Dennis v. Eskasoni Band Council

Dennis v. Eskasoni Band Council
Collection
Canadian Human Rights Tribunal
Date
2008-09-12
Neutral citation
2008 CHRT 38
File number(s)
T1134/1606
Decision-maker(s)
Hadjis, Athanasios
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
PERRY DENNIS
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
ESKASONI BAND COUNCIL
Respondent
DECISION
2008 CHRT 38 2008/09/12
MEMBER: Athanasios D. Hadjis
I. THE PARTIES' PARTICIPATION AT THE HEARING INTO THE COMPLAINT
II. THE FACTS GIVING RISE TO THIS COMPLAINT
A. Mr. Dennis' car accident
B. The Eskasoni Fishery
C. The Fit to Work Policy
D. The 2004 Testing
E. The 2005-2006 Testing
III. THE LEGAL PRINCIPLES APPLICABLE TO THIS CASE
IV. THE SECTION 7 COMPLAINT
A. Has a prima facie case been established under s. 7?
(i) Was Mr. Dennis disabled (i.e. drug dependent) within the meaning of the Act?
(ii) Did the Band perceive Mr. Dennis as being drug dependent?
V. THE SECTION 10 COMPLAINT
A. Has a prima facie case been established under s. 10?
B. Has the Band discharged its burden of providing a reasonable explanation?
(i) Did the Band adopt its policy for a purpose or goal rationally connected to the job or function being performed?
(ii) Did the Band adopt its standard in good faith?
(iii) Is the standard reasonably necessary to the accomplishment of the purpose or goal?
a) Safety as a consideration - a safe workplace
b) Impairment is a safety hazard
c) Is the drug and alcohol screening process an effective means to detect the presence of a hazard in the workplace?
d) Cost as a factor - The impact on the Band's commercial fishery
e) Is the Band's hardship undue?
f) Does the policy place an undue burden on employees?
VI. SECTION 67 OF THE CANADIAN HUMAN RIGHTS ACT
[1] The Complainant, Perry Dennis, alleges that the Respondent, the Eskasoni Band Council, did not hire him to work as a deckhand on a fishing boat because he failed to pass a pre-employment drug screening test. He claims that the Respondent's decision discriminated against him on the basis of his disability (drug dependency), under s. 7 of the Canadian Human Rights Act, and that the Respondent's drug screening policy is itself discriminatory, within the meaning of s. 10 of the Act.
I. THE PARTIES' PARTICIPATION AT THE HEARING INTO THE COMPLAINT [2] The Commission had initially referred five other complaints, along with Mr. Dennis', to the Tribunal. Shortly before the hearing began, four of those complainants settled their complaints with the Respondent. The Commission then advised the Tribunal that it would no longer participate at the hearing. Two days into the hearing, the other remaining co-complainant also settled his case.
[3] Mr. Dennis was not represented by legal counsel at the hearing into his complaint. On the sixth day of the hearing, after Mr. Dennis had closed his case, he suddenly and without any notice to the Tribunal or the registry officer, collected his things and left the hearing room during a break in the proceedings, at around 11:45 AM, accompanied by his common law spouse, Mary Lou Gould. He never returned. I adjourned the proceedings for about two hours while the registry officer attempted to telephone Mr. Dennis at home. There was no response. I asked all persons present, including the Mi'kmaq interpreter assigned to this case, whether Mr. Dennis had mentioned why he had left and for how long. No one was able to provide any further details. Mr. Dennis was only observed picking up his papers and leaving without saying anything. The Respondent, at that time, was part way through its examination in chief of an expert witness. Given the circumstances, and particularly Mr. Dennis' sudden departure without any notice, excuse, or explanation, I decided to proceed in his absence. The Tribunal's digital voice recording system continued to record the proceedings and a copy of the audio recording was subsequently provided to both parties.
[4] Later that afternoon, the registry officer sent an e-mail message to Mr. Dennis informing him that the hearing would continue as scheduled the following day. He was invited to contact the registry officer by e-mail or telephone. Mr. Dennis replied by e-mail to the registry officer that evening. He explained how he felt alone and overwhelmed by the proceedings, placing some blame on the Commission for failing to participate at the hearing and abandoning him to the wolves. The following morning, Mr. Dennis sent an e-mail to the registry officer asking whether Ms. Gould could appear on his behalf. She had been in attendance at the hearing since its outset and had already testified. I granted Mr. Dennis' request and she presented herself that afternoon. She is not a lawyer. She cross-examined the remaining witnesses who were called to testify by the Respondent and she made final submissions on Mr. Dennis' behalf.
[5] The Respondent, for its part, was represented by legal counsel throughout the course of the hearing.
II. THE FACTS GIVING RISE TO THIS COMPLAINT A. Mr. Dennis' car accident [6] Mr. Dennis is a registered member of the Mi'kmaq First Nation community of Eskasoni situated about 40 km south of Sydney, Nova Scotia. The Respondent is the community's band council (the Band).
[7] Mr. Dennis grew up in Eskasoni and has spent most of his life there. He is 38 years old. In 1989, he was involved in a serious car accident. His injuries included fractures to his neck. He testified that the fractures have left him with several painful chronic health problems. From time to time, his neck will swell up, which restricts head rotation and causes him neck and shoulder pain as well as sharp headaches. His physicians initially prescribed him some strong medication to deal with the pain but it had the effect of making his face look droopy and sad, even though he felt fine. When he took weaker dosages, be claims to have become addicted to the pills, although he did not provide any further elaboration or explanation in his evidence.
[8] Around 1990, Mr. Dennis discovered that using marijuana would relax him and ease his pain in his shoulders and neck, without the above-mentioned side effects that his physician-prescribed medication had caused him. He did not use marijuana on a daily basis, but only on the occasions when his pain would flare up. On some pain-ridden days, however, he would not take any marijuana and simply lived with his condition and the pain.
[9] At one point in 2004, Mr. Dennis recalls asking a physician at Eskasoni's health clinic to prescribe marijuana medicinally for him. Mr. Dennis claims that although the physician did not disapprove of his marijuana usage, he told Mr. Dennis that he was not authorized to give such prescriptions. Mr. Dennis did not apparently try to find another physician who possessed such authorization. Instead, Mr. Dennis continued to acquire his marijuana through other unspecified means. The physician was not called as a witness in this case.
B. The Eskasoni Fishery [10] Prior to 2000, the Band's fishery operation was quite modest. It was run by a department of the Band known as the Eskasoni Fish & Wildlife Commission (EFWC). Most of its activity was in fisheries research and conservation. There were only about five full-time employees and between 15 and 40 casual workers throughout the year.
[11] In two 1999 decisions (R. v. Marshall, [1999] 3 S.C.R. 456 and R. v. Marshall, [1999] 3 S.C.R. 533), the Supreme Court affirmed the treaty rights of Mi'kmaq persons to hunt and fish, and to trade in the product of these activities, in order to earn a moderate livelihood for themselves and their families. Following these decisions, the federal Department of Fisheries and Oceans (DFO) entered into agreements with First Nations to provide them with the tools that would enable them to develop their commercial fisheries. The Band signed such an agreement in 2000 (the Marshall Agreement), pursuant to which the DFO provided funding for the purchase of fishing licences, vessels and other equipment, the construction of buildings, and the training of fisheries workers.
[12] When the Marshall Agreement was implemented in 2000, there were very few Band members who had the skills required to fish commercially. Consequently, the Band put in place programs to train individuals as certified deckhands, first mates, and captains. Mr. Dennis had done some work from time to time as a deckhand for non-native fishers between 1992 and 2000, but he had never gained his certification. Mr. Dennis therefore registered for the Band-offered training and he successfully obtained his deckhand certificate in 2000.
[13] A deckhand's duties include cleaning, maintaining, mending and emptying nets. Deckhands also place catches such as shrimp into special bags, empty and bait traps, and clean the deck and bilge. A deckhand takes directions from the captain who, aside from guiding the boat, also operates the hauler or winch that is used to lift traps and nets into the boat.
[14] The fishing season for most of the species fished by the Band runs typically from March to November. In order to distribute jobs equally amongst the qualified deckhands in Eskasoni, the EFWC compiled a list annually on which band members would place their names and phone numbers. As a boat would get prepared to go out to sea, the EFWC would call up deckhands off the list on a rotational basis. The fishers were compensated based on the size of the catch and the price at which it was sold. This form of employment was considered seasonal work that entitled a fisher to obtain employment insurance benefits in the off-season, provided his or her earnings exceeded a basic threshold (about $11,000). Mr. Dennis placed his name on the list and was called to work in 2001, 2002, and 2003. His 2003 earnings were just under $30,000. Thus, Mr. Dennis and the other EFWC deckhands were neither full-time nor indeterminate employees of EFWC. Their employment was casual. In 2005, the EFWC handed off management of the commercial fishery to a corporation called Crane Cove Seafoods, which was wholly owned by the Band. For all intents and purposes, the Band remained in charge of its commercial fishery.
[15] According to the testimonies of the current Chief and several band councillors, reports began surfacing during the commercial fishery's first two years of operation in 2001-02, about fishers going out to sea while under the influence of drugs or alcohol. Therefore, on December 10, 2002, a motion was passed by the Band Council that commercial fishers submit to mandatory drug testing. In the ensuing months, the Band appointed Jim Maloney to take charge of the development of a drug testing policy. Mr. Maloney was a member of another First Nation community in Nova Scotia. In the past, the Band had assigned him the task of developing other programs. By the summer of 2003, the proposed policy, entitled the Eskasoni Fit to Work (Drug and Alcohol) Program Policy, had been prepared.
[16] Mr. Maloney testified that he conducted a number of information sessions for Eskasoni's commercial fishers in order to introduce them to the new policy. Posters were put up advertising the events and a one-page letter summarizing the policy was sent to the address of anyone involved in the EFWC fishery. The same letter was distributed to anyone who attended the information session. The letter was entitled Open Letter to the Community of Eskasoni - Fit to Work (Drug and Alcohol) Program. It stated that the people of Eskasoni had identified drug and alcohol abuse as a serious problem that was affecting everyone's life within the community and that the Band's Chief and Council were committed to resolving the problem. The letter went on to state that the policy was required in the Eskasoni commercial fishing operations, since commercial fishing is recognized as one of the most dangerous professions, making safety in the workplace essential in protecting the lives of those involved.
[17] The letter also noted that the policy provides a series of progressive steps, linked to treatment, for those who test positive, so that they may ultimately return to work.
C. The Fit to Work Policy [18] On September 16, 2003, the proposed policy was formally adopted by the Band Council. Its implementation was to begin during the 2004 fishing season. The policy states that its general purpose is to ensure that EFWC employees comply with and set an example in the community, by being drug and alcohol free in a safe, alcohol and drug-free workplace. The policy also extends to contractors and contract workers. Some of the specific objectives mentioned include:
preventing employees from being in a position where impaired performance becomes a risk to them and the safe operation of EFWC facilities and equipment,
preventing accidents and injuries resulting from the use of drugs and alcohol, and
encouraging and supporting those with drug, alcohol and substance addictions in achieving and maintaining a drug and alcohol free quality of life.
[19] The policy puts an onus on EFWC management and staff to read, understand and acknowledge the policy. Employees must meet a fitness to work standard, which is defined as being fit and capable of performing their work. This includes being free from the influence of alcohol, illegal drugs, medications or substances that will affect performance. Employees are expected to seek advice and follow appropriate treatment if they suspect they have or are developing a substance dependency.
[20] The policy provides that all EFWC employees are subject to drug and alcohol testing as a requirement of employment. Any job offer is conditional on passing the required test. Furthermore, random testing is to take place at the discretion of the employer throughout the year, without any advance notice. Testing may also take place after the occurrence of a significant incident that causes or has the potential to cause death, injury, or loss/destruction of equipment. In addition, if managers have reasonable cause to believe that an employee's actions, appearance or conduct while on duty are indicative of drug or alcohol use, they may require that the employee be tested, but the decision must be made with the concurrence of a second person wherever possible.
[21] The substances for which testing is conducted are the following:
under the category of drugs - cannabinoids (marijuana, hashish, hash oil), stimulants (cocaine, opiates, amphetamines) and veterinarian anaesthetics (phencyclidine (PCP)); and,
under the category of alcohol - beverage alcohol, ethyl alcohol or other low molecular weight alcohols, including methyl or isopropyl alcohol.
The policy details how the screening test is carried out to see if any drugs and alcohol are present in amounts exceeding certain concentration levels (which are listed in a table). A positive result (i.e., in excess of these cut-off levels) is submitted to a more advanced test for further confirmation. Positive confirmation tests are then reported to a medical review officer for further evaluation and to ensure that an individual is not assigned a false positive laboratory result.
[22] Where the medical review officer's evaluation confirms the initial result and rules out the possibility of a false positive, a series of assessment and treatment options are made available under the policy. If it is the first time that the individual has tested positive, it will be recommended that the person seek drug and alcohol assessment and/or treatment, but this is strictly voluntary. The phone numbers for the Native Alcohol and Drug Abuse Counselling Association (NADACA) and the Mi'kmaq lodge, where addiction counselling is available, are listed in the policy. An individual who wants to try to be hired again or to return to work must complete a return to work drug screening test that produces a negative result before being considered for the job.
[23] If the individual tests positive a second time, then he or she will be required to see an addiction counsellor at NADACA for assessment but follow-up treatment will be voluntary, not mandatory. The individual remains ineligible to work. After a third failure, assessment and treatment become mandatory. The individual must complete the treatment before being re-hired, and the re-hiring is subject to the findings and recommendations provided by the addiction counsellor or treatment facility.
[24] After a fourth failure, the person will be dismissed and not eligible for re-hire until proof of sobriety for a period of one year. Thomas Johnston, the EFWC's executive director, testified that the EFWC interpreted this period not to mean exactly twelve months but rather just until the next fishing season. Thus, even if some fishers did not pass the fourth test in October, they could nonetheless enter the testing process all over again the following spring, along with all the other fishers.
[25] The policy stipulates that the EFWC will cover the cost of an initial substance abuse assessment of an individual who tests positive, but the cost of any other assessments or treatments is not covered by the EFWC. All testing results are confidential and are not to be disclosed except to the appropriate EFWC manager. Communication and correspondence of positive test results utilize a code rather than the individual's name and EFWC management is to maintain the list that matches the names with the codes in a secure location.
[26] An individual who commits a policy violation during an on-call period or while working on EFWC premises, vessels or equipment is, at EFWC's discretion, subject to immediate dismissal, suspension from work without pay, removal from EFWC vessels or premises, police notification where there is the presence of illegal drugs, or placement on return to work status. In this latter instance, the individual will be considered for a return to work after being re-tested, as discussed above.
D. The 2004 Testing [27] Mr. Maloney testified that for the 2004 fishing season, the Band hired on outside firm, East Coast Mobile Medical Inc. (East Coast), to conduct the drug testing on site in Eskasoni over the course of one day. He added that he sent notices to all fishers advising them that they had to register under the Fit to Work Program by March 8, 2004, on a list set up at the EFWC's offices. These notices were also broadcast on the local community television station.
[28] Mr. Dennis claimed in his testimony that he never got this notice and that he only learned of the drug testing process mere days before it was conducted on May 14, 2004. The evidence calls into question this claim. He testified that he was out to sea in January and February, when the notices were distributed, although the evidence was that crews would usually leave port for no more than three days at a time. In addition, Mr. Dennis' denial of knowledge was contradicted by the drug testing registration sheet that was filed in evidence. His name appears on the list along with his telephone number, his Band number, and an annotation stating after 5 pm. Mr. Maloney testified that he recalled Mr. Dennis phoning him to register and indicating that he would prefer doing the testing after 5 pm. Mr. Maloney added that he did not object to this request since the EFWC was trying to be as flexible as possible in order to ensure that each fisher would be tested.
[29] Furthermore, there is evidence that in March 2004, after the EFWC began registering persons for the testing, several fishers joined forces to form a union to oppose the imposition of the Fit to Work policy. Mr. Dennis helped organize the union and his name appears as a supporter in an open letter that was prepared prior to March 15, 2004. The letter invites all Eskasoni residents to attend a union meeting dealing with the Fit to Work policy. The meeting was held on March 22, 2004, and the minutes show that Mr. Dennis attended. It does not seem credible, therefore, for Mr. Dennis to claim that he did not know until mere days before, that the testing was forthcoming.
[30] Mr. Dennis disapproved of the policy. He felt that it was an attack by the Chief and the Band Council against certain Band members, to prevent them from earning a good income. After being tested on May 14, 2004 (urinalysis and breathalyser), he contacted Mr. Johnston, who at the time was director of operations at EFWC, and learned that he had failed the urinalysis by testing positive for the presence of cannabis. Mr. Dennis testified in chief that he was not told he could be re-tested that season. He claims that Mr. Johnston told him that he would be denied work that summer and that he could only re-test the following year at his own cost.
[31] Mr. Dennis' evidence on these points is contradicted by the evidence of Mr. Maloney and East Coast's business records. Mr. Maloney recalls having spoken to Mr. Dennis on the phone after he had failed the pre-employment drug testing. He remembers Mr. Dennis stating that he was eager to be re-tested and, hopefully be allowed to return to work that summer.
[32] So Mr. Maloney undertook to book a new appointment for testing, which would have to take place at East Coast's facility in North Sydney, Nova Scotia. Mr. Maloney testified that he advised Mr. Dennis by telephone that an appointment was set for June 18, 2004. Mr. Dennis never showed up for this appointment. Mr. Maloney therefore booked a second appointment for Mr. Dennis, for August 6, 2004. Mr. Maloney recalls telling Mr. Dennis that it was important he attend because East Coast had billed the Band for the first appointment even though Mr. Dennis had not shown up. The East Coast records show that Mr. Dennis had been booked for both of these appointments, but that he had not shown up on either date.
[33] I find this evidence persuasive and I am not convinced by Mr. Dennis' claim that he was told to come back next year to be re-tested. I note that such a response does not accord with the policy, which states that a person is entitled to be re-tested as many as four times. If the individual fails the fourth test, he or she may still take the test again one year later. This is the only time limitation mentioned. There are no time conditions attached with respect to the first re-testing. Presumably, whenever an individual feels ready to retake the test, he may do so. The entire testing and re-testing process set out in the policy is intended to be completed by the end of the annual fishing season, in keeping with the re-hiring process that takes place at the start of each fishing season. Thus, every fisher must pass a test every year, even if he or she tested negative the previous season. Furthermore, the policy provides that even in the worst case, where an individual fails the test four times, he or she remains ineligible for re-hire only until the following year.
[34] Mr. Dennis emphasized in his testimony that East Coast only came to Eskasoni once a year to test all the fishers. This may have been the source of his misunderstanding regarding when he could take a re-test. There was some suggestion in the evidence that he may have been unwilling to go elsewhere to take the test. It was not unreasonable, however, for the Band to have required an individual who is seeking employment but failed the initial on-site test, to attend East Coast's offices in North Sydney (about an hour's drive from Eskasoni) to be re-tested, rather than paying for East Coast to bring its equipment down to Eskasoni again just to test one individual.
[35] Although Mr. Dennis did not go to East Coast's facility in North Sydney to be tested, he did visit the Eskasoni Community Health Centre on June 23, 2004, where he was examined by an attending physician. The physician handwrote Mr. Dennis a five line note addressed to whom it may concern in which he stated that, based on his examination, Mr. Dennis appears to be fit to work. No further comment is provided and in particular, there is no mention made of any testing by the physician for drugs or alcohol.
[36] Since Mr. Dennis did not end up taking another drug screening test in 2004, he was not cleared to work as a fisher for the EFWC that year.
[37] After learning that he had failed the drug screening test, Mr. Dennis filed a Letter of Grievance with the Band, complaining of unfair testing by the EFWC. He alluded in the letter to a protest that the fishers involved in the union had conducted outside the EFWC offices for several days in May 2004. Allegedly, the Chief had met with them and agreed to allow fishers to work even if they tested positive. However, several days after the alleged agreement, the Band Council met and reaffirmed that the policy would be enforced. Mr. Dennis refers in his grievance to the Canadian Human Rights Commission policy on alcohol and drug testing which he had apparently consulted. He asserted that the Commission's policy clearly states that his rights were being infringed.
[38] Interestingly, Mr. Dennis makes no mention in his letter of any requirement for him to use marijuana as a pain medication for his neck and shoulder. He refers to having experienced headaches, fatigue, depression, insomnia, and loss of appetite, but he attributes these problems to the many stressors brought upon him by the application of the policy that resulted in his inability to work. Mr. Dennis attached the above-mentioned physician's note to his grievance letter.
[39] On July 7, 2004, Mr. Dennis filed the present human rights complaint, in which he stated that he was denied employment because of the fact that I have a physical disability and I take the drug marijuana. In his Statement of Particulars, however, which he later filed jointly with the Commission, he made no mention of a physical disability, but instead alleged that the Band discriminated against him on the basis of disability or perceived disability, which he specified as being drug dependency. He did not allege discrimination based on any disability relating to his back and neck injury. He led his case in keeping with the allegations set out in the Statement of Particulars. The Band, in turn, took the position that the disability in issue is drug dependency and presented its case accordingly. Although the actual complaint is somewhat ambiguous in its description of the alleged discrimination, it would in my view be unfair to the Band to treat this matter as anything other than a claim of discrimination based on drug dependency, given the way that the case has unfolded.
E. The 2005-2006 Testing [40] Drug screening was conducted for all fishers again, in 2005, and Mr. Dennis was tested on April 22, 2005. He tested positive for cannabinoids. In cross-examination, Mr. Dennis was asked if he sought re-testing in 2005. He could not recall but said that he must have been doing something. There is no evidence in the record to indicate that he sought re-testing in 2005.
[41] As the 2006 fishing season was approaching, Mr. Dennis decided to take measures to ensure he could pass the drug screening. He stopped using marijuana altogether. However, the anguish he was feeling of not being able to earn a good living and look after the well-being of his family had led to his becoming very depressed. One evening, he began drinking alcohol even though he had been sober for seven years. His drinking became excessive, to the point that the RCMP had to intervene and take him to the detachment where he spent the night.
[42] Fortunately for Mr. Dennis, a community Elder learned of his troubles and stepped in to help Mr. Dennis by taking him to a sweat lodge. Traditional healing methods were administered to him for his pain, including the application of bear grease. Mr. Dennis testified that he became better able to cope with his pain as a result of these healing methods.
[43] On March 24, 2006, Mr. Dennis was tested again for the presence of drugs. This time the tests came back negative. His name was thus added to the list of available fishers and he worked that season.
[44] In 2007, Mr. Dennis did not register to take the EFWC's drug testing. Mr. Dennis apparently formed the mistaken opinion that he did not need to formally register for testing in 2007 because he had passed the previous year. He thought he was entitled to merely show up on the day of the testing and provide his sample. This understanding was inaccurate. Mr. Dennis (and all fishers) had to formally register each year for testing. Since Mr. Dennis had not registered he was not entitled to submit himself for testing in 2007.
[45] Regarding the 2008 season, the hearing was completed as the fishing season was about to start. The EFWC's fishing manager testified that Mr. Dennis had not shown up for his scheduled drug testing appointment on March 28, 2008. The evidence before me with respect to this event and the 2008 season overall is, however, insufficient for me to make any findings.
III. THE LEGAL PRINCIPLES APPLICABLE TO THIS CASE [46] Mr. Dennis' complaint is brought pursuant to sections 7 and 10 of the Canadian Human Rights Act. Section 7 makes it a discriminatory practice to refuse to employ, or to continue to employ, an individual, on a prohibited ground of discrimination. Section 10 makes it a discriminatory practice for an employer to establish or pursue a policy or practice that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
[47] Section 3 of the Act designates disability as a prohibited ground of discrimination. Section 25 of the Act specifies that the term disability includes previous or existing dependence on alcohol or a drug.
[48] The initial onus is on a complainant to establish a prima facie case of discrimination (Ont. Human Rights Comm. v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at para. 28 (O'Malley)). A prima facie case is one which covers the allegations made, and which, if believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent.
[49] Once the prima facie case is established, it is incumbent upon the respondent to provide a reasonable explanation for the otherwise discriminatory practice (Lincoln v. Bay Ferries Ltd., 2004 FCA 204 at para. 18). An employer's conduct will not be considered discriminatory if it can establish that its refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is based on a bona fide occupational requirement (BFOR) (s. 15(1)(a) of the Act). For any practice to be considered a BFOR, it must be established that accommodation of the needs of the individual or class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost (s. 15(2) of the Act).
IV. THE SECTION 7 COMPLAINT A. Has a prima facie case been established under s. 7? (i) Was Mr. Dennis disabled (i.e. drug dependent) within the meaning of the Act? [50] I find that Mr. Dennis did not demonstrate that he was disabled within the meaning of the Act. The evidence unquestionably establishes that he was a user of marijuana but it was not sufficient to establish prima facie that he was drug dependent.
[51] Mr. Dennis testified that he suffers from chronic pain as a result of the traffic accident in which he was involved in 1988. Several documents dating from 1988-89 were filed detailing some of the treatments that he received following the accident. His common-law spouse attested in her evidence to the outward signs of pain that Mr. Dennis presents to this day. There is no basis, in my view, to question Mr. Dennis' claims about the physical pain that he experiences.
[52] More importantly, however, no evidence was put before me that he was dependent on marijuana when he failed the drug test in 2004 and filed this complaint. To establish a prima facie case, the evidence led must be sufficient to cover the allegations made. Mr. Dennis' allegation is that he is dependent on the drug and is therefore disabled. But I find that his evidence only demonstrates that he used the drug, not that he was dependent on it. The New Shorter Oxford English Dictionary's definition for the word dependent, in the context relevant to s. 25 of the Act, is the following:
Resting entirely on someone or something for maintenance, support, or other requirement; obliged to use something; unable to do without someone or something, especially a drug; maintained at another's cost.
(emphasis added)
The French rendering of s. 25 utilizes the term la dépendance ... envers l'alcool ou la drogue. Le Petit Robert de la langue française, 2006 defines dépendance, in this context, as:
État résultant de la consommation répétée d'une substance toxique, qui se caractérise par le besoin de continuer la prise et d'augmenter les doses.
Translated to English :
State resulting from the repeated use of a toxic substance, characterized by the need to continue its use and increase the amount taken.
[53] Both these definitions, in my view, capture the meaning of the term as it is used in s. 25. Applying these definitions to the present case, I find that there is insufficient evidence to establish prima facie that Mr. Dennis was dependent on marijuana (i.e., unable to do without it, or alternately, in a state where he needed to continue its use and increase the amount taken).
[54] He did not call any physician (including the Eskasoni Community Health Centre physician whom he visited on June 23, 2004) to testify that he was dependent on marijuana, nor did he file any expert report to the same effect. No other witness was called to confirm the extent of his marijuana usage, even though Mr. Dennis initially stated in his testimony in chief that everyone in the community knew of his condition and of his habit. In cross-examination, however, he testified that the majority of the people in the community did not know he smoked marijuana. Mr. Dennis claimed that even his children had not known that he was using marijuana. He complained about the fact that in not hiring him, the Band had effectively made it known publicly that he had failed the drug and alcohol pre-screening test, which he viewed as a violation of his right to privacy. On balance, it appears to me that his marijuana use was, in fact, not very evident.
[55] Mr. Dennis testified that he was using marijuana as a pain medicine, which he would take in varying amounts that he would try to stretch out as much as possible. The fact that the policy was forcing him to change his way of life and begin using other means to cope with his neck and shoulder pain bothered him. He preferred to use marijuana over other pain medications that his physicians had prescribed to him in the past. He stated in his evidence that he wondered why the Band was requesting him to give up his marijuana use. I note again, however, that he made no mention of any drug dependence in the grievance letter that he sent to the Band prior to filing the present complaint.
[56] Mr. Dennis confirmed that by applying traditional healing methods, he was able to accept and cope with the pain relating to the injuries he had suffered in the 1988 car accident. He therefore ceased using marijuana to deal with the pain and thus passed the EFWC's pre-employment drug screening in 2006. He testified that he did not experience any withdrawal symptoms after stopping his marijuana use. There was no indication in his testimony or elsewhere in the evidence that the traditional healing methods he received at the sweat lodge were in any way used to address a drug or alcohol dependency. This was not a drug or alcohol rehabilitation treatment that he received.
[57] In determining whether Mr. Dennis was disabled due to a drug dependency, I am mindful that the notion of disability is not to be interpreted narrowly. Disability may exist even without proof of physical limitations or the presence of an ailment (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. City of Montreal, [2000] 1 S.C.R. 665 at para. 76). Nevertheless, in the circumstances of this case, the evidence regarding Mr. Dennis' drug usage does not support his claim that he was dependent on a drug. (The matter of whether the Band perceived him as disabled is addressed in the next section of this decision).
[58] His assertion that he used marijuana regularly has not been contradicted, and the results of the pre-employment drug testing of 2004 and 2005 would not be at odds with such a finding. However, regular use of marijuana does not necessarily constitute frequent use. As I elaborate later in this decision, expert evidence was led to show that even a single use of marijuana will be detected by a drug test even ten days later. More frequent use can be detected even one to two months later.
[59] I am not persuaded that the mere presence of the drug in his system, nor for that matter the other evidence regarding his marijuana usage, establishes prima facie that he was dependent on the drug within the meaning of the Act (i.e. that he could not do without it or that he had a continuing need to use it, in increasing amounts).
(ii) Did the Band perceive Mr. Dennis as being drug dependent? [60] As the jurisprudence in similar cases instructs us, however, the fact that a tribunal is not persuaded that a complainant is drug dependent and therefore suffers from a disability, is not fatal to that person's human rights complaint (see Milazzo v. Autocar Connaisseur Inc., 2003 CHRT 37 at paras. 82-88, Alberta (H.R.C.C.) v. Kellogg Brown and Root (Canada) Company, 2007 ABCA 426 at paras. 29-30, leave to appeal to SCC denied May 29, 2008 (docket no. 32505)). The prohibition against discriminating on the basis of a disability has been extended to cases where an employer refuses to employ an individual based upon a perception that the individual is dependent on alcohol or drugs.
[61] There is no evidence before me to suggest that the Band actually perceived Mr. Dennis to be drug dependent. Mr. Dennis certainly did not call any witnesses or produce any document affirming the existence of such an opinion. Nothing before me indicates that any questions were asked or any investigation was carried out by the Band in order to determine whether Mr. Dennis was drug dependent (see Milazzo at para. 90). In fact, Mr. Maloney testified that the Band never assumed that an individual who tested positive on the first test (like Mr. Dennis) was addicted, as demonstrated by the fact that drug or alcohol dependency assessments or treatments were not required of Mr. Dennis and others like him before they could take the test for a second time.
[62] None of the Band's employees who gave evidence at the hearings testified knowing that Mr. Dennis was using marijuana. Mr. Dennis asserted in his own testimony that he never went to work in previous years while under the influence of marijuana. Thus, presumably, no outward signals were available to the EFWC and the Band of his marijuana usage, let alone any indication that would result in their perceiving him as being drug dependent.
[63] As the Milazzo Tribunal held, at para. 92, in order to benefit from the protections afforded by the Act, a complainant must demonstrate the involvement of one or more of the prescribed grounds listed in s. 3 of the Act. Having failed to establish even on a prima facie basis that he was either disabled due to drug dependency or was perceived by the Band to be so disabled, Mr. Dennis has not established a prima facie case of discrimination, and accordingly, his s. 7 complaint is dismissed.
V. THE SECTION 10 COMPLAINT [64] In contrast to complaints under s. 7, which relate to employer actions affecting specific, named individuals, s. 10 addresses the discriminat