COURT FILE NO.: 258/06
DATE: 200700221
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J.S.C., CHAPNIK AND KEALEY JJ.
B E T W E E N:
WEYERHAEUSER COMPANY LIMITED, carrying on business as TRUS JOIST
Applicant
- and -
ONTARIO HUMAN RIGHTS COMMISSION
Respondent
- and –
ALAN CHORNYJ
Complainant
(Respondent)
Andrew J. Roman and Margaret Sims, for the Applicant
Brian Smith, for the Respondent, the Ontario Human Rights Commission,
James Schneider, for the Human Rights Tribunal of Ontario
HEARD at Toronto: October 10, 2006
REASONS FOR JUDGMENT
CUNNINGHAM A.C.J.S.C.:
[1] On October 13, 2006, this Court provided a brief oral judgment allowing the application for judicial review and issued an order of prohibition preventing the Ontario Human Rights Tribunal (the "Tribunal") from hearing the complaint of Mr. Alan Chornyj ("Chornyj"). This Court promised more detailed written reasons to follow. Those reasons are set out below.
Overview
[2] Chornyj brought a complaint to the Ontario Human Rights Commission (the "Commission") against the applicant, Weyerhaeuser Company Ltd. (c.o.b. Trus Joist) ("Weyerhaeuser"). Chornyj alleged that Weyerhaeuser's Health and Safety Standard, Substance Impairment (Canada) ("Standard") which requires pre-employment drug testing, was discriminatory, and that Weyerhaeuser's decision to withdraw its conditional offer of employment after he tested positive for marijuana discriminated against him on the ground of disability or perceived disability. Pursuant to its powers under the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"), the Commission decided to refer Chornyj's complaint to the Tribunal.
[3] Weyerhaeuser seeks judicial review of the April 27, 2006 interim decision of the Tribunal. In that interim decision, the Tribunal held that it had jurisdiction over the subject matter of the complaint. The Tribunal also held that it had jurisdiction to review Weyerhaeuser's policy of pre-employment drug testing for safety sensitive positions. Weyerhaeuser asks this Court for an order of prohibition to prevent the Tribunal from hearing the complaint.
Background
[4] On November 5, 2002, Weyerhaeuser offered Chornyj a second-class stationary engineer position at its plant located in Kenora, Ontario. He was to start work on November 12, 2002. This position was considered "safety sensitive". The offer of employment was conditional on Chornyj satisfying a number of requirements, one of which was passing a drug test. Chornyj signed a consent form indicating his consent to the test.
[5] On November 7, 2002, Chornyj tested positive for marijuana. On November 11, 2002, Ms. Argue ("Argue"), of Weyerhaeuser's Human Resources department, had a telephone conversation with Chornyj. The parties disagree on the nature of that conversation.
[6] Chornyj alleges that when Argue asked him if he smoked marijuana, he initially hesitated, and then admitted he was an occasional user. According to Chornyj, Argue told him he would not be permitted to start work. The next day (November 12, 2002), the offer of employment was withdrawn. Chornyj and the Commission allege that the offer was withdrawn, in whole or in part, because of the positive drug test.
[7] Weyerhaeuser alleges that when Argue asked Chornyj if he smoked marijuana, he repeatedly denied ever using it, but then changed his story and admitted to having used it. Weyerhaeuser alleges that at the end of the conversation Argue expressed serious concerns about Chornyj's honesty. Weyerhaeuser further alleges that the offer of employment was withdrawn because of Chornyj's dishonesty, and not because of his positive drug test.
[8] On June 4, 2003, Weyerhaeuser received Chornyj's complaint to the Commission. Weyerhaeuser made submissions to the Commission that it lacked jurisdiction to refer the complaint to the Tribunal. The Commission nonetheless referred the complaint to the Tribunal.
The Tribunal's Interim Decision
[9] Weyerhaeuser brought a motion to the Tribunal asking it to dismiss the complaint without a hearing. It argued that the Tribunal lacked jurisdiction to hear the complaint because the Code does not protect a right to lie, and marijuana use, without evidence of actual disability, is not a protected ground under the Code. Weyerhaeuser also argued that Chornyj's pleadings did not disclose a sufficient factual foundation to support the assertion that Weyerhaeuser perceived him to be suffering from a disability. Finally, and in the alternative, Weyerhaeuser challenged the scope of the complaint before the Tribunal, saying that the Tribunal should only examine Weyerhaeuser's policy of pre-employment drug testing as it relates to marijuana.
[10] In its interim decision (reported as Chornyj v. Trus Joist, a Division of Weyerhaeuser, [2006] O.H.R.T.D. No. 10), the Tribunal dismissed Weyerhaeuser's motion, finding that it had jurisdiction to hear the complaint. Citing Cory J. (sitting as a Tribunal) in Braithwaite v. Ontario (Chief Coroner), [2005] O.H.R.T.D. No. 31 at para. 13 [Braithwaite], the Tribunal held, at paras. 25-26 of its interim decision, that a motion to dismiss a complaint without a hearing can only be successful where it is "plain and obvious" that the complaint will fail.
[11] The Tribunal rejected Weyerhaeuser's submission that Chornyj was claiming a right to lie under the Code. In the Tribunal's opinion, Chornyj alleged discrimination on the basis of disability and/or perceived disability. At para. 32 of its interim decision, the Tribunal said,
It is true that [Weyerhaeuser's] position, and one of its defences is that it withdrew the job offer because of dishonesty. There is an obvious and critical factual dispute between the parties. It is an issue that will have to be determined by the Tribunal after hearing the testimony of witnesses and a consideration of the documentary evidence.
[12] Regarding the issue of whether marijuana use, without evidence of actual disability, is a protected ground under the Code, the Tribunal said the following at para. 35 of its interim decision:
[Chornyj] does not assert that he suffers from substance abuse or that he is disabled. Whether that is fatal to all or any part of the Complaint is a legal question to be determined after hearing the parties' evidence and argument. It is not "plain and obvious" that the Complaint will fail. It is not appropriate to dismiss the Complaint without a hearing on this ground.
[13] The Tribunal also rejected Weyerhaeuser's attack on the sufficiency of Chornyj's pleadings. Referring to Braithwaite, supra, the Tribunal held at paras. 36-45 of its interim decision that the pleadings need not set out every material fact being relied upon, and that sufficient facts were pleaded to support Chornyj's claim that Weyerhaeuser perceived him as being disabled.
[14] Finally, the Tribunal concluded, at paras. 46-53 of its interim decision, that it was not necessary to narrow the scope of the complaint. In the Tribunal's view, Weyerhaeuser's Standard did not create a separate "marijuana element" that could be examined in isolation from the entire pre-employment drug testing policy.
Legislative Provisions
[15] The provisions of the Code relevant to this application for judicial review are as follows:
Employment
- (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, family status or disability.
Infringement prohibited
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
Definitions re: Parts I and II
- (1) In Part I and in this Part"disability" means,
(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, includes diabetes mellitus, epilepsy, a brain injury, 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 other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(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 insurance plan established under the Workplace Safety and Insurance Act, 1997; ("handicap")
Hearing by Tribunal
- (1) The Tribunal shall hold a hearing,
(a) to determine whether a right of the complainant under this Act has been infringed;
(b) to determine who infringed the right; and
(c) to decide upon an appropriate order under section 41,
and the hearing shall be commenced within thirty days after the date on which the subject-matter of the complaint was referred to the Tribunal.
Legal Issues
[16] The following issues are relevant to this application for judicial review:
What is the appropriate standard of review?
Did the Tribunal err in concluding that it had jurisdiction to hear the complaint?
Standard of Review
[17] The Ontario Court of Appeal in Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18 at paras. 42-43 (C.A.) [Entrop] outlined the applicable standards of review with respect to an appeal from a final decision of a Board of Inquiry (now the Tribunal). On a question of law the standard is correctness. On findings of fact and questions of mixed fact and law the standard is reasonableness simpliciter.
[18] In this case, however, there is no final decision. Rather, this is an application to judicially review an interim decision of the Tribunal. The Code does not provide a right of appeal from an interim decision of the Tribunal. In my opinion, this does not change the standards of review described in Entrop, supra. In Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at para. 27, the Supreme Court held that "silence [regarding a right of appeal] is neutral and does not imply a high standard of scrutiny". It follows that silence also does not imply a lower standard of scrutiny.
[19] The standard of review in this case turns on the nature of the question before the Tribunal. I agree that Chornyj was not claiming he had a Code-protected right to lie. Chornyj claimed he was subject to discrimination in employment because of his recreational marijuana use. The alleged grounds of discrimination were disability and/or perceived disability. Therefore, there were two distinct issues before the Tribunal.
[20] The first issue was whether a person who engages in recreational marijuana use can maintain a claim of discrimination on the ground of disability where that person admits he is not disabled by his marijuana use. This is a question of law subject to the correctness standard of review. The second issue was whether Weyerhaeuser's Standard is prima facie discriminatory on the ground of perceived disability because in effect it treated Chornyj as if he were disabled by drug dependency. This is a question of mixed fact and law subject to the reasonableness simpliciter standard of review.
[21] In Ryan v. The Law Society of New Brunswick, 2003 SCC 20, [2003] 1 S.C.R. 247 at paras. 55-56, the Supreme Court described what is meant by an unreasonable decision:
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling.
This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.
Analysis
[22] Section 39 of the Code requires the Tribunal to hold a hearing where it is alleged that a protected right has been infringed. Chornyj did not claim that he abused marijuana, nor did he claim he used marijuana because he suffered from an existing disability. The only evidence before the Tribunal was that Chornyj claimed to be a recreational user of marijuana. Therefore it would be inconsistent for Chornyj to claim he was discriminated against on the ground of actual disability. In my opinion, the Tribunal erred in law by failing to dismiss this aspect of Chornyj's complaint, as it does not fit within the definition of "disability" under s. 10 of the Code.
[23] The next issue is whether the Tribunal erred in concluding that Chornyj had a tenable claim of discrimination on the ground of perceived disability. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 S.C.R. 665 at para. 71 [Boisbriand], the Supreme Court concluded there is a subjective component of discrimination that protects individuals from discrimination on the ground of perceived disability.
[24] The more difficult question is how a claimant can prove another party (for example, a prospective employer) "perceives" the claimant as having a disability. In Boisbriand, supra at paras. 76-84, the Supreme Court said that a multidimensional analysis is required. This approach was adopted by the Alberta Court of Queen's Bench in Alberta (Human Rights and Citizenship Commission v. Kellogg Brown & Root (Canada) Co., 2006 ABQB 302, [2006] A.J. No. 583 at para. 89 (Q.B.) [Kellogg]. As Kellogg is similar in many respects to the case at bar it is instructive to examine it in more detail.
[25] Kellogg involved a claim of discrimination by one Mr. Chiasson, a recreational marijuana user, who was terminated shortly after he began work with Kellog, Root and Brown (Canada) Company ("KBR") because of a positive result in a pre-employment drug test. Under KBR's drug testing policy, the offer of employment was conditional on Chiasson's pre-employment drug test being negative. To assess whether Chiasson was subject to discrimination on the ground of perceived disability, S.L. Martin J. looked to evidence of actual subjective belief of Chiasson's drug dependency on the part of KBR and its employees, as well as the consequences of a positive drug test in KBR's drug testing policy.
[26] S.L. Martin J. found there was evidence that KBR representatives and some of its employees subjectively believed Chiasson was drug dependent. Her Honour also found that the harsh consequence of a positive drug test prescribed by the drug testing policy (automatic dismissal) also indicated that KBR subjectively believed any person testing positive on a pre-employment drug test was a substance abuser. Taken together, she concluded Chiasson's dismissal was prima facie discriminatory on the ground of perceived disability: Kellogg, supra at paras. 90-94.
[27] Applying the Kellogg analysis to this case, I conclude the Tribunal erred in finding that Chornyj had a tenable claim of discrimination on the ground of perceived disability, and therefore it was unreasonable that the Tribunal refused to dismiss his complaint.
[28] First, the evidence does not support a conclusion that Weyerhaeuser actually perceived Chornyj as being disabled. Chornyj did not allege that anyone at Weyerhaeuser perceived him to be disabled. All of the evidence of Weyerhaeuser's representatives indicates that they did not perceive Chornyj as having a disability, but rather that they perceived him to be dishonest. Even if Chornyj's account of the telephone conversation with Argue were accepted as true, this would not support an inference that Weyerhaeuser perceived him to be disabled. In fact, Chornyj's own evidence is consistent with the evidence of Weyerhaeuser's representatives that they perceived him to be dishonest. In Schedule A to Chornyj's complaint he sets out, in his own words at para. J, his account of the telephone conversation with Argue:
J). I called Cathy Argue back to discuss the results of the drug test at 8 pm on Monday November 11th, 2002. I advised Cathy of the doctor's report of a positive test for marijuana. She asked me "Do you smoke marijuana?" I responded that I was exposed to second hand smoke by my roommate's friends for the last one-year period. She then said "Now Alan, I am writing this down, do you smoke marijuana?" I responded yes, in the past I have occasionally smoked a joint. Then she said "Well Alan, now you have lied to me and we do not want anyone who lies to work for Trus Joist. The fact that you have lied will seriously impact on whether you will be allowed to work for us in the future. You will not be allowed to start work tomorrow, on Tuesday November 12th, 2002. Stay in your motel room and I will touch base with you tomorrow." (Emphasis added)
[29] Second, the consequences of Weyerhaeuser's Standard do not support an inference that Weyerhaeuser perceived Chornyj as having a disability. The decisions in Entrop and Kellogg do not stand for the proposition that the mere existence of a drug testing policy is prima facie discriminatory on the ground of perceived disability. The effect of the drug testing policy must be examined in each particular case to determine if a claim of perceived disability is supportable.
[30] In this case, the effect of Weyerhaeuser's Standard is far less severe than the effects of the drug testing policies encountered in Entrop and Kellogg. Under the policies encountered in those two cases, a positive drug test resulted in automatic dismissal. Under Weyerhaeuser's Standard, a positive drug test does not automatically lead to dismissal or to the revocation of an offer of employment. Those who have a positive drug test are able to continue their employment if they satisfy a number of conditions.
[31] Before the person with a positive drug test can commence work, Weyerhaeuser's Standard requires that person to provide a negative drug re-test and to sign a Commencement of Duty Agreement, which states that the person "may" be terminated if he or she engages in "Prohibited Conduct" within the next five years. "Prohibited Conduct" includes being at work with a blood alcohol concentration of 0.001, using alcohol within 8 hours of performing a safety sensitive task, using alcohol within 8 hours of an accident, possessing and consuming alcohol while on duty, using or possessing controlled substances (including marijuana) at any time, and refusing to submit to an alcohol or drug test (Standard at pp. 6, 23).
[32] These conditions do not indicate that Weyerhaeuser subjectively perceives any person with a positive drug test to be disabled by drug dependency. Under the Standard, where a person has a positive drug test, he or she must report to a substance abuse professional for evaluation and must participate in any program prescribed by the professional (Standard at p. 8). There is no indication in the Standard that a positive drug re-test would result in the automatic revocation of an offer of employment. Nor does engaging in future "Prohibited Conduct" result in automatic dismissal. The Standard expressly states that a person "may, subject to the specific circumstances" be terminated if they engage in "Prohibited Conduct". An examination of the "specific circumstances" of any person engaging in "Prohibited Conduct" would no doubt require Weyerhaeuser to evaluate any further accommodation that would permit the person to safely continue his or her employment.
[33] I conclude that in light of the particular circumstances of this case there was no tenable basis for the Tribunal to find that Chornyj could proceed with his complaint of discrimination on the ground of perceived disability. It is plain and obvious that the complaint would not succeed given the rather peculiar situation before the Tribunal. Weyerhaeuser's Standard is clearly not prima facie discriminatory on the ground of perceived disability. Moreover, it is plain and obvious that Weyerhaeuser did not treat Chornyj as if he were disabled by drug dependency. The Tribunal's refusal to dismiss Chornyj's complaint was therefore unreasonable and should be set aside.
Disposition
[34] For the reasons outlined above, the application is allowed and Chornyj's claim is dismissed. Prohibition is an extraordinary remedy to be granted only in exceptional circumstances. In the particular circumstances of this case it is appropriate for this Court to grant an order of prohibition preventing the Tribunal from hearing Chornyj's complaint.
Costs
[35] Any party wishing to make submissions as to costs may do so by way of brief written submissions to the Court within 30 days of the release of these reasons for judgment.
CUNNINGHAM A.C.J.S.C.
CHAPNIK J.
KEALEY J.
Date of Release: February 21, 2007
COURT FILE NO.: 258/06
DATE: 20070221
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J.S.C., CHAPNIK AND KEALEY JJ.
B E T W E E N:
WEYERHAEUSER COMPANY LIMITED, carrying on business as TRUS JOIST
Applicant
- and -
ONTARIO HUMAN RIGHTS COMMISSION
Respondent
- and –
ALAN CHORNYJ
Complainant
(Respondent)
REASONS FOR JUDGMENT