CALGARY — Canadian carriers should be less dazed and confused about drug-testing restrictions after an Alberta court ruled that a construction company did nothing wrong when it fired a worker who tested positive for marijuana.

The decision signifies an important break with many previous judgments on the issue.

Originally, an Alberta Human Rights Commission sided with the company, Kellogg, Brown & Root, stating that it had the right to fire John Chiasson, who was hired to work on an oilsands project near Fort McMurray. That judgment was immediately vacated by Court of Queen’s Bench Justice Sheilah Martin, who, following most of the past relevant case law, said KBR should not have fired Chiasson because he could have been perceived to be addicted — and thereby disabled — under Canadian law. But a panel of three Appeal Court justices disagreed, saying Chiasson (who admitted he was a recreational user) was legitimately let go because of the safety risk associated with the job.

This runs contrary to the precedent most courts and quasi-judicial human rights tribunals have been leaning on since the landmark Entrop vs. Imperial Oil case in 2000. In that ruling, the Ontario Court of Appeal basically concluded that companies couldn’t perform random or pre-employment drug tests because workers could be disabled or “perceived” to be dependant on drugs.

Since then, Canadian trucking companies have been walking a legal tight rope — especially cross-border carriers who have been forced to balance the requirement for drug testing under U.S. law with Canadian human rights legislation.

Workers in safety sensitive positions may no longer be
able to light up a doobie and still stay employed.

Unlike Entrop, which made no distinction between addiction and recreational use in disallowing drug testing, the Alberta court took a more nuanced view. More notably, it also factored in the matter of safety when making its decision.

“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. Assuming it is aimed at safety, the policy perceives that any level of alcohol in a driver’s blood reduces his or her ability to operate the employer’s vehicles safely,” the court stated.

“This is a legitimate presumption … extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic.”

Chris Andree, a labor policy attorney with Gowling Lafleur Henderson LLP in Kitchener, Ont., says that the decision is a clear sign that courts are continuing a trend to loosen the reigns on employers who test for drugs for safety reasons.

“The court is being more open to the idea of drug testing in safety sensitive positions, effectively elevating the safety considerations to at the least an even ground with human rights issues, and in some cases, above that,” he says.

The Alberta decision is also important for Canadian trucking companies because it is perhaps the first to comment on relaxed drug-testing rules specifically for Canadian operations. A previous case in Ontario, first reported by Today’s Trucking in the summer of 2005, seemed to indicate that carriers could have an easier time fending off a human rights challenge specifically for U.S. operations.

The Alberta decision, however, is farther reaching since it encompasses Canadian businesses.

The jury is still out on how this latest decision will affect any upcoming drug testing rulings in other provinces. Still, over time the Alberta decision would be hard to ignore around the country, says Andree.

“Eventually, I think it will be considered, because it’s the continuation of a trend. Other courts are influenced by trends and the kind of reasoning that supports them. The other thing is that the science used in this case is more up to date than evidence used (in Entrop).”

Provided they have a solid, attorney-tested policy, Andree is confident Canadian carriers will eventually win most of these court battles.

“I used to characterize this issue as a business dilemma: Do you want to do testing, or do you want to comply with human rights legislation? It was one or the other,” says Andree. “Now, I don’t think it’s the same choice. I think you can do both as long as you do it properly.”

— To read the complete feature, be sure to check out the upcoming February print issue of Today’s Trucking magazine.