seven years between reassignment following disclosure of a substance abuse problem and potential reinstatement breach the Code because this length of time is not necessary in all cases.

3. The mandatory conditions of reinstatement breach the Code because they are more than necessary in some cases.

4. The policy provisions for pre-employment and random drug testing breach the Code because Imperial Oil failed to prove that a positive drug test shows impairment. However, drug testing "for cause", "post-incident", on "certification for safety-sensitive positions" and "post-reinstatement" may be permissible, but only if Imperial Oil establishes that this "testing is necessary as one facet of a larger process of assessment of drug abuse".

5. The policy provisions for random alcohol testing breach the Code because Imperial Oil failed to establish that this testing is reasonably necessary to deter alcohol impairment on the job. Alcohol testing for "certification" for safety- sensitive positions and "post-reinstatement" may be permissible but again only if Imperial Oil establishes that this testing "is necessary as one facet of a large process of assessment of alcohol abuse".

35The Board also included in this decision an appendix in which she set out in more detail her reasons for concluding that she had jurisdiction not only to inquire into the drug and random alcohol testing provisions of the policy but to make findings on them as well. In this appendix she added one further conclusion to her five general conclusions. She held that the posting, printing and dissemination of the policy constituted "the publication or display for the public" of a "notice" under s. 13(1) and that to the extent the testing provisions contravened the Code they announced an intention to infringe a right contrary to the section.

36On this appeal Imperial Oil asks that we set aside the Board's five general conclusions, that we declare the Board had no jurisdiction concerning her fourth and fifth conclusions, and that we set her aside her conclusion on s. 13(1).

37Following this eighth interim decision the Board indicated that if necessary she would conduct a fourth phase of the hearing to address revisions to Imperial Oil's policy and further allegations of reprisal. However, the record before the Divisional Court and this court included only the eight interim decisions that I have summarized.

V. THE DECISION OF THE DIVISIONAL COURT (FLINN, KENT AND FELDMAN JJ.)

38The Divisional Court upheld the Board of Inquiry and dismissed Imperial Oil's appeal. Flinn J., writing for the court, held that most of the submissions made by Imperial Oil raised questions of mixed fact and law, and therefore the applicable standard of review was reasonableness. However, on the question of the Board's jurisdiction to consider the entire policy, he held that the standard was correctness.

39Flinn J. then addressed Imperial Oil's five main arguments. First, he agreed with the Board's interpretation of ss. 5 and 17 of the Code and held that the Board's finding that Entrop's rights were infringed on the ground of handicap was reasonably supported by the evidence. Second, he concluded that the broad remedial jurisdiction in the Code and the undertaking to comply with the policy signed by Entrop as a condition of his reinstatement gave the Board jurisdiction to consider the policy as a whole. Third, he saw no reason to interfere with the Board's findings that drug abuse was a handicap and drug testing under the policy breached the Code, holding that these findings were "reasonable and based on the evidence". Fourth, he held that the Board had not erred in her assessment of the expert evidence. Fifth, he held that the award of damages to Entrop was not excessive. In summary, Flinn J. held that all the Board's orders and conclusions were supportable on the evidence.

VI. GROUNDS OF APPEAL

40In this court Imperial Oil raised six grounds of appeal:

1. The Divisional Court erred by applying the wrong standard of review to the Board's findings.

2. The Divisional Court erred in holding that the Board had jurisdiction to inquire into all aspects of alcohol and drug testing under the policy.

3. The Divisional Court erred in upholding the Board's conclusion that the policy's provisions for alcohol and drug testing violate the Code.

4. The Divisional Court erred in upholding the Board's conclusion that the policy's provisions for mandatory disclosure, reassignment, reinstatement and certification violate the Code.

5. The Board erred in holding that Imperial Oil infringed s. 13(1) of the Code by distributing its policy to its employees.

6. The Divisional Court erred in holding that the Board's finding that Imperial Oil infringed Entrop's rights "wilfully and recklessly" was reasonably supported by the evidence.

VII. DISCUSSION

First Issue -- Did the Divisional Court apply the wrong standard of review?

41The Divisional Court held that the standard of review of the Board's jurisdiction to expand the scope of its inquiry to deal with the entire policy was correctness, but that all other findings and conclusions of the Board were on issues of mixed fact and law, for which the standard of review was reasonableness. Imperial Oil submits that the Divisional Court erred because it applied the reasonableness standard to questions of law, such as the concept of perceived handicap under s. 10 of the Code. Imperial Oil contends that these questions should have attracted the correctness standard.

42Under s. 42(3) of the Code, an appeal from a Board decision to the Divisional Court may be made on questions of law or fact or both and the Divisional Court has wide powers to affirm, reverse or substitute its opinion for that of the Board. The standard of review applicable to a human rights tribunal subject to such a broad right of appeal has been settled by the Supreme Court of Canada in Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] 1 S.C.R. 554 at pp. 583-85, 100 D.L.R. (4th) 658 and Berg v. University of British Columbia, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353 at pp. 368-69, 102 D.L.R. (4th) 665. The standard of review of general questions of law, including the interpretation of the governing human rights statute is correctness; the standard of review of the Board's findings of fact and the application of the law to those findings of fact is reasonableness.

43Thus, in this appeal, the Board's jurisdiction to expand the scope of the inquiry is, as the Divisional Court held, a question of law to which the correctness standard applies. But so too is the interpretation of the definition of "handicap" under s. 10 of the Code, and the test to justify a prima facie case of discrimination under ss. 11 and 17 of the Code. For the other issues raised in the appeal the reasonableness standard applies. In my view, this is the appropriate approach to the substantive issues raised by Imperial Oil.

Second Issue -- Did the Divisional Court err in holding that the Board had jurisdiction to inquire into all aspects of alcohol and drug testing under the policy?

44Entrop's human rights complaint alleged that Imperial Oil discriminated against him on the ground of handicap because the company required him to disclose his previous alcohol abuse and, once he had disclosed it, reassigned him out of his safety-sensitive position. Entrop's complaint thus focused on the provisions of the policy for mandatory disclosure of past alcohol abuse and reassignment on disclosure. Nonetheless, the Board decided part way through the hearing that she would broaden the inquiry into all aspects of alcohol testing and even into drug testing under the policy. Imperial Oil submits that she had no jurisdiction to do so. The Divisional Court rejected this submission.

45For reasons that I will outline, the Board's decision to inquire into all aspects of alcohol testing can be justified. However, the Board had no jurisdiction to inquire into drug testing. Moreover, I think that the Board was unwise to have done so, especially in the way that she did, even though Imperial Oil did not claim that it was prejudiced. That said, because both the Board and the Divisional Court have considered whether the drug testing provisions of the policy violate the Code, practically I see no alternative but to do so as well.

46The jurisdiction of a board of inquiry under the Code is provided for in Part IV of the statute, titled "Enforcement". Under s. 36(1) the Commission may refer "the subject matter of the complaint to a board of inquiry." [See Note 1 at end of document] Under s. 39(1), the board of inquiry shall hold a hearing to determine whether a right of the complainant under the Act has been infringed and if so by whom, and to decide an appropriate remedy. Thus, the board of inquiry's jurisdiction is circumscribed by "the subject matter of the complaint". The subject-matter of Entrop's complaint was the mandatory disclosure of his past alcoholism, his reassignment, and, fairly, the conditions of his reinstatement. His complaint, admittedly, contains a general statement that if he again obtains a safety-sensitive position he will be subject to drug and alcohol testing. But what prompted his complaint and its real subject matter was the mandatory disclosure of his past alcohol abuse and the consequences of disclosing it. His complaint was properly amended to add allegations of reprisal.

47As I have said, the Board justified her decision to go beyond the parameters of Entrop's original complaint on four separate grounds: Entrop's use of Tylenol 3; the distribution of the policy and supporting literature to Imperial Oil's workforce allegedly violated s. 13(1) of the Code; the undertaking Entrop was required to sign as a condition of his reinstatement incorporated the entire policy by reference; and a board of inquiry's broad remedial jurisdiction under s. 41(1) (a) of the Code. The Divisional Court relied on the last two grounds to dismiss Imperial Oil's jurisdictional argument. In my view, only the undertaking signed by Entrop affords a plausible basis for expanding the scope of the Board's inquiry into alcohol testing. None of the four grounds justifies inquiring into drug testing. I shall, however, discuss each of the four grounds relied on by the Board.

48Entrop was taking Tylenol 3, a pain killer prescribed by his doctor, for a knee injury that he had sustained. Tylenol 3 contains codeine, and codeine is a drug targeted by the policy. The policy prohibits not only the use of illicit drugs and non- prescribed drugs but also the intentional misuse of prescribed medications. The Board therefore concluded that Entrop's use of Tylenol 3 put him in jeopardy of discriminatory action by Imperial Oil and thus raised a live issue before her of the validity of Imperial Oil's random drug testing.

49To invoke jurisdiction over Imperial Oil's entire drug testing policy because of Entrop's use of Tylenol 3 is unsupportable. He never alleged in his complaint to the Commission that he had been discriminated against because he took this medication and he had never been subjected to a random drug test. Moreover, the policy does not sanction an employee for using a prescribed medication legitimately for medical reasons and Imperial Oil never suggested Entrop had misused this medication. In short, Entrop was not at risk for his use of Tylenol 3.

50Invoking jurisdiction over all aspects of Imperial Oil's alcohol and drug testing because the company distributed the policy to its employees stands on no firmer foundation. Section 13(1) of the Code provides that the right to equal treatment is infringed by the publication of a "notice, sign, symbol, emblem, or other similar representation" indicating an intention to infringe a protected right. The Commission argued that by distributing the policy and explanatory literature to its employees Imperial Oil exposed its entire policy to review by the Board of Inquiry. The Board accepted that argument.

51I do not think that the Board could properly rely on an alleged violation of s. 13(1) to confer jurisdiction over all aspects of alcohol and drug testing when the entire policy was not the subject-matter of Entrop's complaint. Had Entrop's complaint put all the provisions of the policy in issue then the Board might legitimately have considered whether the distribution of the policy to Imperial Oil's workforce infringed s. 13(1). Alternatively, under s. 32(2) of the Code, the Commission could have initiated its own complaint alleging that the entire policy was discriminatory, including an allegation that its distribution violated s. 13(1). But the Commission did not do so.

52In June 1995 the Board did permit Entrop to amend his complaint to allege an infringement of s. 13(1). That amendment was not filed until December 1995, long after the Board decided she had jurisdiction to expand the scope of the inquiry. She did not rely on this "amended amended complaint" and it was not referred to by counsel in this court. In my view, it does not advance the respondents' position on the Board's jurisdiction. Thus, I do not think s. 13(1) provides any support for the Board's decision to inquire into all aspects of alcohol and drug testing under the policy.

53I now come to the two grounds relied on by the Divisional Court for upholding the Board's jurisdiction. When Entrop filed his original complaint the policy did not provide for reinstatement of an employee taken out of a safety- sensitive position because of a substance abuse problem. However, as I have said, Imperial Oil amended the policy to provide for reinstatement. Entrop took advantage of this amendment and he was reinstated, but on conditions, including a condition that he sign an undertaking to comply with and be subject to the policy. The Board held that this undertaking "incorporated by reference" the entire policy into the conditions of Entrop's reinstatement and thus gave the Board jurisdiction over the entire policy. In her words the undertaking "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." On a generous view, I think that the undertaking entitled the Board to assert ju risdiction over alcohol testing but not drug testing.

54An employee of Imperial Oil was always subject to and obliged to comply with the policy. The undertaking affirmed that obligation. Indeed, all the employees in safety-sensitive jobs were required to certify in writing that they agreed to be bound by the terms of the policy. Although Entrop was bound by the policy when he filed his complaint with the Commission he did not allege then that the other provisions of the policy dealing with random alcohol testing and drug testing discriminated against him. He did not suggest, for example, that random drug testing put him at risk or placed him in jeopardy. Nor did Entrop or the Commission ask to amend the complaint to cover the undertaking and by reference the policy as a whole.

55However, Entrop did have an alcohol abuse problem. And the undertaking addressed that problem by imposing additional "controls" on Entrop. For example, in the undertaking, Entrop had to agree to "undergo unannounced alcohol testing, at a frequency of at least twice per quarter . . . in addition to any testing . . . required . . . as an employee in a safety- sensitive position in accordance with the Alcohol and Drug Policy." This provision and the undertaking as a whole were rooted in Imperial Oil's concern that Entrop might again become an alcoholic. Viewed expansively, therefore, the undertaking gave the Board jurisdiction to inquire into all aspects of alcohol testing under the policy.

56But Entrop never had a drug abuse problem. The undertaking was not directed at drug abuse. Thus, the undertaking did not justify a broad ranging inquiry into drug testing. Indeed the Board even inquired into pre-employment drug testing, to which Entrop was not and could never be subjected since he was already an employee when the policy was introduced, and into drug testing "post-incident" and "for cause", though Entrop had not been tested after an incident or for cause.

57Finally, the Board relied on its broad remedial jurisdiction in s. 41(1)(a) of the Code to give it jurisdiction to inquire into the legality of the entire policy. Section 41(1)(a) is indeed a broad remedial provision. Once the board of inquiry finds that a complainant's rights have been infringed the Board may direct the infringing 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". But it seems to me the proposition that the Board's broad remedial power can be used to expand its jurisdiction is logically flawed. The Board cannot work backwards from its remedial powers to enlarge the subject-matter of the complaint. In other words the Board's remedial powers cannot confer jurisdiction over a matter if the Board had no jurisdiction over it at the outset. The range of remedies available to the Board, though broad enough to include future practices, must be linked to the subject-matter of the complaint. In this case the Board's remedy could properly address Entrop's complaint and Imperial Oil's future practices concerning the subject-matter of his complaint, that is the disclosure of past alcohol abuse, reassignment, reinstatement and unannounced alcohol testing. To go further and conduct what amounted to a freestanding inquiry into drug testing cannot be justified by s. 41(1)(a) of the Code.

58I thus conclude that the Board had jurisdiction to expand the scope of the inquiry into all aspects of alcohol testing but not drug testing. Also, expanding the scope of the inquiry in the way that she did caused two practical difficulties. First the scope of the inquiry became a moving target. The hearing began in August 1994 as an inquiry into Entrop's complaint of handicap discrimination because of his previous alcohol abuse. Not until June 1995, ten months into the hearing, in her fifth interim decision, did the Board decide to broaden the scope of the inquiry to deal with the issues of drug and alcohol testing. Not until her eighth and last interim decision in September 1996, over two years after the hearings began, did she decide that she had jurisdiction to make findings on these broader issues. Broadening the scope of the inquiry in this way did not prejudice Imperial Oil. Nonetheless, ordinarily hearings proceed much more efficiently and effectively when the parties know what the issues are at the outset.

59Second, the inquiry into the policy's provisions on drug testing lacked a proper factual underpinning. Entrop had never been tested for drugs. Apart from his use of Tylenol 3 under prescription, he did not consume drugs. Thus, his complaint did not raise a live dispute about drug testing. The courts have, with good reason, been wary about resolving disputes that do not have a proper factual or evidentiary foundation. The Board justified her inquiry into drug testing on the ground of "judicial economy". Because she had heard a good deal of evidence about the development and implementation of the policy and because the Commission's resources were limited, she concluded that broadening her inquiry into drug testing would be economical. However, judicial economy was a debatable justification for turning Entrop's narrow complaint about how Imperial Oil dealt with his past alcohol abuse into a wide- ranging inquiry into drug testing. Moreover, the inquiry into drug testing took place in phase three. The Board could simply have ended the inquiry after phase two.

60However, with some misgivings, I will address the merits of the various aspects of Imperial Oil's policy on drug testing. I do so because the Board and the Divisional Court did so and because Imperial Oil has not asserted that it was prejudiced by the broadening of the inquiry. Indeed, the Board gave both sides a fair opportunity to lead evidence and make submissions on all contested issues. In these circumstances, to avoid the merits would be of little solace to any of the parties.

Third Issue -- Did the Divisional Court err in upholding the Board's conclusion that the policy's provisions for alcohol and drug testing violate the Code?

61This is the main issue on the appeal. Imperial Oil submits that the provisions in the policy for pre-employment drug testing, random alcohol and drug testing for safety- sensitive positions, and testing post-incident and for cause are not discriminatory. Alternatively, Imperial Oil contends that, even if these provisions are prima facie discriminatory, they are justified as bona fide occupational requirements ("BFORs").

62I will first discuss the legal principles to be applied to a complaint that a workplace standard or rule is discriminatory, and then apply these principles to the challenged provisions of the policy.

1. The legal principles

63Determining whether a workplace rule violates the Code is a two-stage process. At the first stage, the complainant must show that the workplace rule is prima facie discriminatory on a prohibited ground. If a prima facie case of discrimination is made out, at the second stage the burden shifts to the employer to justify the rule.

64Therefore, the complainant must first show that the workplace rule contravenes s. 5(1) of the Code. Section 5(1) provides:

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 offences, marital status, same-sex partnership status, family status or handicap.

65For years, courts and human rights tribunals held that a contravention of s. 5(1) could occur in one of two ways: the contravention was characterized as "direct" discrimination if the workplace rule was discriminatory on its face; and "adverse effect" discrimination if the rule was neutral on its face but discriminatory in its effect on an employee or group of employees. Adverse effect discrimination has also been termed "indirect" or "constructive" discrimination. The distinction between direct and adverse effect discrimination was first recognized by the Supreme Court of Canada in Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321. McIntyre J. discussed the distinction in the following passage at pp. 551-52 S.C.R., p. 332 D.L.R.:

A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment. Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, "No Catholics or no women or no blacks employed here." There is, of course, no disagreement in the case at bar that direct discrimination of that nature would contravene the Act. On the other hand, there is no concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. For essentially the same reasons that led to the conclusion that an intent to discriminate was not required as an element of discrimination contravening the Code, I am of the opinion that this court may consider adverse effect discrimination as described in these reasons a contradiction of the terms of the Code. An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply. From the foregoing I therefore conclude that the appellant showed a prima facie case of discrimination based on creed before the board of inquiry.

66After this decision, much of the human rights case law on employment discrimination centred on whether the discrimination was direct or indirect. The distinction was important because what the employer had to show to justify the prima facie discriminatory rule and the appropriate remedy differed depending on whether the rule was discriminatory on its face or facially neutral but discriminatory in its effect.

67Ontario's Code gives an employer two separate defences to a prima facie case of handicap discrimination. Under s. 11, an employer may justify a workplace rule that has the effect of discriminating against a person or group of persons on a prohibited ground by showing that the rule is a BFOR:

11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Commission, a board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

68Under s. 17, an employer may justify a prima facie case of handicap discrimination by showing that the complainant is incapable of performing the essential duties of the job:

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 those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

69This court held in Ontario Nurses' Assn. v. Orillia Soldiers Memorial Hospital (1999), 1999 CanLII 3687 (ON CA), 42 O.R. (3d) 692, 169 D.L.R. (4th) 489, that s. 11 applies to cases of adverse effect discrimination and s. 17 applies to cases of direct discrimination.

70Though important, characterizing the discrimination as direct or indirect was often difficult. This case is a good example. Is the rule requiring all employees in safety- sensitive positions to undergo random alcohol and drug testing facially neutral because it applies to an entire segment of the workforce, or discriminatory on its face because it targets substance abusers and perceived substance abusers? The Board of Inquiry held that these policy provisions were discriminatory on their face and constituted direct discrimination on the ground of handicap. In this court, Imperial Oil contended that the policy was neutral on its face and that if it discriminated at all, the discrimination was indirect. Because the Board found that the discrimination was direct, she held the only defence available to Imperial Oil was under s. 17. Imperial Oil, on the other hand, argued that it could rely on s. 11 of the Code.

71The development of human rights jurisprudence was well- served by the distinction between direct and adverse effect discrimination, or, more accurately, by the recognition of adverse effect discrimination as a form of discrimination. The Code aims to remove discrimination in Ontario. Its main purpose is not to punish the wrongdoer but to provide relief for the victim of discrimination. Recognizing adverse effect discrimination furthers this purpose. It focuses not on the intention of the employer but on what is most important, the effect or the result of the employer's conduct. Indeed, few modern employers openly discriminate directly by advertising, for example, "No Blacks or Jews employed here." Even those employers with a discriminatory intent will invariably use neutral language to frame their employment rules. Thus, in most cases, the inquiry focuses on the effect of the employer's actions.

72However, increasingly, tribunals, courts and academics have doubted the continuing validity of the distinction between direct and adverse effect discrimination. Then, late last year, after this appeal was argued, the Supreme Court of Canada, in two ground-breaking decisions -- British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. ("Meiorin"), 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1 and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) ("Grismer"), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, 181 D.L.R. (4th) 385 -- erased the distinction between direct and adverse effect discrimination and prescribed a single three-step test, which the employer must meet to justify a prima facie case of discrimination. Meiorin was a sex discrimination case, Grismer a handicap discrimination case. Both cases were decided under the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210, and in both the reasons were written by McLachlin J.

73In Meiorin, McLachlin J. gave seven reasons for abandoning the distinction between direct and adverse effect discrimination:

1. The distinction is artificial. Few cases "can be so neatly characterized", and the distinction is unrealistic because today most employers use neutral words whatever their intent.

2. The remedies could differ depending on the kind of discrimination. If the employer could not justify a workplace rule that was discriminatory on its face, the rule would ordinarily be struck down. The employer, however, could maintain a rule that was neutral on its face but discriminatory in its effect, by accommodating individuals affected by the discrimination to the point of undue hardship. A different result flowing from a questionable initial classification is difficult to justify.

3. The rationale for the remedy for adverse effect discrimination is questionable. Facially neutral workplace rules were permitted to remain in effect because ordinarily they affected a minority of employees. But permitting a neutral rule to stand because it did not adversely affect the majority of employees is difficult to defend. Moreover, the size of the "affected group" can be manipulated and, in some cases, can actually constitute a majority of the workforce.

4. Although the defences to direct and adverse effect discrimination differed, the differences were hard to define; in practice, probably no meaningful distinction existed.

5. The distinction between direct and adverse effect discrimination may legitimize systemic discrimination. If a workplace rule is characterized as neutral on its face, its legitimacy is not questioned. Instead, the inquiry focuses on whether the complainant can be accommodated.

6. Permitting a workplace rule to be questioned only if it is discriminatory on its face does not permit human rights statutes "to accomplish their purpose as well as they might otherwise do".

7. The court's approach to human rights legislation should not differ from the court's approach to the equality guarantee in s. 15(1) of the Canadian Charter of Rights and Freedoms. Eliminating the distinction between direct and adverse effect discrimination is more consistent with the court's interpretation of s. 15(1), which principally focuses on the effect of the challenged law.

74For these reasons, the Supreme Court abandoned the problematic distinction between direct and adverse effect discrimination. Instead, the court adopted in Meiorin and affirmed in Grismer a "unified approach" that avoids this distinction. This new approach requires employers setting workplace rules to accommodate affected employees as much as reasonably possible, but permits employers to maintain discriminatory rules reasonably necessary to achieve legitimate work-related objectives.

75In Meiorin, at pp. 32-33 S.C.R., pp. 24-25 D.L.R., the court proposed that an employer could justify a prima facie discriminatory workplace rule or standard by meeting a three- step test:

Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR. An employee may justify the impugned standard by establishing on the balance of probabilities:

(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

If the three-step test is met, the workplace rule is a BFOR.

76The significance of eliminating the distinction between direct and adverse effect discrimination and of the three-step justification for a prima facie discriminatory workplace rule is that now the rule itself must accommodate individual differences to the point of undue hardship. If it does, the rule is a BFOR. If it does not, the rule is discriminatory. McLachlin J. discussed the significance of her unified approach in Grismer at pp. 880-81 S.C.R., p. 393 D.L.R.:

Meiorin announced a unified approach to adjudicating discrimination claims under human rights legislation. The distinction between direct and indirect discrimination has been erased. Employers and others governed by human rights legislation are now required in all cases to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. Incorporating accommodation into the standard itself ensures that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics.

(Emphasis in original)

77The Supreme Court's three-step test was formulated in the context of a discrimination complaint under the British Columbia Human Rights Code. The wording of the statutory defences available to an employer under Ontario's Code differs from the wording under the British Columbia Code. Section 11 of Ontario's Code sets out in detail the elements of a BFOR; the comparable provision of the British Columbia Code, s. 13(4), provides simply that "subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement." [See Note 2 at end of document] In the case of handicap discrimination, s. 17 of the Ontario Code has no counterpart in the British Columbia Code. The difference in wording in the two statutes raises the question whether the Supreme Court's three-step test for justifying a prima facie discriminatory workplace rule should be applied in this case. In my view, the unified approach and the three-step test adopted in Meiorin should be applied. Applying the unified approach means that Imperial Oil can rely on s. 11 of the Code as well as s. 17. Under either section, however, to justify its workplace rules it must satisfy the three-step test in Meiorin. I rely on the following reasons for applying Meiorin in this case.

78First, although the Supreme Court in Grismer said only that the Meiorin test applies to all claims for discrimination under the British Columbia Code, it seems to me the court contemplated that the test would apply generally to discrimination claims under human rights legislation unless precluded by the applicable statutory provisions. Thus, at p. 880 S.C.R., p. 393 D.L.R. of Grismer, McLachin J. wrote: "Meiorin announced a unified approach to adjudicating discrimination claims under human rights legislation."

79Second, as McLachlin J. observed in Meiorin, the Ontario statute already reflects the unified approach she advocates. Section 11(2) of the Code provides that a board of inquiry shall not find a rule is a BFOR "unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship". Similarly, the statutory defence under s. 17 imposes a duty to accommodate to the point of undue hardship and a prima facie discriminatory rule not saved by s. 17 will be struck down: see Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489, 72 D.L.R. (4th) 417.

80Third, though the language of s. 11 does reflect the distinction between direct and adverse effect discrimination -- because it provides a BFOR defence "where a requirement . . . exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by prohibited ground of discrimination" -- I would limit the situations to which s. 11 does not apply to those few cases that can be "neatly characterized" as cases of direct discrimination. I have in mind the kinds of cases referred by McIntyre J. in Ontario v. Simpson-Sears, supra -- "No Catholics or no women or no blacks are employed here" -- where the requirement expressly includes a prohibited ground of discrimination. So limiting the cases to which s. 11 does not apply is consistent with the reasoning underlying the Supreme Court's unified approach in Meiorin. The case before us, however, is the kind of case where characterizin g whether the discrimination is direct or indirect is problematic and thus where s. 11 should be applied using the Meiorin test. The focus should be, as s. 11 mandates, on the effect or the result of the challenged provisions of the policy.

81Fourth, the three-step justification test proposed by the Supreme Court is consistent with both the language of ss. 11 and 17 of the Code and the jurisprudence under these provisions: see Ontario (Human Rights Commission) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, 132 D.L.R. (3d) 14 and Large v. Stratford (City), 1995 CanLII 73 (SCC), [1995] 3 S.C.R. 733, 128 D.L.R. (4th) 193. Indeed, the Supreme Court's new three-step test combines the elements of the previous test for justifying adverse effect discrimination with the elements of the previous test for justifying direct discrimination. And, as McLachlin J. observed in Meiorin, there is little difference between the two previous tests, other than semantics.

82As I have said, eliminating the distinction between direct and adverse effect discrimination and adopting Meiorin's unified approach allows Imperial Oil to rely on s. 11 of the Code as a defence to Entrop's claim, a defence the Board held was not available to it. But that defence, which is an express BFOR defence, must now be assessed against the Meiorin test.

83The language of s. 17 differs from the language of s. 11. Under s. 17 Imperial Oil can legitimately assert, as the Board held, that an employee impaired by alcohol or drugs "is incapable of performing the essential duties or requirements" of safety-sensitive jobs. But, unless Imperial Oil shows that its methods for establishing impairment -- random alcohol and drug testing, mandatory disclosure and automatic reassignment -- are themselves BFORs, then its s. 17 defence will fail.

84The elements of the Meiorin test for establishing a BFOR closely parallel the elements of the incapability defence developed in the case law under s. 17 and applied by the Board in this case. Relying on Ontario (Human Rights Commission) v. Etobicoke (Borough), supra, the Board held that, to show Entrop was incapable of performing the essential requirements of the job under s. 17(1), it had to meet a subjective standard of good faith and an objective standard of reasonable necessity. In substance, these comprise the second step and one aspect of the third step in the Meiorin test. The Board also applied the other aspect of the third step, the duty to accommodate to the point of undue hardship, as it is prescribed by s. 17(2) of the Code. The first step in the new test in Meiorin -- the workplace rule is rationally connected to the performance of the job -- is drawn from the jurisprudence on adverse effect discrimination. The need for a rational conne ction, though not expressly adverted to by the Board, was implicit in her analysis and, as I have said, is consistent with the wording of s. 17.

85For these reasons, I propose to analyze whether the challenged provisions of the policy breach the Code using the new three-step test in Meiorin. I do not believe that doing so causes any unfairness to the parties. Because the Meiorin test and the test applied by the Board are so similar, both sides addressed the relevant questions. Thus, the new test can be applied to the findings of the Board.

2. Pre-employment drug testing and random alcohol and drug testing for employees in safety-sensitive positions

86The workplace rules that lie at the heart of Imperial Oil's policy are the provisions for pre-employment drug testing and random alcohol and drug testing for employees in safety- sensitive positions. The Board concluded that these provisions breached the Code, and her conclusion was upheld by the Divisional Court. Imperial Oil submits that these provisions do not breach s. 5 but that, even if they do, they are justified because they are bona fide occupational requirements. I agree that the drug testing provisions of the policy violate the Code. However, I disagree with the Board and the Divisional Court on random alcohol testing. The important difference between alcohol and drug testing is that a positive drug test does not demonstrate impairment; a positive breathalyzer reading does. I therefore think that random alcohol testing for safety-sensitive positions, though prima facie discriminatory, can be justified providing the sanctions for a positive test are individually tailored. With this brief background, I will discuss the application of the Meiorin test to these provisions.

(a) Are these provisions prima facie discriminatory on the ground of handicap?

87Section 5(1) of the Code guarantees every person "a right to equal treatment with respect to employment without discrimination because of . . . handicap." Handicap is defined very broadly in s. 10 of the Code, both in respect of what conditions constitute a handicap and who can claim protection against handicap discrimination:

"because of handicap" means 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 co- ordination, 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 Workplace Safety and Insurance Act, 1997;

88This definition provides protection to persons who have a handicap, persons who had a handicap but no longer suffer from it, persons believed to have a handicap whether they do or not, and persons believed to have had a handicap, whether they did or not. In other words, the definition protects those who have or have had an actual or perceived handicap.

89The Board found, on uncontradicted expert evidence, that drug abuse and alcohol abuse -- together substance abuse -- are each a handicap. Each is "an illness or disease creating physical disability or mental impairment and interfering with physical, psychological and social functioning." Drug dependence and alcohol dependence, also separately found by the Board to be handicaps, are severe forms of substance abuse. Therefore, on the findings of the Board, which are not disputed on this appeal, substance abusers are handicapped and entitled to the protection of the Code.

90A person who tests positive on a random alcohol or drug test may be a casual user, not a substance abuser, and may, therefore, not actually be handicapped. But the policy treats even casual or recreational users as substance abusers. The policy's administrative guidelines, which are "intended to provide additional details, interpretative guidance and administrative procedures" in support of the policy list the following categories of substance abusers:

CATEGORIES OFSUBSTANCE ABUSERS

EXPERIMENTER An individual who experiments with alcohol or drugs, usually out of curiosity.

RECREATIONAL USER A person who uses and gets "high" on alcohol or drugs at special occasions, e.g. parties.

REGULAR USER One who adopts a constant pattern of alcohol or drug abuse while attempting to maintain normal day-to-day activities.

BINGE USER An individual who consumes alcohol or drugs in an uncontrolled manner for short periods of time and then abstains until the next binge.

DPENDENT USER A dependent, or addicted, user has become psychologically or physically dependent on the use of drugs, characterized by a progressive loss of control despite either a desire to reduce intake or knowledge or recurring disturbances in health, work of social functioning.

91The guidelines then state: "In the cycle of substance abuse, users frequently begin by experimenting with drugs and progress to the dependent user stage later on."

92Thus, though the social drinker and casual drug user are not substance abusers and, therefore, not handicapped, Imperial Oil believes them to be substance abusers for the purpose of the policy. In other words, Imperial Oil believes that any person testing positive on a pre-employment drug test or a random drug or alcohol test is a substance abuser. Because perceived as well as actual substance abuse is included in the definition of handicap under the Code, anyone testing positive under the alcohol and drug testing provisions of the policy is entitled to the protection of s. 5 of the Code. Imperial Oil applies sanctions to any person testing positive -- either refusing to hire, disciplining or terminating the employment of that person -- on the assumption that the person is likely to be impaired at work currently or in the future, and thus not "fit for duty." Therefore, persons testing positive on an alcohol or drug test -- perceived or actual substance abusers -- are adversely affected by the policy. The policy provisions for pre-employment drug testing and for random alcohol and drug testing are, therefore, prima facie discriminatory. Imperial Oil bears the burden of showing that they are bona fide occupational requirements: see Canadian Civil Liberties Assn. v. Toronto-Dominion Bank (1998), 1998 CanLII 8112 (FCA), 163 D.L.R. (4th) 193, [1998] 4 F.C. 205 (C.A.).

(b) Are these testing provisions justified as BFORs?

93The question is whether Imperial Oil can justify these prima facie discriminatory workplace rules as BFORs under the three-step test in Meiorin. The Board held that, because these provisions were discriminatory on their face -- the discrimination was direct -- Imperial Oil could not rely on the BFOR defence under s. 11 of the Code; the only defence available was under s. 17. However, Meiorin has eliminated the distinction between direct and adverse effect discrimination for the provisions of the policy challenged in this case, thus permitting Imperial Oil to rely on s. 11 as well as s. 17. As I have said earlier, the three-step test in Meiorin applies to either defence. As in most cases, whether Imperial Oil can meet the test turns on the third step.

(i) Has Imperial Oil adopted alcohol and drug testing for a purpose rationally connected to the performance of the job?

94Meiorin tells us that the first step focuses not on the validity of the particular challenged workplace rules but on their more general purpose. The stated purpose or objective of the policy "is to minimize the risk of impaired performance due to substance use" in order "to ensure a safe, healthy and productive workplace." This general purpose is rationally connected to the performance of the work at Imperial Oil's two refineries. Common sense and experience suggest that an accident at a refinery can have catastrophic results for employees, the public and the environment. Promoting workplace safety by minimizing the possibility employees will be impaired by either alcohol or drugs while working is a legitimate objective. Imperial Oil has met the first step of the Meiorin test.

(ii) Did Imperial Oil adopt these testing provisions in an honest and good faith belief that they were necessary to accomplish the company's purpose?

95The second step is the subjective element of the test. The Board found that Imperial Oil developed and implemented the challenged provisions of the policy honestly and in good faith. That finding is reasonably supported by the evidence. Imperial Oil consulted widely with its employees and with experts in both occupational health and safety and substance dependency. It assembled one of Canada's most comprehensive databases on workplace alcohol and drug abuse. Imperial Oil has met the second step of the Meiorin test.

(iii) Are these testing provisions reasonably necessary to accomplish Imperial Oil's purpose?

96This third step of the Meiorin test focuses on the means Imperial Oil has used to accomplish its purpose. The question is whether Imperial Oil has shown that the alcohol and drug testing provisions of the policy are reasonably necessary to identify those persons who cannot perform work safely at the company's two refineries, because they are impaired by alcohol or drugs. To meet this third requirement Imperial Oil must show that it cannot accommodate individual capabilities and differences without experiencing undue hardship. The phrase "undue hardship" suggests that Imperial Oil must accept some hardship in order to accommodate individual differences.

97An employer's workplace rule may fail to satisfy the third step in the Meiorin test in several ways. For example the rule may be arbitrary in the sense that it is not linked to or does not further the employer's legitimate purpose; the rule may be too broad or stricter than reasonably necessary to achieve the employer's purpose; the rule may unreasonably not provide for individual assessment; or the rule may not be reasonably necessary because other means, less intrusive of individual human rights, are available to achieve the employer's purpose.

98I turn now to whether Imperial Oil's alcohol and drug testing provisions are reasonably necessary. As the Board held, Imperial Oil has the right to assess whether its employees are capable of performing their essential duties safely. An employee working in a safety-sensitive position while impaired by alcohol or drugs presents a danger to the safe operation of Imperial Oil's business. Therefore, as the Board found, "freedom from impairment" by alcohol or drugs is a BFOR. An employee impaired by alcohol or drugs is incapable of performing or fulfilling the essential requirements of the job. The contentious issue is whether the means used to measure and ensure freedom from impairment -- alcohol and drug testing with sanctions for a positive test -- are themselves BFORs. Are they reasonably necessary to achieve a work environment free of alcohol and drugs?

99I deal with drug testing first. The drugs listed in the policy all have the capacity to impair job performance, and urinalysis is a reliable method of showing the presence of drugs or drug metabolites in a person's body. But drug testing suffers from one fundamental flaw. It cannot measure present impairment. A positive drug test shows only past drug use. It cannot show how much was used or when it was used. Thus, the Board found that a positive drug test provides no evidence of impairment or likely impairment on the job. It does not demonstrate that a person is incapable of performing the essential duties of the position. The Board also found on the evidence that no tests currently exist to accurately assess the effect of drug use on job performance and that drug testing programs have not been shown to be effective in reducing drug use, work accidents or work performance problems. On these findings, random drug testing for employees in safety-sensitive positions cannot be justified as reasonably necessary to accomplish Imperial Oil's legitimate goal of a safe workplace free of impairment.

100The random drug testing provisions of the policy suffer from a second flaw: the sanction for a positive test is too severe, more stringent than needed for a safe workplace and not sufficiently sensitive to individual capabilities. This aspect of the policy's provisions on random drug testing was not addressed by the Board. However, the administrative guidelines specify the consequences of a policy violation. Employees in non-safety-sensitive jobs who test positive are subject to progressive discipline, which consists of a warning, a three- to-five day suspension without pay, and termination. But for employees in safety-sensitive positions who test positive for drugs or alcohol, the guidelines provide only one sanction: termination of employment.

101Howard Moyer, the manager of Imperial Oil's policy, acknowledged in his evidence before the Board that employees in safety-sensitive positions testing positive for drugs or alcohol would be given no individual accommodation. In his view "certain corporate minimums" had to be maintained. According to Moyer, unless the employee can explain a positive finding, the employee is fired.

Q. For safety-sensitive positions, the automatic consequence for a first violation for presence in the body would be termination of employment.

A. I would quarrel with the use of the term "Automatic". We certainly go through an in-depth investigative process with each random position that we have, but if there isn't a reasonable explanation of that, then the result for a person in a safety-sensitive job is termination.

102Automatic termination of employment for all employees after a single positive test is broader than necessary. In some cases termination may be justified; but in others, the employee's circumstances may call for a less severe sanction. Imperial Oil failed to demonstrate why it could not tailor its sanctions to accommodate individual capabilities without incurring undue hardship.

103Pre-employment drug testing suffers from the same two flaws: a positive test does not show future impairment or even likely future impairment on the job, yet an applicant who tests positive only once is not hired.

104In this court Imperial Oil submitted that the Board mischaracterized the underlying workplace standard the company sought to achieve by drug testing. The Board characterized the standard as "freedom from impairment." Imperial Oil argued that the standard is what the policy says, "no presence" of drugs or their metabolites. Imperial Oil contended that in the interests of safety it is legitimately entitled to adopt a "no presence" standard, that does not depend for its efficacy on the discovery of impairment.

105There are two answers to Imperial Oil's submission. First, the Board's finding that the standard was "freedom from impairment" by drugs is a finding of fact, which is reasonably supported by the evidence and thus is entitled to deference. Second, the "no presence" standard does not assist Imperial Oil because it too is arbitrary, again for the reason that a positive drug test does not demonstrate incapability to perform the work safely. Therefore, the drug testing provisions of the policy are not BFORs.

106The provisions for random alcohol testing for employees in safety-sensitive positions stand on a different footing. Breathalyzer testing can show impairment. The expert evidence at the hearing confirmed the reliability and utility of breathalyzer testing to measure alcohol impairment, and the Commission conceded its reliability and utility. The Commission also took no issue with the standard used by Imperial Oil, 0.04 per cent. Studies indicated that with a blood alcohol concentration of 0.04 per cent most individuals show discernible signs of impairment. Admittedly the effects of alcohol on an individual will vary depending on a wide array of factors: size, age, sex, body metabolism, body fat, the amount of food in the stomach, acquired tolerance, stress and fatigue. Despite individual variability, we use a bright line standard -- 80 milligrams of alcohol in 100 mililitres of blood -- in the criminal law for drinking and driving offences. The standard used by Imperial Oil was reasonable to ensure workplace safety.

107Despite the overwhelming expert evidence and the Commission's concession, the Board seemed unconvinced of the utility of breathalyzer testing to measure impairment. Moreover, she disagreed that random alcohol testing was reasonably necessary for employees in safety-sensitive positions. She held that "the provisions of the policy that provide for random alcohol testing are unlawful because [Imperial Oil] failed to prove such screening is reasonably necessary to deter alcohol impairment on the job." In her opinion other less drastic means existed to deter alcohol impairment on the job. Those means included various kinds of employee supervision and assessment programs.

108I find the evidence the Board relied on weak and her reasoning unpersuasive. The Board gave great weight to the evidence of Dr. Shain, the head of workplace programs at the Addiction Research Foundation, even though he had no practical experience with drug and alcohol testing in the workplace. Dr. Shain thought that other programs were more effective in eliminating alcohol abuse. In his opinion, properly trained supervisors had a "very high likelihood of being able to detect impairment" on the job. His opinion fails to appreciate that Imperial Oil does use trained supervisors to detect impairment, but in conjunction with breathalyzer testing. Most important, however, Dr. Shain's opinion fails to adequately appreciate that a safety-sensitive position is one that by definition has no direct or very limited supervision.

109Relying exclusively on supervisors to detect impairment raises additional concerns, also addressed in the expert evidence before the Board. Supervisors have other duties; at Imperial Oil their primary focus is to direct the manufacture of petroleum products. Supervisors are often unwilling to confront employees with an alcohol problem, or at least to do so constructively. And increased supervision may lead to harassment of or even discrimination against some employees. Random testing is seen by many experts to be fairer to employees because of its objectivity.

110Imperial Oil can legitimately take steps to deter and detect alcohol impairment among its employees in safety- sensitive jobs. Alcohol testing accomplishes this goal. For employees in safety-sensitive jobs, where supervision is limited or non-existent, alcohol testing is a reasonable requirement.

111The Commission's "Policy Statement on Drugs and Alcohol Testing" recognizes that an employer can administer alcohol testing to its employees without contravening the Code. The Commission's policy statement provides:

If workers will be required to undergo drug and alcohol testing during the course of their employment -- on the grounds that such testing, at the time that it is administered, would indicate actual impairment of ability to perform or fulfil the essential duties or requirements of the job, as opposed to merely detecting the presence of substances in the system -- the employer should notify them of this requirement at the beginning of their employment.

Because alcohol testing does indicate "actual impairment of ability to perform or fulfil the essential duties or requirements of the job, as opposed to merely detecting the presence of substances in the system" and because Imperial Oil's policy fairly notifies employees in safety-sensitive positions that they will have to undergo random alcohol testing, such testing is consistent with the Commission's policy statement. I think it significant that the intervenor, who vigorously opposed drug testing, took no position on alcohol testing in the workplace.

112However, random alcohol testing, though reasonable for employees in safety-sensitive jobs, will not satisfy the third step of the Meiorin test unless Imperial Oil has met its duty to accommodate the needs of those who test positive. The policy's guidelines provide for dismissal from employment following a single positive test. The Board did not discuss the question of individual accommodation following a positive breathalyzer test. However, for the reasons I discussed in connection with drug testing, dismissal in all cases is inconsistent with Imperial Oil's duty to accommodate. To maintain random alcohol testing as a BFOR, Imperial Oil is required to accommodate individual differences and capabilities to the point of undue hardship. That accommodation should include consideration of sanctions less severe than dismissal and, where appropriate, the necessary support to permit the employee to undergo a treatment or a rehabilitation program.

113I would therefore set aside the Board's conclusion that random alcohol testing for employees in safety-sensitive positions breaches the Code and in its place hold that this testing is a BFOR provided the sanction for an employee testing positive is tailored to the employee's circumstances.

(c) Drug testing post-incident and for cause

114The policy provides testing for alcohol and specified drugs "after a significant work accident, incident or near miss as determined by management" and "where reasonable cause exists to suspect alcohol or drug use or possession in violation of this policy." The Commission accepted that alcohol testing was sufficiently related to job performance to justify its use post-incident or for cause and the Board made no ruling on this issue. The Board did, however, conclude that drug testing post- incident or for cause was permissible only if Imperial Oil could establish that it was "necessary as one facet of a larger assessment of drug abuse." Although the Board did not elaborate on what larger assessment is required, her conclusion is consistent with the evidence and her finding that drug testing cannot accurately measure impairment. I would, therefore, not interfere with the Divisional Court's order upholding the Board's conclusion on drug testing post-incident and for cause.

Fourth Issue -- Did the Divisional Court err in upholding the Board's conclusion that the policy's provisions for mandatory disclosure, reassignment, reinstatement and certification violate the Code?

115Entrop's original complaint of discrimination was directed at the policy provisions for mandatory disclosure, reassignment and reinstatement. The Board concluded that the mandatory disclosure, reassignment and reinstatement provisions violated the Code. She concluded that alcohol and drug testing for certification for safety-sensitive positions and post- reinstatement may be permissible if Imperial Oil "can establish that testing is necessary as one facet of a larger process of assessment" of alcohol or drug abuse. The Divisional Court upheld her conclusions and I would too.

(a) Are the provisions for mandatory disclosure, reassignment and reinstatement prima facie discriminatory?

116The policy requires any employee in a safety-sensitive position to disclose a current or past substance abuse problem. On disclosure, that employee is automatically reassigned to a non-safety-sensitive job. The employee can only be reinstated to a safety-sensitive position by undergoing two years of rehabilitation, followed by five years of abstinence and by agreeing to a set of post-reinstatement controls.

117A substance abuse problem -- which triggers the provisions for disclosure, reassignment and reinstatement -- is defined in the policy's administrative guidelines to include:

For 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 of recurring disturbances in health, work or social functioning.

(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;

(ii) a pattern of tolerance and withdrawal.

(c) Treatment

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

118The Board found that a "substance abuse problem" is a handicap. That finding is supported by the expert evidence and is not challenged on appeal. Entrop had a previous substance problem as defined in the policy. He therefore had a handicap as defined in the Code. Although he had not a drink since 1984, the policy required him to disclose his substance abuse problem, his past handicap, to management. On disclosure, he was reassigned to a less desirable job, though at comparable pay, and was reinstated only after agreeing to a rigorous medical evaluation and ongoing controls. Entrop therefore was adversely affected in his employment because of his past handicap. Imperial Oil's treatment of him and the policy's provisions for mandatory disclosure, reassignment and reinstatement are, therefore, prima facie discriminatory.

(b) Are the provisions for mandatory disclosure, reassignment and reinstatement BFORs?

119Imperial Oil has met the first two steps of the Meiorin test. A workforce unimpaired by alcohol or drugs is rationally connected to -- indeed is essential to -- the work done by Imperial Oil employees in safety-sensitive jobs, and Imperial Oil adopted these policy provisions honestly and in good faith.

120The contentious question is whether Imperial Oil has shown that the policy provisions for mandatory disclosure, automatic reassignment and reinstatement are reasonably necessary to ensure that employees working in safety-sensitive jobs are not impaired by alcohol or drugs. In my view, the provisions as drafted are not reasonably necessary to accomplish Imperial Oil's purpose. The provisions fail the third step in the Meiorin test for at least four reasons.

121First, requiring an employee to disclose a past substance abuse problem, no matter how far in the past, is an unreasonable requirement. As the Commission acknowledged, Imperial Oil is entitled to require disclosure of a current substance abuse problem and a past substance abuse problem to a point. That point is reached when the risk of relapse or recurrence is no greater than the risk a member of the general population will suffer a substance abuse problem. On the expert evidence before her, the Board found that the cut-off point is five to six years of successful remission for a person with a previous alcohol abuse problem and six years of successful remission for a person with a previous drug abuse problem. Had the policy provisions on mandatory disclosure been tailored to these cut-off points, I would have found them unobjectionable.

122Second, automatic reassignment out of a safety- sensitive position following disclosure of a past substance abuse problem is not reasonably necessary either. Automatic reassignment cannot be justified because it follows a mandatory disclosure obligation that itself is too broad. More important, automatic reassignment fails to accommodate individual differences and capabilities. Although Imperial Oil may be justified in temporarily removing an employee with an active or recently active substance abuse problem from a safety-sensitive job, it failed to establish that a single rule, automatic reassignment, was reasonably necessary in all cases. To use the words in Meiorin at p. 37 S.C.R., p. 28 D.L.R., Imperial Oil failed to show that it could not accommodate "individual testing against a more individually sensitive standard" without imposing undue hardship on the company.

123Entrop's case is a good example of why the policy provisions for mandatory disclosure and automatic reassignment are not reasonably necessary. The evidence showed that his risk of relapse was extremely low and that his past alcohol abuse had not adversely affected his performance as a control board operator. In short, he was not incapable of performing his job because of his past alcohol abuse. Even so, and though he had been in remission for over seven years, once he disclosed his previous handicap, he was automatically reassigned. In applying the policy provisions to Entrop without considering his individual circumstances, Imperial Oil's treatment of him was unjustified.

124A third and related reason why these policy provisions are not reasonably necessary is that the requirement of two years' rehabilitation followed by five years' abstinence is overly broad. The Board concluded that "a minimum seven year period between the date of reassignment and potential reinstatement" contravenes the Code "because this length of time is not necessary in all cases." I agree with that conclusion, which again is supported by the expert evidence led at the hearing. Indeed, the seven-year period is required even for those who have successfully completed a treatment program because "substance abuse problem" as defined in the policy includes participation in a "structured program of counselling, therapy or other treatment." Imperial Oil did not show that a single seven-year rule was needed and that it could not without undue hardship accommodate differences in how quickly individuals recover from a substance abuse problem.

125Fourth, as the Board also concluded, "the mandatory conditions and undertakings for reinstatement are unlawful since the evidence shows this is more than is necessary in certain instances." Imperial Oil may legitimately insist on placing special controls for a period of time on an employee with a previous substance abuse problem who is returned to a safety-sensitive position. But the controls must be tailored to the individual's circumstances to meet the accommodation requirement.

126The controls initially demanded by Imperial Oil apply to all employees reinstated to a safety-sensitive position after disclosure of a past substance abuse problem. Many are onerous. For example, the employee must attend a self-help group (apparently indefinitely), must commit "to report to Imperial Oil's Occupational Health Division any changes in his/ her circumstances that may significantly increase the risk of relapse", must commit "to report to his/her supervisor/ manager compliance with the above conditions on a periodic basis to be determined by the review panel", and must commit "to undergo annual medical examinations, including screening for alcohol and drug abuse, conducted by Imperial's Occupational Health Division". These controls can be modified over time but to require them at all for employees like Entrop cannot be justified.

127For these reasons, Imperial Oil has failed to meet the third step of the Meiorin test. The provisions for mandatory disclosure, reinstatement and reassignment cannot, therefore, be justified as BFORs.

(c) Testing for certification and post-reinstatement

128Under the policy, employees hired into, promoted to or transferred to safety-sensitive jobs are required to satisfactorily complete a certification process, which includes a negative result on an alcohol and drug test. Employees with a past substance abuse problem wishing to be reinstated into a safety-sensitive job must also complete the certification process and "post-reinstatement" may be required to undergo "frequent and unannounced testing in addition to random testing."

129The Board concluded that testing for certification or post-reinstatement did not contravene the Code provided it was part of a larger assessment to determine whether an employee was not merely using but was abusing alcohol or drugs. Under the policy, however, alcohol and drug testing is but one part of the certification process and but one of the post- reinstatement controls. Both certification and reinstatement controls are intended to ensure that employees in safety- sensitive positions are not impaired by alcohol or drugs on the job. The Board did not discuss or make any findings whether either the certification process as a whole or the post- reinstatement controls as a whole was a satisfactory method of assessing substance abuse. I therefore think it unnecessary to interfere with the Board's conclusions on testing for certification and post-reinstatement.

Fifth Issue -- Did the Board err in concluding that Imperial Oil infringed s. 13(1) of the Code by distributing its policy to its employees?

130In her last interim decision, in an appendix to her reasons, the Board concluded that Imperial Oil infringed s. 13(1) of the Code by distributing the policy and supporting literature to its employees. Section 13(1) provides:

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.

131The Board concluded that the posting and printing of the policy and its distribution together with educational awareness materials to Imperial Oil's workforce amounted to "the publication or display before the public" of a "notice" under s. 13(1). She then held that, to the extent the policy violated the Code, this publication and display "indicated the intention . . . to infringe a right" under the statute. The Divisional Court did not expressly address the Board's conclusion that Imperial Oil infringed s. 13(1).

132In my view, the Board's conclusion that Imperial Oil infringed s. 13(1) should be set aside. The possible breach of s. 13(1) only became an issue before the Board as one of the grounds she relied on to confer jurisdiction over the alcohol and drug testing provisions of the policy. Earlier in these reasons, I expressed the view that s. 13(1) could not be used to expand the Board's jurisdiction. However, even if the Board could properly consider s. 13, in my view, the respondents have failed to establish that Imperial Oil breached this provision.

133Even accepting that the posting of the policy and its distribution to Imperial Oil's employees amounted to the publication of a "notice", to contravene s. 13(1), the notice must indicate an intention to infringe a right under the Code. The evidence does not reasonably support the conclusion that the policy indicates an intention to discriminate. The Board did not discuss the question of intention. Intention might be inferred from the Board's finding that alcohol and drug testing under the policy amounted to direct discrimination on the ground of handicap. However, in her sixth interim decision, the Board found that Imperial Oil was justified in insisting that its employees in safety-sensitive positions not be impaired by alcohol or drugs and that the company had developed and implemented the policy in good faith to achieve a workplace free of impairment. These findings are inconsistent with the finding that the policy indicates an intention to discriminate.

134Also, the Board did not even consider s. 13(2) of the Code, which provides that s. 13(1) "shall not interfere with freedom of expression or opinion." [See Note 3 at end of document] Even apart from s. 13(2), however, for the reasons I have stated, I would set aside the Board's finding that Imperial Oil infringed s. 13(1) of the Code.

Sixth Issue -- Did the Divisional Court err in holding that the Board's finding that Imperial Oil infringed Entrop's rights "wilfully and recklessly" was reasonably supported by the evidence?

135In her seventh interim decision, the Board dealt with monetary compensation for Entrop. She awarded him $1,241.93 in special damages for lost overtime because of his reassignment, $10,000 in general damages to compensate him for "the intrinsic value" of the infringement of his rights, and $10,000 for mental anguish, for "the wilful and reckless manner" of the infringement. Imperial Oil attacks only the award for damages for mental anguish. It submits the evidence does not show that the company's conduct was "wilful and reckless". The Divisional Court rejected this submission and I would too.

136Two aspects of Imperial Oil's conduct support the award. First, the Board accepted Entrop's evidence of the adverse effect on him of the job reinstatement process. This process was lengthy and intrusive for a problem, alcohol abuse, that Entrop fairly believed he had conquered. The process demeaned him and ostracized him with his co-workers, thus causing him stress and anxiety. At the very least, Imperial Oil acted recklessly in subjecting Entrop to this process.

137Second, Imperial Oil took a number of actions, which the Board ruled amounted to acts of reprisal against Entrop for having brought a human rights complaint. These actions included the aggressive monitoring of his work performance, pressuring him to withdraw his complaint, interfering with his ability to function as an elected delegate to the Joint Industrial Council, the organization that represents non-unionized employee interests, unfairly refusing to assign him to light duties because of his injured knee, and unfairly issuing him a warning letter when he was unavoidably delayed in reporting for a random test. The Board found that at least some of these actions were taken deliberately by Imperial Oil in retaliation for Entrop's filing of a complaint. That finding is reasonably supported by the evidence. In my view, the evidence on Entrop's reassignment together with the finding of reprisal support the Board's conclusion that Imperial Oil's conduct was wilful and reckless and thus justifies the awar d of damages for mental anguish. I would therefore not give effect to this ground of appeal.

CONCLUSION

138I would allow Imperial Oil's appeal on three issues:

(i) I would hold that the Board had no jurisdiction to inquire into the drug testing provision of the policy;

(ii) I would set aside the Board's conclusion that random alcohol testing for employees in safety-sensitive positions violates the Code, and in its place I would hold that such testing is a BFOR provided the sanction for an employee testing positive is tailored to the employee's circumstances; and

(iii) I would set aside the Board's conclusion that Imperial Oil infringed s. 13(1) of the Code and would dismiss that part of Entrop's complaint.

139In all other respects, I would dismiss the appeal. Because success has been divided, I would make no order for costs.

Appeal allowed in part.

Notes

Note 1: [Amended] 1994, c. 27, s. 65(12). Under the previous provisions in force when Entrop's complaint was dealt with by the Commission, the Commission requested the Minister to appoint a Board and the Minister was required to do so. Under the new provisions the Minister's role in the appointment of boards of inquiry, which was purely formal, has been eliminated.

Note 2: Section 13(1) of the B.C. statute is comparable to s. 5 of Ontario's Code. Section 13(1) states:

13(1) A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

Note 3: The constitutionality of s. 13(1), that is whether it contravenes the guarantee of freedom of opinion and expression in s. 2(b) of the Charter, was not raised before the Board or before us.