A-392-96
Toronto-Dominion Bank (Appellant)
v.
Canadian Human Rights Commission and Canadian Civil Liberties Association (Respondents)
Indexed as: Canada (Human Rights Commission)v. Toronto-Dominion Bank (C.A.)
Court of Appeal, Isaac C.J., Robertson and McDonald JJ.A."Toronto, December 1 and 2, 1997; Ottawa, July 23, 1998.
Human rights — Bank's substance abuse policy requiring as condition of employment all new, returning employees submit to urine drug test — Refusal to do so grounds for dismissal — Drug dependent employees may lose employment if refusing rehabilitation services, or rehabilitation efforts unsuccessful — Non-dependent drug users may lose employment if persisting in drug use after testing positive three times — Bank bearing cost of rehabilitation — CHRA, s. 10 making it discriminatory practice for employer to establish policy depriving, tending to deprive individual or class of individuals of employment opportunity on prohibited ground of discrimination — S. 3 listing —disability— as prohibited ground — —Disability— defined in s. 25 as including drug dependence — Policy constituting prohibited discriminatory practice within CHRA, s. 10. — (i) Drug testing policy prima facie discriminatory because raising likelihood of drug dependent employees losing employment — (ii) Robertson J.A. holding policy constituting direct discrimination as having direct effect on drug dependent persons; McDonald J.A. holding policy indirectly discriminatory because impacting adversely on employees dependent on drugs, protected class of individuals under CHRA — Characterization important because different defences available — (iii) Robertson J.A. holding policy fails as BFOR defence not available — No evidence of drug problem in Bank's workforce, no causal relationship between illegal drug use, crime; policy not reasonably necessary to assure job performance; Bank not showing mandatory drug testing least intrusive of reasonable methods for assessing job performance — (iv) Where indirect discrimination, issue whether rational connection between policy, job performance — MacDonald J.A. holding policy not rationally connected to objective — Not sound business, economic policy to implement drug testing affecting small portion of employees, and no evidence employee work performance affected by drugs — To comply with reasonable accommodation component, employee cannot be tested unless, after receiving treatment, work performance inadequate — Must be objective evidence of poor performance — As policy not tied to concerns with job performance, not satisfying duty to accommodate — Per Isaac C.J. (dissenting): Motions Judge misapprehended Tribunal's reasons for concluding policy not discriminatory — Not showing Tribunal erred in fact or law — Absent finding of error, reviewing court should not interfere — If policy constituting adverse effect discrimination, satisfies rational connection test, given underlying concerns, as policy acknowledging impact of drugs on work performance as affecting alertness, perception, other working abilities — Providing reasonable accommodation to point of undue hardship.
Construction of statutes — Canadian Human Rights Act, s. 25 definition of —disability— including dependence on drugs — Whether intent of statute to extend protection to those dependent on illegal substances — Majority holding s. 25, as human rights legislation, not to be narrowly construed by reading in —legal— as modifying drugs.
Federal Court jurisdiction — Appeal Division — Appeal from Motions Judge's order setting aside Human Rights Tribunal's decision Bank's substance abuse policy not discriminatory; cross-appeal from finding policy not direct discrimination — Whether F.C.A. having jurisdiction to address issue of direct discrimination because not raised as ground for judicial review before Motions Judge — Motions Judge's failure to deal with issue in reasons not transforming issue into new one raised for first time on appeal as Tribunal addressing issue — Even if new, issue one of law, further evidence not required — All relevant evidence before Tribunal — Argument based on record not new evidence — Right to argue direct discrimination fully debated before Motions Judge who ruled could be — Pleadings not so defective as to take Bank by surprise — Allegation of direct discrimination at centre of legal controversy from outset — Motions Judge's decision as to sufficiency of originating motion upheld.
This was an appeal from the Motions Judge's decision that Toronto-Dominion Bank's substance abuse policy discriminated against drug dependent persons. The Canadian Civil Liberties Association (CCLA) cross-appealed the Motions Judge's finding that the policy did not constitute direct discrimination. In order to maintain a safe, healthy and productive workplace, to safeguard customer, bank and employee funds and information, as well as to protect its reputation, the Bank implemented a substance abuse policy which requires as a condition of employment that all new and returning employees submit to a urine drug test within 48 hours of accepting an offer of employment. The policy takes effect only after hiring. Refusal to submit to the drug test is grounds for dismissal. Employees who test positive and are drug dependent may lose their employment if they refuse to take advantage of the rehabilitation services offered or if rehabilitation efforts are unsuccessful. Non-dependent drug users may also lose their employment if they persist in using such drugs after having tested positive on at least three occasions. The cost of rehabilitation is borne by the Bank to the extent that needed services are not available under provincial health care plans. Employees undergoing rehabilitation maintain the right to full wages and other employment benefits.
The CCLA complained to the Canadian Human Rights Commission (CHRC) alleging that the Bank was contravening Canadian Human Rights Act, section 10 by engaging in a practice of direct discrimination, which deprived persons of employment on the basis of disability, namely drug dependence. Section 10 provides that it is a discriminatory practice for an employer to establish a policy that deprives or tends to deprive an individual or class of individuals, of an employment opportunity on a prohibited ground of discrimination. Section 3 lists disability as such a prohibited ground and section 25 defines disability as including dependence on a drug. The Human Rights Tribunal concluded that the reference to drugs in section 25 includes both licit and illicit drugs. It concluded that the CCLA failed to make out a prima facie case of discrimination, as no one had been denied employment under the Bank's policy on the basis of drug dependence. On judicial review the Motions Judge concluded that this was a case of adverse effect, or indirect, discrimination and that the Tribunal had erred in concluding that the policy was not discriminatory. The matter was remitted to the Tribunal for consideration of only the issue of whether the Bank's policy was rationally connected to job performance.
The issues were: (1) whether the Court had jurisdiction to address the issue of whether the policy constitutes direct discrimination because that issue was not raised as a ground for judicial review before the Motions Judge; (2) whether reference to "dependence on . . . a drug" in the definition of "disability" in section 25 was intended to extend protection to those dependent on "illegal" drugs; (3) whether the Bank's drug testing policy constituted a discriminatory practice within the meaning of section 10, which was broken down into four sub-issues: (i) whether the Bank's drug testing policy constituted prima facie discrimination; (ii) if so, whether the policy amounted to direct or indirect discrimination; (iii) if direct discrimination, whether the Tribunal erred in concluding that the bona fide occupational requirement (BFOR) defence was not available to the Bank; and (iv) if indirect discrimination, whether the Tribunal held that the rational connection test had not been met.
Held (Isaac C.J. dissenting), the appeal should be dismissed; and the cross-appeal should be allowed.
Per Robertson J.A.: (1) As to the jurisdictional issue, the CCLA's right to argue direct discrimination was fully debated before the Motions Judge, who ruled in its favour. As the pleadings were not so defective as to take the Bank by surprise, and from the outset the allegation of direct discrimination was at the centre of the legal controversy, the Motions Judge's decision respecting the sufficiency of the originating notice of motion was upheld.
(2) It would be contrary to the Supreme Court's approach to the interpretation of human rights legislation to construe section 25 narrowly by reading the word "legal" as modifying "dependence on . . . a drug". Dependence on illegal substances is just as, if not more, common than dependence on legal drugs. It would be impractical to protect only those dependent on so-called "legal" drugs as some of those might be obtained or used in an "illegal" fashion.
(3) The Bank's policy constituted a prohibited discriminatory practice.
(i) The Tribunal erred in concluding that the policy did not constitute prima facie discrimination. That finding was premised on the mistaken belief that a successful plea of reasonable accommodation can render non-discriminatory that which constitutes prima facie discrimination. A finding of reasonable accommodation does not negate the legal conclusion that an employment policy has a discriminatory effect on certain employees. The accommodation doctrine is a defence to prima facie discrimination, not a cleansing agent. The Tribunal also failed to appreciate that if an employment rule is not "reasonably necessary", or there is no "rational connection" between the rule and job performance, then it is irrelevant whether an employer is willing to accommodate its employees.
The argument that since all drug users (casual users and drug dependent persons) are treated identically, there can be no discrimination, was irrelevant. The issue was whether the Bank's policy tended to deprive drug dependent persons of employment opportunities. The Bank's drug testing policy constituted a prima facie discriminatory practice because it raised the likelihood of drug dependent employees losing their employment. An employment policy aimed at ensuring a work environment free of illegal drug use must necessarily impact negatively on those who are drug dependent.
(ii) The Bank's policy is directly discriminatory.
It was not indirectly discriminatory because it was not neutral. A policy designed to eliminate illegal drug use in the workplace will have an immediate or direct effect on drug dependent persons. A work rule that targets the removal of employees who fall within a class protected by human rights legislation is not neutral. An employment policy aimed at achieving a drug-free work environment should not be deemed neutral when by design it is directed at all those who use illegal drugs and, by necessity, those who are drug dependent.
To qualify as direct discrimination, a policy must be "discriminatory on its face". While the policy does not target a specific group for unequal treatment, the absence of an explicit reference to "drug dependent persons" in the Bank's policy is not fatal to a finding of direct discrimination. An impugned employment policy need not be patently exclusionary before qualifying as direct discrimination. Direct discrimination may also arise where the exclusion of a protected group is evident on a casual reading of the challenged policy. There is a sufficient proximity between the Bank's policy and the category of drug dependent persons so as to conclude that this was a case of direct discrimination.
(iii) In cases of direct discrimination an employer must satisfy the requirements of the BFOR test, otherwise the impugned work rule falls. In order to successfully invoke the BFOR defence the employer must establish on a balance of probabilities: (1) that the policy was imposed in good faith for a purpose related to job performance; and (2) is reasonably necessary to assure the efficient and economic performance of the work in question. The reasonable necessity component requires that the job qualification be rationally connected to the employment concerned, and that the policy is designed to ensure that it is met without placing an undue burden on those to whom it applies. This latter requirement imposes an obligation on an employer to show that there is no other more reasonable, or less intrusive alternative to the policy. The Tribunal correctly held that the BFOR defence was not available for the following reasons. There was no evidence of a drug problem within the Bank's workforce; and no causal relationship between illegal drug use and crime was established. The policy was not reasonably necessary to assure job performance. It would only qualify as reasonable if the Bank could demonstrate a serious threat to the Bank's other employees and the public, which it did not do. The Bank also failed to demonstrate that mandatory drug testing was the least intrusive of the reasonable methods for assessing job performance. Observation, the conventional method for assessing job performance, would achieve the same objectives without bringing into issue privacy concerns.
(iv) The Bank's policy failed even if it constitutes indirect discrimination. In cases of "indirect discrimination", the "rational connection" test applies. That there is a difference between the reasonably necessary and rational connection tests must be accepted as a matter of judicial doctrine. Whether or not the distinction is rationally supported is a matter on which the Supreme Court should adjudicate. The "rational connection test" does not impose an obligation on the employer to establish that other reasonable and less burdensome alternatives to the neutral work rule are available. The Tribunal found that there was no rational connection between the Bank's policy and the performance of the job in the context of the BFOR defence. That finding is equally applicable in the context of the accommodation issue. At best, the Bank's policy reveals whether an employee has been exposed to certain illegal drugs within a certain time frame. Such information reveals nothing about an employee's ability to perform the job in question.
Per McDonald J.A.: (i) The Bank's drug testing policy prima facie discriminates against drug dependent employees.
(ii), (iii) The Bank's drug testing policy constitutes adverse effect discrimination because, while the rule that those who test positive three times or refuse to undergo a urinalysis test are dismissed applies equally to all new and returning employees, it impacts adversely on those employees who are dependent on drugs. The policy, therefore, fits directly within the definition of adverse effect discrimination: it is an employment rule that is equally applicable to all to whom it is intended to apply, but is discriminatory because it affects a person or group of persons differently from others to whom it may apply. While the reason for dismissal may be a result of the "persistent" use of an illegal substance, nevertheless, the rule directly impacts more negatively on a protected class of individuals under the Canadian Human Rights Act " drug dependent users.
The policy is not direct discrimination because it is designed to catch all drug users not merely drug dependent users. It is only because it is designed to catch all drug users that drug dependent employees are caught. While the rule negatively impacts on drug dependent users, it does not directly discriminate against only them. Drug dependent users are the only individuals protected from this policy under the Act. Furthermore, it should not be assumed that a drug testing policy can never be neutral. A policy aimed at achieving a drug- and alcohol-free-work place can be neutral if it is concerned with work performance and seeks to rehabilitate those whose work performance has been affected as a result of their drug dependency. Indeed, drug testing in safety sensitive industries is allowed and pursued. The concern, therefore, should be to ensure that the policy is designed to meet the requirements of the CHRA rather than with banning these policies altogether. It makes sound economic and business sense to have in place a procedure to help those whose work performance is affected by a drug dependency. Finally, Robertson J.A.'s approach to the discrimination issue essentially eliminates the need for the adverse effect discrimination category. This may not be a desirable result, particularly in the context of alcohol and drug policies. The BFOR defence which is applied once a finding of direct discrimination is made, does not impose the duty of reasonable accommodation on the employer. Issues such as drug testing are more appropriately dealt with under the adverse effect discrimination category given that an employer will be required to accommodate the disabled employee, as this is the most effective way of ensuring that drug testing policies are tailored to meet the needs of the drug dependent as well as business.
(iv) A pre-condition to the determination of whether accommodation is made out is that the rule be rationally related to employment. The Bank's policy was not rationally related to its objective. It was under-inclusive. What had to be addressed was whether the policy was implemented for sound economic or business reasons. It is not sound economic or business policy to implement drug testing when that testing only affects a small portion of employees, and there is no evidence to suggest that employee work performance is being affected by drugs. Both the Motions Judge and the Tribunal should have considered the issue of work performance in their analyses. To comply with the reasonable accommodation component an employee cannot be tested unless after receiving treatment his or her work performance remains inadequate. Only then is the Bank justified in re-testing and dismissing the employee if the poor performance is related to drugs. When dealing with adverse effect discrimination in order to accommodate employees with drug testing problems, there must be objective evidence of poor performance. As the Bank's policy is not tied to concerns with employee job performance (as employees are never given a chance to work before being required to take the drug test, and because an employee who has received treatment is tested again regardless of his or her work performance), it has not satisfied the duty to accommodate. The Bank's drug testing policy constitutes a prohibited discriminatory practice within Canadian Human Rights Act, section 10.
Per Isaac C.J. (dissenting): The appeal should be allowed. (1) This Court had not only the jurisdiction, but also the duty, to address the issue of whether the policy constitutes direct discrimination. Although the Motions Judge's reasons did not deal with the issue of direct discrimination, it was clear from the manner in which she formulated the issues before her that the issue of direct discrimination was one that she had to address. Her failure to address it did not transform the issue into a new one raised for the first time on appeal, particularly since the Tribunal had addressed that issue, albeit in obiter. Furthermore, the underlying principle is that an appellant may not raise a point that was not pleaded or argued at trial, unless all relevant evidence is on record. However, a new issue may be addressed in cases in which the question is one of law upon which further evidence is not required. The issue whether the policy constitutes direct discrimination is one of law. All the evidence relevant to resolution of that issue had been adduced before the Tribunal. The issue was argued before the Tribunal and the appellant had, at that time, the opportunity to produce any evidence required to deal with it. Finally, the argument was based on the record and not on new evidence.
(2) The purpose of the Canadian Human Rights Act as set out in section 2 is to extend the laws in Canada so that every individual should have an equal opportunity to make the life that he is able and wishes to have, consistent with his duties and obligations as a member of society. Thus, section 2 limits the rights protected in the Act. All members of society have an obligation to obey the laws of Canada, including the prohibitions expressed or implied in the Narcotic Control Act. Section 25 must be construed as extending its limitation only to dependent drug users willing to rehabilitate and end their illegal use of narcotics.
(3) The order appealed from was wrong in law. The Motions Judge misapprehended totally the Tribunal's reasons for concluding that the policy did not amount to discrimination. The Tribunal made several findings in relation to the policy, based on which it concluded that the Bank's policy did not constitute discrimination on a prohibited ground. In light of those findings the Motions Judge erred in saying that the Tribunal decided that there was no discrimination because termination under the policy applied to both drug dependent employees and persistent casual users. This error fettered the Motions Judge's ability to consider and assess the legal validity of the reasons which the Tribunal gave for its decision. The Motions Judge also erred in attributing to the Tribunal a finding of fact that, under the policy, drug dependent employees are terminated by reason of their dependency, which the Tribunal had not made. The Tribunal concluded that dismissal was for breach of a condition of employment and therefore was not discriminatory. There was no basis in the record for that assertion. This error formed the basis for subsequent analysis and conclusion that this was a case of adverse effect discrimination and that the Panel erred in concluding that the policy did not constitute discrimination. In so concluding, the Motions Judge did not show that the Panel had made any error in fact or in law that affected its decision. The standard of review applicable to the Tribunal's decision is that of correctness. Absent a showing that the Tribunal was wrong in law or in fact, a reviewing court ought not to interfere with its decision.
(i) Any policy which deprives or tends to deprive a person of employment on the basis of a drug dependence is, arguably, a prima facie discriminatory practice. The policy provides that employees who do not comply with the policy by repeatedly testing positive for drugs face termination. That the appellant accommodates employees through rehabilitation programs and counselling does not mean that employees who repeatedly test positive for drugs do not risk termination. Among the employees who risk termination are those who are persistent, yet casual drug users, and those who are dependent on drugs. Therefore, the policy could be said to have the effect of depriving or tending to deprive drug dependent persons of employment and thus to constitute a case of prima facie discrimination within the meaning of section 10.
(ii) Direct discrimination occurs in the context of employment when an employer adopts a practice or a policy which "on its face" discriminates on a prohibited ground. The Bank policy did not, on its face, prevent anyone from gaining or maintaining employment with the appellant; employees who test positive for drug use and continue to participate in rehabilitation programs will not be terminated for that reason alone. An individual who refuses to submit to the initial drug test, or who refuses to comply with other requirements of the policy will have breached a condition of employment and be deemed to have rejected the appellant's offer of employment, thus risking termination by reason of the breach. The policy is concerned with treating employees with a drug abuse problem fairly and with respect. It is clearly rehabilitative, not punitive. Since the Act does not protect the right to use illegal drugs, but only protects against specific discriminatory practices on enumerated grounds such as drug dependence, the policy does not constitute discrimination on a prohibited ground. It cannot be inferred from the policy that the appellant perceived employees who test positive for drugs as suffering from a disability. The policy applies to prohibit any continued use of illegal drugs regardless of the reason for that use. Since employees who persist in using illegal drugs risk dismissal whether or not they are dependent on drugs, the policy cannot be construed as constituting direct discrimination against drug dependent employees.
Adverse effect discrimination arises when an employer, for genuine business reasons, adopts a rule or standard which is, on its face, neutral, and which will apply to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes obligations or restrictive conditions not imposed on others to whom it may apply. The policy is an employment rule, honestly made for economic or business reasons. It is equally applicable to all employees. Those who test positive on three occasions are at risk of being terminated. Among those who face termination are employees who are casual, yet persistent users as well as those who are dependent on drugs. Therefore, the application of the policy results in the termination of a class of employees which comes within the Act's definition of "disability" under section 25. The policy constitutes adverse effect discrimination.
(iv) The test for reasonable accommodation is that the policy must be rationally related to job performance, and the employer must accommodate the employee up to the point of undue hardship. The underlying concerns of the policy are to maintain a safe, healthy and productive workplace for all employees and to safeguard customer, employee and the appellant's funds and information and protect the appellant's reputation. The policy also acknowledges the impact of drugs on work performance in that it affects alertness, perception, and other working abilities. Since the test for rational connection in the context of adverse effect discrimination is not as strict as the "reasonable necessity" test of the BFOR defence, the policy was developed and adopted for sound economic reasons and satisfies the rational connection portion of the reasonable accommodation defence.
Accommodation is an integral part of the policy. The operation of the policy is consistent with its stated rehabilitative purpose: no employee testing positive on an initial drug test will be terminated because of a positive test result. The initial positive result remains confidential and undisclosed. Counselling and further rehabilitation programs are offered to employees testing positively on subsequent drug tests before any change in the employee's status is considered. Employees face only dismissal if they refuse to participate in a drug test or in a rehabilitation program or fail rehabilitation efforts and continue in their use of illegal drugs. Further, even in those situations, a review of the specific circumstances of the employee concerned is undertaken before any final decision is made about termination in order to ensure that the employee has been given every opportunity to rehabilitate and to comply with the policy. By its terms, the policy provides reasonable accommodation for affected employees and to require the appellant to do more would be unreasonable. The policy does accommodate affected employees to the point of undue hardship.
statutes and regulations judicially considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 15.
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2, 3(1), 10, 25 "disability", 40(1),(5)(b ).
Human Rights Code, R.S.O. 1990, c. H.19.
Narcotic Control Act, R.S.C., 1985, c. N-1, ss. 2 "narcotic", 3(1), Sch.
cases judicially considered
applied:
Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; (1990), 111 A.R. 241; 72 D.L.R. (4th) 417; [1990] 6 W.W.R. 193; 76 Alta. L.R. (2d) 97; 12 C.H.R.R. D/417; 90 CLLC 17,025; 113 N.R. 161; Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; (1985), 52 O.R. (2d) 799; 23 D.L.R. (4th) 321; 17 Admin. L.R. 89; 9 C.C.E.L. 185; 7 C.H.R.R. D/3102; 64 N.R. 161; 12 O.A.C. 241; Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202; (1982), 132 D.L.R. (3d) 14; 82 CLLC 17,005; 40 N.R. 159.
considered:
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; Entrop v. Imperial Oil Limited (1996), 27 C.H.R.R. D/210 (Ont. Bd. Inq.); affd Imperial Oil Ltd. v. Ontario (Human Rights Commission) (re Entrop), [1998] O.J. No. 422 (Gen. Div.) (QL); Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525; (1994), 115 D.L.R. (4th) 609; 21 Admin. L.R. (2d) 169; 4 C.C.E.L. (2d) 165; 94 CLLC 17,023; 169 N.R. 281; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; [1992] 6 W.W.R. 193; (1992), 71 B.C.L.R. (2d) 145; 13 B.C.A.C. 245; 16 C.H.R.R. D/425; 141 N.R. 185; 24 W.A.C. 245; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; (1988), 53 D.L.R. (4th) 609; 10 C.H.R.R. D/5515; 88 CLLC 17,031; Bhinder et al. v. Canadian National Railway Co. et al., [1985] 2 S.C.R. 561; (1985), 23 D.L.R. (4th) 481; 17 Admin. L.R. 111; 9 C.C.E.L. 135; 86 CLLC 17,003; 63 N.R. 185; Thwaites v. Canada (Canadian Armed Forces), [1993] C.H.R.D. No. 9 (QL); Canada (Attorney General) v. Robinson, [1994] 3 F.C. 228; (1994), 21 C.H.R.R. D/113; 94 CLLC 17,029; 170 N.R. 283 (C.A.); Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; (1996), 31 O.R. (3d) 574; 207 N.R. 171; 97 O.A.C. 161; R. v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 14 O.A.C. 335; Niles v. Canadian National Railway Co. (1992), 94 D.L.R. (4th) 33; 18 C.H.R.R. D/152; 92 CLLC 17,031; 142 N.R. 188 (F.C.A.).
referred to:
Lamb v. Kincaid (1907), 38 S.C.R. 516; 27 C.L.T. 489; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 13 Admin. L.R. (2d) 1; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R. 1; Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571; (1996), 133 D.L.R. (4th) 449; 18 B.C.L.R. (3d) 1; 37 Admin. L.R. (2d) 1; 72 B.C.A.C. 1; 25 C.H.R.R. D/87; 194 N.R. 81; 119 W.A.C. 1; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; (1996), 133 D.L.R. (4th) 1; 37 Admin. L.R. (2d) 131; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Egan v. Canada, [1995] 2 S.C.R. 513; (1995), 124 D.L.R. (4th) 609; C.E.B. & P.G.R. 8216; 95 CLLC 210-025; 29 C.R.R. (2d) 79; 182 N.R. 161; 12 R.F.L. (4th) 201; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; (1987), 40 D.L.R. (4th) 577; 8 C.H.R.R. D/4326; 87 CLLC 17,025; 75 N.R. 303; Large v. Stratford (City), [1995] 3 S.C.R. 733; (1995), 128 D.L.R. (4th) 193; 14 C.C.E.L. (2d) 177; 95 CLLC 230-033; 24 C.H.R.R. D/1; 188 N.R. 124; 86 O.A.C. 81.
authors cited
Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence, Issue No. 115 (21 December 1982).
Day, Shelagh and Gwen Brodsky. "The Duty to Accommodate: Who will Benefit" (1996), 75 Can. Bar Rev. 433.
Etherington, Brian. "Central Alberta Dairy Pool: The Supreme Court of Canada's Latest Word on the Duty to Accommodate" (1993), 1 Can. Lab. L.J.
Molloy, Anne M. "Disability and the Duty to Accommodate" (1993), 1 Can. Lab. L.J. 23.
Sopinka, John and Mark A. Gelowitz. The Conduct of an Appeal. Toronto: Butterworths, 1993.
APPEAL from Motions Judge's order (Canadian Civil Liberties Assn. v. Toronto-Dominion Bank (1996), 22 C.C.E.L. (2d) 229; 25 C.H.R.R. D/373; 96 CLLC 230-021; 112 F.T.R. 127 (F.C.T.D.)) setting aside the Human Rights Tribunal's decision (Canadian Civil Liberties Assn. v. Toronto-Dominion Bank (1994), 6 C.C.E.L. (2d) 196; 22 C.H.R.R. D/301; 94 CLLC 17,026 (H.R.T.)) that the Toronto-Dominion Bank's substance abuse policy did not discriminate against drug dependent persons; and cross-appeal from the Motions Judge's finding that the policy did not constitute direct discrimination. Appeal dismissed; cross-appeal allowed.
appearances:
Robert P. Armstrong, Q.C. and Steve J. Tenai for appellant.
René Duval and Eddie Taylor for respondent Canadian Human Rights Commission.
Martin J. Doane and Laura Young for respondent Canadian Civil Liberties Association.
solicitors of record:
Tory Tory DesLauriers & Binnington, Toronto, for appellant.
René Duval, Ottawa, for respondent Canadian Human Rights Commission.
Gowling, Strathy & Henderson, Toronto, for respondent Canadian Civil Liberties Association.
The following are the reasons for judgment rendered in English by
Isaac C.J. (dissenting): The Toronto-Dominion Bank (the appellant) appeals from an order of the Trial Division made on 22 April 1996 [(1996), 22 C.C.E.L. (2d) 229], on an application by the Canadian Human Rights Commission (the Commission) for judicial review of a decision of a Canadian Human Rights Tribunal Panel [(1994), 6 C.C.E.L. (2d) 196] (the Panel) that the Alcoholism and Substance Abuse Policy (the policy) of the appellant does not discriminate against drug dependent persons.
The order in appeal set aside the decision of the Panel and remitted the matter to them for a further hearing "only on the issue of whether the policy against alcoholism and illegal drug use . . . is rationally related to the performance of the job". The order also gave directions to the Panel: if the Panel concluded that there was no rational connection between the policy and the job performance, then it should dismiss the complaint of the Canadian Civil Liberties Association (the CCLA) against the appellant; however, if the Panel reached a contrary conclusion "it will . . . conclude that the policy involved adverse effect discrimination which has not been accommodated and, therefore, violates section 10 of the Canadian Human Rights Act".1
The CCLA, for its part, cross-appeals from the order on the issue whether the policy of the appellant constitutes direct discrimination.
The principal issue raised by the appeal and the cross-appeal is whether the policy discriminates against drug dependent persons.
Background Facts
The appellant has over 900 branches and employs about 30 200 persons. In or about 1987, officials from the Government of Canada approached the appellant and other financial institutions expressing concern about possible laundering of money obtained as the proceeds of crime. They asked financial institutions to review and tighten their policies and controls in order to protect against such activity.
In response to this request and to an internal concern that the general problem in society relating to the abuse of illicit drugs might also exist within the appellant, the appellant decided to develop a policy on alcoholism and substance abuse. With the assistance of external consultants, the appellant developed a policy which includes a provision for drug testing. It reads in part:2
Consistent with the Bank's commitment to maintain a safe, healthy and productive workplace for all employees, to safeguard Bank and customer funds and information, and to protect the Bank's reputation, the following measures have been adopted in an effort to provide a work environment that is free from both alcohol abuse and illegal drug use.
Each senior executive is demonstrating support for the Bank's commitment to a drug-free workplace by submitting to a drug test as part of the annual medical examination.
New employees, full-time, part-time, contract and students will be tested for drug use upon acceptance of employment. This will include all former TD employees rehired after an absence of three months or more.
Present employees will be referred for a Health Assessment which may or may not include a drug test in situations where there are strong grounds to believe that poor job performance, unusual personal behaviour, serious errors in judgment, or violations of the "Guidelines of Conduct" are related to alcohol abuse or illegal drug use. [Emphasis added.]
It is clear, then, that the policy applies to all the employees of the appellant, although it is mandatory for only some. The appellant's concerns underlying this policy are, inter alia, to maintain a safe, healthy and productive workplace for the employees, to safeguard customer, bank and employee funds and information as well as to protect its reputation. Throughout its pleadings the appellant has maintained that the banking industry is founded upon the principles of honesty, integrity and trust. As such, the connection between drug use and organized crime as well as theft pose an unacceptable risk for the appellant especially since employees have access to large amounts of money and privileged financial information.
From and after the effective date of the policy, all applicants for employment with the appellant are notified on the application form that, as a condition of employment, "all new employees accept and sign a Drug Screening and Authorization Form which provides for a drug screening test in accordance with the Bank's approved standards".3 This authorization is part of the application form and includes the following statement:4
I understand that acceptance of the terms and conditions of employment will include consent to be drug tested for illegal substances and agreement to abide by the Bank's conditions should any test results be positive. One of those conditions will be that the Bank's designated health professional is authorized to release relevant information to the Human Resources Department in certain cases.
The Panel found that the policy is not a pre-employment test but takes effect only after the applicant for employment has been hired. The Panel found that:5
. . . compliance with the Bank policy is a condition of employment. There is nothing in the CHRA to prohibit such a requirement. The notice regarding this condition is included with such other requirements as:
" receipt of at least three satisfactory written references;
" satisfactory completion of the probationary period;
" confirmation of medical fitness to perform the job, including a medical examination if necessary;
" enrolment in the Bank's long-term disability program; and
" authorization to obtain factual/credit and investigative/personal information regarding the employee from others.
. . .
The Tribunal finds that when employment is terminated following the refusal of an employee to comply with the Bank policy, whether it be refusal to provide a urine sample or at any subsequent stage, the termination is for breach of a condition of employment and it is not necessary to look beyond that for a "perception of drug dependence."
The appellant contracted with two private laboratory companies which operate the only two accredited substance abuse laboratories in Canada. Based on the evidence before it, the Panel found that the protocol for the specimen collection and its delivery to the testing laboratory took great care to document the identity of the individual and to protect the anonymity of the sample until the results reach the appellant's Health Centre in Toronto in order to prevent tampering with the sample and to secure the chain of custody of the sample throughout. The Panel also found that the two-stage testing protocol used by the laboratories produced very reliable results.
The laboratories screen the sample for cannabis (marijuana and hashish), cocaine and opiates (codeine, morphine and heroin). Although they could test for a broader range of illicit drugs, the evidence indicates that the incidence of abuse of other drugs beyond these categories was so low in the general population as to make the additional testing not worthwhile.
The drug testing process comprises up to three consecutive tests as described below. The new or returning employee is required to appear within 48 hours of receipt of acceptance for employment and to provide a urine sample for the purpose of the drug screening test.
If the result of the first test is negative, then the employee is notified and that is the end of the matter. However, if it is positive, the employee is notified by telephone of the result and of the fact that a further sample will be required for a second test. This is followed by a letter to the employee from the Medical Director of the Health Centre indicating the date for providing a second sample. Up to this point in the process, no one outside the Health Centre, other than the employee, is aware of the result.
In the case of cocaine and heroin, an employee is notified of a positive result and is required to attend an assessment at a major drug centre at the appellant's expense to determine whether treatment is required.
If the first test for codeine or morphine is positive and the employee has provided a credible medical explanation for taking prescription medications which could produce that result, the matter is reviewed with the Medical Director and any doubt is resolved in favour of the employee.
In the other cases, two further tests are performed. If the results are negative, the matter is closed and neither Human Resources nor the employee's supervisor is informed that a problem was identified. That information remains with the appellant's Health Centre and is confidential.
When a second test produces a positive result, the employee is notified by telephone within 24 hours of the receipt of the result by the Health Centre and advised that the file is being referred to a rehabilitation nurse. A follow-up letter is then sent to the employee outlining the requirement to submit to an assessment and, if need be, to a treatment program. The employee is then directed to appear for assessment at a designated treatment centre within 48 hours.
An employee whose assessment recommends more specific rehabilitation measures will be referred to his or her attending physician to discuss the treatment program recommended by the assessment centre. This may include out-patient or in-patient rehabilitation programs. An employee unwilling to pursue rehabilitation risks dismissal for failing to comply with a condition of employment. An employee willing to pursue rehabilitation continues as an employee with the appellant.
If the employee continues to test positive for use of cannabis, cocaine or opiates after counselling and appropriate rehabilitation have been made available, the Human Resources department of the appellant is advised and the employee risks dismissal. But such an employee will not be dismissed if further reasonable accommodation is possible. Before any decision is made to dismiss an employee for failing to comply with the policy, the employee's circumstances are reviewed by the senior vice-president of Human Resources of the appellant. He or she may suggest that the employee's probationary period should be extended and another test conducted.6
In April 1991, the CCLA filed a complaint with the Canadian Human Rights Commission (the Commission) pursuant to subsection 40(1) and paragraph 40(5)(b) of the Act. It alleged that the appellant was contravening section 10 of the Act by engaging in a practice of direct discrimination which deprived persons of employment on the basis of a disability, namely, perceived drug dependence.
On 16 August 1994, the Panel rendered its decision dismissing the complaint on the basis that it had not been substantiated.
The Commission subsequently applied to the Trial Division for judicial review of the decision of the Panel. By the order made on 22 April 1996, a Motions Judge set aside the decision of the Panel and remitted the matter to it with directions. That order is the subject both of this appeal and the cross-appeal.
Decision of the Canadian Human Rights Tribunal Panel
The Panel unanimously dismissed the complaint of the CCLA. The Panel held that when employment is terminated following the refusal of an employee to comply with the policy, the termination is for breach of a condition of employment and "it is not necessary to look beyond that for a `perception of drug dependence'".7
It also held that the policy and practice of the appellant do not constitute discrimination on a ground prohibited under the Act. The Panel expressed its conclusion as follows:8
The Tribunal finds that the ultimate dismissal is not based upon a perceived disability (drug dependence) but upon the persistent use of an illegal substance even though in some instances that may include a drug dependent person. Thus, the policy and practice of the Bank does not constitute discrimination on a prohibited ground under the CHRA.
In obiter dicta, the Panel stated that if it had determined that the policy discriminated against employees on the basis of a disability, namely, perceived drug dependence, it would constitute adverse effect discrimination. In effect, the policy applies equally to an entire class of employees (new and returning employees) and employment is ultimately denied only to a small minority who test positive for an illicit drug on three successive occasions.
However, the Panel further held that by referring the employees for assessment after a second positive test and by paying for whatever treatment is indicated, as well as by maintaining the employee on the payroll during that time, the appellant reasonably accommodated the employee.
In further obiter dicta, the Panel stated that, if it had found that the policy constituted direct discrimination, the appellant would not have satisfied the onus of proving that it had a bona fide occupational requirement (BFOR) to justify the policy. The Panel found that the purpose of the policy is appropriate in so far as the employer's goal is to eliminate illicit drugs from the employee population because of the impact on job performance. However, it found that the method chosen by the appellant, mandatory urinalysis, is intrusive, and cannot be viewed as reasonable in view of the fact that there is no substantial evidence of a serious threat to other employees of the appellant or to its customers or both.
Reasons of the Motions Judge
The Commission applied to the Trial Division for judicial review of the decision of the Panel on several grounds. The only ground relevant for the purpose of this appeal and cross-appeal is whether the policy is discriminatory.
The learned Motions Judge framed the issue respecting this ground in the following manner:9
Did the Tribunal err when it concluded that the Policy is not discriminatory and if so, is the discrimination adverse effect or direct discrimination? As well, if the discrimination is adverse effect discrimination, was accommodation properly established? [Emphasis added.]
The Motions Judge commenced the analysis in the following way:10
The Tribunal decided that there was no discrimination because termination under the Policy applied to both drug dependent employees and persistent casual users. However, the Tribunal also concluded as a finding of fact, which was not challenged before me, that, under the Policy, drug dependent employees are terminated by reason of their dependency. In these circumstances, it seems to me that, for the purpose of deciding whether the Policy is discriminatory, the fact that the Policy may have negative consequences which are not covered by the CHRA for persistent casual users and for those who refuse to comply with the Policy is not determinative of the discrimination issue.
The Motions Judge concluded that the case before her was one of adverse effect discrimination and that the Panel erred in concluding that the policy was non-discriminatory.
On the issue of whether the policy is discriminatory, the Motions Judge noted that while the policy was neutral on its face, the group to which the policy applies includes a sub-group of employees who face illegal termination because they are drug dependent.
On the issue of reasonable accommodation, the Motions Judge held that the Panel erred by not reaching a clear and unmistakable conclusion as to whether a rational connection exists between the policy of the appellant and the performance of the job. The Motions Judge held as insufficient the Panel's conclusion that it was appropriate for an employer to seek to stop illicit drug use by its employees because of the impact such drugs might have on job performance. She held that the conclusion of the Panel on the issue of rational connection was made in the context of whether a bona fide occupational requirement had been established, and that it was not found under the heading of "accommodation" in the decision of the Panel. Furthermore, she said, the words "rational connection" do not appear in that conclusion.11
She did, however, agree with the Panel that the point of undue hardship is reached when the employer is faced with the continued presence of an employee who cannot be rehabilitated and who persists in his or her criminal acquisition and use of illegal drugs.12
The Motions Judge disposed of the application in the manner that I have already indicated.
Relevant Statutory Provisions
The relevant sections of the Act read:
2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability or conviction for an offence for which a pardon has been granted. [Emphasis added.]
3. (1) For all purposes of this Act, race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability and conviction for which a pardon has been granted are prohibited grounds of discrimination.
. . .
10. It is a discriminatory practice for an employer, employee organization or organization of employers
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
. . .
25. In this Act,
. . .
"disability" means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.
The relevant provisions of the Narcotic Control Act13 read in part:
2. In this Act,
. . .
"narcotic" means any substance included in the schedule or anything that contains any substance included in the schedule;14
. . .
3. (1) Except as authorized by this Act or the regulations, no person shall have a narcotic in his possession.
Issues
The principal issues raised by the appellant on the appeal are:
Issue 1" Whether the Motions Judge failed to accord the appropriate level of deference to the Panel's findings that the policy is not discriminatory.
Issue 2" Whether the Motions Judge erred in characterizing the impugned components of the policy as adverse effect (indirect) discrimination.
Issue 3" Whether the Motions Judge erred by holding that the Panel [at page 237] "failed to reach a conclusion about a rational connection in clear and unmistakable terms".
The issues raised by the CCLA on cross-appeal are:
Issue 1" Whether the Motions Judge erred in holding that the policy does not constitute direct discrimination.
Issue 2" Whether the Motions Judge correctly held that the policy constitutes a prima facie case of adverse effect discrimination and that the Panel erred in failing to apply the rational connection component of the test for reasonable accommodation required to defend a prima facie case of adverse effect discrimination.
The ultimate question to be addressed by this appeal and the cross-appeal is whether the policy constitutes a discriminatory practice within the meaning of section 10 of the Act.
For the reasons that follow, I have concluded that the order in appeal is wrong in law and should be reversed. First, the Motions Judge appears to have misapprehended totally the Panel's reasons for concluding that the policy did not amount to discrimination.
In its reasons, the Panel made several findings in relation to the policy, which I enumerate below:
1. that the Act does not condone or protect the illegal use of any illicit drug;
2. that the Act does protect a person who is afflicted with a drug dependency from being summarily fired from their employment;
3. that the testing requirement in the policy is not a pre-employment test but comes into effect only after the applicant for employment has been hired;
4. that compliance with the policy is a condition of employment: it is not prohibited by the Act;
5. that when employment is terminated for failure to comply with the policy, whether it be refusal to provide a urine sample or at any subsequent stage, the termination is for breach of a condition of employment and it is not necessary to look beyond that for a "perception of drug dependence";
6. that this was not a case of perception of drug dependence but of an actual professional diagnosis; and,
7. that ultimate dismissal (after three positive tests) is not based upon a perceived disability (drug dependence) but upon the proved persistent use of an illegal substance, even though in some instances that may include drug dependence.
Based upon those findings, the Panel concluded:15
Thus, the policy and practice of the Bank does not constitute discrimination on a prohibited ground under the CHRA.
In light of those clear findings, which are supported by the evidence, it is, in my respectful view, error for the Motions Judge to say that:16
The Tribunal decided that there was no discrimination because termination under the Policy applied to both drug dependent employees and persistent casual users.
In my respectful view, this error fettered the ability of the Motions Judge to consider and assess the legal validity of the reasons which the Panel gave for its decision.
The reasons of the Motions Judge contain a more serious error. They attribute to the Panel a finding of fact which it did not make. The passage from the reasons reads:17
However, the Tribunal also concluded as a finding of fact, which was not challenged before me, that, under the Policy, drug dependent employees are terminated by reason of their dependency.
The appellant challenged this assertion, stating that the Panel did not make any such finding. My several readings of the reasons of the Panel confirms the correctness of the appellant's challenge. In my respectful view, there is no basis in the record for the assertion which the Motions Judge has made.
I have characterized this error as being more serious, because it formed the basis for subsequent analysis by the Motions Judge. Immediately following the passage quoted in paragraph 44, she continued:18
In these circumstances, it seems to me that, for the purpose of deciding whether the Policy is discriminatory, the fact that the Policy may have negative consequences which are not covered by the CHRA for persistent casual users and for those who refuse to comply with the Policy is not determinative of the discrimination issue.
She went on to conclude, based on a reading of a passage from the majority reasons in Central Alberta Dairy Pool v. Alberta (Human Rights Commission),19 that this was a case of adverse effect discrimination and that the Panel erred in concluding that the policy did not constitute discrimination.
In reaching the conclusion that the Panel had erred in finding that the policy did not discriminate, the Motions Judge did not show that the Panel had made any error in fact or in law that affected its decision. The jurisprudence teaches, as I will later demonstrate, that the standard of review applicable to the decision of the Panel is that of correctness. Absent a showing that the Panel was wrong in law or in fact, a reviewing court ought not to interfere with its decision. In this case, as I have said, the Motions Judge made no such showing. Indeed, as I have shown, she misapprehended the reasons which the Panel gave. In these circumstances, I conclude that the Panel was right to find, for the reasons it gave, that the policy did not constitute discrimination and that the Motions Judge was wrong to conclude otherwise, without even examining in her reasons, the real basis of the Panel's conclusion. The Panel concluded that dismissal was not discriminatory principally because it was for breach of a condition of employment.
If I am wrong in that conclusion, and if it could be said that the policy does amount to discrimination, then, it is my respectful view, that prima facie it constitutes adverse effect discrimination, but that the appellant has satisfied the test required by jurisprudence to defend against such a prima facie case.
I will examine this question by addressing, successively, the following sub-issues:
(a) whether the policy constitutes prima facie discrimination;
(b) if so, whether the policy amounts to adverse effect or direct discrimination; and
(c) if adverse effect discrimination, whether the appellant has satisfied the test for reasonable accommodation.
Before dealing with these sub-issues, I will address a jurisdictional issue which the appellant raised in the cross-appeal.
The Jurisdictional Issue
In its memorandum on the cross-appeal and in oral argument, the appellant (respondent by cross-appeal) contended that this Court was without jurisdiction to address the issue whether the policy constitutes direct discrimination because that issue was not raised as a ground for judicial review before the Motions Judge. For that reason, so the argument ran, the CCLA cannot raise that issue on appeal before this Court.
I disagree with this contention. The first point to notice is that although the Motions Judge did not deal with the issue of direct discrimination in her reasons, it is clear from the manner in which she formulated the issues before her that the issue of direct discrimination was one that she had to address. Her failure to address it, does not, in my view, transform the issue into a new one raised for the first time on appeal. This is all the more so since the Panel whose decision was under review by the Motions Judge did address that issue, albeit in obiter.
Secondly, the principle underlying this argument is that an appellant may not raise a point that was not pleaded or was not argued at trial, unless all relevant evidence is on record.20 It is trite that a court of appeal should not give effect to a point taken for the first time in appeal, unless it is clear that, if the question had been raised at the proper time, no further light could have been shed upon it.21 However, a new issue may be addressed in cases in which the question is one of law upon which further evidence is not required.
In this case, the issue whether the policy constitutes direct discrimination is one of law. All the evidence relevant to resolution of that issue had been adduced before the Panel. The issue was argued by the cross-appellant before the Panel and the appellant had, at that time, the opportunity to produce any evidence required to deal with it.
Finally, the argument of the cross-appellant was based on the record and not on new evidence. It is my view that, in these circumstances, this Court has not only the jurisdiction to hear the CCLA on this issue, but also the duty to address it.
Prima Facie Discrimination
I now turn to the issue whether the policy constitutes prima facie discrimination under section 10 of the Act. As I have already said, the Panel concluded that the policy did not constitute prima facie discrimination.
Section 10 of the Act provides that it is a discriminatory practice for an employer to establish a policy that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. Section 3 of the Act lists disability as a ground of discrimination and section 25 of the Act defines disability as including dependence on a drug. Therefore, any policy which deprives or tends to deprive a person of employment on the basis of a drug dependence is, arguably, a prima facie discriminatory practice.
The policy requires that all employees be tested for drug use. Although the policy applies to all employees, it is mandatory only for some.
The appellant defends the policy on two bases. First, that the policy does not constitute a discriminatory practice, since its effect is to prohibit any continued use of illegal drugs regardless of the reason for such use. Secondly, that under the policy, employees face termination only if they do not comply with its requirements, either by refusing to undergo testing or by persisting in the use of illegal drugs, whether or not they are drug dependent.
The appellant's first objection to the order on appeal is that the Motions Judge failed to accord the appropriate level of deference to the finding of the Panel that the policy is not discriminatory.
In support of that objection, the appellant says that the Panel's finding on this issue was one of fact, and since that finding was not patently unreasonable, the Motions Judge should have accorded deference to it and should not have interfered. I disagree with the appellant's contention on this issue, for the following reasons.
First, in making its determination, the Panel was answering a question of law or mixed fact and law. That determination was, therefore, one to which reviewing courts owe little deference.
The appropriate level of deference owed to decisions of human rights tribunals was discussed by the Supreme Court of Canada on several occasions. The principle set out by La Forest J. in Canada (Attorney General) v. Mossop,22 and recently affirmed by the Supreme Court of Canada in Gould v. Yukon Order of Pioneers23 and in Ross v. New Brunswick School District No. 15,24 is that the superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context and does not extend to general questions of law. Therefore, courts must review decisions of a human rights tribunal on questions of law or mixed fact and law on the basis of correctness, not a standard of reasonableness.25
Secondly, the policy provides that employees who do not comply with the policy by repeatedly testing positive for drugs face termination. The fact that the appellant accommodates employees through rehabilitation programs and counselling does not mean that employees who repeatedly test positive for drugs do not risk termination. Among the employees who risk termination are those who are persistent, yet casual drug users, and those who are dependent on drugs. Therefore, the policy could be said to have the effect of depriving or tending to deprive drug dependent persons of employment and thus to constitute a case of prima facie discrimination within the meaning of section 10 of the Act.
Direct Discrimination
In light of that conclusion, I must determine whether that discrimination is direct or adverse effect. The distinction between direct and adverse effect discrimination is important because it determines, inter alia, the applicable defences and whether the policy will be struck down or maintained once a finding of discrimination has been made.
Discrimination is not defined in the Act, but in Andrews v. Law Society of British Columbia,26 the Supreme Court of Canada defined it as follows:
. . . discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society.
The distinction between direct and adverse effect discrimination was laid down by the Supreme Court of Canada in Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd. et al.,27 where McIntyre J., for the Court, stated:
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." . . . On the other hand, there is the 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 characteristics of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force . . . . 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.
The Supreme Court of Canada further refined the definition of direct discrimination in the context of employment in Dairy Pool, supra, in the following terms:28
The essence of direct discrimination in employment is the making of a rule that generalizes about a person's ability to perform a job based on membership in a group sharing a common personal attribute such as age, sex, religion, etc. The ideal of human rights legislation is that each person be accorded equal treatment as an individual taking into account those attributes. Thus, justification of a rule manifesting a group stereotype depends on the validity of the generalization and/or the impossibility of making individualized assessments.
Direct discrimination will therefore occur in the context of employment when an employer adopts a practice or a policy which, "on its face", discriminates on a prohibited ground. In my view, the policy at issue here does not fall within that definition. It does not, on its face, prevent anyone from gaining or maintaining employment with the appellant; employees who test positive for drug use and continue to participate in rehabilitation programs will not be terminated for that reason alone. An individual who refuses to submit to the initial drug test, or who refuses to comply with other requirements of the policy, will have breached a condition of employment and is deemed to have rejected the appellant's offer of employment, thus risking termination by reason of the breach.
The appellant's objective in establishing the policy is to promote a safe, healthy and productive workplace for all employees, and to provide a drug-free workplace. The policy therefore prohibits the consumption, possession, sale or distribution of illegal drugs while on appellant's premises or during working hours. At the same time, the policy is concerned with treating employees with a drug abuse problem in a fair manner and in ways which respects their right to privacy and dignity. The intent of the policy is clearly rehabilitative, not punitive: rehabilitative services are offered to all employees who need them and termination of employment will occur only where reasonable accommodation has been provided but is considered unsuccessful or where rehabilitative efforts have failed or have been refused. It should be noticed that the policy requires all senior managers to submit to drug testing, albeit on a voluntary basis, as part of their annual medical examination.
Since the Act does not protect the right to use illegal drugs but only protects against specific discriminatory practices on enumerated grounds such as drug dependence, it cannot be said, in my view, that on its face, the policy constitutes discrimination on a prohibited ground.
The CCLA submits that the fact that all drug users are not dependent on drugs should not detract from the direct nature of the discrimination. They argue that in considering whether an employer has discriminated on the basis of a disability, it is sufficient that the employer perceive that the employee is disabled from working. However, the CCLA led no evidence to establish that the appellant perceived affected employees in this manner.
Furthermore, it cannot be inferred from the policy that the appellant perceived employees who test positive for drugs as suffering from a disability. On the contrary, as the Panel noted, the appellant does not operate on perceptions or assumptions about the nature of the employees' drug use, but upon actual professional diagnoses. An employee repeatedly testing positive for illegal drug use faces termination because of his or her continued use of illegal drugs.29
In written and oral submissions, the CCLA further relied on the decision of the Ontario Board of Inquiry in Entrop v. Imperial Oil Limited30 which found that a perception of unfitness to work because of the presence of alcohol or drug in an employee's body constitutes direct discrimination on the basis of handicap.
The decision of the one-member panel was confirmed by the Ontario Divisional Court after the hearing of this appeal. The Court confirmed the following findings made by the Board: the policy was directly discriminatory because it required "self-disclosure by people with substance abuse problems including drug abuse and drug dependence". The policy was also found to be directly discriminatory by virtue of the:31
. . . various testing provisions of the Policy, as measures designed to assist the employer to seek out and designate workers who are to be disciplined on the basis of handicap, or "perceived" handicap in the case of people who test positive for drug and alcohol use but who do not have a drug or alcohol abuse problem. Although Imperial denies perceiving that drug using employees are handicapped, it was the finding of the Board that the Policy treats even casual users as if they had a handicap and that that treatment is sufficient to trigger the protection of the Code.
Finally, the Court also agreed with the finding of the Board that Imperial Oil did not make out a defence to the prima facie discriminatory treatment, because it failed to establish that drug testing is relevant in determining whether the individual has the capacity to perform the essential components of the job safely, efficiently and reliably.
While this decision in this appeal was reserved, counsel for the CCLA and for the appellant made further submissions in writing based upon the decision of the Divisional Court. I have read and considered these submissions and agree with the submissions of the appellant that the decision of the Divisional Court in Entrop is distinguishable on its facts and does not assist the CCLA in its argument on this issue.
I conclude, therefore, that the policy applies to prohibit any continued use of illegal drugs regardless of the reason for that use. Employees who test positive for drugs are not dismissed for drug use. Rather, those employees who persist in using drugs and who test positive on three occasions risk dismissal if they do not participate in rehabilitation or comply with the other requirements of the policy. Since employees who persist in using illegal drugs risk dismissal whether or not they are dependent on drugs, the policy cannot be construed as constituting direct discrimination against drug dependent employees. I will now consider the issue of adverse effect discrimination.
Adverse Effect Discrimination
In O'Malley, supra, McIntyre J. described adverse effect discrimination as arising when an employer, for genuine business reasons, adopts a rule or standard which is, on its face, neutral, and which will apply to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, inter alia, obligations or restrictive conditions not imposed on others to whom it may apply.
Writing for the majority in Dairy Pool, supra, Wilson J. defined a rule as constituting adverse effect discrimination when:32
. . . a rule that is neutral on its face but has an adverse effect on certain members of the group to whom it applies. In such a case the group of people who are adversely affected by it is always smaller than the group to which the rule applies. On the facts of many cases the "group" adversely affected may comprise a minority of one, namely the complainant. In these situations the rule is upheld so that it will apply to everyone except persons on whom it has a discriminatory impact, provided the employer can accommodate them without undue hardship.
The principles set out in Dairy Pool and O'Malley, supra, have been applied by courts in various decisions, and more recently, have been followed by the Supreme Court of Canada in Commission scolaire régionale de Chambly v. Bergevin33 and Central Okanagan School District No. 23 v. Renaud.34 Although the Supreme Court of Canada first addressed the concept of adverse effect discrimination in the context of provincial human rights legislation, McIntyre J. made it clear in Andrews, supra, that the equality principles developed in those cases were equally applicable to cases involving section 15 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].35 In my view, these principles apply, a fortiori, to cases governed by federal human rights legislation.
The Motions Judge found that the policy constituted adverse effect discrimination, because, although neutral on its face and applicable to all employees, it impacts adversely on a sub-group of employees who face termination because they are drug dependent.36
The CCLA contends that the policy imposes on drug dependent employees, because of some special characteristic (drug dependence), penalties not imposed on others in the work force. It also contends that the impact of the policy will be to exclude from employment a disproportionate number of drug dependent persons thus satisfying the elements of adverse effect discrimination.
For its part, the appellant contends that the Motions Judge exceeded the intended scope of the Act in finding that it extends to protect drug dependent persons using illegal drugs. The appellant says that such an interpretation of the Act is contrary to the intention of Parliament as reflected in the Narcotic Control Act and in the explanation of the scope of the phrase "previous or existing dependence on a drug" given by the then Chairman of the Commission to the Standing Committee on Justice and Legal Affairs. Furthermore, the appellant says that that phrase in section 25 of the Act should not be interpreted in such a manner as to prevent an employer from dismissing an employee reliably diagnosed as using an illegal drug. In its written submissions, the appellant quotes the following words of the Chairman, confirming that an employer has the right to dismiss an employee found using illegal drugs:
Mr. Robinson (Burnaby): Okay. And if we were dealing with an illegal drug, then existing guidelines dealing with breach of the law would allow the employer to terminate the employee.
Mr. Fairweather: That is right.37
Therefore, the appellant submits, if the Act extends to persons dependent on illegal drugs, then the protection afforded under the Act should only extend to dependent drug users willing to rehabilitate and end their illegal use.
I notice here that the appellant's interpretation of section 25 is consistent with section 2 of the Act. Section 2 provides that the purpose of the Act is to extend the laws in Canada to give effect to the principle that every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society. Thus, section 2 contains within itself a limitation on the rights protected in the Act. All members of society have an obligation to obey the laws of Canada, including the prohibitions expressed or implied in the Narcotic Control Act. It is my respectful view, therefore, as the appellant rightly contends, that section 25 of the Act must be construed as extending its limitation only to dependent drug users willing to rehabilitate and end their illegal use of narcotics.
The policy is an employment rule honestly made for economic or business reasons. As previously mentioned, the appellant's concerns underlying this policy are, inter alia, to maintain a safe, healthy and productive workplace for the employees, to safeguard customer, the appellant's and employee funds and information as well as to protect its reputation. The banking industry is founded upon the principles of honesty, integrity and trust. As such, the connection between drug use and organized crime as well as theft pose an unacceptable risk for the appellant especially since employees have access to large amounts of money and privileged financial information.
Furthermore, as I have already said, the policy is equally applicable to all employees. Those who test positive on three occasions are at risk of being terminated. Among those who face termination are employees who are casual, yet persistent users as well as those who are dependent on drugs. Therefore, the application of the policy results in the termination of a class of employees which comes within the Act's definition of "disability" under section 25. For these reasons, I conclude, that it could be said that the policy constitutes adverse effect discrimination.
Reasonable Accommodation
Having concluded that the policy could arguably be said to constitute adverse effect discrimination, I must examine whether the appellant has satisfied the test for reasonable accommodation. In cases of direct discrimination, the employer must satisfy the requirements of the bona fide occupational requirement (BFOR) test in order for a court to uphold a work rule. In cases of adverse effect discrimination, a rule remains enforceable if the employer makes reasonable efforts to accommodate those who are adversely affected by it.
Since I have concluded that the policy does not constitute direct discrimination, I do not find it necessary to deal with the BFOR test.
The test for reasonable accommodation was set out by Wilson J. in Dairy Pool, supra. The two components of the test are that the policy must be rationally related to job performance, and the employer must accommodate the employee up to the point of undue hardship.
(1) Rational Connection
The Motions Judge found that the Panel was correct when it concluded that the appellant had fulfilled its obligation to accommodate drug dependent employees short of undue hardship.
The test for rational connection was set out by Wilson J. in Dairy Pool, supra, in the following terms:38
McIntyre J.'s judgment in O'Malley provides some guidance in identifying a rational connection between a given rule and the employment. At page 551 he speaks of an "employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply . . ." As in the case at bar, the rule in O'Malley pertained to attendance on certain days, specifically two out of three Saturdays. The Court in O'Malley concluded that the employer's rule satisfied the first branch of the test. McIntyre J. states at pp. 555-56:
To relate the principle of accommodation to the facts at bar, we must begin with the proposition that the employer is lawfully entitled to carry on business and to stay open for business on Saturdays. It is accordingly entitled to engage employees on the condition that they work on Saturdays.
I think it must follow from this that the respondent in the case at bar is equally entitled to organize its business by closing down its processing operation on the weekend resulting in Mondays being a particularly busy day. The respondent's work rule accordingly meets the test of being rationally connected to the job of being a dairy processor.
In Dairy Pool, supra, Wilson J. expanded on the concept of a regime in which the type of discrimination dictates whether BFOR or duty of accommodation will apply as defences. It is my view that, in doing so, she abandoned the imposition of strict requirements for justification of the rule in favour of what appears to be a more relaxed "rational connection" threshold which will move the inquiry more quickly to the accommodation issue.
The Motions Judge held that the Panel had failed to make a clear and unmistakable finding on whether there existed a rational connection between the policy and job performance.
The appellant contends that the Motions Judge took an overly formalistic approach in drawing such a conclusion. In support of that contention, the appellant made several submissions. First, that the Panel made several findings to that effect and that the Motions Judge dismissed such findings on accommodation because they did not appear in the Panel's reasons under the heading "accommodation". Secondly, that in applying the Brossard test39 when making its findings on rational connection, the Panel found that the elimination of illegal drug use was an appropriate purpose because of the impact of drugs on work performance. Thirdly, that the fact that the Panel's conclusion was made in the course of its BFOR analysis should not render it any less applicable to the issue of accommodation. Finally, that the Panel accepted the evidence adduced on the impact of drugs on job performance, and that in light of such evidence, the conclusion of the Panel that an employment rule prohibiting illegal drug use among employees is an appropriate business practice that cannot be held to be patently unreasonable.
The Commission made several submissions in response. First, that the Panel failed to address the issue whether the policy is related to the performance of the job, and that the Motions Judge could not assume that the Panel would conclude that the policy is job related, if it had addressed that issue. Secondly, that the Panel made findings relating to the appellant's good faith and intent, but that these are irrelevant to the issue of adverse effect discrimination. Finally, that many of the findings of the Panel are incompatible with any conclusion respecting the job relatedness of the policy.
The jurisprudence of the Supreme Court of Canada teaches that a rule which has been found to constitute adverse effect discrimination is, by definition, neutral on its face, and will be upheld if the employer establishes successfully that it has fulfilled its duty to accommodate reasonably the adversely affected employee. Since the rule in itself is not intentionally discriminatory, there is less emphasis on its underlying rationale"hence the more relaxed "rational connection" threshold developed in cases of adverse effect discrimination, so long as the accommodation component of the test is satisfied.
As noted earlier, the underlying concerns of the appellant in adopting its policy are to maintain a safe, healthy and productive workplace for all employees and to safeguard customer, employee and the appellant's funds and information and protect its reputation. The policy also acknowledges the impact of drugs on work performance in that it affects alertness, perception, and other working abilities. The Panel made the finding that if it were to "assume that the employer's purpose is to eliminate illicit drugs from the employee population because of the impact they might have upon job performance, . . . [it was] an appropriate purpose".40 Since the test for rational connection in the context of adverse effect discrimination is not as strict as the "reasonable necessity" test of the BFOR defence, I am of the view that the policy has been developed and adopted for sound economic reasons and satisfies the rational connection portion of the reasonable accommodation defence.
(2) Reasonable Accommodation
The extent to which an employer must accommodate employees adversely discriminated against is limited by the words "reasonable" and "short of undue hardship".41 What constitutes reasonable accommodation is a question of fact which varies with the circumstances of a particular case. Here, the Panel found that the policy had accommodated affected employees to the point of undue hardship, and the Motions Judge agreed. In the absence of a showing that the Panel made its finding in a perverse or capricious manner or that the Motions Judge erred in accepting that finding, it would be wrong, in my view, to interfere with it.
Furthermore, the Commission's own published policy statement on drug testing, is that the duty to accommodate does not extend beyond offering employees an opportunity to rehabilitate. In its policy statement, the Commission acknowledges that if an employee does not overcome his or her dependence, no further accommodation by the employer is required:42
Reasonable accommodation may include referring employees who test positive to an employee assistance program for assessment and, if needed, counselling and rehabilitation. The duty to reasonably accommodate has limits, however. For example, if the employer sends an employee on a rehabilitation program and the employee does not overcome his or her dependency, no further accommodation may be required.
The CCLA submits that the findings made by the Motions Judge and the Panel fail to recognize and apply the proper test for undue hardship, particularly with respect to the range of applicable performance and financial cost factors and the relatively high burden of proof. In support of that basic submission, the CCLA advanced several arguments. First, that there was no evidence of the level of expense the appellant would bear in referring a person who tested positively to appropriate treatment and how this would impact on the appellant's profitability. Secondly, that there was no basis upon which the Panel could conclude that an employee referred to treatment would be unproductive in any case. Finally, that under the policy, some employees who have no productivity problems will be terminated for drug use. Accordingly, such a policy, by admitting no exceptions, cannot constitute reasonable accommodation in the face of the admonition by the Supreme Court of Canada that the factors going to reasonable accommodation must be applied with flexibility and in a specific factual context.
The appellant submits that to require more accommodation than it already provides would amount to affording to drug dependent employees an absolute exemption from the policy. Such an interpretation of the duty to accommodate the appellant says, runs counter to the views of the Supreme Court of Canada that employment practices that indirectly discriminate ought not to be struck and further that the duty to accommodate carries with it a corresponding duty on the part of employees to assist in achieving some reasonable accommodation.43
In my view, accommodation is an integral part of the policy.44 The operation of the policy is consistent with its stated rehabilitative purpose: no employee testing positive on an initial drug test will be terminated because of a positive test result. The initial positive result remains confidential and undisclosed. Counselling and further rehabilitation programs are offered to employees testing positively on subsequent drug tests before any change in the employee's status is considered. Employees will only face dismissal if they refuse to participate in a drug test or in a rehabilitation program or fail rehabilitation efforts and continue in their use of illegal drugs. Further, even in those situations, a review of the specific circumstances of the employee concerned is undertaken before any final decision is made about termination in order to ensure that the employee has been given every opportunity to rehabilitate and to comply with the policy.45
In finding that the appellant reasonably accommodates drug dependent employees, the Panel recognized the appellant's focus on rehabilitation, noting the following attributes of the operation of the policy:46
" when an employee tests positive in the first instance the Bank maintains the employee on the work force;
" if a second test is also positive the employee is referred for assessment at a clinic;
" following the assessment, the employee is provided with whatever treatment is indicated to be necessary from counselling to a residential treatment program;
" throughout the employee remains employed by the Bank;
" it is only after treatment and if the employee tests positive again that employment is terminated.
Furthermore, as I have already noticed, the Commission's own policy acknowledges that if an employee does not overcome his or her dependence, no further accommodation by the employer is required.
Accordingly, I am in respectful agreement with the conclusion of the Panel and of the Motions Judge that, by its terms, the policy provides reasonable accommodation for affected employees and that to require the appellant to do more would be unreasonable. I conclude, therefore, that the policy does accommodate affected employees to the point of undue hardship.
Summary
It is my respectful view that the policy is not discriminatory and that the Panel was right in reaching that conclusion. If the policy could be said to constitute prima facie discrimination, then that discrimination would be adverse effect and the appellant has demonstrated to the requisite degree, that it has discharged its obligation to accommodate reasonably affected employees.
Conclusion
For all these reasons, I would allow the appeal and dismiss the cross-appeal, with costs, set aside the order of the Motions Judge and dismiss the application for judicial review.
* * *
The following are the reasons for judgment rendered in English by
Robertson J.A.: This appeal stems from the decision of the Toronto-Dominion Bank (the Bank) to implement mandatory drug testing of all new and returning employees. The legal challenge to that policy does not rest on infringement of privacy rights, but on grounds of discrimination under the Canadian Human Rights Act (the Act). That legislation restricts employers from adopting policies that "tend to deprive" disabled persons of employment opportunities. It also defines "disability" to include drug dependent persons.
In the reasons that follow, I conclude that the Bank's policy constitutes a prohibited discriminatory practice within the meaning of the Act. Specifically, I am of the opinion that the policy constitutes direct discrimination and that it fails to qualify as a bona fide occupational requirement (the so-called "BFOR" defence). I reach the latter conclusion because of the Bank's failure to establish that its policy is "reasonably necessary".
If this is not a case of direct discrimination, then I am of the alternative view that the Bank's policy constitutes indirect or, as it is commonly referred to, adverse effect discrimination. Once again, however, I take the position that the policy in question fails. Though the Bank established that its policy reasonably accommodates those adversely affected, it fails for the reason that it is not "rationally connected" to job performance.
In my view, this case represents a challenge to the bifurcated doctrine of discrimination articulated by the Supreme Court of Canada, in two material respects. Firstly, it bears on the difficulty in discerning whether an employment rule or policy constitutes direct, as opposed to, indirect discrimination. Secondly, it forces us to recognize that the distinction being drawn between the "reasonably necessary" test applied in the context of direct discrimination and the "rational connection" test applicable to cases of indirect discrimination is neither self-evident nor self-justifying.
Background
Section 10 of the Act provides that it is a discriminatory practice for an employer to establish a policy that "deprives" or "tends to deprive" an individual, or class of individuals, of an employment opportunity on a prohibited ground of discrimination. Section 3 provides that disability is such a prohibited ground. In turn, "disability" is defined in section 25 to mean any "previous" or "existing" dependence on alcohol or a drug. Those sections read as follows:
3. (1) For all purposes of this Act, race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability and conviction for which a pardon has been granted are prohibited grounds of discrimination.
. . .
10. It is a discriminatory practice for an employer, employee organization or organization of employers
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
. . .
25. In this Act,
. . .
"disability" means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.
On October 1, 1990 the Bank adopted an alcohol and substance abuse policy. The segment relating to substance abuse requires all new and returning employees to submit to a urine drug test within 48 hours of accepting an offer of employment. This requirement is printed on the Bank's application for employment form which states that it is a condition of employment that a person undergo drug testing for "illegal substances". Mandatory drug testing is said to be, "In keeping with the Bank's commitment to a drug free workplace." The Bank maintains that its objective is to achieve a work environment free from the effects of illegal drug use. The concerns underlying its policy include: the potential impact on the health and work performance of employees; the security of funds and information; and the possible connection between illegal drug use, criminal activity and the reputation of the Bank. Throughout the litigation the Bank has insisted that the banking industry is founded on the principles of honesty, integrity and trust. The ethical standards of the Bank and its employees are said to be an important part of maintaining customer trust and confidence.
New or returning employees who refuse to submit to the drug test are dismissed for failing to comply with a condition of employment. Employees who test positive and are drug dependent, may lose their employment if they refuse to take advantage of the rehabilitation services made available to them or if rehabilitation efforts prove unsuccessful. So-called casual users of illicit substances, that is non-dependent drug users, may also lose their employment if they persist in using such drugs after having tested positive on at least three occasions. The cost of rehabilitation is borne by the Bank to the extent that needed services are not available under provincial health plans. Employees undergoing rehabilitation maintain the right to full wages and other employment benefits. The matter of "confidentiality" has never been in issue.
In 1991 the Canadian Civil Liberties Association (CCLA) filed a complaint with the Canadian Human Rights Commission (the Commission) alleging that the Bank's drug testing policy constitutes a discriminatory practice, contrary to section 10 of the Act. The Human Rights Tribunal (the Tribunal) hearing the complaint concluded that the reference to drugs in section 25 of the Act includes both licit and illicit drugs and not just the former as contended by the Bank. The Tribunal went on to conclude that the CCLA failed to make out a prima facie case of discrimination. In particular, the Tribunal found that no one was denied employment under the Bank's policy on the basis of drug dependence. Accordingly, the CCLA's complaint was dismissed.
In the alternative, the Tribunal found that if the Bank's policy was discriminatory, the discrimination was indirect or adverse effect discrimination and that the rehabilitation services made available by the Bank to drug dependent employees constituted reasonable accommodation short of undue hardship. Pursuant to this analysis the Bank's policy remains valid.
In the further alternative, the Tribunal concluded that if the Bank's policy constituted direct discrimination then the CCLA's complaint is well-founded because of the Bank's failure to successfully invoke the BFOR defence. Though the Tribunal held that the Bank had acted in good faith, it failed to satisfy the requirement that its policy was reasonably necessary.
I digress here for a moment to note that in the context of direct discrimination both the terms "reasonably necessary" and "rational connection" have been used by the Supreme Court when describing the legal test to be met in establishing the BFOR defence. In the context of indirect discrimination the jurisprudence speaks solely of a "rational connection" between the neutral employment rule and job performance. To avoid confusion, I shall use the term "reasonably necessary" in the context of direct discrimination and the BFOR defence. The term "rational connection" is restricted to the discussion on indirect discrimination: see infra .
The Commission sought judicial review of the Tribunal's decision. The CCLA has remained as a party respondent leading up to and including this appeal. The Motions Judge held that the drug testing policy constituted indirect discrimination, but that the Bank had accommodated its employees to the point of undue hardship. The Motions Judge accepted that hardship is reached when the Bank is faced with the continued presence of an employee who cannot be rehabilitated or who persists in using illegal drugs. In considering whether the Bank's policy offers reasonable accommodation to drug dependent persons, the Motions Judge found that the Tribunal did not reach a conclusion on whether the Bank's policy was "rationally connected to job performance" and, therefore, the Tribunal did not make all the findings necessary to decide the case. Consequently, the Motions Judge allowed the judicial review application and remitted the matter to the Tribunal for consideration of this issue. If a rational connection could be established, she directed that the CCLA's complaint be dismissed. If the Tribunal were to conclude otherwise, then it was directed to find that the Bank's policy constitutes adverse effect discrimination which had not been accommodated and, therefore, the Bank's policy contravenes section 10 of the Act.
The Bank now appeals the Motions Judge's order setting aside the Tribunal's decision. It argues that the Tribunal did not err in dismissing the CCLA's complaint on the basis that the Bank's policy does not constitute a prohibited discriminatory practice within the meaning of section 10 of the Act. The CCLA cross-appeals on the ground that this is a case of direct discrimination and that the Bank is not entitled to invoke the BFOR defence for the reasons given by the Tribunal. The Commission cross-appeals on the ground that this is a case of indirect discrimination and that the policy fails for lack of a rational connection to job performance.
Preliminary Issues
Two preliminary points must be addressed before I proceed with the substantive issues at hand. First, the Bank submits that the issue of direct discrimination cannot be pursued by the CCLA for the reason that it was not raised in the originating notice of motion. While it is true that the Commission sought only to challenge the Bank's drug testing policy on the basis of indirect discrimination, it is also true that the CCLA's right to argue direct discrimination was fully debated before the Motions Judge and that she ruled in its favour. In the circumstances, I am not prepared to overturn the Motions Judge's decision respecting the sufficiency of the originating notice of motion. This is not the type of case where it can be said that the pleadings were so defective as to take the Bank by surprise. This is a case in which, from the outset, the allegation of direct discrimination has been at the centre of the legal controversy.
The second preliminary issue which must be addressed is the Bank's contention that the reference to "dependence on . . . a drug" in the definition of "disability" in section 25 of the Act, is not intended to extend protection to those dependent on "illegal" drugs. In its written argument, the Bank based this assumption on extracts from the transcript of hearings before the Standing Committee on Justice and Legal Affairs at the time the Act was first proposed. I note that in oral argument, this position was not pursued with much vigour. Thus, I shall be equally brief in my analysis of this issue.
In my view, it would be contrary to the Supreme Court's approach to the interpretation of human rights legislation to construe section 25 of the Act narrowly by reading in the word "legal" so as to modify the phrase "dependence on [legal] drugs": see Robichaud v. Canada (Treasury Board) , [1987] 2 S.C.R. 84, at page 89. Surely, it is accepted that dependence on illegal substances is just as, if not more, common than dependence on legal drugs. The comments made before the Standing Committee by then Minister of Justice, Mark MacGuigan, were based on an analysis of the American approach which developed in the context of that country's "war on drugs" policy of the 1980s. Our legislation is not influenced by the same politics. In any event, to my mind it would be impractical to protect only those dependent on so-called "legal" drugs as some of those might be obtained or used in an "illegal" fashion. I turn now to the substantive issues presented by this appeal.
Issues
The ultimate question to be answered is whether the Bank's drug testing policy constitutes a prohibited discriminatory practice within the meaning of section 10 of the Act. In turn, that question breaks down into four sub-issues. First, does the Bank's drug testing policy constitute prima facie discrimination? Second, and if so, does the policy amount to direct, as opposed to indirect, discrimination? Third, assuming this to be a case of direct discrimination, did the Tribunal err in concluding that the BFOR defence is not available to the Bank? Fourth, assuming this to be a case of indirect discrimination, did the Tribunal hold that the rational connection test had not been met? This fourth issue bears upon the difficulty of discerning the extent to which the rational connection test differs from the reasonable necessity criterion applied in establishing the BFOR defence. The starting point of any analysis is the Tribunal's reasons for concluding that the CCLA failed to establish a prima facie case of discrimination.
The Tribunal's Finding of No Prima Facie Discrimination
In my respectful view, the Tribunal erred in concluding that a case of prima facie discrimination had not been established. The Tribunal's reasons contain two key passages which the Bank regards as the rationale for the finding of "no discrimination" (Tribunal's reasons, at pages 211 and 212):
The Tribunal finds that when employment is terminated following the refusal of an employee to comply with the Bank policy, whether it be refusal to provide a urine sample or at any subsequent stage, the termination is for breach of a condition of employment and it is not necessary to look beyond that for a "perception of drug dependence".
. . .
The Tribunal finds that the ultimate dismissal is not based upon a perceived disability (drug dependence) but upon the persistent use of an illegal substance even though in some instances that may include a drug dependent person. Thus, the policy and practice of the Bank does not constitute discrimination on a prohibited ground under the CHRA.
The above passages support the understanding that it is not the Bank's policy which deprives drug dependent persons of an employment opportunity. Rather, it is the latter's failure to comply with the policy and for that reason the policy is not discriminatory. Non-compliance arises when drug dependent persons either refuse to undergo drug rehabilitation or attempts at rehabilitation prove unsuccessful. In short, it is argued that the Bank cannot be faulted for dismissing anyone who persists in ingesting illegal substances having regard to the rehabilitative services made available to employees at the Bank's expense. It is not the actions or fault of the Bank that lead to the termination of employment. It is the failure of new and returning employees to submit to drug testing or to desist in the use of illegal drugs in accordance with the terms of their employment contract. Underlying this argument is the belief that the Bank has the right to insist on a work environment free of illegal drug use, given the fact that it is willing to reasonably accommodate drug dependent employees. (I am ignoring the fact that the Bank's policy is under-inclusive to the extent that it does not apply to employees hired prior to the date the policy was first implemented. Presumably the Bank is not concerned with the "integrity" of those hired before the policy came into force or their ability to perform assigned tasks competently.)
In my opinion, the above argument is flawed in two material respects. First, it is premised on the mistaken belief that a successful plea of reasonable accommodation on the part of an employer renders non-discriminatory that which constitutes prima facie discrimination. A finding of reasonable accommodation does not negate the legal conclusion that an employment policy has a discriminatory effect on certain employees. That is why the legal term "prima facie discrimination" is used in the jurisprudence. The accommodation doctrine is a defence to a prima facie case of discrimination, not a cleansing agent. In the context of the Act, the legal effect of the defence once established is to place a discriminatory practice outside the prohibited category.
My second objection to the Tribunal's finding of no discrimination stems from its failure to appreciate that if an employment rule is not "reasonably necessary", or there is no "rational connection" between the rule and job performance, then it is irrelevant whether or not an employer is willing to accommodate its employees. A simple analogy bears out the validity of this conclusion. Assume the Bank were to implement a policy requiring tellers to wear protective head gear at all branch offices during business hours. Assume also that the Bank is willing to accommodate employees (e.g. Sikhs) who object to the rule on religious grounds. In these extreme circumstances, I take it as a matter of common sense that the Bank's "hard hat" rule would be deemed neither reasonably necessary nor rationally connected to job performance and, therefore, unenforceable. If one is prepared to accept that conclusion then it necessarily follows that the Bank's offer of accommodation is no longer a relevant consideration. It is for these reasons that I am of the opinion that the Tribunal erred in concluding that the Bank's policy does not constitute prima facie discrimination.
Before turning to the remaining issues, I wish to address an argument advanced below and before this Court which, in my opinion, lacks merit. The argument is to the effect that since all drug users, that is drug dependent persons as well as casual users, are accorded identical treatment under the Bank's policy there can be no discrimination. The Bank takes the position that it was appropriate for the Tribunal to have considered the fact that both dependent and non-dependent (casual) users of drugs face dismissal in reaching its conclusion that the policy does not discriminate on a prohibited ground.
In my opinion, the above argument is irrelevant. The issue is not whether casual users of illegal drugs and drug dependent persons are treated equally. The central issue is whether the Bank's policy has the effect of depriving or tending to deprive drug dependent persons of employment opportunities. Admittedly, there are several ways of defining the relevant comparison groups affected by the Bank's drug testing policy. For example, one could broaden the scope of the comparison groups to include all employees hired before the Bank's drug testing policy was adopted in 1990. But that type of analysis is simply unnecessary in light of the specific statutory wording of section 10 of the Act. That section tells us what constitutes discrimination and therefore, there is no need to even look at the common law definition: see Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
Discrimination"Direct v. Indirect
I do not see how one can avoid the conclusion that the Bank's drug testing policy constitutes a prima facie discriminatory practice. I say this because the Bank's policy raises the likelihood of drug dependent employees losing their recently acquired employment. An employment policy aimed at ensuring a work environment free of illegal drug use must necessarily impact negatively on those who are drug dependent. Surely, the Bank's policy qualifies as prima facie discrimination, that is to say an employment practice which "tends to deprive" drug dependent persons of an employment opportunity within the meaning of section 10 of the Act. Moreover, it must be remembered that at this stage in the analysis it is irrelevant whether the Bank's policy is saved by either the BFOR defence or the accommodation doctrine. Once it is accepted that the Bank's policy qualifies as prima facie discrimination, then the immediate issue is whether the Bank's policy constitutes direct as opposed to indirect discrimination. The relevance of the distinction requires explanation.
The immediate significance of the Supreme Court's bifurcated approach to discrimination lies in the defences available to an employer. In cases of direct discrimination an employer must satisfy the requirements of the BFOR test, otherwise the impugned work rule falls. If an employer succeeds in establishing that defence then the employment rule is enforceable. Moreover, the prevailing view is that there is no duty on an employer to accommodate individual employees. In cases of indirect discrimination, it is unnecessary for an employer to satisfy the requirements of the BFOR defence. The work rule remains enforceable. The only obligation imposed on an employer is to make reasonable efforts to accommodate those adversely affected by the rule. Accommodation efforts must be to the point of undue hardship.
With respect to the cases decided by the Supreme Court, the distinction between direct and indirect discrimination has not proven problematic so far as their legal outcome is concerned. It is true that in Bhinder et al. v. Canadian National Railway Co. et al., [1985] 2 S.C.R. 561, the Supreme Court treated the "hard hat" rule as one of direct discrimination but subsequently reclassified it in Central Alberta Dairy Pool v. Alberta (Human Rights Commission) , [1990] 2 S.C.R. 489 as being an example of indirect discrimination. Nonetheless, the legal result remained the same. In all but one of the cases decided by the Supreme Court the human rights complaint focused on either religious or age discrimination. The exception is Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279 where "family status" was the ground of alleged discrimination. In the present case, it is of critical significance whether the Bank's drug testing policy is characterized as a form of direct or indirect discrimination because of the competing defences available to the Bank and the different criteria to be met. The distinction between these two forms of discrimination was first articulated in Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd. et al. , [1985] 2 S.C.R. 536 (hereinafter referred to as O'Malley). Justice McIntyre stated (at page 551):
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." . . . On the other hand, there is the 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 characteristics 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.
In summary, direct discrimination arises when an employer adopts a practice or rule which on its face discriminates on a prohibited ground. Indirect discrimination is characterized by a neutral rule or policy of general application which has a discriminatory effect on only a sub-group. The categories are sometimes referred to in common parlance as intentional or unintentional discrimination. Direct discrimination requires a motive whereas indirect discrimination is accidental. In Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525, Justice Cory notes (at page 541), "Adverse effect discrimination can occur quite innocently". But the law is clear that it makes no difference whether discrimination is intentional or not. It is the effect of the policy which is of critical significance.
In the reasons that follow I conclude that the Bank's policy does not fall squarely within the criteria set down for classifying a work rule as indirect discrimination. I also conclude that the Bank's policy is, on its face, directly discriminatory. I turn first to the criteria to be applied in characterizing an employment rule or policy as indirect discrimination.
Is it Indirect Discrimination?
It must be conceded that the Bank's drug testing policy meets one of the two criteria applicable to cases of alleged indirect discrimination. The policy applies to all new and returning employees but adversely affects only a sub-set of those to whom it applies. The smaller group consists of users of illegal drugs, including those who might be found to be drug dependent. However, it is with respect to the second criteria that the argument in favour of a finding of indirect discrimination falls down. I am at a loss to understand the basis on which one can reasonably maintain that the Bank's policy meets the criterion of "neutrality".
In my view, the Bank's drug testing policy is no more neutral than one which requires all prospective employees to submit to a pregnancy test. In a perverted sense such a rule is neutral because it applies to both men and women and yet it necessarily impacts on only women and in turn those who are pregnant. Is such a policy any less discriminatory than one which provides "no pregnant women need apply"? Frankly, it is difficult to understand how a policy framed in terms of eliminating illegal drug use in the work place can be characterized as "neutral" when it takes little imagination to appreciate that it will have an immediate or direct effect on drug dependent persons.
I cannot accept that a work rule is neutral when it targets the removal of employees who fall within a class protected by human rights legislation. An employment policy aimed at achieving a drug-free work environment should not be deemed neutral when by design it is directed at all those who use illegal drugs and, by necessity, those who are drug dependent. The Bank's policy stands in sharp contrast to those employment rules which the Supreme Court has characterized as being indirect forms of discrimination. Certainly, it is difficult to sustain the validity of an analogy between the Bank's drug testing policy and a work rule requiring employees to wear protective head gear at a construction job site, or a policy requiring employees to engage in shift work on either weekends or weekdays. A neutral rule is more likely to be directed at how work is to be performed, not at isolating persons believed to be incapable of adequately performing assigned tasks because of a disability: see for example, Bhinder, supra; O'Malley, supra; Dairy Pool, supra; Bergevin, supra.
Is it Direct Discrimination?
Assuming that the Bank's drug testing policy does not qualify as indirect discrimination because of its lack of neutrality, it is still necessary to decide whether it constitutes direct discrimination. To qualify as such the policy must be "discriminatory on its face". I readily concede that this is not a case of direct discrimination if by definition that term applies only in circumstances where the impugned rule expressly targets a specific group for unequal treatment. This leads one to question whether Justice McIntyre's example of direct discrimination, "No Catholics or no women or no blacks employed here", was intended to limit the scope of direct discrimination to cases of express exclusion of specified groups. In the present case, the question is whether the absence of an explicit reference to "drug dependent persons" in the Bank's policy is fatal to a finding of direct discrimination. I think not for the very reason given by most commentators. Except for cases involving age discrimination, one is unlikely to find an employment rule or policy drafted in such blatantly discriminatory terms. Consequently, the distinction between direct and indirect discrimination outside the context of age and religious discrimination takes on chimerical proportions: see Shelagh Day and Gwen Brodsky, "The Duty to Accommodate: Who will Benefit" (1996), 75 Can. Bar Rev. 433; Anne M. Molloy, "Disability and the Duty to Accommodate" (1993), 1 Can. Lab. L.J. 23, at page 37.
For example, Transport Canada is not going to be so tactless as to publicly state that blind persons need not apply for a pilot's licence. Rather a requirement that all applicants pass a visual acuity test will be sufficient to eliminate applicants whose visual acuity renders them a risk to their own safety and that of the public. But is a policy which states "no blind persons" any different than one which requires that all job applicants pass a visual acuity test. Is the difference between the wording of the two requirements sufficient to warrant a finding of indirect rather than direct discrimination? I believe not.
I see no reason why an impugned employment policy has to be patently exclusionary before qualifying as direct discrimination. Direct discrimination may also arise where the exclusion of a protected group is evident on a casual reading of the challenged policy. The Bank's policy of achieving a drug-free work environment must necessarily affect those who are drug dependent. There is a sufficient proximity between the Bank's policy and the category of drug dependent persons so as to conclude that we are dealing with a case of direct discrimination. In conclusion, I find the Bank's policy of eliminating drug users from its work force is, on its "face", directly discriminatory.
It has not escaped me that in ruling that the Bank's drug testing policy constitutes direct discrimination, disabled persons are confronted with yet another obstacle in their efforts to gain entrance and acceptance into the Canadian workplace. In declaring an employment rule or policy a form of direct discrimination, and assuming that the employer is able to invoke the BFOR defence, the law does not impose the duty of reasonable accommodation. That gap has the potential to prevent disabled persons from obtaining employment that can be performed competently, provided modifications to the physical work environment are undertaken or minor concessions as to the scope of assigned duties are made. Some provincial legislatures have responded to this problem. For example, in 1986 the Ontario legislation was amended to incorporate the duty to accommodate as an essential element in cases involving direct discrimination: see: Ontario Human Rights Code, R.S.O. 1990, c. H.19. To date the Canadian Human Rights Act has not been amended accordingly. Whether or not the Supreme Court is willing to reexamine its bifurcated doctrine of discrimination is a matter within its exclusive jurisdiction.
The BFOR Defence
Accepting that the Bank's policy constitutes direct discrimination, then it qualifies as a prohibited discriminatory practice unless the Bank satisfies the requirements of the BFOR defence. The legal parameters of that defence are set out in the Supreme Court's decision in Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202. Once again Justice McIntyre gave the reasons of the Supreme Court (at page 208):
To be a bona fide occupational qualification and requirement a limitation, such as a mandatory retirement at a fixed age, must be imposed honestly, in good faith, and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.
In summary, in order for an employer to invoke successfully the BFOR defence it is necessary to establish on a balance of probabilities: (1) that the policy was imposed in good faith for a purpose related to job performance; and (2) is reasonably necessary to assure the efficient and economic performance of the work in question. The first criteria is regarded as the subjective component of the defence. The second is treated as the objective component. The objective component underwent further refinement in Brossard, supra, at pages 311-312, per Beetz J:
. . . I believe that this "reasonable necessity" can be examined on the basis of the following two questions:
(1) Is the aptitude or qualification rationally connected to the employment concerned? This allows us to determine whether the employer's purpose in establishing the requirement is appropriate in an objective sense to the job in question. In Etobicoke, for example, physical strength evaluated as a function of age was rationally connected to the work of being a fireman.
(2) Is the rule properly designed to ensure that the aptitude or qualification is met without placing an undue burden on those to whom the rule applies? This allows us to inquire as to the reasonableness of the means the employer chooses to test for the presence of the requirement for the employment in question. The sixty-year mandatory retirement age in Etobicoke was disproportionately stringent, for example, in respect of its objective which was to ensure that all firemen have the necessary physical strength for the job.
As is apparent, the language adopted in Brossard now speaks of rational connection as a component of the reasonable necessity test set out in Etobicoke, supra. The above passage redefines the objective component of the BFOR defence to include two objective criteria: (1) that the job qualification be rationally connected to the employment concerned; and (2) that the policy is designed to ensure that it is met without placing an undue burden on those to whom it applies. This latter requirement has been taken to impose an obligation on an employer to show that there is no other more reasonable, or less intrusive alternative to the policy. Thus, for example, a rule requiring individual assessment as to the physical fitness of police officers is more reasonable or less burdensome than one which calls for mandatory retirement at age 60: see Sopinka J. in Large v. Stratford (City), [1995] 3 S.C.R. 733, at page 750.
Ultimately, the Tribunal concluded that the BFOR defence had not been established. With respect to the subjective component of the test, the Tribunal held that the Bank had acted in good faith. At page 216 of its reasons the Tribunal stated, "the Bank officials meet the requirement of acting honestly, in good faith and in the sincerely held belief that the policy is in the interests of the adequate performance of the work involved".
With respect to the objective component of the test the Tribunal outlined the relevant analytical framework in the following terms (at page 216):
. . . we must examine the rational connection between the policy objective and the performance of the job or the "reasonable necessity" which Beetz J. addressed in Brossard .
As Beetz J. expressed it, this entails first examining the appropriateness in an objective sense of the employers purpose in establishing the requirement and then examining the method chosen by the employer to test for that requirement.
In summary, the Tribunal viewed its task as twofold. First, it examined objectively the validity of the Bank's reasons in adopting the policy. With respect to this issue the Tribunal used the terms "rational connection" and "reasonable necessity" interchangeably. Second, the Tribunal assessed whether any reasonable alternatives were available to the Bank which were less burdensome on new and returning employees.
According to the Tribunal's reasons the Bank advanced three arguments in support of its position that mandatory drug testing is reasonably necessary or rationally connected to job performance. I shall deal with each argument and the Tribunal's response.
First, the Bank maintained that a drug problem existed. It argued that its workforce constitutes a microcosm of Canadian society and that since illegal drug use is prevalent in that society, so too must it be prevalent in the banking industry. In response, the Tribunal first noted that no research had been undertaken to support what was characterized as an impressionistic assumption. Reference was made to the common sense appreciation that because of factors such as educational requirements, the Bank's workforce could differ substantially from the general population. In short, the evidence did not support the proposition that there is a drug problem within the banking community.
The Bank's second argument focused on the relationship between illegal drug use and crime. The Bank maintained that there is a correlation between illegal drug use and crime and that it had a valid concern with respect to the possibility of employees being involved with the "criminal element" in society. In response, the Tribunal concluded that while there is some evidence to support a correlation between crime and illegal drug use, no causal relationship had been established. The Tribunal noted that during the 18 months the policy had been in force there were 57 incidents of theft by Bank employees, none of which were linked to the use of drugs. In fact only one case was cited to the Tribunal as evidence of theft by a Bank employee who was drug dependent and that person was a management employee, hired before the policy was implemented who would therefore not have been subject to a drug test.
Finally, the Bank insisted that drug use had an effect on job productivity or performance. The Tribunal accepted that there was evidence, based on drug use within the United States Postal Service, showing a correlation between a positive drug test and job performance. But in the absence of any evidence establishing a drug problem within the Bank's workforce, the Tribunal held that it could not see how this evidence could assist in establishing the BFOR defence. Moreover, the Tribunal held that the Bank had not produced evidence showing any demographic correlation between American postal services employees and Canadian bank employees. The Tribunal went on to observe that after over two years of drug testing, producing several thousand test results, the evidence led one to conclude that the incidence of drug use among new and returning employees is very low.
With respect to whether the Bank's drug testing policy is reasonably necessary to assure job performance, the Tribunal reached a negative conclusion. It reasoned that if mandatory testing were truly necessary then it should be required of all employees and administered on a regular basis. The Tribunal held that the method chosen by the Bank to deal with potential drug related problems such as poor performance and illegality was intrusive and would only qualify as reasonable if the Bank could demonstrate a serious threat to the Bank's other employees and the public. In the opinion of the Tribunal, this the Bank did not do.
After disposing of the arguments advanced in support of the Bank's decision to implement its policy of mandatory drug testing, the Tribunal turned to the "reasonable alternatives" component of the objective test. On this issue and having regard to the fact that there was a lack of persuasive evidence to support the understanding of an existing drug problem, the Tribunal posed the following rhetorical question [at page 218]: "If observation works for the majority as a method of individual assessment even though evidence indicated it was imperfect, why not for the new and returning employees also?" The implication which arises from this line of inquiry is that the Tribunal concluded that the Bank had failed to demonstrate that mandatory drug testing was the least intrusive of the reasonable methods for assessing job performance. The conventional method for assessing job performance"observation"achieves the same objectives without bringing into issue privacy concerns.
On judicial review, and on appeal, the Bank attacked the Tribunal's finding that the BFOR defence was not available. The Bank's argument effectively amounts to an outright assault on the various findings of the Tribunal and is couched in the language of the Tribunal having failed to have proper regard to the evidence. I can find no error on the part of the Tribunal which would warrant setting aside this aspect of the Tribunal's decision. There are, however, two matters raised by the Bank which I wish to address. The first is the Bank's argument concerning its "integrity" which was advanced both in its factum and in argument before the Court.
The issue of integrity might be more persuasive in the context of law enforcement personnel or professional and amateur athletes. But I cannot see how it advances the Bank's case. Integrity is the foundation of all employment relationships. Whether or not it is of primary importance to the banks or as alleged, they have special concerns, are largely non-justiciable matters.
The second issue I wish to address is the argument that the Bank's supervisory capabilities were insufficient to detect drug use in employees. The Bank argues that an employee under the influence of an illegal substance may still be capable of adequately performing his or her job such that observation would not reveal a problem. To my mind, this reasoning confirms the lack of connection between the rule and job performance.
The Alternative Ground: Indirect Discrimination
Assuming that I am in error in finding "direct discrimination" then I am prepared to deal with the alternative submission that the Bank's drug testing policy qualifies as "indirect discrimination". Accordingly, two issues must be addressed. The first brings into consideration the distinction between the "rational connection" test applicable in cases of indirect discrimination and the "reasonably necessary" or "rational connection" test applicable in cases of direct discrimination. The second issue focuses on whether the Tribunal erred in finding reasonable accommodation on the part of the Bank. In light of my conclusion on the first issue I need not deal with the second.
I have already outlined the tenets of the reasonably necessary test for establishing the BFOR defence in cases of direct discrimination. To repeat myself, three requirements must be met: (1) the employer must have adopted the employment policy in good faith; (2) the policy must be reasonably necessary in that there is a rational connection between the policy and the notion of job performance; and (3) no other reasonable and less burdensome alternatives to the policy exist. I turn now to the tenets of the rational connection test applicable to cases of indirect discrimination. There are only two cases of the Supreme Court which touch on this matter.
In O'Malley, supra, Justice McIntyre made a brief reference to the requirement that in cases of indirect discrimination an employment rule must be "honestly made for sound economic or business reasons". In that case the neutral employment rule in issue required employees to work Friday evenings and Saturdays as a condition of employment. The complainant alleged discrimination on the ground that her religion would not permit her to work during those periods. Further on Justice McIntyre states that where a work rule results in adverse effect discrimination, "and the offending rule is rationally connected to the performance of the job" (at page 558) an employer must establish reasonable accommodation on its part. Justice McIntyre simply declared that the work rule was rationally connected on the basis that an "employer is lawfully entitled to carry on business and to stay open for business on Saturdays" (at pages 555-556). Apparently the employer introduced no evidence of rational connection and none was required by the Supreme Court.
The only other indirect discrimination case relevant to the issue at hand is the Supreme Court's decision in Dairy Pool, supra. As in O'Malley, the legal issue in Dairy Pool arose in the context of an employee required to work on one of his holy days. The employer closed down its business operations on the weekend resulting in Mondays being a busy work day. The complainant refused to work on one Monday shift because of a conflicting holy day obligation and was fired. Writing for the majority, Justice Wilson referred to O'Malley and held that the employer was "entitled to organize its business by closing down its processing operation on the weekend resulting in Mondays being a particularly busy day" (at page 520). Accordingly, it was found that the employer had established that its work rule met the rationally connected test.
Neither the reasoning offered in O'Malley nor Dairy Pool are instructive as to the limits of the rational connection test. In each instance, the Supreme Court's analysis has not exceeded the bald conclusion that the neutral work rule is so connected. In each instance, that conclusion was supported by a common sense understanding as to the rule's necessity and its rational connection to the job. No one would expect an employer to adduce evidence that a requirement of protective head gear on a construction site is rationally connected to job performance or, more appropriately, employee safety. Nor does one expect an employer to submit extensive evidence with respect to the validity of the business decision to remain open on weekends.
On reflection, it is arguable that a neutral work rule giving rise to adverse effect discrimination is one in which demonstrative evidence as to its rational connection to job performance is simply not required. The necessary finding of law can be arrived at through a common sense appreciation of what is reasonable in the workplace. Of course, this line of reasoning simply supports my earlier position that the Bank's policy is a form of direct discrimination.
Elsewhere the question has been raised whether the "rational connection" test applied in cases of indirect discrimination, as articulated in O'Malley and Dairy Pool, represents a retreat from the standard of "reasonable necessity" established in Etobicoke , supra, and as refined in Brossard, supra: see Brian Etherington, "Central Alberta Dairy Pool: The Supreme Court of Canada's Latest Word on the Duty to Accommodate" (1993), 1 Can. Lab. L.J. 311.
Personally, I am unable to understand why a less onerous rational connection test should be applied in the context of indirect discrimination. For example, if there is a reasonable alternative to the Bank's drug testing policy and that alternative (e.g. assessment by observation) is less intrusive or burdensome on those affected, why should it make any difference whether that policy constitutes indirect as opposed to direct discrimination. Unfortunately, the jurisprudence appears to support the position that the two tests differ. Justice Wilson said as much in Dairy Pool, at page 507:
It is notable that the working rule to which the duty of accommodation applies need not be "reasonably necessary", i.e., it need not be a BFOR. Rather, it need only be "a condition or rule rationally related to the performance of the job".
The above passage supports the understanding that in cases of indirect discrimination employers do not have the additional obligation of satisfying all of the requirements of the BFOR defence. Rather they must establish that they acted in good faith, that the rule bears a rational connection to job performance and, finally, that they are willing to reasonably accommodate employees who are adversely affected by the neutral work rule or policy. That there is a difference between the reasonably necessary and rational connection tests must be accepted as a matter of judicial doctrine. What the jurisprudence does not make self-evident is the precise scope of each test.
I am prepared to accept that the "rational connection test" differs from the "reasonable necessity test" to the extent that the former does not impose an obligation on the employer to establish that other reasonable and less burdensome alternatives to the neutral work rule are available. I say this solely for the reason that if in law a distinction between the two tests does exist, then the only meaningful difference has to lie in the "reasonable alternative criterion". Whether or not the distinction is rationally supported is, however, a matter on which the Supreme Court should adjudicate.
This case is not only complicated by the fact that there is uncertainty surrounding the parameters of the reasonable necessity and rational connection tests, but also because the Tribunal made no express finding as to whether the Bank's drug testing policy met the rational connection test applicable to cases of indirect discrimination. However, all the parties are agreed that the Tribunal did rule on the rational connection test as one of the three criteria to be met in establishing the BFOR defence. It is common ground that if the Tribunal did in fact conclude that there was no rational connection, the Bank's policy must fall if it qualifies as adverse effect discrimination. Of course, the converse is true.
The Bank's position is straightforward. It argues simpliciter that the Tribunal found there was a rational connection between the policy and job performance. This argument hinges on the following passage found in the Tribunal's reasons at page 218:
In applying the Brossard test, if we assume that the employer's purpose is to eliminate illicit drugs from the employee population because of the impact they might have upon job performance, this Tribunal finds that this is an appropriate purpose.
The CCLA maintains that this passage amounts to nothing more than a finding that the Bank acted honestly and in good faith in adopting its policy. I agree. To hold otherwise is to ignore virtually all of the key findings of the Tribunal. These findings include the determination that the Bank acted on impressionistic assumptions; that there was insufficient evidence to establish that a drug problem exists within the Bank; that there is no correlation between illegal drug use and crime, nor evidence to support such a concern. In my opinion, the Tribunal's analysis and reasons amount to a finding of fact that there was no rational connection between the Bank's policy and the performance of the job. Though that finding was made in the context of the BFOR defence, it is equally applicable in the context of the accommodation issue. It must be remembered that, at best, the Bank's policy reveals whether an employee has been exposed to certain illegal drugs within a certain time frame. Such information reveals nothing about an employee's ability to perform the job in question. For these reasons, I am of the opinion that the Bank's policy fails even if it constitutes indirect discrimination. For greater certainty, if the Tribunal did in fact conclude that there was a rational connection to job performance, then I would have been prepared to hold that that conclusion is "patently unreasonable".
Summary
In conclusion, I find that the Bank's drug testing policy constitutes prima facie discrimination. Its policy "tends to deprive" drug dependent persons of employment opportunities. I find further that the policy constitutes direct discrimination and that the Bank has not satisfied the objective component of the BFOR test. That is to say the Bank has failed to establish that its policy is reasonably necessary and that there are no other viable alternatives which would be less burdensome on new and returning employees. Assuming I am in error and that the policy qualifies as adverse effect discrimination, then it fails by reason of the Bank's failure to satisfy the rational connection test. Hence, the Bank's policy constitutes a prohibited discriminatory practice within the meaning of section 10 of the Canadian Human Rights Act .
Conclusion
For the above reasons I would dismiss the Bank's appeal, allow the cross-appeal, set aside the order of the Motions Judge dated April 22, 1996 and grant an order allowing the application for judicial review on the following terms: the decision of the Tribunal dated August 16, 1994 should be set aside and the matter referred back to a differently constituted panel on the basis that the Bank's mandatory drug testing policy is a prohibited discriminatory practice within the meaning of section 10 of the Act. I wish to point out that the matter is being remitted to a differently constituted panel solely on the basis of necessity. During the hearing of the appeal we were informed that some of the original members of the Panel are no longer with the Commission.
* * *
The following are the reasons for judgment rendered in English by
McDonald J.A.: I have had the benefit of reading the reasons of my colleague Robertson J.A., and am in complete agreement with him that the Toronto-Dominion Bank's (the Bank) policy prima facie discriminates against drug dependent employees. I am also in agreement with him as to the disposition of this appeal. However, I am unable to agree with his conclusion that the Bank's drug testing policy is more appropriately classified as constituting direct discrimination rather than indirect discrimination. I am of the view that the Bank's drug testing policy fits directly within the very essence of the Supreme Court of Canada's definition of indirect or adverse effect discrimination and that the Bank's policy fails to meet the requirements of rational connection and reasonable accommodation.
Both the facts and the decisions of the Motions Judge as well as the Tribunal have been set out by my colleague Robertson J.A. There is no need to repeat them here. I will therefore move directly to my analysis of the adverse effect discrimination issue.
Adverse Effect Discrimination and the Requirement of Rational Connection
Adverse effect discrimination was described by McIntyre J. in Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536, at page 551 as arising whenever:
. . . 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 . . . . An employment rule honestly made for sound economic or business reasons, equally appliable 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.
The Bank's drug testing policy constitutes adverse effect discrimination because of the rule that those who test positive three times or refuse to undergo a urinalysis test are dismissed. While this rule applies equally to all new and returning employees, it impacts adversely on those employees who are dependent on drugs. The policy, therefore, fits directly within the definition of adverse effect discrimination: The policy is an employment rule that is equally applicable to all to whom it is intended to apply, but is discriminatory because it affects a person or group of persons differently from others to whom it may apply. While the reason for dismissal may be a result of the "persistent" use of an illegal substance, nevertheless, the rule directly impacts more negatively on a protected class of individuals under the Canadian Human Rights Act (CHRA)" drug dependent users.
The Bank, however, argues that the Act does not protect those who use illicit substances as this goes against Parliament's intent and the Narcotic Control Act. Both the Tribunal and the Motions Judge dismissed this argument and I see no reason to interfere with their findings. I would adopt the statement of the Tribunal that [at page 209]:
The CHRA does not condone or protect the illegal activity of using illicit drugs. It does, however, protect a person who is afflicted with a drug dependency from being summarily fired from their employment. If they are indeed committing an illegal act, then, if convicted following due process the Narcotics [sic] Control Act will provide the means of punishment. It is not for the employer to be the trier of fact and the enforcer of criminal law.
Having found that the policy constitutes adverse effect discrimination, the next factor to consider is the issue of rational connection. Before doing so, however, I will set out why I am unable to agree with my colleague that the policy is more appropriately classified as constituting direct discrimination.
Direct Discrimination
The O'Malley case sets out the distinction between direct and adverse effect discrimination. That case held, at page 551:
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." . . . On the other hand, there is the 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 characteristics of the employee or group, obligations, penalties or restrictive conditions not imposed on other members of the work force.
I agree with my colleague that while the rule in issue here applies to all new and returning employees, it targets drug takers. The Bank is concerned with the impact drugs may have on employee work performance and the link between drugs and theft. Its intent is to ensure as much as possible a drug-free work environment. Its policy is "No drug users." I am hesitant, however, to classify the policy as constituting direct discrimination for the following reasons:
First, my colleague's distinction ignores the fact that the policy is aimed at casual users as well as drug dependent users and that casual users are not protected under the Act. The policy applies to prohibit any continued use of illegal drugs regardless of the reason for that use. Casual drug users who continue to use drugs after testing positive risk dismissal whether or not they are dependent on drugs. The policy is designed to catch all drug users not merely dependent drug users. It is only because it is designed to catch all drug users that drug dependent employees are caught. While the rule negatively impacts on drug dependent users, it does not directly discriminate against only them. I would note that if the CHRA protected the right of privacy, casual users would be protected from invasive drug testing procedures. As my colleague states, however, this case is not argued on privacy grounds. Drug dependent users are therefore the only individuals protected from this policy under the Act.
Second, my colleague assumes that a drug testing policy can never be neutral. He states [supra, at paragraph 141]:
I cannot accept that a work rule is neutral when it targets the removal of employees who fall within a class protected by human rights legislation. An employment policy aimed at achieving a drug-free work environment should not be deemed neutral when by design it is directed at all those who use illegal drugs and, by necessity, those who are drug dependent.
In my view, there may be sound economic and business reasons for an employer to impose a drug testing policy which is entirely neutral on its face.
For instance, a policy aimed at achieving a drug- and alcohol-free-work place can be neutral if it is concerned with work performance and seeks to rehabilitate those whose work performance has been affected as a result of their drug dependency. Indeed, drug testing in safety sensitive industries is allowed and pursued. The concern, therefore, should be to ensure that the policy is designed to meet the requirements of the CHRA rather than with banning these policies altogether. Even the Canadian Civil Liberties Association accepts that drug testing for cause does not violate the CHRA. It makes sound economic and business sense to have in place a procedure to help those whose work performance is being affected by a drug dependency.
Another concern I have which is related to the previous discussion is that my colleague's approach to the discrimination issue essentially eliminates the need for the adverse effect discrimination category. I am not convinced that this is a desirable result, particularly in the context of alcohol and drug policies. As my colleague himself points out, the BFOR defence which is applied once a finding of direct discrimination is made, does not impose the duty of reasonable accommodation on the employer. While the Ontario Human Rights Code requires the duty to accommodate in direct discrimination cases, the CHRA does not. It is relatively easy to imagine a situation where a drug testing policy would likely be upheld: one is in a safety sensitive industry that has a policy of drug testing for cause (where an employee's work performance has been affected by drugs). Having established that this is a valid BFOR defence, there is no duty to accommodate: the disabled person can be dismissed.
Under the adverse effect discrimination analysis, however, an employer would be required to accommodate the employee by ensuring that he or she receives help. This clearly seems a more desirable result. Yet, my colleague prefers to stretch the direct discrimination analysis to fit this case based on what ultimately are value judgments as to an employer's motive for implementing a drug policy. Given that there is a movement in the case law towards making the direct discrimination test more closely resemble the adverse effect reasonable accommodation discrimination test, in my view, it is more appropriate to constitute the policy as having an adverse effect on drug dependent employees.
The only benefit to changing the direct discrimination jurisprudence to encompass the facts of this case is that it allows my colleague to strike the Bank's policy in its entirety. For those opposed to drug testing this is clearly a more desirable result. It also has the advantage of benefitting casual drug users who are not protected under the Act. Indeed, this approach protects the privacy rights of all employees"something the Act explicitly does not do. Yet, this choice ignores the fact that a valid BFOR defence may be established for having a drug testing policy. I have already provided one example: drug testing for cause in a safety sensitive industry. I am therefore of the view that we should avoid being short-sighted when choosing the appropriate classification.
Having stated my reasons for preferring to classify the discrimination in this case as adverse effect discrimination, I am not unaware of the argument made in some cases that the distinction between the two types of discrimination is no longer salient or as valid. One decision cited for this point is Thwaites v. Canada (Canadian Armed Forces), [1993] C.H.R.D. No. 9 (QL). In that case the Tribunal held [at pages 59-60 (QL)]:
The logical conclusion from this analysis is that there is very little, if any, meaningful distinction between what an employer must establish by way of a defence to an allegation of direct discrimination and a defence to an allegation of adverse effect discrimination. The only difference may be semantic. In both cases, the employer must have regard to the particular individual in question. In the case of direct discrimination, the employer must justify its rule or practice by demonstrating that there are no reasonable alternatives and that the rule or practice is proportional to the end being sought. In the case of adverse effect discrimination, the neutral rule is not attacked but the employer must still show that it could not otherwise reasonably accommodate the individual disparately affected by that rule. In both cases, whether the operative words are "reasonable alternative" or "proportionality" or "accommodation", the inquiry is essentially the same: the employer must show that it could not have done anything else reasonable or practical to avoid the negative impact on the individual.
While I agree with this analysis from the perspective that both the BFOR defence as well as the duty to accommodate require objective or reliable evidence on the need for an employee rule, nonetheless, there is nothing to suggest that under the BFOR defence an employer must take positive action and change his or her workplace. That is, a BFOR does not require an employer to accommodate an employee by providing for drug rehabilitation services. There therefore remains in my mind a fundamental difference between the two. This fact was recognized by Wilson J. in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at pages 514-515 when she stated:
Where a rule discriminates on its face on a prohibited ground of discrimination, it follows that it must rely for its justification on the validity of its application to all members of the group affected by it. There can be no duty to accommodate individual members of that group within the justificatory test because, as McIntyre J. pointed out, that would undermine the rationale of the defence. Either it is valid to make a rule that generalizes about members of a group or it is not. By their very nature rules that discriminate directly impose a burden on all persons who fall within them. If they can be justified at all, they must be justified in their general application. That is why the rule must be struck down if the employer fails to establish the BFOQ. This is distinguishable from a rule that is neutral on its face but has an adverse effect on certain members of the group to whom it applies. In such a case the group of people who are adversely affected by it is always smaller than the group to which the rule applies. On the facts of many cases the "group" adversely affected may comprise a minority of one, namely the complainant. In these situations the rule is upheld so that it will apply to everyone except persons on whom it has a discriminatory impact, provided the employer can accommodate them without undue hardship. In O'Malley McIntyre J. clarifies the basis for the different consequences that follow a finding of adverse effect discrimination. He states at p 555:
The duty in a case of adverse effect discrimination on the basis of religion or creed is to take reasonable steps to accommodate the complainant, short of undue hardship: in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employer's business and without undue expense to the employer. Cases such as this raise a very different issue from those which rest on direct discrimination. Where direct discrimination is shown the employer must justify the rule, if such a step is possible under the enactment in question or it is struck down. Where there is adverse effect discrimination on account of creed the offending order or rule will not necessarily be struck down. It will survive in most cases because its discriminatory effect is limited to one person or to one group, and it is the effect upon them rather than upon the general work force which must be considered. In such case there is no question of justification raised because the rule, if rationally connected to the employment, needs no justification; what is required is some measure of accommodation. The employer must take reasonable steps towards that end which may or may not result in full accommodation. Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment. (Emphasis added.)
Similarly, in Canada (Attorney General) v. Robinson, [1994] 3 F.C. 228 (C.A.), at page 249 my colleague, Robertson J.A. (Stone J.A. and Mahoney J.A. concurring) rejected the notion that a duty to accommodate applies in the direct discrimination context. He stated:
Under current law, it is accepted that there is no duty to accommodate in cases of direct discrimination . . . . Only in cases of indirect or adverse effect discrimination does the duty to accommodate arise and even then that duty is subject to the caveat that accommodation must not impose an undue hardship on the employer.
It appears, therefore, that the central difference between the two concepts is that in the case of direct discrimination once a BFOR is proven, an employer is under no obligation to accommodate the employee by ensuring that he or she receives rehabilitation. That is, no positive action is required by the employer once his or her defence has been made out. In the case of adverse effect discrimination, the employer would have to have in place some form of rehabilitation program to satisfy the accommodation requirement. In my view, it is only through accommodation that the needs of the disabled can most appropriately be met.
The importance of accommodation to disabled individuals was expressly recognized by the Supreme Court of Canada in Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, at pages 272-273 where Sopinka J. (speaking for the Court on this issue) stated:
Exclusion from the mainstream of society results from the construction of a society based solely on "mainstream" attributes to which disabled persons will never be able to gain access. Whether it is the impossibility of success at a written test for a blind person, or the need for ramp access to a library, the discrimination does not lie in the attribution of untrue characteristics to the disabled individual. The blind person cannot see and the person in a wheelchair needs a ramp. Rather, it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them. The discrimination inquiry which uses "the attribution of stereotypical characteristics" reasoning as commonly understood is simply inappropriate here. It may be seen rather as a case of reverse stereotyping which, by not allowing for the condition of a disabled individual, ignores his or her disability and forces the individual to sink or swim within the mainstream environment. It is recognition of the actual characteristics, and reasonable accommodation of these characteristics which is the central purpose of s. 15(1) in relation to disability.
For these reasons, I believe the Bank's rule falls squarely within the adverse effect discrimination classification and that issues such as drug testing are more appropriately dealt with under this category given that an employer will be required to accommodate the disabled employee. This is the most effective way of ensuring that drug testing policies are tailored to meet the needs of the drug dependent as well as business.
Having stated why in my view the policy more appropriately falls within the adverse effect discrimination category, I will now address the rational connection and reasonable accommodation components of this category.
Rational Connection
As my colleague Robertson J.A. points out, once a finding of adverse effect discrimination is made, O'Malley states that unlike the case of direct discrimination, one does not determine whether the employer has a BFOR, instead, the Court is to uphold the rule but determine whether or not accommodation is made out. A pre-condition to the accommodation stage, however, is that the rule in question be rationally related to the employment. As McIntyre J. stated in O'Malley, at page 555:
Where there is adverse effect discrimination on account of creed the offending order or rule will not necessarily be struck down. It will survive in most cases because its discriminatory effect is limited to one person or to one group, and it is the effect upon them rather than upon the general work force which must be considered. In such case there is no question of justification raised because the rule, if rationally connected to the employment, needs no justification; what is required is some measure of accommodation. [Emphasis added.]
Wilson J. in Alberta Dairy Pool, at page 520 expands on the meaning of rational connection in her judgment when she states:
McIntyre J.'s judgment in O'Malley provides some guidance in identifying a rational connection between a given rule and the employment. At page 551 he speaks of an "employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply . . ." As in the case at bar, the rule in O'Malley pertained to attendance on certain days, specifically two out of three Saturdays. The Court in O'Malley concluded that the employer's rule satisfied the first branch of the test. McIntyre J. states at pp. 555-56:
To relate the principle of accommodation to the facts at bar, we must begin with the proposition that the employer is lawfully entitled to carry on business and to stay open for business on Saturdays. It is accordingly entitled to engage employees on the condition that they work on Saturdays.
I think it must follow from this that the respondent in the case at bar is equally entitled to organize its business by closing down its processing operation on the weekend resulting in Mondays being a particularly busy day. The respondent's work rule accordingly meets the test of being rationally connected to the job of being a dairy processor.
As can be seen from the above quotations, the jurisprudence on the rational connection issue is not of much assistance to this case. Indeed, all parties are in agreement that this is the first case to directly address the issue of rational connection. It is helpful, therefore, to consider how this phrase has been used in different contexts.
While courts should be careful of importing legal meanings from one context to another, nonetheless, because much of our Canadian Charter of Rights and Freedoms jurisprudence focuses on human rights it is appropriate to analyze how the term "rational connection" has been used in the Charter context.
R. v. Oakes, [1986] 1 S.C.R. 103 laid down the criteria for the section 1 Charter analysis. That case established that a law must be rationally connected to its objective in order to meet the first component of the section 1 proportionality test. In discussing rational connection, Dickson C.J. described it as follows at page 139: "First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective." It will be recalled that the Court in Oakes struck down a provision of the Narcotic Control Act which stated that possession of an illegal drug raised a presumption that the individual in question possessed the drugs for the purpose of trafficking. The Court concluded that the law was not rationally connected to its objective (protecting society from drug trafficking). Dickson C.J., at page 142 found that "possession of a small or negligible quantity of narcotics does not support the inference of trafficking".
Unfortunately, since this case, the rational connection test has diminished greatly in importance having been overshadowed by the criterion requiring the law to impair as little as possible the right in question. However, it does provide some guidance for interpreting whether or not the Bank's policy is rationally connected to its objective.
The Bank's rationale for implementing its policy is that it is concerned with the effect that drugs have on work performance as well as employee responsibility. The Bank is also concerned with maintaining its integrity and the link between drug use and theft. Thus, if it can be shown that the Bank's policy is either so under-inclusive that it hardly achieves its objective, or, that there is insufficient evidence to support the need for such a policy, then the policy cannot be said to be rationally related to its objective. Further, as my colleague points out, "if the concern behind the implementation of the rule has to do with job performance then to be rationally related the rule must take into account the ability of the employee to perform the job in question." I also agree with my colleague that [supra , at paragraph 170] "the `rational connection test' differs from the `reasonable necessity test' to the extent that the former does not impose an obligation on the employer to establish that other reasonable and less burdensome alternatives to the neutral work rule are available."
Based on the above considerations, I find that the Bank's policy is not rationally related to its objective. First, the Bank's policy is under-inclusive. If the Bank was truly concerned with the correlation between drug use and employee job performance and responsibility it would have adopted a rule for random testing which applies to all employees including those at the senior levels. It also would have tested for a wide variety of other drugs. Second, a finding of trace amounts of drugs in one's system does not mean that the employee is unproductive or about to engage in a work-related crime. Indeed, there was no evidence to suggest that drug-related crime was a problem in the Bank. The Tribunal expressly found that during an 18-month period, there were 57 incidents of theft at the Bank none of which were linked to the use of drugs. Two other findings of the Tribunal that are relevant to this appeal are [at pages 216-217]:
No research was done among the population of Bank employees to support the impressionistic assumption that there might be a drug problem among them sufficient to justify the introduction of such a policy:
. . .
This is clearly a case where the employer's concern is economic whether it be a concern about theft, employee productivity or the reputation of the Bank. It does not involve any "unusual dangers to employees or the public." Thus with reference to the words of McIntyre J in Etobicoke , it may be difficult if not impossible to demonstrate that such a mandatory requirement (drug testing) may be imposed without regard to individual capacity of the employee to perform the job requirements.
As for the Bank's argument that the Tribunal considered the issue of rational connection when dealing with the BFOR defence and found the policy to be rationally connected to its objective, there are two responses to this argument. First, the two tests are different and are to be addressed separately after the decision of Madam Justice Wilson in Alberta Dairy Pool. Thus, if the Tribunal had considered the issue of rational connection in the adverse effect discrimination context it would have stated so in its findings.
The second response to the Bank's argument is that even if the Tribunal considered the rational connection component, it found that the policy was not rationally connected. The passage that the Bank relies on in the Tribunal's judgment to indicate that it found there was a rational connection states [at page 218]: "In applying the Brossard test, if we assume that the employer's purpose is to eliminate illicit drugs from the employee population because of the impact they might have upon job performance, this Tribunal finds that this is an appropriate purpose." As the CCLA points out, the issue is not whether the Bank's purpose for implementing the policy is appropriate but whether the policy adopted to implement the purpose is rationally connected to the employment. What needs to be addressed is whether the policy was implemented for sound economic or business reasons and whether the policy is over or under-inclusive in reaching its objective.
A reading of the Tribunal's decision shows that it expressly found that the policy was not rationally related to its objective. The relevant passages of the Tribunal's decision are as follows [at page 218]:
. . . if we examine the concern relative to the connection with the criminal element and the risk of such things as money laundering we find little evidence before us to support this concern. If the concern is that the employee is engaging in a criminal act by using illicit drugs, that is a matter for concern but also a matter for the law enforcement officials.
In examining the reasonableness for the method chosen by the employer, this Tribunal finds that the method"namely mandatory urinalysis"is intrusive. As a blanket policy, it does represent a major step in the invasion of privacy of many individuals in the employment field. This method could only be seen as reasonable in the face of substantial evidence of a serious threat to the Bank's other employees and the public, its customers.
Clearly, the evidence is not there to support this. The Bank did not act upon evidence of a problem but upon impressions and some evidence from other sources, much of it from the United States bearing little relevance to the actual circumstances in the Bank.
If observation works for the majority as a method of individual assessment even though evidence indicated it was imperfect, why not for the new and returning employees also? It is at least noteworthy that no other Canadian bank has such a policy and the Canadian Bankers Association has not found it necessary to take a policy position on the matter.
Further, to elaborate on a point I mentioned earlier, it is not sound economic or business policy to implement drug testing when that testing only affects a small portion of employees, and there is no evidence to suggest that employee work performance is being affected by drugs. I would, therefore, dismiss the appeal on the ground that the policy fails the rational connection test.
After finding in the alternative that the policy failed the rational connection test, my colleague Robertson J.A. did not proceed to consider the issue of whether the Tribunal properly considered the Bank's policy in light of the accommodation requirement. As I am of the opinion that both the Tribunal and the Motions Judge erred in their analyses on this point, I will address this issue.
Reasonable Accommodation
The Bank's drug testing policy provides for rehabilitation services for employees who test positive for drugs. An employee only faces the possibility of dismissal if he or she refuses to participate in a rehabilitation program or fails at rehabilitation and continues to use drugs. Even then, the Bank states that it reviews the specific circumstances before any final decision regarding termination is made. The relevant provisions of the Bank's policy are as follows:
The intent of this policy is rehabilitative, not punitive.
If you have a drug or alcohol problem, rehabilitative services are available and the Bank intends to work with employees to help them overcome their problems.
. . .
The Bank will help you overcome your drug or alcohol problem by providing access to rehabilitative programs. Ending your employment with the Bank may only be necessary if reasonable accommodation has been provided, but deemed unsuccessful or rehabilitation efforts have failed.
If you need help you can contact Reach Out, the Bank's Employee Assistance Program . . ., the Health Centre . . . or the Disability Claims and Rehabilitation Department. All programs operate in accordance with accepted professional standards. Confidentiality is preserved.
You can enter these programs in one of three ways:
3. If you test positive for drug use (see below) you will be required to participate in a rehabilitation program as deemed appropriate by a Health Professional.
. . .
You will not be disciplined or discharged as long as you continue to participate in a rehabilitation program and it is deemed to be working and your job performance is acceptable. Also, you will receive short-term disability benefits, if required, as long as you participate in a recognized treatment program and comply with the treatment.
I agree with the Motions Judge and the Tribunal that the rehabilitation program provided by the Bank conforms with the reasonable accommodation requirement. There are limits on an employer's duty to reasonably accommodate drug dependent employees. The Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, at pages 994-995 recognized that there is also an onus on the employee to take reasonable steps to facilitate the implementation of an employer's policies:
When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complaint causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. . . . The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged.
It follows that if, after sending an employee for treatment, he or she cannot be rehabilitated the Bank is not required to do anything more. The employee has been reasonably accommodated.
The Commission has recognized the limits placed on an employer to reasonably accommodate a drug dependent employee in its Policy Statement which states:
Reasonable accommodation may include referring employees who test `positive' to an employee assistance program for assessment and, if needed, counselling and rehabilitation. The duty to reasonably accommodate has limits, however. For example, if the employer sends an employee on a rehabilitation program and the employee does not overcome his or her dependency, no further accommodation may be required.
The Bank's actual treatment program (which refers drug dependent employees to a treatment program) thus fulfils the reasonable accommodation requirement. Where the Bank's drug policy falls short of meeting the reasonable accommodation requirement, however, is in its failure to assess employee job performance at the accommodation stage.
Both the Motions Judge and the Tribunal found that employee job performance need not be considered at the accommodation stage. In reaching her conclusion on this point, the Motions Judge relied on a decision of this Court in Niles v. Canadian National Railway Co. (1992), 94 D.L.R. (4th) 33 (F.C.A.), which she claims stands for the proposition that an employer does not have an unlimited duty to accommodate an alcohol dependent employee who refuses to participate in rehabilitation. Relying on Niles, she found that the impact that drugs have on work performance need not be considered [at page 238]: "there is no requirement in that case that the employee who suffers from an addiction must also exhibit poor job performance. The addiction itself is sufficient to justify termination where rehabilitation has failed." She concluded that [at page 238]:
The submission that the Tribunal erred by not addressing individual performance issues as an aspect of accommodation cannot succeed. Essentially, the point of undue hardship is reached for the employer, at least in the case of a policy against the use of illegal drugs, when the employer is faced with the continued presence of an employee who cannot be rehabilitated and who persists in his or her criminal acquisition and use of illegal drugs.
In my view the Motions Judge erred in interpreting the Niles decision as standing for the proposition that job performance need not be considered before initiating testing or after being sent to a rehabilitation program. I am of the view that both the Motions Judge and the Tribunal should have considered the issue of work performance in their analyses because in order for any type of drug policy to reasonably accommodate affected employees, job performance must be considered. (The exception may be safety sensitive industries). If an employee is not abusing drugs while at work, and his or her work performance meets the employer's job requirements, then the disability poses no problem. If, however, an employee exhibits poor performance and the Bank believes it may be related to a drug dependency, then (and only then) should the Bank be able to test the employee and, if necessary, send the employee to some form of rehabilitation or counselling program. To comply with the reasonable accommodation component an employee cannot be tested unless after receiving treatment his or her work performance remains inadequate. Thus, if after receiving treatment, the employee's work performance is fine, no further tests should be undertaken. If after receiving treatment the employee's performance continues to remain inadequate, the Bank is justified in re-testing and dismissing the employee if the poor performance is related to drugs. The Bank need not send the employee out for further treatment.
There is nothing in the Niles decision to suggest that my interpretation of the accommodation requirement is incorrect. Indeed, the Niles case supports my position. Contrary to how Niles has been interpreted by some commentators, the facts in that case show that the employee's alcoholism had interfered with his work. For a long period of time the employee had refused to receive help. After telling his employer he was fine, there were further absences and the employer's car was damaged by the employee. He could have been dismissed at this point but instead he was suspended. The employee sought rehabilitation and was told that after-care was an essential part of the treatment. He did not undergo the after-care treatment. Further, the Court specifically found that CN's policy on alcoholism had been followed. Part of that policy was [at page 45]:
. . . to require affected employees to accept certain conditions related to the program of rehabilitation. If the employee refuses to co-operate, or if the medical treatment and other measures fail, then removal from employment must be considered where there is continuing deterioration in performance. Such separation would be required, as in other circumstances, because minimum performance standards are not being met. [Emphasis added.]
This Court also found at pages 49-50 that one of the reasons for Niles' dismissal was his substandard work performance: "It seems clear to me that the tribunal did not make an adequate distinction between an employer's discrimination on the basis of past or present alcoholism per se and an employer's justified reaction to the substandard performance consequences of alcoholism which was the basis for dismissal." While Heald J.A. does state at page 50 that the Tribunal was concerned with CN's failure to assess the employee after attempted rehabilitation, his statement must be read in context. The employee had tried on previous occasions and failed to rehabilitate. Performance remained substandard after the previous attempts at rehabilitation. The employee had also refused to comply with the remainder of his treatment. Thus, contrary to the Motions Judge's interpretation, this case does not stand for the proposition that performance indicators are not to be considered as they were expressly considered in that case.
I would therefore agree with the reasoning of the Board in Entrop v. Imperial Oil Limited (1996), 27 C.H.R.R. D/210, at page D/225 (affirmed [1998] O.J. No. 422 (Gen Div.) (QL) where it states that "an employer has the right to ensure that its business operations are conducted safely, and a corresponding right to assess whether employees are incapable of performing their essential duties" and add that when dealing with adverse effect discrimination in order to accommodate employees with drug testing problems there must be objective evidence of poor performance. As the Bank's policy is not tied to concerns with employee job performance (as employees are never given a chance to work before being required to take the drug test and because an employee who has received treatment is tested again regardless of his or her work performance) it has not satisfied the duty to accommodate.
In conclusion, I am of the respectful opinion that the Bank's drug testing policy constitutes a prohibited discriminatory practice within the meaning of section 10 of the Canadian Human Rights Act. Accordingly, the appeal and cross-appeal should be disposed of in the manner outlined by Robertson J.A. I adopt his reasons but only to the extent that they are consistent with those I have given herein.
1 R.S.C., 1985, c. H-6 (the Act).
2 Exhibit HR-1, Appeal Book, Vol. III, at p. 634.
3 Exhibit R-9, ibid., at p. 639.
4 Ibid.
5 (1994), 6 C.C.E.L. (2d) 196 (H.R.T.), at pp. 210-211.
6 Appeal Book, Vol. III, at p. 630.
7 Supra, note 5, at p. 211.
8 Id., at p. 212.
9 (1996), 22 C.C.E.L. (2d) 229 (F.C.T.D.), at p. 235.
10 Id., at pp. 235-236.
11 Id., at p. 237.
12 Id., at p. 238.
13 R.S.C., 1985, c. N-1.
14 The schedule includes, as narcotics, the following: cannabis (marijuana and hashish), cocaine, codeine, heroin, morphine, opium.
15 Supra, note 5, at p. 212.
16 Supra, note 9, at p. 235.
17 Id., at pp. 235-236.
18 Id., at p. 236.
19 [1990] 2 S.C.R. 489, at p. 514 (Dairy Pool).
20 J. Sopinka and M. Gelowitz, The Conduct of an Appeal (Toronto: Butterworths, 1993), at p. 51.
21 Lamb v. Kincaid (1907), 38 S.C.R. 516.
22 [1993] 1 S.C.R. 554 (Mossop).
23 [1996] 1 S.C.R. 571.
24 [1996] 1 S.C.R. 825.
25 Mossop, supra, at p. 585.
26 [1989] 1 S.C.R. 143, at p. 174 (Andrews).
27 [1985] 2 S.C.R. 536, at p. 551 (O'Malley).
28 Dairy Pool, supra, at p. 513.
29 Appeal Book, Vol. I, at p. 36.
30 (1996), 27 C.H.R.R. D/210 (Ont. Bd. Inq.); affd Imperial Oil Ltd. v. Ontario (Human Rights Commission) (re Entrop), [1998] O.J. No. 422 (Div. Ct.) (QL) (Entrop).
31 Id., at paras. 30-31.
32 Dairy Pool, supra, at pp. 514-515.
33 [1994] 2 S.C.R. 525 (Bergevin).
34 [1992] 2 S.C.R. 970.
35 ;Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Egan v. Canada, [1995] 2 S.C.R. 513.
36 Supra, note 9, at p. 236.
37 House of Commons. Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence, Issue No. 115 (December 21, 1982), at p. 115:44.
38 Dairy Pool, supra, at p. 520.
39 ;Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279, at p. 311 (Brossard).
40 Supra, note 5, at p. 218.
41 Bergevin, supra, at p. 546.
42 Policy 88-1, Appeal Book, Vol. VIII, at pp. 1379-1380.
43 O'Malley, supra, at p. 555; Renaud, supra, at pp. 994-995.
44 Appeal Book, Vol. III, at pp. 627-628.
45 Examination in Chief of Mr. Lawson, Appeal Book, Vol. I, at pp. 123-126.
46 Supra, note 5, at p. 213.