Alberta Court of Appeal ruling upholds construction workplace drug testing
02/01/2008 7:27:00 PM
EDMONTON - Construction and energy companies are happy with an Alberta court ruling that upholds the right of employers to test workers in safety-sensitive jobs for drugs.
The Alberta Court of Appeal's decision overturned a lower court judgment that said Kellogg, Brown & Root Co. discriminated against a man in 2002 when it fired him from an oilsands project near Fort McMurray after he tested positive for marijuana.
John Chiasson, who admitted to being a recreational pot smoker, filed a complaint with the Alberta Human Rights Commission, which ruled against him. The commission said there needs to be a balance between an individual's human rights and the needs of an employer in protecting others.
But Court of Queen's Bench Justice Sheilah Martin then ruled in his favour. She said he should have been treated the same as someone with a drug addiction, which is considered a disability in human rights case law.
The panel of three Appeal Court justices disagreed. The judges said it is legitimate for Kellogg, Brown & Root to presume that people who use drugs at all are a safety risk in an already dangerous workplace.
"We see this case as no different than that of a trucking or taxi company which has a policy requiring its employees to refrain from the use of alcohol for some time before the employee drives one of the employer's vehicles," the justices wrote.
"Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic."
Kellogg, Brown & Root, one of the largest construction firms in the world, was helping to build an expansion to Syncrude Canada's plant at the time of Chiasson's case and is still active in the oilsands.
Andrew Robertson, a lawyer for the company, said the Appeal Court's decision is important to energy and construction industries.
"It is refreshing to see the Alberta Court of Appeal factor in risk management in safety-sensitive workplaces in a circumstance when there had been a recent focus on human rights issues," he said.
Heather Browne, a spokeswoman for Texas-based Kellogg, Brown & Root, hailed the ruling.
"KBR is a leader in workplace safety, and maintaining that commitment is the company's top priority," Browne said Wednesday.
"The court ruling upholds that commitment and we look forward to continuing our work in that regard."
Robertson noted that the Alberta appeal justices did not follow an Ontario Court of Appeal's decision in a similar case that said employees who test positive for drugs are to be dealt with as if they have an addiction even if they don't.
He said courts in provinces outside of Alberta and Ontario hearing similar cases will now have two different precedents to refer to.
Commission lawyer Janice Ashcroft said the Court of Appeal ruling will be reviewed before determining whether to seek leave to have the case heard by the Supreme Court of Canada.
"It is important to employers and employees to clarify what is the role of human rights when it comes to drug testing," Ashcroft said.
"This affects a lot of people and it is important. The commission does have a duty to ensure that the rights of all Albertans - both employers and employees - are balanced in this respect."
During the original court case, officials with oilsands giant Syncrude testified that the company's lost-time rate from accidents has dropped in part because of drug and alcohol testing.
Syncrude, Suncor, Albian Sands and other major oilsands heavyweights test their employees for drugs before they are allowed on jobsites.
Kara Flynn, a spokeswoman for Syncrude, said that in a broad sense, the Appeal Court ruling supports the company's drug-testing policy and goals.
"Any judicial decisions that support that are greatly appreciated," she said.
The impact of the ruling is already starting to ripple beyond Alberta's boundaries.
Phil Hochstein, president of the Independent Contractors and Business Association in British Columbia, said while workplace drug testing is common on major projects in Alberta, it is the exception in B.C.
He expects that is going to change.
"I think that workplace testing of construction workers is probably an issue whose time has come," he said from Vancouver.
"I think this case is going to spur more of this jobsite testing, not only on big industrial jobs, but on commercial and institutional jobs throughout the country."