BLG's Brian D. Portas has a short article at Mondaq canvassing conflicting decisions by Courts in Alberta and Ontario as to whether Human Rights Code protections are available to individuals who are summarily declined employment as a result of pre-employment drug testing that discloses marijuana use:
The court in Chornyj indicated that the Chiasson case decided earlier in Alberta was similar in many respects to the facts in Chornyj but the Ontario court reached a different conclusion. It distinguished the Chiasson decision on the fact that there was evidence that Kellogg, Root & Brown (Canada) Co.’s representatives subjectively believed that Mr. Chiasson was drug dependent and the automatic dismissal of the employee after a positive drug test indicated that the employer subjectively believed that any person testing positive was a substance abuser. The Alberta Court of Queen’s Bench decision in Chiasson has been described by some as extending human rights protection to self-avowed recreational drug users. This is in stark contrast to the contention of most employers that human rights legislation should not apply to these individuals who freely admit that they do not suffer from any sort of disability.
- Garry J. Wise, Toronto