Richard Foot
National Post July 22, 2000
Canadian employers are free to impose random alcohol tests on their workers, but drug testing contravenes the law, according to a landmark ruling on employee privacy rights released yesterday by the Ontario Court of Appeal.

The province's highest court says companies that wish to ensure safety in their workplaces can carry out Breathalyzer tests on employees and job applicants. But demanding urine samples for drug tests is a violation of human-rights law and scientifically ineffective.

The decision stems from an appeal by Imperial Oil Ltd. of a 1996 ruling by the Ontario Human Rights Commission, which said the company's drug and alcohol testing policy was illegal. Yesterday's decision comes from the most senior provincial court to examine the issue. Its findings are expected to guide workplace practices across the country.

"This is a clear and huge victory for the Ontario Human Rights Commission," said Marvin Huberman, the agency's lawyer. "There are a great number of companies that were very cautious in how to proceed. This now clarifies the law."

Although drug and alcohol testing is more common in the U.S., Canadian companies have been slow to embrace the practice in the face of stricter human rights codes. Canada's Federal Court of Appeal dismissed an effort two years ago by the Toronto Dominion Bank to test employees for drug use. Since then, other companies have been awaiting the Imperial Oil judgement before implementing their own policies.

In 1992 Imperial Oil imposed alcohol and drug testing on employees at two Ontario refineries. Its policy required Martin Entrop, a control board operator in Sarnia, Ont., to reveal that he suffered from alcohol abuse in the early 1980s. Mr. Entrop had not had a drink for seven years, but because he worked in a "safety-sensitive" area -- where impaired performance could lead to catastrophe -- he was removed from his job and given another position at the refinery.

Although Mr. Entrop was eventually reinstated, he complained to the Human Rights Commission. Alcohol or drug addiction is considered a "handicap" in human rights law, and Mr. Entrop said Imperial Oil discriminated against him because of his handicap.

The Commission upheld Mr. Entrop's complaint and decided that Imperial Oil's policy breached the Ontario Human Rights Code. The agency also awarded Mr. Entrop more than $21,000 in damages, partly for the "mental anguish" the agency said Mr. Entrop had suffered through the affair.

The Ontario Divisional Court upheld the Commission's findings, and Imperial Oil appealed what had become one of the most important drug-and-alcohol testing cases in Canada, to the Ontario Court of Appeal.

In a unanimous decision, three appeal judges ruled yesterday that the Commission did not have the jurisdiction to expand Mr. Entrop's case into an inquiry about Imperial Oil's drug testing provisions. However the Court of Appeal decided to address the issue of drug testing anyway.

It said that both drug and alcohol tests are discriminatory in theory. However, for people who hold sensitive jobs -- from refinery workers to train operators to airline pilots -- the court said there are cases where mandatory testing can be justified.

"Imperial Oil has the right to assess whether its employees are capable of performing their essential duties safely," writes Mr. Justice John Laskin. "An employee working in a safety-sensitive position while impaired by alcohol or drugs presents a danger to the safe operation of Imperial Oil's business."

The court said a breathalyzer test can accurately measure impairment, and therefore alcohol testing is an acceptable practice. But because urine tests show only the presence of drugs in the body, but do not measure impairment, drug testing is unjustified.

"You could have smoked a joint of marijuana on a Friday night and go to work on Monday completely unaffected by the drug," says Mr. Huberman. "There's no correlation between a positive drug test result through urine and impairment in your job. That's not the case with a breathalyzer."

The issue is important for the Canadian Civil Liberties Association, which had intervened in the case against Imperial Oil. The association does not oppose alcohol testing, says its lawyer Alan Borovoy, because breathalyzer tests reveal nothing about an employee but blood alcohol levels.

Urine samples are not only ineffective, he says, they contain an array of information about their owner. "A urine test represents a gratuitous invasion on the privacy of employees," Mr. Borovoy says.

The court also condemned Imperial Oil for demanding that employees disclose past drug or alcohol abuse and following such disclosure, automatically reassigning them to other jobs. It also upheld Mr. Entrop's damages award, saying Imperial Oil "wilfully and recklessly" infringed on his rights.

The company had little to say yesterday except that its lawyers were studying the judgement.

"We are pleased that in the broadest sense the court ruling has affirmed the appropriateness of random alcohol testing," said spokesman Richard O' Farrell. "Imperial believes its current policy is necessary and reasonable to minimize safety risks to employees and to the public."