Milazzo v. Autocar Connaisseur Inc. et al.

Milazzo v. Autocar Connaisseur Inc. et al.
Collection
Canadian Human Rights Tribunal
Date
2003-11-06
Neutral citation
2003 CHRT 37
File number(s)
T713/1802
Decision-maker(s)
Mactavish, Anne L.; Deschamps, Pierre; Doucet, Michel
Decision type
Decision
Decision status
Final
Grounds
Disability
Decision Content
Between:
Salvatore Milazzo
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Autocar Connaisseur Inc.
Respondent
- and –
Motor Coach Canada
Interested party
Decision
Members: Anne L. Mactavish, Pierre Deschamps and Michel Doucet
Date: November 6, 2003
Citation: 2003 CHRT 37
Table of Contents
I. The Events Giving Rise to Mr. Milazzo’s Complaint
A. Mr. Milazzo’s Employment with Autocar Connaisseur
B. Milazzo’s Drug Test
C. The Termination of Mr. Milazzo’s Employment with Autocar Connaisseur
II. The Motor Coach Industry
A. The Economic Condition of the Motor Coach Industry
B. The Regulatory Environment6
C. Cross-Border Travel and American Regulatory Requirements
D. Drug Testing in the Canadian Motor Coach Industry
III. Autocar Connaisseur
A. The Situation at Autocar Connaisseur in 1997-1999
B. Drug Testing at Autocar Connaisseur
C. The Accommodation of Alcohol or Drug Dependent Employees by Autocar Connaisseur
D. Autocar Connaisseur’s New Drug Testing Policy
IV. The Legal Framework15
V. What Is The Standard?
VI. The Section 7 Complaint
A. Is There a Prima Facie Case of Discrimination?
B. Did Mr. Milazzo suffer from a disability?
C. Does the Concept of Perceived Disability Apply to Cases of Alcohol or Drug Dependence?
D. Did Autocar Connaisseur perceive Mr. Milazzo to be drug dependent?
E. Conclusion Regarding Mr. Milazzo’s Section 7 Complaint
VII. The Section 10 Complaintdisplay:none;text-decoration: none"> display:none;text-decoration:none">
A. Is There a Prima Facie Case of Discrimination?
B. Has Autocar Connaisseur Discharged its Burden?
(i) Rational Connection
(ii) Good Faith
(iii) Reasonable Necessity
(a) The Employment Environment for Bus Drivers at Autocar Connaisseur
(b) Route Assignments and Autocar Connaisseur Drivers
(c) The Effects of Cannabis on the Brain
(d) The Extent of the Problem in the Transportation Industry
(e) What Drug Tests Look For
(f) The Efficacy of Drug Testing as a Means of Promoting Road Safety
(g) Positive Drug Tests as an Indicator of Increased Risk
(h) Do Drug Tests Serve to Deter Employee Impairment?
(i) Conclusions Regarding the use of Drug Testing By Autocar Connaisseur
(j) Can Autocar Connaisseur Accommodate Bus Drivers Who Have Tested Positive?
(k) Findings Regarding Liability and the Section 10 complaint
(l) Comments Regarding Autocar Connaisseur’s New Alcohol and Drug Testing Policy
VIII. Remedy
IX. Order
[1] For several years, Salvatore Milazzo drove a bus for Autocar Connaisseur Inc. In August of 1999, Mr. Milazzo was ordered by his employer to undergo a drug test. The results came back positive for the presence of cannabis metabolites. As a result, Mr. Milazzo’s employment with the company was terminated, in accordance with Autocar Connaisseur’s zero tolerance drug policy.
[2] Mr. Milazzo alleges that in failing to accommodate his perceived drug dependence, and in terminating his employment, Autocar Connaisseur has contravened section 7 of the Canadian Human Rights Act. It is further alleged that Autocar Connaisseur’s policy requiring that bus drivers undergo drug tests violates section 10 of the Act.
I. The Events Giving Rise to Mr. Milazzo’s Complaint A. Mr. Milazzo’s Employment with Autocar Connaisseur [3] Mr. Milazzo was hired by Autocar Connaisseur in July of 1994. Autocar Connaisseur’s business is largely dependent on tourism and is seasonal in nature, with the summer months being the company’s busy period. In order to respond to the fluctuating demand for its services, Autocar Connaisseur employs a small group of permanent bus drivers who work year-round, and hires a larger group of drivers to work on a seasonal basis.[1] Mr. Milazzo fell into this latter category - driving a bus for several months each year, and collecting Employment Insurance benefits in the off season.
[4] It appears that Mr. Milazzo’s employment history with Autocar Connaisseur was largely unremarkable, and there is no evidence before us of any significant problems with his performance on the job. It should be noted, however, that Mr. Milazzo did not work for Autocar Connaisseur in the summer of 1997, as his driver’s licence had been suspended, as a result of his having been convicted of impaired driving. This conviction relates to an incident occurring outside working hours, and there is no evidence before the Tribunal that Mr. Milazzo ever drove a bus while impaired by either drugs or alcohol.
[5] During the years that he worked for Autocar Connaisseur, Mr. Milazzo operated a 40 foot passenger bus or motor coach. Mr. Milazzo was initially assigned to shuttle passengers between the Casino de Montréal and the casino parking lots, and to ferry passengers between city hotels and the airports. Autocar Connaisseur had ongoing contracts to provide these services, and the routes operated on a fixed schedule.
[6] Autocar Connaisseur also provided charter services to groups traveling throughout North America. In the course of his employment with Autocar Connaisseur, Mr. Milazzo drove groups of passengers all over Quebec and Ontario.
[7] By the summer of 1999, Autocar Connaisseur had lost the Casino contract. At this point, Mr. Milazzo was primarily driving airport runs. However, on June 4, 1999, Mr. Milazzo drove to upstate New York, meeting a bus returning from Virgina Beach, and driving it back to Montreal. According to Mr. Milazzo, he was not scheduled to drive to New York State, but was asked to go on short notice, because no other driver was available.
B. Milazzo’s Drug Test [8] Although Mr. Milazzo claimed at one point in his testimony that he did not know that Autocar Connaisseur had a drug testing policy, it is clear from his other comments that he was well aware of the policy. However, Mr. Milazzo understood that only drivers going into the United States would be tested. As he did not drive to the U.S. on a regular basis, Mr. Milazzo did not think that the policy applied to him.
[9] According to Mr. Milazzo, in the summer of 1999, rumours began circulating within the company that all drivers were going to be tested, and not just the drivers going to the States. Sometime in mid-August, Mr. Milazzo came to work and was told by the dispatcher that he had missed his appointment for his drug test. When he advised the dispatcher that he did not know anything about a test, Mr. Milazzo says that he was told that a new date would be set for him to be tested. Mr. Milazzo says that the test was carried out less than a week later. It appears from the evidence of other witnesses that Mr. Milazzo’s test took place on August 20, 1999.
[10] Mr. Milazzo was required to attend at a small clinic in downtown Montreal. He was asked for proof of his identity, and then told to go into a washroom, and provide a urine sample. The entire process took 10 to15 minutes.
[11] On August 24, Mr. Milazzo received a telephone call from a doctor associated with the clinic, who advised him that his urine had tested positive for the presence of cannabis metabolites. The doctor further advised Mr. Milazzo that the positive test results would be reported to Autocar Connaisseur.
C. The Termination of Mr. Milazzo’s Employment with Autocar Connaisseur [12] On August 25, 1999, Mr. Milazzo reported to work as usual. After completing one airport run, Mr. Milazzo was told to go to the office, where he met with one of the dispatchers - an individual identified only as Denis. According to Mr. Milazzo, Denis told him that the company had been notified of Mr. Milazzo’s positive test results. Denis then advised Mr. Milazzo that he was suspended from work for two days, until Pierre Bougie could review the matter, and decide what to do with Mr. Milazzo.
[13] It appears that Autocar Connaisseur had recently become unionized. Although Mr. Milazzo asserts that he was not a member of the union, he says that in the course of his discussion with Denis, Denis told Mr. Milazzo that he would try to get a union delegate to assist Mr. Milazzo, and that hopefully, Mr. Milazzo would be able to stay with the company.
[14] Two days later, Mr. Milazzo met with Pierre Bougie. M. Bougie did not testify, and his role with the company was never explained. It appears that M. Bougie was a member of the senior management at Autocar Connaisseur. Mr. Milazzo says that he told M. Bougie that he really loved his job, and that he was ready to go to rehab for what happened. Mr. Milazzo testified that he also asked for a second test, to be sure that he had really tested positive.[2] M. Bougie evidently responded by saying that he was sorry, but there was nothing that he could do - he had to fire Mr. Milazzo.
[15] During this meeting, M. Bougie had Mr. Milazzo sign a document which was written entirely in French. Mr. Milazzo testified that he has difficulty reading French, but that M. Bougie explained that a union representative should have been present at the meeting, and that, by signing the document, a union representative would be made available to assist him. In fact, the document is a waiver of Mr. Milazzo’s right to have a union representative present at the meeting. Mr. Milazzo was quite confused in his testimony on a number of points, including the status of the union at Autocar Connaisseur. We are not persuaded that M. Bougie intentionally misled Mr. Milazzo in order to have him sign the document. In all of the circumstances, we are of the view that it is more probable that Mr. Milazzo simply did not understand the explanation offered by M. Bougie regarding the issue of union representation.
[16] There are a number of inconsistencies in Mr. Milazzo’s evidence regarding his dealings with M. Bougie. Although Mr. Milazzo initially testified that M. Bougie was clear during the meeting that he had no choice but to fire Mr. Milazzo, Mr. Milazzo also says that M. Bougie said due to the circumstances I cannot put you back to work right now. Give me a couple of days and I will see what I can do. Mr. Milazzo then says that after his meeting with M. Bougie, he waited to hear from a union representative. He states that he made no effort to contact a union representative, as he was not allowed to be anywhere near the offices of Autocar Connaisseur.
[17] A couple of days later, Mr. Milazzo received his Record of Employment from Autocar Connaisseur, indicating that he had been dismissed. Despite his testimony that he was not allowed near Autocar Connaisseur’s premises, Mr. Milazzo says that he then went back to see M. Bougie, asking that he be laid off. Mr. Milazzo says that he did this so that he would be able to collect Employment Insurance benefits. This testimony must be considered in light of Mr. Milazzo’s subsequent assertion that it was several months before he became aware that the termination of his employment by Autocar Connaisseur for cause would disentitle him to EI benefits.
[18] According to Mr. Milazzo, M. Bougie refused to lay him off.
[19] It is common ground that Mr. Milazzo’s employment was terminated as a result of his positive drug test, and ultimately, nothing turns on these inconsistencies in Mr. Milazzo’s testimony. Nevertheless, these and other inconsistencies in Mr. Milazzo’s testimony cause us to approach his evidence regarding more central issues with some caution.
II. The Motor Coach Industry [20] Evidence with respect to the state of the motor coach industry was provided by James Devlin, and Brian Crowe. Mr. Devlin is the current President of Autocar Connaisseur. Mr. Crowe is the President of Motor Coach Canada, the trade association representing motor coach companies and motor coach tour operators in Canada. Motor Coach Canada represents approximately 95 bus operators and 115 tour operators - somewhere between 75% and 90% of the Canadian industry.
[21] Motor coach companies generally have approximately 75% of their employees working as drivers. Fifteen or 20% of the employees are mechanics, and the remainder provide administrative services. Most Canadian companies are fairly small, family-run businesses.
[22] The motor coach industry operates on an on demand basis. According to Mr. Crowe, a typical operator in the bus industry operates 24 hours a day, 7 days a week. As Mr. Crowe noted, the industry has to have services available when people want to move. This means that route patterns may be quite unpredictable: Mr. Crowe cites the example of travel to the United States, stating that a company may not go to the United States at all one month, and then make 20 U.S. trips the next month, because of customer demand.
[23] According to Mr. Crowe, it is this ability to respond quickly to customer demand that is one of the strengths of the motor coach industry.
A. The Economic Condition of the Motor Coach Industry [24] Mr. Crowe described the Canadian motor coach business as a mature industry, meaning that there is little growth in this sector. Indeed, the industry is in decline. Mr. Crowe explained that charter bus companies in Canada have to compete against heavily subsidized transport providers such as the airlines and Via Rail. World events, such as the Gulf War, the September 11,2001 attacks, the war in Iraq, the SARs epidemic and the outbreak of Mad Cow disease in western Canada have combined to greatly reduce the tourism business available to the motor coach industry.
[25] The state of the market creates serious economic challenges for motor coach operators. Mr. Crowe explained that a motor coach costs $600,000.00. Charter rates in Canada now vary between $500 and $700 per day, meaning that bus companies operate on very thin margins. This has resulted in a number of company bankruptcies in the industry in recent years.
B. The Regulatory Environment [26] The motor coach industry in Canada is heavily regulated. Because Autocar Connaisseur operates out of the Province of Quebec, it is the regulatory environment in that Province that is germane to our inquiry.
[27] An Act respecting owners and operators of heavy vehicles[3] (Bill 430) came into force in Quebec in 1998, as a result of the tragedy at Les Éboulements - a bus accident that took some 40 lives. The Bill was designed to increase road safety, and introduced an administrative registration system for owners and operators of heavy equipment, including buses. Amongst other things, this regulatory scheme calls for on-going conduct reviews. The Quebec Transport Commission is authorized to impose administrative measures on operators who have been assigned conditional or unsatisfactory safety ratings. In particular, the Commission has the power to cancel the operating licences of companies who are found to have operated in an unsafe manner, effectively putting them out of business. As will be described further on in this decision, in 1999, Autocar Connaisseur was itself the subject of safety-related proceedings before the Transport Commission, and was at risk of losing its operating licence.
[28] Amongst other safety measures implemented as a result of Bill 430, motor coach company registration forms require bus companies to advise whether the company has a plan in place to control the consumption of alcohol and drugs by bus drivers.
[29] There are numerous other statutory obligations imposed on bus operators, including obligations under the Canada Labour Code[4], the federal Motor Vehicle Transport Act[5], 1987, and the Quebéc Civil Code.
[30] Cross-border travel presents a particular challenge for bus operators, as operators providing services to the United States are also subject to American laws, including laws relating to drug testing.
C. Cross-Border Travel and American Regulatory Requirements [31] Evidence with respect to the American environment was introduced through Ms. Barbara Butler, as well as through Mr. Crowe and Mr. Devlin. Ms. Butler was qualified as an expert in policy development and implementation for issues relating to alcohol and drugs in the workplace.
[32] American law requires that bus drivers operating vehicles in the United States be subjected to pre-employment, random, post-accident and for-cause[6] drug testing. The testing process is subject to strict regulation, and there are stringent protocols in place regarding the collection and analysis of samples.
[33] Several witnesses testified that the use of drug testing in the transportation industry was introduced as a part of the American War on Drugs. Whatever the reasons for the enactment of the legislation, as of July 1, 1996, commercial motor vehicle operators driving in the United States are subject to Federal Department of Transportation Alcohol and Drug Testing Regulations. This legislation also applies to Canadian companies driving in the United States, as well as to any Canadian driver who has the reasonable potential for crossing the border. According to Ms. Butler, this means any driver ... who can, will or does cross the border.
[34] Ms. Butler testified that infractions of the law are treated very seriously by the American authorities: companies are liable to fines of up to $10,000 (US), per driver, per trip, if drivers enter American territory without having been tested for alcohol or drugs. American government auditors regularly visit bus companies in Canada, in order to ensure that any cross-border travel is carried out in accordance with the American regulatory regime. Flagrant violations of U.S. law can result in the cancellation of the certification that bus companies require to drive in the States.
D. Drug Testing in the Canadian Motor Coach Industry [35] According to Mr. Crowe, about 90% of Canadian motor coach operators are licenced to drive in the U.S. As a result, the issue of drug testing is of considerable importance to the motor coach industry.
[36] Ms. Butler, Mr. Crowe and Mr. Devlin all expressed frustration with the Canadian government’s actions regarding the application of U.S. law to Canadian bus companies. The American government initially looked at implementing alcohol and drug testing in the transportation industry in the 1980's. At that time, the Canadian federal Department of Transport expressed some interest in working with the motor coach industry, in order to develop a legislative framework to integrate US legal requirements into the Canadian milieu. Ultimately, however, the Department opted not to involve itself in the issue, leaving Canadian bus companies to their own devices in trying to figure out how best to deal with American legal requirements, while still complying with Canadian human rights law.
[37] Ms. Butler testified that most Canadian bus companies use alcohol and drug testing. Some companies segregate their drivers into two pools - one composed of drivers who travel on U.S. routes, or have the potential to drive to the U.S., and a second pool composed of drivers who only drive on Canadian routes. In such cases, only the former group will be tested. However, many companies have concluded that they want the same safety standards for all of their drivers, and subject all of their drivers to alcohol and drug testing as a result. In some companies, all drivers either go to the U.S. on a regular basis, or have the potential to drive there. In these companies, all drivers will therefore be subject to alcohol and drug testing.
III. Autocar Connaisseur A. The Situation at Autocar Connaisseur in 1997-1999 [38] At the time that Mr. Milazzo started working for Autocar Connaisseur, the company was owned by the Calci family. Lorenzo Calci ran the company on a day-to-day basis. In June of 1997, the company was acquired by Coach U.S.A. Inc. of Houston, Texas. Mr. Calci initially stayed on as President of Autocar Connaisseur until November 1997, when he was replaced by Mr. Devlin. Mr. Devlin was the President and former owner of several other bus companies that had been acquired by Coach U.S.A.
[39] Mr. Devlin testified that when Coach U.S.A. took control of Autocar Connaisseur, it quickly discovered that the company was in serious trouble. According to Mr. Devlin, record - keeping at the company was nonexistent, inventories were greatly overstated, and buses that were recorded as being part of the fleet could not be found. At the same time, the company was facing an application for certification from a trade union.
[40] As was previously noted, the bus industry in Quebec is under the supervision of the Quebec Transport Commission. In late 1997, Mr. Devlin became aware that the Société de l’assurance-automobile du Quebéc (or SAAQ) had commenced proceedings before the Transport Commission against Autocar Connaisseur. SAAQ was evidently seeking to have Autocar Connaisseur’s operating license cancelled because of the way that the company was conducting its business. Autocar Connaisseur’s new owners discovered that the company had previously lost its right to certify the roadworthiness of its buses, because of earlier problems with the Transport Commission. According to Mr. Devlin, at this point, serious consideration was given to simply shutting the company down, although ultimately the decision was taken to work with the SAAQ, to try to turn the situation around.
[41] Mr. Devlin testified that he attended a show-cause hearing before the Transport Commission in January of 1999. At the hearing, Mr. Devlin explained the different programs that he was going to implement at the company, dealing with bus safety and driver education. Mr. Devlin advised the Commission that it would take six to nine months before the company would be in total compliance with the applicable regulations. The hearing resulted in a warning to Autocar Connaisseur that any further infractions would result in the automatic cancellation of the company’s operating licence. Such a step would mean the end of Autocar Connaisseur.
[42] One of the measures taken by Autocar Connaisseur to satisfy the commitments made to the Transport Commission was a review of the implementation of the company’s drug testing policy. It was this review that ultimately led to Mr. Milazzo being tested.
B. Drug Testing at Autocar Connaisseur [43] According to Denis Filiatrault, a long time bus driver and tour guide at Autocar Connaisseur, the company had long had an unwritten zero tolerance policy regarding alcohol and drug s in the workplace. In late 1991 or 1992, Autocar Connaisseur introduced a written policy, which was the policy in effect at the time that Mr. Milazzo was tested. This policy was intended to apply to all of the company’s drivers.
[44] Mr. Filiatrault explained that the policy was well known to Autocar Connaisseur employees. Copies of the policy were included with employees’ pay information on at least two occasions, although it appears that this may have only occurred at the time that the written policy was first introduced in the early 1990's, well before Mr. Milazzo joined Autocar Connaisseur. The orientation program for new employees included a segment dealing with alcohol and drug testing, and the company’s zero tolerance approach to alcohol and drugs in the workplace was often discussed at employee training sessions. Mr. Filiatrault and Mr. Milazzo agree that a copy of the policy was posted on the bulletin board in the driver’s lounge at Autocar Connaisseur.
[45] Autocar Connaisseur’s drug testing policy provides for both pre-employment and random testing. All Autocar Connaisseur drivers were subjected to pre-employment alcohol and drug testing. According to Mr. Devlin, if a prospective employee tested positive for either alcohol or drugs, Autocar Connaisseur’s offer of employment would then be withdrawn.
[46] Once a driver was employed by Autocar Connaisseur, he or she would be required to undergo random alcohol and drug testing. In order to carry out these random tests, all employees’ names were entered into a computer, whereupon the computer would periodically generate random lists of employees identified for testing. Employees could also be tested after an accident, or where the company had concerns regarding possible alcohol or drug use by the employee. Autocar Connaisseur’s testing policy stated that all positive test results would result in the immediate termination of the driver’s employment.
[47] Ms. Butler has worked with all of the major bus companies in Canada. She testified that Autocar Connaisseur’s approach to alcohol and drug testing was similar to that taken by many small Canadian bus companies.
[48] According to Mr. Devlin, the review of the administration of the company’s alcohol and drug testing program after the Transport Commission hearings disclosed numerous problems with the way in which the policy was being implemented. In particular, Autocar Connaisseur management became aware that drivers were not being told of their appointments for random tests. An audit of the program was then conducted by Peter Booth. Mr. Booth reported to Mr. Devlin, and was identified as the Director of Safety.[7] From a review of Autocar Connaisseur’s payroll records, Mr. Booth discovered that certain drivers, including Mr. Milazzo, had not been included in the testing pool.
[49] Mr. Devlin testified that American Transportation regulations require that employees must first have a pre-employment test, before they can be included in the testing pool for random drug tests. For this reason, Autocar Connaisseur considers the drug test taken by Mr. Milazzo to be a pre-employment test, notwithstanding the fact that Mr. Milazzo had been working for Autocar Connaisseur off and on for several years prior to the test.
C. The Accommodation of Alcohol or Drug Dependent Employees by Autocar Connaisseur [50] Mr. Milazzo was summarily fired once his drug test came back positive for the presence of cannabis metabolites. It is common ground that no attempt was made to ascertain whether Mr. Milazzo suffered from a substance abuse disorder, or was merely a casual user of cannabis. Further, there is no suggestion that any attempt was made to accommodate Mr. Milazzo, once the results of his drug test were known.
[51] According to Mr. Devlin, although it was not explicitly spelled out in Autocar Connaisseur’s original written drug testing policy, the company is quite prepared to accommodate employees with problems, including substance abuse disorders, provided that the employee comes forward voluntarily, and admits to having a problem. Examples were cited of employees who had acknowledged suffering from gambling addictions or alcoholism. In each case, Mr. Devlin says the employees were offered the opportunity to rehabilitate themselves, and resume active service with the company.
[52] The company is not, however, prepared to allow an employee who tests positive in an alcohol or drug test the chance to undergo rehabilitation. According to Mr. Devlin, an employee who knowingly comes to work with alcohol or drugs in his system so fundamentally breaches the trust between employer and employee that there is no alternative but to terminate the employment relationship. Mr. Crowe testified that most Canadian bus operators respond to a positive drug test by terminating the employee.
[53] If an employee tests positive in a random, post-hiring drug test, Autocar Connaisseur will provide the employee with the name of a substance abuse professional, but the employee is still fired. An individual who tests positive in a pre-employment test is not referred to a substance abuse professional. Rather, the individual is simply not hired by Autocar Connaisseur. Because Autocar Connaisseur viewed Mr. Milazzo’s drug test as a pre-employment test, no effort was made to provide Mr. Milazzo with the name of a substance abuse professional once it was known that he had tested positive.
[54] It is clear from Mr. Devlin’s testimony that he was of the view that Mr. Milazzo had tried to beat the system, and had knowingly put the ongoing existence of the company at risk by driving to the United States without having first undergone a pre-employment drug test. Mr. Devlin explained that if Mr. Milazzo had been caught driving a bus in the United States without having first been tested, Autocar Connaisseur would have been exposed to significant fines and the potential loss of its American operating licence. In addition, the Autocar Connaisseur bus could have been impounded by the American authorities. Passengers would thus have been stranded in the States, until Autocar Connaisseur could send a second bus to bring them home. In addition to the negative customer relations impact that this would have had, Autocar Connaisseur would also have incurred the expense of the second bus, and would have been exposed to potential claims from unhappy passengers for the disruption to their vacations.
D. Autocar Connaisseur’s New Drug Testing Policy [55] Subsequent to the termination of Mr. Milazzo’s employment with Autocar Connaisseur in 1999, Coach Canada has developed a new alcohol and drug testing policy, applicable to employees of Autocar Connaisseur. Ms. Butler, who worked with Coach Canada in the development of the new policy, explained that the policy remains one of zero tolerance, but now sets out clear rules, investigative tools and consequences for employees. The policy also focuses on prevention, through the use of supervisor training, and by encouraging employees to come forward voluntarily and to seek help where an employee thinks that he or she may suffer from a substance abuse problem.
[56] One of the most significant changes in the new drug testing policy is that the policy now covers bus mechanics and not just bus drivers. According to Mr. Devlin, bus mechanics are required to certify the road-worthiness of company buses, and, like drivers, are in safety sensitive positions.
IV. The Legal Framework [57] Mr. Milazzo’s 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 that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
[58] Section 3 of the Act designates disability as a prohibited ground of discrimination. Section 25 of the Act makes it clear that the term disability includes previous or existing dependence on alcohol or a drug.
[59] Pursuant to section 15(1)(a) of the Act, it is not a discriminatory practice to treat an employee in a differential fashion, where the differential treatment is based upon a bona fide occupational requirement.
[60] As a result of the Supreme Court of Canada decisions in British Columbia (Public Service Employee Relations Commission) v. BCGSEU[8] ('Meiorin') and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights)[9] ('Grismer'), the historic distinction between direct and indirect discrimination has been replaced by a unified approach to the adjudication of human rights complaints. Under this approach, the initial onus is still on a complainant to establish a prima facie case of discrimination. 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.[10]
[61] Once a prima facie case of discrimination has been established, the onus shifts to the respondent to prove, on a balance of probabilities, that the discriminatory standard or policy is a bona fide occupational requirement. In order to establish this, the respondent must now prove that:
it adopted the standard for a purpose that is rationally connected to the performance of the job; it adopted the standard in good faith, in the belief that it is necessary for the fulfilment of that legitimate work-related purpose; and the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate an individual employee sharing the characteristics of the claimant without imposing undue hardship on the employer.[11]
[62] Subsection 15 (2) of the Act stipulates that the factors that may be considered in assessing whether or not an undue hardship defense is made out are health, safety and cost, although the term 'undue hardship' itself is not defined in the Act. However, Meiorin and Grismer provide considerable guidance in determining whether or not an undue hardship defense has been made out. In Meiorin, the Supreme Court observed that the use of the word 'undue' implies that some hardship is acceptable - it is only 'undue' hardship that will satisfy the test.[12] The Supreme Court has further observed that in order to prove that a standard is reasonably necessary, a respondent always bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship.[13] It is incumbent on the respondent to show that it has considered and reasonably rejected all viable forms of accommodation. The onus is on the respondent to prove that incorporating aspects of individual accommodation within the standard was impossible short of undue hardship.[14] The adoption of the respondent's standard has to be supported by convincing evidence. Impressionistic evidence will not generally suffice.[15] Finally, factors such as the financial cost of methods of accommodation should be applied with common sense and flexibility in the context of the factual situation under consideration.[16]
V. What Is The Standard? [63] It is common ground that what is in issue in this case is Autocar Connaisseur’s zero tolerance drug policy. The question then arises: Zero tolerance of what? Zero tolerance of employee impairment? Or zero tolerance of employees having drug metabolites in their systems?[17]
[64] This question is best answered by considering the wording of the policy itself. Autocar Connaisseur’s alcohol and drug policy discloses that the mischief that the policy is aimed at addressing is employee impairment. The policy states:
[Translation]
Our policy is simple, it is a tolerance zero policy. That is, we cannot at anytime, afford to have employees who are intoxicated while on duty.
(Notre politique est simple, il s’agit d’un niveau de tolérance zéro. En effet, nous ne pouvons nous permettre d’avoir des employés en état d’intoxication à quelque mo- ment que ce soit durant leur période de travail.)
[65] However, the standard that will attract adverse employment consequences is the presence of drug metabolites in an employee’s urine:
[Translation]
All bus drivers will be tested upon receiving an offer of employment. Thereafter, they will be tested randomly in accordance with American legislation. Any positive result will lead to an automatic termination of employment.
(Tous nos employés chauffeurs seront testés dès qu’une offre d’emploi leur sera faite. Par la suite, conformément à la législation américaine, ils seront testés au hasard. Tout résultat positif entraînera le congédiement automatique.)
[66] Having concluded that the standard in issue in this case is Autocar Connaisseur’s prohibition on employees having drug metabolites in their system while at work, we will now consider the application of the standard, first in the context of Mr. Milazzo’s section 7 complaint, and then in the context of the section 10 complaint.
VI. The Section 7 Complaint A. Is There a Prima Facie Case of Discrimination? [67] In considering this complaint, we must first decide if Mr. Milazzo and the Commission have established a prima facie case of discrimination on the basis of disability. Autocar Connaisseur contends that no prima facie case has been established here, as it has not been proven that Mr. Milazzo actually suffered from a disability. The respondent further submits that in light of the wording of Section 25 of the Canadian Human Rights Act, the concept of perceived disability has no application in the case of drug dependence. In any event, the respondent says, Autocar Connaisseur did not perceive Mr. Milazzo to be disabled.
B. Did Mr. Milazzo suffer from a disability? [68] The first question, then, is whether Mr. Milazzo suffered from a disability.[18] Although not necessarily dispositive of the issue, it should be noted that at the hearing Mr. Milazzo did not assert that he suffered from a drug-related disability at the time of his positive drug test.
[69] In understanding issues related to substance abuse and dependency, the Tribunal was aided by the testimony of Dr. Ray Baker and Dr. Jean-Pierre Chiasson. Dr. Baker was called by the Commission, and was qualified as an expert in addiction medicine, and the pharmacology, physiology, detection and treatment of substance abuse disorders. Dr. Chiasson was called by Autocar Connaisseur, and was qualified as an expert in addiction medicine, in particular, the detection and treatment of substance abuse and dependence. Both doctors have considerable experience with workplace issues relating to drug use.
[70] Dr. Baker and Dr. Chiasson were in substantial agreement that drug users fall into one of three categories: casual users, drug abusers and those who are drug dependent. Both doctors agree that casual users make a conscious choice to ingest drugs, and can basically take it or leave it at will. They also agree that individuals who have become addicted or dependent on drugs lose their ability to control their drug use, and suffer from a disease. Dr. Baker refers to the disease as neurobiological in nature, whereas Dr. Chiasson calls it a brain disease. Whatever the appropriate description, the experts agree that drug dependent individuals suffer from a disability.
[71] The point at which the doctors diverge is in relation to the proper characterization of individuals in the intermediate stage of drug use - that is drug abuse. In Dr. Baker’s view, drug abusers may suffer negative consequences as a result of their use of drugs, and may engage in hazardous behaviour, but these individuals have not lost control of their drug use. In other words, for the drug abuser, continued ingestion of drugs is still a chosen behaviour. According to Dr. Baker, drug abusers do not require treatment.
[72] Dr. Chiasson agrees that for drug abusers, continued drug use is more a matter of personal choice than a reflection of a loss of control. However, Dr. Chiasson testified that drug abuse causes problems for the individual, and can lead to drug dependance. For this reason, drug abuse is listed in the Fourth Edition of the Diagnostic and Statistical Manual published by the American Psychiatric Association. In Dr. Chiasson’s opinion, both drug abuse and drug dependancy are brain diseases.
[73] As will be seen from the discussion that follows, we do not find it necessary to resolve the disagreement between the experts on this point.
[74] It will be recalled that Mr. Milazzo testified that when he was confronted with the positive result of his drug test, he told M. Bougie that he was ready to go to rehab for what happened. One conclusion that could be drawn from this statement is that, as of August of 1999, Mr. Milazzo may have perceived that he had a problem with his cannabis use, and was seeking help. Of course, another reasonable inference is that Mr. Milazzo was desperate, and was saying whatever he thought it would take to help him keep his job.
[75] At the hearing, Mr. Milazzo testified that he used cannabis on a strictly recreational basis. In a letter sent