Imperial Oil LTD V CEP Local 777

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S.
339
Most Negative Treatment: Distinguished

Most Recent Distinguished: Chiasson v. Kellogg Brown & Root (Canada) Co. | 2006 ABQB 302, 2006 CarswellAlta 621,
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66 C.L.A.S. 339
Alberta Arbitration
Imperial Oil Ltd. v. C.E.P., Local 777
2001 CarswellAlta 1962, [2001] A.G.A.A. No. 102, 66 C.L.A.S. 339
Imperial Oil Limited and C.E.P. Local 777

Chahley Member, Neuman Member, Sims Chair
Heard: November 24-25, 1999
Heard: January 4, 2000
Heard: April 13, 2000
Judgment: November 27, 2001
Docket: 2001-102
Counsel: R.B. White, Q.C., Donald J. Wilson, for Imperial Oil
Lyle Kanee, for C.E.P. Local 777
Subject: Constitutional; Labour; Employment
DISCIPLINARY OFFENCES --- Intoxicants Reporting under the influence
Grievor failed workplace drug test Grievor long-service employee Prior discipline record Grievor previously
suspended for drug usage Grievor conditionally reinstated Grievor required to pass drug tests for two-year period
Employer had alcohol and drug policy Employer had reasonable cause to request drug test Grievor dishonest Grievor
breached alcohol and drug policy Grievor breached reinstatement terms Discharge not excessive Grievance denied.
(69 pp.)
(Dissent not included)
Table of Authorities
Cases considered:
B.F.C.S.D., Local 278C v. Brewers' Warehousing Co. (1954), 5 L.A.C. 1797 (Ont. Arb.) considered
British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U. (1999), 1999 CarswellBC 1907,
1999 CarswellBC 1908, (sub nom. British Columbia Government & Service Employees' Union v. Public Service
Employee Relations Commission) 99 C.L.L.C. 230-028, [1999] 10 W.W.R. 1, (sub nom. British Columbia (Public
Service Employee Relations Commission) v. B.C.G.S.E.U.) 176 D.L.R. (4th) 1, (sub nom. Public Service Employee
Relations Commission (B.C.) v. British Columbia Government & Service Employees' Union) 244 N.R. 145, 66
B.C.L.R. (3d) 253, (sub nom. Public Service Employee Relations Commission (B.C.) v. British Columbia Government
& Service Employees' Union) 127 B.C.A.C. 161, (sub nom. Public Service Employee Relations Commission (B.C.)
v. British Columbia Government & Service Employees' Union) 207 W.A.C. 161, 46 C.C.E.L. (2d) 206, 35 C.H.R.R.
Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.
Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339
D/257, (sub nom. British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U.) 68 C.R.R.
(2d) 1, (sub nom. British Columbia (Public Service Employee Relations Commission) v. BCGSEU) [1999] 3 S.C.R.
3, 7 B.H.R.C. 437 (S.C.C.) followed
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (1999), [1999]
3 S.C.R. 868, 1999 CarswellBC 2730, 1999 CarswellBC 2731, [2000] 1 W.W.R. 565, 47 M.V.R. (3d) 167, 249 N.R.
45, 70 B.C.L.R. (3d) 215, 181 D.L.R. (4th) 385, 36 C.H.R.R. D/129, 131 B.C.A.C. 280, 214 W.A.C. 280 (S.C.C.)
referred to
C.E.P., Local 777 v. Imperial Oil Ltd. (May 27, 2000), Christian Member (Alta. Arb.) considered
C.H. Heist Ltd. v. E.C.W.U., Local 848 (1991), 20 L.A.C. (4th) 112 (Ont. Arb.) referred to
Canadian Civil Liberties Assn. v. Toronto Dominion Bank (1998), (sub nom. Toronto Dominion Bank v. Canadian
Human Rights Commission) 98 C.L.L.C. 230-030, (sub nom. Canadian Human Rights Commission v. Toronto
Dominion Bank) 229 N.R. 135, 163 D.L.R. (4th) 193, 1998 CarswellNat 1352, 38 C.C.E.L. (2d) 8, (sub nom. Canada
(Human Rights Commission) v. Toronto Dominion Bank) 32 C.H.R.R. D/261, (sub nom. Canada (Human Rights
Commission) v. Toronto Dominion Bank) [1998] 4 F.C. 205, (sub nom. Canadian Human Rights Commission v.
Toronto-Dominion Bank) 154 F.T.R. 101 (note), 1998 CarswellNat 2708 (Fed. C.A.) considered
Canadian National Railway v. B.M.W.E. (1998), 75 L.A.C. (4th) 300, 1998 CarswellNat 2889 (Can. Arb.)
considered
Canadian National Railway v. U.T.U. (1989), 6 L.A.C. (4th) 381 (Can. Arb.) considered
Entrop v. Imperial Oil Ltd. (1995), 95 C.L.L.C. 230-022, (sub nom. Entrop v. Imperial Oil Ltd. (No. 6)) 23 C.H.R.R.
D/196, 24 C.C.E.L. (2d) 87, 1995 CarswellOnt 1638 (Ont. Bd. of Inquiry) referred to
Entrop v. Imperial Oil Ltd. (1996), 24 C.C.E.L. (2d) 122, (sub nom. Entrop v. Imperial Oil Ltd. (No. 8)) 27 C.H.R.R.
D/210, 1996 CarswellOnt 4403, [1996] L.V.I. 2810-1 (Ont. Bd. of Inquiry) referred to
Entrop v. Imperial Oil Ltd. (1998), 30 C.H.R.R. D/433, 98 C.L.L.C. 230-012, 1998 CarswellOnt 510, 108 O.A.C. 81,
35 C.C.E.L. (2d) 56, [1998] L.V.I. 2925-1 (Ont. Div. Ct.) referred to
Entrop v. Imperial Oil Ltd. (1998), 1998 CarswellOnt 1955 (Ont. C.A.) considered
Entrop v. Imperial Oil Ltd. (2000), 2000 CarswellOnt 2525, 2 C.C.E.L. (3d) 19, 189 D.L.R. (4th) 14, 50 O.R. (3d)
18, 2000 C.L.L.C. 230-037, 137 O.A.C. 15, (sub nom. Imperial Oil Ltd. v. Entrop) 37 C.H.R.R. D/481 (Ont. C.A.)
considered
Esso Petroleum Canada v. C.E.P., Local 614 (1994), 56 L.A.C. (4th) 440 (B.C. Arb.) considered
Fantom Technologies Inc. v. U.S.W.A., Local 6444 (1998), 1998 CarswellOnt 6108, 70 L.A.C. (4th) 241 (Ont. Arb.)
distinguished
Hardie v. Trans-Canada Resources Ltd. (1976), 71 D.L.R. (3d) 668, 2 A.R. 289, 1976 CarswellAlta 221 (Alta. C.A.)
considered
I.U.O.E., Local 793 v. Sarnia Cranes Ltd. (1999), [1999] L.V.I. 3021-2, 1999 CarswellOnt 1951, [1999] L.V.I.
3034-1, [1999] O.L.R.B. Rep. 479, (sub nom. International Union of Operating Engineers, Local 793 v. Sarnia
Cranes Ltd.) 99 C.L.L.C. 220-072 (Ont. L.R.B.) considered
Labatt Ontario Breweries (Toronto Brewery) v. Brewery, General & Professional Workers Union, Local 304 (1994),
42 L.A.C. (4th) 151, 1994 CarswellOnt 1281 (Ont. Arb.) referred to
Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co. (1965), 16 L.A.C. 73 (Ont. Arb.) referred to
Metropol Security v. U.S.W.A., Local 5296 (1998), 69 L.A.C. (4th) 399, 1998 CarswellOnt 6198 (Ont. Arb.)
referred to
N.A.P.E. v. Newfoundland (1996), (sub nom. N.A.P.E. v. Newfoundland (Green Bay Health Care Centre)) 134 D.L.R.
(4th) 1, 196 N.R. 212, 39 Admin. L.R. (2d) 1, 140 Nfld. & P.E.I.R. 63, 438 A.P.R. 63, 96 C.L.L.C. 230-023, (sub
nom. N.A.P.E. v. Newfoundland (Green Bay Health Care Centre)) [1996] 2 S.C.R. 3, 28 C.H.R.R. D/224, 1996
CarswellNfld 133, 1996 CarswellNfld 133F, [1996] L.V.I. 2757-1 (S.C.C.) referred to
Ontario Store Fixtures v. C.J.A., Local 1072 (1993), 35 L.A.C. (4th) 187, 1993 CarswellOnt 1256 (Ont. Arb.)
considered
Procor Sulphur Services v. C.E.P., Local 57 (1998), 1998 CarswellAlta 1334, [1999] L.V.I. 2994-2, 79 L.A.C. (4th)
341 (Alta. Arb.) referred to
Provincial-American Truck Transporters v. Teamsters Union, Local 880 (1991), 18 L.A.C. (4th) 412 (Ont. Arb.)
considered
Qubec (Commission des droits de la personne & des droits de la jeunesse) c. Montral (Ville) (2000), 2000
CarswellQue 649, 2000 CarswellQue 650, 2000 SCC 27, (sub nom. Ville de Montral v. Mercier) 2000 C.L.L.C.
230-020, (sub nom. Qubec (Commission des droits de la personne & des droits de la jeunesse) v. Montreal (City))
185 D.L.R. (4th) 385, 50 C.C.E.L. (2d) 247, [2000] L.V.I. 3115-1, (sub nom. Qubec (Commission des droits de la
personne & des droits de la jeunesse) v. Montral (Ville)) 253 N.R. 107, [2000] 1 S.C.R. 665, (sub nom. Quebec
(Commission des droits de la personne & des droits de la jeunesse) v. Montral (City)) 74 C.R.R. (2d) 80, 37 C.H.R.R.
D/271 (S.C.C.) referred to
Toronto District School Board v. C.U.P.E. (1999), 79 L.A.C. (4th) 365, 1999 CarswellOnt 3230 (Ont. Arb.)
distinguished
Trimac Transportation Services - Bulk Systems v. T.C.U. (1999), [2000] L.V.I. 3090-2, 1999 CarswellNat 2995, 88
L.A.C. (4th) 237 (Can. Arb.) considered
Statutes considered:
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act
1982 (U.K.), 1982, c. 11
Generally referred to
Human Rights, Citizenship and Multiculturalism Act, R.S.A. 1980, c. H-11.7
s. 7 referred to
s. 7(1) referred to
s. 7(1)(a) referred to
s. 7(3) referred to
s. 11.1 [en. 1985, c. 33, s. 5] referred to
s. 38(1)(i) "physical disability" referred to
Human Rights Code, R.S.O. 1990, c. H.19
Labour Relations Code, S.A. 1988, c. L-1.2
s. 140(2) referred to
Occupational Health and Safety Act, R.S.A. 1980, c. O-2
s. 2(1) referred to
Decision of the Board:
1
Mr. Dave Parsons grieves his dismissal from Imperial Oil Ltd. through his Union Local 777 of the Chemical Energy and
Paperworkers Union. Mr. Parsons worked as a blender at Imperial's Strathcona Refinery in Edmonton, Alberta. At the point of
his dismissal he had been with the Employer for about 18 years.
2
He was dismissed following a positive result to a random drug test for cannabis. He was subjected to the test because
of a prior incident that occurred on April 17, 1997. At the time, a tank Mr. Parsons was tending overflowed. Following an
investigation he was asked to take an alcohol and drug test, which showed positive for Cannibis, recorded at 369 nanograms/
ml. Mr. Parsons only returned to work once further tests showed negative for drugs. On May 2 nd and March 5 th , Mr. Parsons
received discipline letters for this earlier incident. Since much of this case turns on one of these letters, we set it out in full.
As you are aware, you tested positive on a post incident drug test on April 17, 1997. We have satisfied ourselves that
the test protocol integrity was upheld in this case. A condition of employment is compliance with the corporate alcohol
and drug policy. The policy requires that employees be drug free while at work. The positive test demonstrated that you
contravened that work rule on April 17, 1997. Because this is your first violation under the alcohol and drug policy, we
have determined that the appropriate discipline is placement of this letter on your file for a period of two years. If any
violation of the alcohol and drug policy occurs during this two year period, you will be subject to further discipline up to
and including immediate termination without notice or pay in lieu of notice.
A condition for your return to work is that you pass an alcohol and drug test which demonstrates that you meet the
requirements of the alcohol and drug policy. Please contact the site A & D administrator, John Fukushima (449-8312), to
arrange for the test. Pending our receiving confirmation of a negative test result, you are considered to be unfit for work,
and as such, commencing today, May 5, 1997, you will not be paid. Upon confirmation of a negative test you may return
to work and your pay will be reinstated effective the day the negative test was taken.
An ongoing requirement upon your return to work will be your demonstration of compliance with the alcohol and drug
policy as measured through periodic unannounced alcohol and drug tests for a period of two years at a frequency of at
least once per quarter.
I strongly recommend that you be assessed, and if necessary treated, for substance abuse. Should the assessment indicate
that you have a substance abuse problem, I want to assure you that we will offer you all the support we can so that you
can overcome this problem.
You must recognize that this is a serious matter and I trust you will govern yourself accordingly.
3
The random tests called for by this letter took place. They were all negative until a test administered a year and a half
later on November 2, 1998, which showed a positive result, reported at 22 nanograms/ml. Once Imperial Oil Ltd. learned of
this positive result, and heard Mr. Parson's explanation, it considered its position and then dismissed him for the reasons set
out in its termination letter (Exhibit 3):
In accordance with our Alcohol and Drug Policy (the "Policy") and the terms of the May 2, 1997 "A & D Post Incident
"Positive" follow up" letter addressed to you, you submitted to an unannounced test for alcohol and drugs on Monday,
November 2, 1998.
I was advised that your test result was positive. As you know the presence in the body of illicit drugs while on company
business or premises constitutes a violation of section (G)(1)(b) of the Policy.
Section (I)(5) of the Policy provides that a positive test result is grounds for disciplinary action. This is your second
violation of the Policy. You were informed, in the above mentioned letter, that a subsequent violation would result in
further discipline up to and including immediate termination without notice or pay in lieu of notice.
Accordingly, your employment is terminated immediately for just cause.
4 It is Mr. Parsons' termination due to this positive random test result that is the subject of this grievance, not the May 2 nd ,
1997 discipline imposed due to the April 17, 1997 incident.
The Grievance
5
The collective agreement requires just cause for discipline:

3.02 Disciplinary Action
(a) The company has the right to discipline, suspend or terminate the employment of any employee for just cause.
6
The grievance dated November 13 th alleges a violation of Articles 3.01, 3.02 and 4.03 of the agreement and seeks
"reinstatement of the grievor with full back pay and no loss of seniority or benefits. Grievor is to be made whole." It describes
the circumstances giving rise to the grievance as follows:
Dave Parsons (the "Grievor") was terminated from employment on November 13, 1998 unjustly. The Employer (Imperial
Oil) has justified his termination on the basis of a violation of the Company's Alcohol & Drug Policy. The Alcohol &
Drug Policy, including the guidelines is unlawful, discriminatory and unreasonable. The application of the Alcohol & Drug
Policy in this case and the termination of the grievor in all of the circumstances is unjust, discriminatory and unreasonable.
7
The Union expanded somewhat on these grounds at the next step of the grievance procedure:
Grievor's Position
The clauses of the Collective Agreement being grieved are:
3.01 but more specifically 3.01(c) in that the A & D policy is an unjust rule
3.02(a) on the basis that the discipline was not for just cause.
3.02(b) since the company did not provide the union executive with copies of the discipline letter of November 13,
1998, nor did it provide copies of the discipline letters of May 2, 1997, when Dave Parsons was initially subjected to
the A & D Policy. The union believes it is the Company's responsibility to provide the union with discipline letters
and not the responsibility of the employee.
4.03 re general discrimination and based on a violation of the employee's human rights.
The circumstances and facts pertaining to the grievance, as submitted by the union, claim that the A & D Policy is unlawful,
discriminatory and unjust. Also that the termination under the policy is unjust, discriminatory and unreasonable. The A
& D Policy is considered to be a violation of the employee's human rights and the Company has no right to test.
Mr. Parsons' job
8
Imperial Oil operates a refinery in Edmonton. Adjacent to that facility it runs the Strathcona Specialty Products Plant
(SSPP), which blends, packages and distributes various lubricants. Administratively, the SSPP reports to the Toronto Specialty
Products Group, and is not linked to the refinery. The area includes a large number of storage and blending tanks, connected
by pipes. Products are transferred in measured amounts through these pipes into blending tanks, then transferred once blended
for packaging or further storage.
9
Mr. Parsons worked as a "qualified number one blender." As such, he rotated shifts between four task groups; tank car
loading and off loading, loading tank cars, batch blending and in-line blending using a computerized blender. On occasion, Mr.
Parsons would fill-in as a senior blender working in the control room doing the hands-on directing. Mr. Parsons' job is more
fully described in the blender operator-training manual (Exhibit 2). It is not classified as a safety sensitive position.
Agreed Statement of Facts
10 The parties provided the following agreed statement of facts, annotated to many of the important exhibits. That agreement
provides:
1. The grievor Dave Parsons ("Parsons") commenced employment with Imperial Oil Limited ("Imperial Oil") on or about
November 16, 1981. Appended to this agreed Statement of Facts and marked as Exhibit "1", is the personal data sheet
of Parsons.
2. Appended to this agreed Statement of Facts and marked as Exhibit "2" is a copy of the training manual for a Blending
Operator.
3. Parsons was subsequently continuously in the employ of Imperial Oil until his termination, on November 13, 1998.
Appended to this agreed Statement of Facts and marked as Exhibit "3" is the termination letter.
4. At the time of his termination, Parsons worked in the SSPP Business Unit at the Strathcona Refinery and was not a
safety-sensitive employee under the Imperial Oil Alcohol and Drug Policy (the "Policy").
5. On March 22, 1996 Parsons was reprimanded for the inappropriate use of the Corporate VISA credit card, specifically
for personal use. Appended to this agreed Statement of Facts and marked as Exhibit "4" is a memorandum regarding this
incident.
6. The Policy was announced to employees in October 1991 and became effective on January 1, 1992. Appended to this
agreed Statement of Facts and marked as Exhibit "5" is a copy of the Policy.
7. Appended to this agreed Statement of Facts and marked as Exhibit "6" are the Imperial Oil A&D Guidelines.
8. A term of the Policy was that any employee of Imperial Oil was subject to disciplinary action up to and including
termination of employment where he or she was found to have violated the Policy by inter alia:
(a) use of illicit drugs while on company business or premises;

(b) presence in the body of illicit drugs while on company business or premises; and
(c) being unfit for scheduled work due to the use or after-effects of illicit drugs.
9. Pursuant to a Certificate issued by the Alberta Labour Relations Board on July 3, 1995, the Communications, Energy
and Paperworkers Union of Canada, Local Number 777 (CEP, Local 777) was certified as the exclusive bargaining agent
for a unit of employees of Imperial Oil at the Strathcona Refinery described as "all employees of the Strathcona Refinery
except office, clerical, laboratory and controllers" (the "Strathcona Refinery Bargaining Unit"). Appended to this agreed
Statement of Facts and marked as Exhibit "7" is a copy of this Certificate.
10. CEP, Local 777 subsequently signed a collective agreement with Imperial Oil (the "Collective Agreement"). The
parties agreed that the Collective Agreement was to be in force from September 11, 1996 to January 31, 1999. Appended
to this agreed Statement of Facts and marked as Exhibit "8" is a copy of the Collective Agreement.
11. Prior to the expiration of the Collective Agreement, CEP 777 and Imperial Oil executed an updated Collective
Agreement ("Updated Collective Agreement"). The Updated Collective Agreement was to be in force from July 8, 1998
to January 31, 2001. The Articles in issue in this grievance specifically, Articles 3.01, 3.02 and 4.03 do not differ between
the Collective Agreement and the Updated Collective Agreement. Appended to this agreed Statement of Facts and marked
as Exhibit "9" is a copy of the Updated Collective Agreement.
12. On April 17, 1997 there was an incident at SSPP where Tank 1036 overflowed (the "Incident"). Appended to this
agreed Statement of Facts and marked as Exhibit "10" is a summary of the Incident.
13. As part of the follow up to the Incident, Parsons was requested to take an A&D test. The collection form for this test
is attached as Exhibit "11".
14. Appended to this agreed Statement of Facts and marked as Exhibit "12" is the documentation of the basis for post
Incident alcohol and drug test.
15. On April 21, 1997 Ron Gurak ("Gurak") met with Parsons to discuss the Incident. Also present at the meeting were
Dave Ramsay, Union Steward ("Ramsay") and Ken McMullan. Parsons was held out of service with pay until the A&D
investigation was complete.
16. The drug-screening portion of Parsons' A&D test was reported to Imperial Oil as "positive". Appended to this agreed
Statement of Facts and marked as Exhibit "13" is the confirmation of a positive result for Cannabinoids.
17. The level of test of the April 17, 1997 specimen was reportedly 369 ng/ml.
18. Following the investigation and positive results of Parsons' drug test, Parsons was to held out of service without pay
until he was able to test negative for drugs. Appended to this agreed Statement of Facts and marked as Exhibit "14" is a
letter of discipline following the positive results of the drug test and signed by Parsons on May 5, 1997.
19. Appended to this agreed Statement of Facts and marked as Exhibit "15" is a letter of discipline with respect to the
April 17, 1997 incident.
20. A copy of the letter of discipline dated May 2, 1997 (Exhibit 15) and signed by Parsons on May 5, 1997, was given
to the Union by Ken McMullan with the consent of Parsons. The letter was given to the Union on May 13, 1997.
21. Parsons attempted to reinstate on May 12, 1997 and tested positive for drugs. Appended to this agreed Statement of
Facts and marked as Exhibit "16" is the confirmation of a positive result for Cannabinoids.
22. The level of the test of the May 12, 1997 specimen was reportedly 17 ng/ml.
23. On May 23, 1997, Parsons was able to reinstate after receiving a negative result on his drug screen. Appended to this
agreed Statement of Facts and marked as Exhibit "17" are the consent forms relating to this test.
24. On June 9, 1997, Parsons met with the Imperial Oil A&D Site Administrator, John Fukushima ("Fukushima") to
review Parsons' obligations under the Imperial Oil A&D Policy and requirements of reinstatement. Appended to this agreed
Statement of Facts and marked as Exhibits "18" and "19" are a handwritten memo signed by Parsons and a memo by
Fukushima, respectively.
25. Pursuant to the terms of reinstatement, Parsons underwent unannounced quarterly tests. Imperial Oil's record of the
dates and results of the tests were as follows:
July 4, 1997 negative result
October 7, 1997 negative result
November 27, 1997 negative result
January 22, 1998 negative result
May 12, 1998 negative result
November 2, 1998 positive result
27. Appended to this agreed Statement of Facts and marked as Exhibit "20" are the consent forms for the November 2,
1998 test.
28. The level of the test of the November 2, 1998 specimen was reportedly 22ng/ml.
29. Appended to this agreed Statement of Facts and marked as Exhibit "21" are the statement and of Tammy Pich, RN,
with respect to the November 2, 1998 collection.
30. On November 9, 1998 Imperial Oil was notified that Parsons had tested positive for drugs. Appended to this agreed
Statement of Facts and marked as Exhibit "22" is the notification of a result for Cannabinoids, regarding the November
2, 1998 test.
31. Parsons discussed the results of the drug test with Brian Fairley ("Fairley") and was advised that he be held out of
service pending the results of the investigation. An investigation was completed by Fairley and documented in the file by
a memorandum. Appended to this agreed Statement of Facts and marked as Exhibit "23" is the memorandum prepared by
Fairley summarizing the investigation and history of Parsons.
32. On November 13, 1998 a meeting was held between Fairley, Parsons, Ramsay and Ken Moor. The investigation details
were reviewed with Parsons. Parsons stated that he had nothing to add which could impact the investigation. Parsons was
handed a copy of the termination letter (Exhibit "3") letter was read aloud by Fairley. Appended to this agreed Statement
of Facts and marked as Exhibit "24" is a memorandum to file by Fairley summarizing the events of November 13, 1998.
33. On or about November 17, 1998 CEP, Local 777 filed a grievance regarding Parsons' termination ("the Grievance"),
on the basis that Parsons had been wrongly dismissed from his employment with Imperial Oil pursuant to the Policy, which
CEP Local 777 maintained was an unlawful, discriminatory and unreasonable. Appended to this agreed Statement of Facts
and marked as Exhibit "25" is a copy of the Grievance form.
34. Appended to this agreed Statement of Facts and marked as Exhibit "26" is a copy of a summary of a Step 2 Grievance
meeting.
35. Appended to this agreed Statement of Facts and marked as Exhibit "27" is a copy of Imperial Oil's response to the
Grievance.
36. The Grievance was duly processed under the procedure set out in the Collective Agreement governing the employment
relationship between Parsons and Imperial Oil.
37. Appended to this agreed Statement of Facts and marked as Exhibits "28", "29" and "30" are the files of Dr. Barry
Kurtzer with respect to the April 17, 1997, May 12, 1997 and November 2, 1998 collections respectively.
38. On or about October 10, 1996 CEP Local 777 served notice upon Imperial Oil that it was initiating a policy grievance
(the "Policy Grievance") under the relevant provisions of the Collective Agreement, on the basis that the Policy exceeded
management rights and was discriminatory, unlawful and a violation of the privacy rights of members of the Strathcona
Refinery Bargaining Unit. At that time CEP Local 777 requested that Imperial Oil cease and desist from implementing
the Policy at the Strathcona Refinery. A copy of the Policy Grievance is appended to this Statement of Facts and marked
as Exhibit "31".
The Alcohol and Drug Abuse Policy
11
Much of the argument in this case relates to the validity and application of Imperial Oil's Alcohol and Drug Abuse
Policy. For now, we set out the succinct summary of the policy and its origin given by the Ontario Court of Appeal in previous
litigation involving this same policy.
Entrop v. Imperial Oil Ltd., [1998] O.J. No. 1927 (Ont. C.A.); (2000), 189 D.L.R. (4th) 14 (Ont. C.A.)
II. The Alcohol and Drug Policy
5 Following a number of incidents, such as the Exxon Valdez oil spill in Alaska, in which alcohol and drugs were thought
to be contributing factors, Imperial Oil became concerned that substance abuse threatened the safety of its employees, the
public and the environment. It decided to implement a comprehensive alcohol and drug policy at its two Ontario refineries.
In developing the Policy, Imperial Oil consulted widely with its employees and with experts in alcohol and drug addiction
and occupational health and safety. The stated objective of the Policy was "to minimize the risk of impaired performance
due to substance abuse". The Policy was announced to the employees on October 19, 1991, and implemented on January
1, 1992.
6 The Policy principally targeted employees in safety-sensitive positions, about ten percent of Imperial Oil's workforce.
Safety-sensitive positions "have a key and direct role in an operation where impaired performance could result in a
catastrophic incident affecting the health or safety of employees, sales associates, contractors, customers, the public or the
environment"; and "have no direct or very limited supervision available to provide frequent operational checks".
7 Under the Policy, as amended in February 1992, the following key work rules applied to employees in safety-sensitive
positions:
No presence in the body of illicit drugs or their metabolites, nor a blood-alcohol concentration exceeding .04 percent
(.04 grams per 100 millilitres) while at work.
Unannounced random alcohol and drug testing, alcohol testing by breathalyzer and drug testing by urinalysis.
On a positive test or other Policy violation, automatic dismissal.
To remain in or qualify for a safety-sensitive position, completion of a certification process, including a medical
examination, a negative test for alcohol and drugs, and a signed acknowledgement of compliance with the Policy.
Mandatory disclosure to management of a current or past "substance abuse problem".
On disclosure of a substance-abuse problem, reassignment to a non-safety-sensitive position.
Reinstatement to a safety-sensitive position only on completing a company approved two-year rehabilitation
program followed by five years of abstinence, and on signing an undertaking to abide by specified post-reinstatement
controls.
8 Although the Policy mainly focused on employees in safety-sensitive positions, it also provided for mandatory alcohol
and drug testing for all job applicants and all employees in the following circumstances:
Pre-employment testing for specified drugs for all job applicants, as a condition of employment.
Testing for alcohol and specified drugs for all employees:
after a significant work accident, incident or near miss ("post-incident")
where reasonable cause existed to suspect alcohol or drug use ("for cause")
On a positive test, progressive discipline up to and including dismissal could be imposed.
12
The policy is not referred to in the collective agreement. It was instituted well before the Union attained certification at
the Strathcona Plant. The policy itself has been the subject of much litigation since its introduction in 1992, involving Imperial
Oil directly and also some of its contractors. This is because Imperial has required contractors to implement similar policies
as a condition of doing business with the corporation.
13
Two decisions are worth noting at the outset. The first, arising from this location, is:
C.E.P., Local 777 v. Imperial Oil Ltd. (May 27, 2000), Christian Member (Alta. Arb.) (Gabriel) "The Gabriel Decision
"
14
The second is the last of a series of decisions involving Mr. Martin Entrop. The most significant is the ruling of the
Ontario Court of Appeal quoted above "The Entrop decision." That decision arose from a judicial review motion before the
Ontario Divisional Court.
Entrop v. Imperial Oil Ltd. (Ont. Div. Ct.).
15 That motion, in turn, arose from a series of interim decisions of an Ontario Human Rights Commission Board of Inquiry.
In particular, those include:
Entrop v. Imperial Oil Ltd. (1995), 24 C.C.E.L. (2d) 87 (Ont. Bd. of Inquiry) (Interim Decision #6).
Entrop v. Imperial Oil Ltd. (1996), 24 C.C.E.L. (2d) 122 (Ont. Bd. of Inquiry) (Interim Decision #8).
The Gabriel Decision
16 The Gabriel Decision, argued before but issued after our hearings, dealt with the policy but in a somewhat different context.
As we will need to refer to the Gabriel award several times during the course of this decision we set out its basic facts now.
10
17
Mr. Gabriel worked in the refinery in a safety sensitive position. Random drug and alcohol testing was a requirement
under the policy and Mr. Gabriel signed up for his position acknowledging that to be the case. One day he came to work and
was asked to take a random breathalyzer test. He registered .051% and .055% on the two tests administered, both of which
exceeded the allowable blood alcohol limit of .04%. He was terminated under the policy since employees are required to limit
consumption of alcohol before working hours so as to have no alcohol in their blood while they are at work.
18
The Union grieved the termination and argued that the policy permitting random breathalyzer testing contravened
the collective agreement, exceeded management's rights, was unreasonable, unlawful, discriminatory and a violation of an
employee's privacy rights. Mr. Gabriel was terminated solely for breaching the policy, not for any prior incident. Like Mr.
Parsons, Mr. Gabriel did not take the stand to testify on his own behalf.
19
The arbitration board analyzed the Union's arguments in great detail and in the end result dismissed the grievance and
upheld the dismissal. Some of the arguments before us were dealt with in the Gabriel award. While we are not bound by that
panel's finding, we recognize the appropriate respect to be paid to the findings of an earlier board on the same issue under the
same collective agreement. As then arbitrator, later Chief Justice Laskin said as early as 1954:
It is not good policy for one Board of Arbitration to refuse to follow the award of another Board in a similar dispute
between the same parties arising out of the same Agreement where the dispute involves the interpretation of the Agreement.
Nonetheless, if the second Board has the clear conviction that the first award is wrong, it is its duty to determine the case
before it on principles that it believes are applicable.
B.F.C.S.D., Local 278C v. Brewers' Warehousing Co. (1954), 5 L.A.C. 1797 (Ont. Arb.), at 1798 (Laskin)
The Entrop Decision
20 Mr. Entrop was a recovered alcoholic. He had been employed with Imperial Oil at its Sarnia refinery in a safety sensitive
position. When Imperial Oil adopted its policy, Mr. Entrop complied with its disclosure provisions. As a result of his disclosure,
Imperial transferred him to a non-safety sensitive position, which, although it attracted the same pay, was less desirable. Mr.
Entrop complained to the Ontario Human Rights Commission that this reassignment was a discriminatory act based upon a
handicap contrary to the Human Rights Code. Handicap, he argued, encompassed alcoholism.
21
The complaint went before a one-person Board of Inquiry chaired by Professor Constance Backhouse. At the urging of
the Human Rights Commission, Prof. Backhouse expanded the inquiry scope to include the drug abuse as well as the alcohol
related parts of Imperial's policy. In a series of rulings, she found alcoholism to be a handicap, and the policies to be overbroad
and discriminatory. She also found that Imperial Oil's conduct towards Mr. Entrop merited an award of damages on account of
mental anguish as well as certain reprisals. Imperial Oil appealed these several rulings, resulting in the decision of the Ontario
Court of Appeal referred to above.
22 Following Mr. Entrop's complaint, and an amendment to the policy to allow for reinstatement, Imperial agreed to reinstate
him to his former safety sensitive position. It did so following a series of tests that confirmed that his alcohol dependency was
in remission and after he undertook to submit to unannounced alcohol tests and to comply with the policy.
23
At paragraph 34 of its decision, the Court of Appeal listed the Board of Inquiry's five general conclusions::
1. The Policy's requirement that employees in safety-sensitive positions disclose any current or past "substance abuse
problem" contravenes the Code because the definition of "substance abuse problem" is too broad and is unlimited in
duration.
2. The Policy provisions that prescribe a minimum of seven years between reassignment following disclosure of a
substance abuse problem and potential reinstatement breach the Code because this length of time is not necessary in all
cases.
11
3. The mandatory conditions of reinstatement breach the Code because they are more than necessary in some cases.
4. The Policy provisions for pre-employment and random drug testing breach the Code because Imperial Oil failed to prove
that a positive drug test shows impairment. However, drug testing "for cause", "post-incident", on "certification for safetysensitive positions" and "post-reinstatement" may be permissible, but only if Imperial Oil establishes that this "testing is
necessary as one facet of a larger process of assessment of drug abuse." [page 29]
5. The Policy provisions for random alcohol testing breach the Code because Imperial Oil failed to establish that this
testing is reasonably necessary to deter alcohol impairment on the job. Alcohol testing for "certification" for safetysensitive positions and "post-reinstatement" may be permissible but again only if Imperial Oil establishes that this testing
"is necessary as one facet of a large process of assessment of alcohol abuse."
24
Much of the Board of Inquiry analysis in Entrop , and subsequently the Divisional Court's analysis, was carried out of
the assumption that the general law and specifically the Ontario Human Rights Code distinguished between direct and adverse
affect discrimination. By the time the Ontario Court of Appeal decided the matter, the Supreme Court of Canada had replaced
this distinction with the unified three-part test articulated in:
British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U. (1999), 176 D.L.R. (4th) 1 (S.C.C.)
("the Meiorin case"), and
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (1999), 181 D.L.R.
(4th) 385 (S.C.C.)
25 For the purposes of this case, the Meiorin approach is now the law, and the pre-Meiorin analysis in the Entrop decisions
prior to the Court of Appeal have been overtaken.
26
On the issues of concern to this Board, the Ontario Court of Appeal held, in summary:
1. That the Backhouse Inquiry "had no jurisdiction to inquire into all aspects of drug testing." However, since the Board
of Inquiry and the Divisional Court had addressed whether the drug testing provisions of the policy violated the Code "...
practically I see no alternative but to do so as well."
2. That "on a generous view" Imperial Oil's requiring Mr. Entrop to sign an undertaking to abide by the Drug and Alcohol
abuse policy "entitled the Board of Inquiry to assert jurisdiction over alcohol testing but not drug testing." (see paragraph
53). However, this was because the undertaking and the requirement that Mr. Entrop, a reformed alcoholic, agree to random
testing
... were rooted in Imperial Oil's concern that Entrop might again become an alcoholic. Viewed expansively, therefore,
the undertaking gave the Board jurisdiction to inquire into all aspects of alcohol testing under the Policy. (para. 55)
However, since Mr. Entrop never had a drug abuse problem, the Board could not use this rationale to expand its inquiry
into the drug abuse area. The significance of this point for our ruling lies in the proposition that the Board of Inquiry's
jurisdiction to inquire into the validity of the policy was dependent upon Mr. Entrop's assertion, in his complaint, that
he fell within the class of persons against whom it was argued the policy was discriminatory. The Court also found it
"logically flawed" to assess jurisdiction looking back from ones remedial jurisdiction. It said at paragraphs 57:
The Board cannot work backwards from its remedial powers to enlarge the subject matter of the complaint. In other
words the Board's remedial powers cannot confer jurisdiction over a matter if the Board had no jurisdiction over it
at the outset. The range of remedies available to the Board, though broad enough to include future practices, must
be linked to the subject matter of the complaint.
3. Handicap includes a past or perceived handicap.
12
89 The Board found, on uncontradicted expert evidence, that drug abuse and alcohol abuse - together substance
abuse - are each a handicap. Each is "an illness or disease creating physical disability or mental impairment and
interfering with physical, psychological and social functioning." Drug dependence and alcohol dependence, also
separately found by the Board to be handicaps, are severe forms of substance abuse. Therefore, on the findings of
the Board, which are not disputed on this appeal, substance abusers are handicapped and entitled to the protection
of the Code.
4. Persons who test positive on a random alcohol or drug test may be casual users not substance abusers, and may, therefore,
not actually be handicapped (see paragraph 90). However, Imperial's policy and the related guidelines treat social drinkers
and casual drug users as if they were substance abusers. Imperial Oil also applies sanctions to any person testing positive
"... on the assumption that the person is likely to be impaired at work currently or in the future and thus not fit for duty. This
creates an adverse effect upon those who test positive and means the policies are prima facie discriminatory (see para. 92).
5. Imperial Oil adopted the policies for a purpose rationally connected to the performance of the job (Meiorin step 1 - see
para. 94). Imperial Oil adopted its testing provision in a honest and good faith belief that they were necessary to accomplish
its purposes. (Meiorin step 2 - see para. 95).
27
Later in these reasons we will review the Court's comments on the third step in its Meiorin analysis. While Entrop
concluded the Board had no jurisdiction to inquire into the drug testing provisions of the policy (and as a consequence set
aside all aspects of the Board of Inquiry's decision on that point) its analysis is still significant and will be referred to in our
subsequent review.
Grounds for Termination
28
The Employer accepts that it has the onus of proving just cause for termination on the basis of the grounds set out in
the letter of termination. However, the parties take different approaches to these grounds. The Union attempts to characterize
the termination as being solely or at least effectively for the November 2, 1998 test as a breach of Imperial Oil's Alcohol and
Drug Abuse Policy. The Employer emphasizes the cumulative affect of Mr. Parson's record, his alleged deceit in explaining the
presence of cannabinoids in his system, the incident of April 17, 1997, his "breaking faith" with the agreement under which he
resumed work following that incident as well as two breaches of the Alcohol and Drug Abuse Policy. In the Union's submission,
the Employer has argued the case as if it was imposing discipline for the April 17, 1997 incident rather than for the November
2, 1998 test failure.
29
The Union attacks the validity and enforceability of the policy itself, downplaying the fact that the reason Mr. Parsons
was subjected to the random testing aspect of the policy was because of the conditions attached to his continued employment
following the earlier incident. The Employer, in turn, downplays the decisions that challenge the validity and efficacy of certain
aspects of its policy.
30
The cases that have addressed this and similar policies draw a distinction between a policy requiring all employees to
submit to random testing and a policy that allows a test following a significant event ("post-event" and "reasonable cause"
testing).
31
In this case, the parties' arguments often appear at cross-purposes. The Employer says this is a case of "post-incident
testing and appropriate follow-up." The Union says it is a case of random testing which has been held to be both unreasonable
and discriminatory. In fact what we have is a hybrid situation. It is a random testing regime, based on the policy's terms and
procedures, but directed at a specific individual. This policy has not been made applicable to Mr. Parson's contemporaries - those
similarly situated in non-safety sensitive positions. Instead it has been made applicable to him alone as a condition attached to
his continued employment following the original, failed, post-incident test of April 17, 1997.
13
32 The legal analysis varies depending on whether one approaches the case as a breach of a condition arising from the 1997
discipline and reinstatement letter, or (in contrast) as a breach of the Alcohol and Drug Abuse policy alone. The termination
letter sets out the grounds.
In accordance with our Alcohol and Drug Policy (the "Policy") and the terms of the May 2, 1997 "A & D Post Incident
"Positive" follow up" letter addressed to you, you submitted to an unannounced test for alcohol and drugs on Monday,
November 2, 1998.
I was advised that your test result was positive. As you know the presence in the body of illicit drugs while on company
business or premises constitutes a violation of section (G)(1)(b) of the Policy.
Section (1)(5) of the Policy provides that a positive test result is grounds for disciplinary action. This is your second
violation of the Policy. You were informed, in the above mentioned letter, that a subsequent violation would result in
further discipline up to and including immediate termination without notice or pay in lieu of notice.
33 The underlined words make it clear that the termination was for violating the terms of the May 2, 1997 letter and for (a
second) violation of the Alcohol and Drug Abuse Policy. It is insufficient therefore to focus solely on the breach of the policy.
The impact of the May 2, 1997 letter must also be considered. However, in doing so, we must weigh the Union's argument that
the May 2 letter itself incorporates and relies upon the policy. Thus, on the basis of the Union's approach, the validity of the
policy becomes an issue no matter which way the Employer attempts to justify the termination.
34
To assess the Employer's proof of just cause we need to separate these conflicting approaches. However, we recognize
that the Employer relies on both approaches and that the Union argues that they are inextricably linked.
35
There is another overarching issue involved in this case, which is linked to these conflicting approaches. The collective
agreement contains a fixed time within which grievances must be filed. It is not contested that Mr. Parsons' grievance about
his termination on November 13, 1998 is timely. However, the Employer argues that Mr. Parsons cannot, having acquiesced
in the terms of his continued employment, raise the validity of the April 17 th test or the May 2 nd and May 5 th discipline
in a grievance only filed one and one-half years later. This element of the case requires that we address the legality of the
testing, the conditions imposing testing and the conditions specifying the consequences of failing a test, at three distinct points
in the chronology.
1. The incident of April 17, 1997 and the taking of the initial test.
2. The legality of the conditions imposed on Mr. Parsons on May 2, 1997 as a result of the overflow incident and his
369 nanograms test.
3. The legality of the Employer's having randomly tested Mr. Parsons for drugs on November 2, 1998 and then disciplining
him for a result of .22 nanograms.
36 The Union argues that Imperial Oil's promulgated rules (the policy) are unreasonable and have been held as such by other
decisions. They are also, it argues, discriminatory. Therefore, Imperial Oil:
should not have tested Mr. Parsons following the overflow incident in April 1997.
should not have imposed compliance with its policy as a condition of reinstatement in May of 1997.
should not have continued to randomly test Mr. Parsons, particularly in November 1998 (the failed test).
was unjustified in viewing the failed test in November 1998 as worthy of discipline because
it tells you nothing about whether he was impaired at work.
14
such a finding depended upon its being indicative of a breach of a policy which is itself unreasonable and
discriminatory.
37
Some of the cases the Union relies upon to support these propositions arise from policy grievances. Others arise from
situations where the employee in question is disciplined or penalized in some way in the first instance as a result of the application
of a general policy that applies to all employees. Here, Mr. Parsons only became exposed to the random testing aspect of the
policy because he had been involved in an earlier incident and because Imperial continued to employ him at that time but
subject to conditions.
38
In our view, the question - Is a policy, in a general sense, unreasonable or discriminatory? is material different from Was it unreasonable or discriminatory to impose the conditions laid out in that policy upon an individual as a condition of his
continued employment following an event like that of April 17 th , 1997? These questions overlap, but they are not the same.
39
The Employer's first answer to the Union's attack on the Drug and Alcohol Policy is that, even without any drug testing
results, there are grounds for dismissing Mr. Parsons. It suggests the gross neglect involved in the spill is of itself sufficient
cause. That submission cannot succeed. Mr. Parsons' grievance is about his termination in November 1998, not directly about
the incident in April 1997. If there is no culminating incident in November 1998, there can be no basis for resurrecting and
revisiting Imperial Oil's decision not to dismiss Mr. Parsons in April 1997. The alleged culminating incident in November
1998 depends upon their having been a test appropriately taken and failed. Without the negative test result in 1998 there is no
culminating incident whatsoever.
40 We must therefore consider whether the policies, as applied to Mr. Parsons' particular situation, are valid and enforceable.
We begin by analyzing the two principle attacks the Union makes against the Alcohol and Drug Abuse Policy itself:
(a) That it is an unreasonable exercise of management's authority, and
(b) That it is discriminatory, contrary to both the collective agreement and Alberta's Human Rights legislation.
41
While the policy has many detailed provisions, the crucial ones for our analysis at this stage are the provisions that:
In some circumstances allow employees to be subjected to random tests for drugs.
Provide for mandatory testing for drugs following:
a significant work accident, incident or near miss as determined by management;
where reasonable cause exists to suspect alcohol or drug use or possession in violation of the policy.
Subjects an employee to discipline because of the presence in their body of illicit drugs while on company business or
premises, as established by failing a screening test for cannabinoids of 15 or more nanograms per milliliter followed by
a confirmatory test of 20 or more nanograms per milliliter.
Reasonable Rules
42 The Union submits that Imperial Oil cannot terminate Mr. Parsons for violating Section G(1)(b) of its Alcohol and Drug
Abuse Policy (the presence of drugs in the body) because the rule embodied in that policy is unreasonable. As we noted above
it challenges the rule with equal force if the termination is for breach of the condition in the letter of May 2, to the extent that
letter requires compliance with those same rules.
43
The general law on discipline for employer promulgated rules is set out in the decision in:
Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co. (1965), 16 L.A.C. 73 (Ont. Arb.) (Robinson)
15
44
Brown and Beattie, Labour Arbitration in Canada at 4:1500 describe the KVP rule as follows:
Even where such rules do not form part of the agreement, it is now generally conceded that in the absence of specific
language to the contrary in the collective agreement, the making of such rules lies within the prerogative or initiative
of management, and arbitrators have held this to be so whether or not an express management's rights clause exists
reserving the right of management to direct the work force. However, this rule-making power is neither absolute nor
without limitation. Rather, as summarized in KVP Co. Ltd., a number of principles relating to this power have now become
universally accepted among arbitrators. These principles provide that
I - Characteristics of Such Rule
A rule unilaterally introduced by the company, and not subsequently agreed to by the union, must satisfy the following
requisites:
1. It must not be inconsistent with the collective agreement.
2. It must not be unreasonable.
3. It must be clear and unequivocal.
4. It must be brought to the attention of the employee affected before the company can act on it.
5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule
is used as a foundation for discharge.
6. Such rule should have been consistently enforced by the company from the time it was introduced.
II - Effect of Such Rule re Discharges
1. If the breach of the rule is the foundation for the discharge of an employee such rule is not binding upon the board of
arbitration dealing with the grievance, except to the extent that the action of the company in discharging the grievor,
finds acceptance in the view of the arbitration board as to what is reasonable or just case.
2. In other words, the rule itself cannot determine the issue facing an arbitration board dealing with the question as
to whether or not the discharge was for just cause because the very issue before such a board may require it to pass
upon the reasonableness of the rule or upon other factors which may affect the validity of the rule itself.
3. The rights of the employees under the collective agreement cannot be impaired or diminished by such a rule but
only by agreement of the parties.
Reformulated, these criteria may be said to require that any plant rules which are unilaterally promulgated must not be
inconsistent with the terms of the collective agreement, that their enforcement not be unreasonable, and that they must be
brought to the attention of those intended to be regulated by them.
45
The Employer cites a decision of Arbitrator Picher for the general proposition that an Employer can require a drug test
from an employee.
Canadian National Railway v. U.T.U. (1989), 6 L.A.C. (4th) 381 (Can. Arb.).
46
In that case, an employee's annual medical examination revealed casual drug use. The employee agreed thereafter to
undergo quarterly testing for 2 years. Following an incident, but without any cause that the arbitrator found sufficient, he was
asked to take a test in another City on very short notice. He was tied up with studies and offered to go later. Instead, the Employer
16
treated it as a refusal to attend. The arbitrator rejected the Employer's position and set aside the discipline. In the course of his
reasons the arbitrator quoted an earlier railway award (CROA 1703) as saying:
Does an employer's right to require an employee to undergo a fitness examination extend to requiring a drug test? I am
satisfied that in certain circumstances it must. Where, as in the instant case, the employer is a public carrier, and the
employee's duties are inherently safety sensitive, any reasonable grounds to believe that an employee may be impaired
by drugs while on duty or subject to duty must be seen as justifying a requirement that the employee undergo a drug
test. Given contemporary realities and the imperative of safety, that condition must be seen as implicit in the contract of
employment, absent any express provision to the contrary ...
47
We note this proposition relates to safety sensitive positions and to reasonable cause testing. The case also goes on to say:
On the other hand, it is not within the legitimate business purposes of an employer, including a railroad, to encroach on
the privacy and dignity of its employees by subjecting them to random and speculative drug testing. However, where good
and sufficient grounds for administering a drug test do exist, the employee who refuses to submit to such a test does so
at his or her own peril.
48
The arbitrator then concluded from these extracts at p. 387:

As may be gleaned from the foregoing, the right that an employer may have to demand that its employees be subjected
to a drug test is a singular and limited exception to the right of freedom from physical intrusion to which employees
are generally entitled by law. As such it must be used judiciously, and only with demonstrable justification, based on
reasonable and probable grounds.
49
The Union cites a series of cases for the proposition that a rule which mandates random employee tests for drugs, and
disciplines them in the event of a positive result, is unreasonable. The decision in:
Provincial-American Truck Transporters v. Teamsters Union, Local 880 (1991), 18 L.A.C. (4th) 412 (Ont. Arb.), (Brent)
concerned the imposition of mandatory drug and alcohol urinalysis for truck drivers. The policy in question was mandatory,
universal and not triggered by any reasonable cause to suspect a particular driver of substance abuse or impairment. The
arbitrator drew an analogy to employee theft issues where employer searches must be reasonably balanced against the
employees' rights to privacy. The arbitrator said, at p. 422:
The authorities cited to us which dealt with testing urine for the presence of both legal and illegal substances recognize
that such testing compromises the privacy of the individual just as a search would do. There is a further aspect to the
privacy argument in that, even assuming that the urine specimen is not used to determine anything other than whether
there has been any past ingestion of alcohol and/or drugs, such testing necessarily involves the employer in an inquiry into
what an employee is doing in his/her off-duty hours. Most reasonable people would probably consider that it was none
of their employer's business if they happened to drink wine or beer with their meals away from work or enjoy a drink or
two in their off-duty hours. Therefore, what one would expect, absent some term in the collective agreement, is an arbitral
response to drug testing which is similar to that taken to employee searches and to employer interest in off-duty conduct.
50
This approach necessitated a balancing process, alluded to at p. 424:

... the public good does not necessarily require a wholesale disregard for personal liberty. Is there any reason then to treat
the issue of drug and alcohol testing as being so different from searches to prevent employee theft cases where the
interests of the employer in safeguarding his property and the privacy interests of the employees have been balanced for
years? We think not.
51 The arbitration board went on to find the imposition of mandatory universal urinalysis was a violation of the reasonableness
aspect of the KVP test. It based its conclusion on the factors set out at p. 425:
17
One criterion which must be satisfied is the reasonableness of the rule. In this case, it is difficult to satisfy the reasonableness
test, even accepting the obvious safety concerns and public duty, for the following reasons. The testing was done before the
U.S. regulations became effective, and even had they been effective, Canadian drivers are exempt from their application at
least until 1992. There was no evidence of any adverse impact on the company's operations by reason of substance abuse
among employees. There was no evidence of any problems regarding impaired drivers which were not being adequately
addressed by the existing rules and regime of physical examinations. There was nothing to suggest that the existing method
of certification by the physician that the employee was not addicted to alcohol or drugs was ineffective in keeping such
drivers employed by the company off the road.
52
This conclusion related solely to universal mandatory testing performed without cause. The arbitrators said, also at p. 425:
If there is reason to demand a test, then a test can be demanded. That is, if a particular employee gives the company
reasonable grounds for believing that his/her fitness to perform the job safely is impaired by use of alcohol or drugs, then
the company should be able to test as part of its rights under art. 13.
53
The Imperial Oil policy in this case was considered in:

Esso Petroleum Canada v. C.E.P., Local 614, McAlpine ("The IOCO Decision") [(1994), 56 L.A.C. (4th) 440 (B.C. Arb.)]
54 That case involved a policy grievance that attacked the policy in general terms as contrary to the collective agreement and
beyond management's right to implement. The parties agreed at the outset that the various aspects of the policy were severable.
In addition, the arbitrators noted that they were not dealing with the application of discipline to any particular individuals.
55 After considering a series of U.S. and Canadian authorities, the arbitrators concluded that drug and alcohol tests could be
justified in circumstances where the Employer's interest outweighed the employee's privacy interest; again, a balancing process.
It adopted the following two-step approach to the question, at p. 28:
From these authorities we distill a two step test: the first, being the test of justification or adequate cause. Is there evidence
of a drug and/or alcohol problem in the workplace? Is there a need for management's policy?
The second being a test of reasonableness including a consideration as to the alternatives available and whether the problem
in the work place could be combated in a less invasive way.
56
In applying this test to the IOCO Refinery they looked first at whether Imperial Oil had cause to believe there was a
problem at that plant. The arbitrators' decision to focus on that plant alone seems primarily based on the form of the policy
grievance before them. They accepted the proposition that oil refining was an inherently risky business. They agreed Imperial
should not have to wait until a catastrophic loss occurred. Imperial had conducted a nationwide survey that, in their view,
demonstrated a problem with alcohol and drug abuse at work. However, they rejected that survey largely because the sample
at the IOCO refinery was so small. They also found there were no significant precipitatory events at the IOCO workplace itself.
57
The arbitrators then went on to assess the validity of the Company's testing technology, asking, at p. 42,
... whether the tests imposed measure the performance of an employee in the workplace. It is the fitness of the employee
to work and his performance in the workplace that gives rise if at all to management's rights. In the board's view the link
between the test prescribed by management and the performance of the employees is tenuous.
58
In support of this conclusion it cited several quotations from a 1992 report of the Ontario Law Reform Commission
on Drug and Alcohol testing in the workplace which the Union also relies upon in this case. In particular the Union cites the
following quotation from p. 22 of the IOCO decision:
The second criticism of testing techniques are that they are incapable of measuring present or even past impairment from
drugs. As Schottenfeld states in "Drug and Alcohol Testing in the Workplace Objectives, Pitfalls and Guidelines", "even
18
an accurate positive test is not informative about the recency of use, whether the person tested was impaired at the time
of testing or whether the person has substance abuse problems." Critics argue that because the testing techniques cannot
detect the impairment of an employee, the employer has no legitimate interest in subjecting his employees to such testing.
Moreover, it is stated that regulating the off-the-job conduct of an employee constitutes "an all-pervasive intrusion into
the employee's private life." Thus, it is asserted that testing has no functional value in screening out impaired workers and
cannot serve the Employers' interest in safety and productivity. Furthermore, it is vociferously argued that the illegality of
drugs is not a legitimate employer interest. Employers should not be in the law enforcement business and investigation of
unlawful activities should remain exclusively within the domain of the police.
and then at p. 43:
... as the Canadian Human Rights Commission states, the link between testing positive and the capacity to do the job is
tenuous; "Positive" testing has no direct correlation to job performance. Testing "positive" does not indicate impairment
or dependency. In fact it does not even reveal drug use.
All a "positive" test result reveals is that at some time, which may have been days or even weeks before the day of testing,
the individual is exposed, once, to a drug.
Therefore, it will be necessary for the employer to adduce other evidence which demonstrates that the employee was
incapable of executing his work in a competent manner (p. 106).
... An employer may argue that in "safety-sensitive positions" testing is reasonably necessary to ensure the proper
performance of the job. For instance, management may assert that drug or alcohol testing of pilots, trained engineers or
truck drivers constitutes a bona fide occupational qualification. However, given current technology, it will be difficult to
convince a Board or a Court that testing bodily fluids measures the ability of an employee to perform his work, as these
tests cannot measure impairment. (p. 107).
59
The Board then concluded that these comments "provide an accurate assessment of the substantive limitations on the
testing technology prescribed in Imperial Oil's new policy." It cautioned, however, at p. 44, that its judgment was based on the
evidence before it in the arbitration. The Board went on to explore the question of whether less invasive measures were available
and concluded that they were. These included clear rules, peer prevention, supervision and evaluation, performance testing and
employee assistance programs. The IOCO decision then proceeded to review the various aspects of the Imperial Oil policy based
on this balancing approach. It summarized its conclusions at p. 54 and we list those of particular significance to this decision.
The work rules applicable to all employees that prohibit the presence in the body of illicit drugs, unprescribed drugs and
stipulating a blood alcohol concentration in excess of .04% are unacceptable. [See (G)(1)(b) and (d)]
Work rules that focus on use and possession on the company premises and upon the employee's unfitness for work due
to alcohol and drugs are acceptable. [See (G)(1)(a), (c), (e) and (f)]
60
Justifying this distinction, the Board said at p. 57:

It is the Board's view that the justifiable focus of management rests upon the fitness of the employees to work and upon the
employees performance in the work place. Management is entitled therefore to create work rules prohibiting employees
from being unfit in the work place by reason of the use of alcohol or drugs as it has in (G)(1)(f). The Board also notes
that the work rules (G)(1)(b) and (d) are intertwined with mandatory drug and alcohol testing. In substantial measure the
board has found that testing unacceptance. As the means of determining work rule violations are not in effect, work rules
(b) and (d) become redundant.
Mandatory random testing prescribed for safety-sensitive employees is acceptable in the context of rehabilitation
but only for a reasonable period of time. [See (I)(3)].
19
Mandatory testing of all employees after a significant work accident, incident or near miss is acceptable. [See (I)
(2)(b)(i)].
Mandatory testing of all employees on the basis of reasonable and probable grounds is acceptable. [See (I)(2)(b)(ii)].
61
While the arbitrators upheld post-incident testing, they deleted from the administrative guidelines the reference to
deterrence as a justifying factor, basing their approval solely on the need to ascertain cause. They explain this at p. 64:
On balance we are of the view that the company's policy is reasonable when regarded as an extension of the company's
right to investigate the cause of the work accident, incident or near miss bearing as it does on future safety.
...
In our view there must be some connection between the accident and the individual worker of the nature described in the
dissent in Skinner at p. 20:
... a witness or co-worker accounts of a worker's misfeasance, or at least indications that the cause of the accident
was within a worker's area of responsibility
(emphasis added)
We accept that the lesser standard of proof prescribed in the Policy is appropriate in the context of a work accident incident
or near miss. But in our view the examples of 'clear evidence' as red lettered above are too simplistic. There must be some
objective consideration by the employer taking into account the circumstances of the individual case.
62 While the IOCO decision accepts "reasonable cause" testing, it expressed the view that some of the indicia of cause were
too broad since, while symptomatic of substance abuse, they were also consistent with other causes.
63
At pages 67 and 68, the arbitrators deleted from the policy the requirement that an employee, subject to a test under the
policy, complete a prescribed "informed consent document." It said, at p. 68:
Viewed realistically, the test has been imposed by management. The employee may not have consented to the test at all.
64
The Gabriel decision (supra) reviewed, and in several respects disagreed with, the IOCO decision. It found that the
survey conducted by Imperial Oil prior to implementing the policy clearly showed a real current substance abuse problem in
the Strathcona refinery that called out for a response designed to change the workplace culture. It also found, contrary to the
IOCO decision, that the policy did not fail because of the availability of less intrusive measures. It said, at p. 77:
It is perhaps obvious that good supervision, a good peer referral program and a good employee assistance program would
contribute to a healthier workforce. However, that is not the issue we are considering. What we have to decide is whether
the Employer acted reasonably in deciding to adopt a program of random testing instead of one of these alternatives. In
our view, that case has been made out. We find that the Employer did act reasonably in deciding to implement a random
testing program, notwithstanding the alternatives.
65
These issues were also canvassed in

I.U.O.E., Local 793 v. Sarnia Cranes Ltd. May 4, 1999 [1999 CarswellOnt 1951 (Ont. L.R.B.)].
66
Sarnia Cranes rented cranes with operators to, among other customers, oil refiners including Imperial Oil. It had a long
term contract with Imperial which provided, in part, that Sarnia must have a drug and alcohol policy substantially equivalent
to Imperial's own policy. Sarnia introduced such a policy over the opposition of the Union. The Union responded with a policy
grievance claiming the policy violated the collective agreement, was unreasonable, arbitrary and discriminatory and in violation
of the human rights legislation. Due to the nature of Sarnia's operation the large majority of its members worked in safety
20
sensitive positions. The testing regime thus entailed involved annual testing, reasonable cause testing and post-incident testing
in circumstances similar to those outlined in Imperial Oil's own policy. The policy also called for monitoring testing. Once
an employee tested positive for drugs the employer could establish a testing regime, including random tests to monitor that
employee's use of drugs in the future. Part of Imperial Oil's arrangement with Sarnia provided that they would be notified of
test failures and refusals and the employees involved would thereafter be banned from Imperial's location.
67 The Ontario Labour Relations Board panel that arbitrated the case concluded that the testing rules referred to above were
not reasonable within the meaning of the KVP rule in a number of respects. It said at paragraph 173:
... it is critical once again to highlight the one medical fact upon which the experts who testified before the Board agreed.
A drug test performed on the urine of a donor cannot measure the degree to which the donor was impaired at the time
the urine sample was provided ...
As will be seen below, this medical fact is the cornerstone for our conclusion that the employer's drug and alcohol policy
is contrary to the ICI agreement.
68
At paragraph 176 the Board concluded that work related impairment is not the sole focus of the employer's drug and
alcohol policy. Rather its major concern was managing risk.
The employer has determined that its employees who use drugs or alcohol (on their own time or otherwise) create an
increased risk for it in the marketplace, in that it is more likely than not that persons who use drugs or alcohol while they
are away from the workplace will subsequently attend at the workplace and perform work under the influence of those
substances. It desires to minimize that risk or eliminate it by excluding all those employees who may add to the risk
of injury or accident from working at Imperial Oil. The difficulty is that the employer's method of achieving that laudable
goal implementing a drug and alcohol test for is employees excludes persons from working at Imperial Oil (and
other sites) who would not add to that risk in any way whatsoever (and, as noted above, ignores the diminished capacity
of workers caused by other factors).
69
The Board then concluded, at paragraph 177:

To the extent that the employer's unilaterally-imposed testing regimen was established to deal with workplace impairment,
the drug and alcohol policy must be considered to be an unreasonable exercise of management's rights under the ICI
agreement, for the simple reason that its very premise that the testing of employees for drugs will identify impairment
is false.
70
The Board also found the cut-off points for the tests a source of arbitrariness because an impaired employee might pass
while an unimpaired employee might fail, depending on the time they ingested the drugs compared to when they took the test.
71
The Gabriel decision at p. 80 touched on this question of managing risk as a justification for the policy whether or not
testing proves actual impairment:
We agree with the views expressed by Nash J. in Walker v. Imperial Oil (Court of Queen's Bench Action No. 9403 11151,
unreported, Sept. 18, 1998) where she held that Imperial Oil was justified in dismissing an employee who held a safetysensitive position, for being at work with a blood-alcohol level in excess of 80 milligrams of alcohol per 100 milligrams
of blood. She held it is not necessary that the Employer prove the degree of inability to perform particular tasks, at para
82 and 75:
Exxon had a right to ensure that an employee in a safety-sensitive position was not impaired by alcohol thereby
constituting a risk to the lives and safety of others.
I reject the contention of the plaintiff that Exxon must establish that [the plaintiff] was incapable of actually performing
his duty and that this was manifested by physical symptoms displayed by [the plaintiff].
21
In coming to this conclusion Nash J. quoted from the decision of the U.S. Federal Court of Appeal in Exxon Corp. v. Esso
Workers' Union Inc. (1997) 118 F3d. 841 (U.S. Federal Court of Appeal, First Circuit) 841 where, at p. 849, the Court said:
According to the Union, the positive result of Smith's random drug test "merely" indicates the presence of cocaine
in his blood-stream; it does not necessarily signify that Smith was under the influence of the narcotic either at the
time of the test or at the time he drove his rig.
The Union casts this argument so narrowly that it misses the mark. Relying upon job-relatedness as the sole
determining factor in permitting employers to discharge employees who test positive for drug use would force
employers to wait for some other consequential indication that drugs are affecting work performance. Typically,
this other indication will be accident ... the notorious mishap involving the Exxon Valdez, which produced vast
environmental devastation, highlights the core problem associated with this "wait-and-see" approach. If we have
learned anything from such catastrophes, it is that employers must ask affirmatively to avoid drug-related accidents
rather than wait passively for such accidents to happen.
72
We recognize of course that these comments relate to a safety sensitive position. Later in these reasons we refer to the
evidence of Dr. Francescutti who testified to the need to learn from accidents and take preventative steps.
73
Entrop involved the discrimination not the reasonableness challenge to the policy. However, it is still relevant to this
leg of the argument. This is because the third step in the Meiorin analysis itself requires a finding of reasonable necessity to
achieve the employer's purpose. As the Court in Entrop put that third step (at paragraph 76):
(3) That 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 individual employees
sharing the characteristics of the claimant without imposing undue hardship upon the employer.
74 In applying this test the Court found at paragraph 86 that random drug testing for employees in safety sensitive positions
violated the Human Rights Code, even though similar alcohol testing did not.
I agree that the drug testing provisions of the Policy violate the Code. However, I disagree with the Board and the Divisional
Court on random alcohol testing. The important difference between alcohol and drug testing is that a positive drug test
does not demonstrate impairment; a positive breathalyzer reading does. I therefore think that random alcohol testing for
safety-sensitive positions, though prima facie discriminatory, can be justified providing the sanctions for a positive test
are individually tailored.
75
On the Meiorin third step the Court expressed the onus on Imperial Oil as being to show:
the alcohol and drug testing provisions of the Policy are reasonably necessary to identify those persons who cannot perform
work safely at the company's two refineries, because they are impaired by alcohol or drugs.
76
The Court went on to list examples that may fail this test of reasonable necessity.
For example the rule may be arbitrary in the sense that it is not linked to or does not further the employer's legitimate
purpose; the rule may be too broad or stricter than reasonably necessary to achieve the employer's purpose; the rule may
unreasonably not provide for individual assessment; or the rule may not be reasonably necessary because other means,
less intrusive of individual human rights, are available to achieve the employer's purpose.
I turn now to whether Imperial Oil's alcohol and drug testing provisions are reasonably necessary. As the Board held,
Imperial Oil has the right to assess whether its employees are capable of performing their essential duties safely. 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. Therefore, as the Board found, "freedom from impairment" by alcohol or drugs is a BFOR. An
employee impaired by alcohol or drugs is incapable of performing or fulfilling the essential requirements of the job. The
22
contentious issue is whether the means used to measure and ensure freedom from impairment alcohol and drug testing
with sanctions for a positive test are themselves BFORs. Are they reasonably necessary to achieve a work environment
free of alcohol and drugs?
77
On drug testing specifically, the Court said at paragraph 99:

I deal with drug testing first. The drugs listed in the Policy all have the capacity to impair job performance, and urinalysis
is a reliable method of showing the presence of drugs or drug metabolites in a person's body. But drug testing suffers from
one fundamental flaw. It cannot measure present impairment. A positive drug test shows only past drug use. It cannot
show how much was used or when it was used. Thus, the Board found that a positive drug test provides no evidence of
impairment or likely impairment on the job. It does not demonstrate that a person is incapable of performing the essential
duties of the position. The Board also found on the evidence that no tests currently exist to accurately assess the effect of
drug use on job performance and that drug testing programs have not been shown to be effective in reducing drug use,
work accidents or work performance problems. On these findings, random drug testing for employees in safety-sensitive
positions cannot be justified as reasonably necessary to accomplish Imperial Oil's legitimate goal of a safe workplace free
of impairment.
78
We recognize that the findings the Court alludes to (and, as findings of fact, defers to) are specific to the Entrop case,
and are not evidence in this case. We have evidence from Dr. Willette described below that says, for example, that drug testing
programs have indeed been effective. However, the Court's conclusions based on those findings are still important.
79 The Court went on, since it was dealing with the automatic termination provisions in the safety sensitive part of the policy,
to find the policy overbroad because it allowed of no variation for individual circumstances. This is not the case for testing
applied in non-safety sensitive positions, nor was it stated as an absolute rule for Mr. Parsons in the May 2, 1997 letter. It says
only that "you will be subject to further discipline up to and including immediate termination." The Employer in November
1998 did not presume dismissal automatically. The evidence shows they weighed options.
80 Imperial Oil, in other actions, raised deterrence as a reason for its policy. The Court of Appeal in Entrop did not address
that issue. Imperial did argue (at paragraph 104):
... that the Board mischaracterized the underlying workplace standard the company sought to achieve by drug testing. The
Board characterized the standard as "freedom from impairment." Imperial Oil argued that the standard is what the Policy
says, "no presence" of drugs or their metabolites. Imperial Oil contended that in the interests of safety it is legitimately
entitled to adopt a "no presence" standard, that does not depend for its efficacy on the discovery of impairment.
[105] There are two answers to Imperial Oil's submission. First, the Board's finding that the standard was "freedom from
impairment" by drugs is a finding of fact, which is reasonably supported by the evidence and thus is entitled to deference.
Second, the "no presence" standard does not assist Imperial Oil because it too is arbitrary, again for the reason that a
positive drug test does not demonstrate incapability to perform the work safely. Therefore, the drug testing provisions of
the policy are not BFORs.
81 Again we recognize, on the first point, that it is based on a case specific finding of fact. On the question of Drug Testing
post-incident and for cause the Court merely noted, at paragraph 114:
The Board did, however, conclude that drug testing post-incident or for cause was permissible only if Imperial Oil could
establish that it was "necessary as one facet of a larger assessment of drug abuse." Although the Board did not elaborate on
what larger assessment is required, her conclusion is consistent with the evidence and her finding that drug testing cannot
accurately measure impairment. I would, therefore, not interfere with the Divisional Court's order upholding the Board's
conclusion on drug testing post-incident and for cause.
82
A decision of Arbitrator Burkett deals with mandatory random drug and alcohol testing in the trucking industry:
23
Trimac Transportation Services - Bulk Systems v. T.C.U. (1999), 88 L.A.C. (4th) 237 (Can. Arb.) .
83
It was a policy grievance. While there was no direct reference to the policy in the collective agreement management
had an express right to make rules for the promotion of safety. The policy in question called for mandatory random drug and
alcohol tests for all drivers. As in this case, Dr. Kapur gave expert evidence that (at p. 243)
... urinalysis, while it may reveal drug use, cannot establish impairment at the time of the test ... while urinalysis will
establish if there has been drug use, it does not establish when the drugs were taken nor the quantity.
84
The Union argued in Trimac that:

1. Random testing was too invasive of employee rights to be allowed at all (an argument rejected in that case and not
argued before us).
2. That a KVP type balancing test applied and that, absent an ability to prove impairment at the time of the test, the
employees' privacy rights outweighed any legitimate business interests of the employer.
3. That the policy violates human rights legislation protection and is therefore contrary to law, and as a consequence also
unreasonable under the KVP test for that reason.
85 The Employer in Trimac responded with the argument (among others) that its use of random drug testing was reasonable
and justifiable because there is evidence that off-duty conduct (including drug use) does in fact impact on a driver's response
time. This justified an employer trying to minimize the risk associated with impairment for drugs and alcohol while the employee
is engaged as a truck driver. It referred (at p. 254) to the analogous issues (balancing risk avoidance and privacy) raised in cases
dealing with annual medical examinations or discipline for on-the-job marijuana use with no evidence of impairment. Again,
the Employer argued that its testing was not simply to identify impairment at work, but to identify a risk factor. As the arbitrator
summarized this point at p. 257, the Employer argued:
... the policy is aimed at reducing the risk that employees will report to work in a state of impairment; that it does not
attempt to prove impairment but rather to identify employees who have used drugs or alcohol so that the risk they pose of
reporting for work in an impaired state can be professionally assessed.
86
The Employer also argued that testing is a deterrent that serves to reduce risk.
87 At the outset of his decision, at p. 257 Arbitrator Burkett makes it clear he is only addressing mandatory random testing,
not probable cause testing. He framed the issue before him at p. 258:
This issue, reduced to its simplest, pits an employer's right to take reasonable and necessary steps to provide a safe and
productive work environment against an employee's right to privacy. As a general proposition, an employer's right to
manage, absent an express restriction, encompasses the right to take reasonable and necessary steps to ensure a safe and
productive work environment and to promulgate policies and rules in support of that objective. If it was not for the issue of
employee privacy, the debate about random mandatory drug testing would center on its usefulness as a tool in achieving the
legitimate objective of a safe and productive workplace. However, because individual privacy is a fundamental right in any
democratic society and because the requirement upon an employee to subject himself/herself to urinalysis for the purpose
of ascertaining drug use constitutes a significant invasion of personal privacy, the debate is a much more complex one.
88
The arbitrator then analyzed these competing interests. He reviewed the cases discussed above as well as:
C.H. Heist Ltd. v. E.C.W.U., Local 848 (1991), 20 L.A.C. (4th) 112 (Ont. Arb.) (Verity)
Procor Sulphur Services v. C.E.P., Local 57 (December 31, 1998) unreported (Ponak) [1998 CarswellAlta 1334 (Alta.
Arb.)]
24
Labatt Ontario Breweries (Toronto Brewery) v. Brewery, General & Professional Workers Union, Local 304 (1994), 42
L.A.C. (4th) 151 (Ont. Arb.) (Brandt)
Metropol Security v. U.S.W.A., Local 5296 (1998), 69 L.A.C. (4th) 399 (Ont. Arb.) (Whitaker)
89
The arbitrator's conclusion in favour of the balancing test is set out at p. 269:
Simply put, absent express language in the collective agreement, both the employee's right to individual privacy (with
all that that entails) and the employer's right to make rules for the purpose of furthering its business objectives (with all
that that entails) are accepted as legitimate and valued, albeit sometimes competing rights. In circumstances where these
rights are competing, such that employees may be disciplined for non-compliance, resolution is achieved by weighing
or balancing the competing impacts. In respect of drug and alcohol testing of employees the balance has been struck in
favour of protecting individual privacy rights, except where reasonable and probable grounds exist to suspect the drug and
alcohol impairment or addiction of an employee in the workplace and except where there is no less intrusive means of
confirming the suspicion. Conversely, the balance has been struck in favour of management's right (as part of its general
right to manage) to require drug or alcohol testing, where the two aforementioned conditions exist. It follows that each
case must be decided on its own facts.
90
At p. 270 the arbitrator says:

Bulk systems is the employer party to these collective agreements and, therefore, my decision must be based on the evidence
as it relates to the operation of Bulk Systems. Accordingly, evidence of drug use as it relates to the general population at
large, to the trucking industry generally (i.e. the 1989 B.C. study) or to the other Trimac operations, cannot establish a
justification for the implementation of mandatory random drug testing at Bulk Systems.
91 We comment on this conclusion later in these reasons. Suffice to say for now, it is not obvious to us why evidence of drug
use in the population at large or at least in an industry is not relevant to the balance to be achieved in a particular bargaining
unit. As with other risk assessments, while particular environments and particular groups of persons may have higher or lower
risks, there are certain events (and thus risks) that can occur in any bargaining unit. The risk that a person will recklessly attend
work while under the influence of alcohol or drugs appears to us to be one of them. To make this observation does not deny the
several other bargaining unit specific balancing factors, such as level of safety sensitivity, availability of supervision and so on.
However, the fact that many factors are bargaining unit specific (or bargaining unit controllable) does not prove that all are.
92
The arbitrator goes on to say,

On any objective assessment, therefore, there was no drug or alcohol usage problem at Bulk Systems that would give rise
to a reasonably held apprehension that Bulk System drivers might compromise their own safety or that of the public by
reporting to work under the influence of drugs or alcohol.
93 The flaw is that, while workplace factors may heighten or lessen the chance of it happening, individuals willing to show up
at work in an impaired state and expose their colleagues, customers and Employer to risk do so based on individual more than
group characteristics. This is true of those who suffer from substance abuse (who are protected by laws against discrimination)
and of casual users who are reckless about showing up for work in an impaired condition (who are not so protected).
94 The arbitrator dealt with the Employer's risk avoidance argument at p. 272-275. He concluded from the case law and the
evidence before him that, since urinalysis does not detect impairment at work, the Employer's real interest must be in modifying
lifestyle away from work. Therefore, given its invasive nature, employee privacy must take precedence.
It follows, therefore, that in order to succeed before me, the employer must either convince me to depart from the
jurisprudence or convince me that this case is distinguishable ... the Company chose the later approach.
95
The arbitrator then considered three points:
25
That performance is impaired by the delayed or residual effects of drugs or alcohol, justifying steps to eliminate this risk.
Visual assessment does not work, so random testing is the only viable mechanism.
Random drug testing has been proven to work as a deterrent.
96
The arbitrator accepted that there are degrees of risk and therefore a threshold to be met before overriding the privacy
interest. Conceding that an Employer might meet this evidentiary threshold, the arbitrator found Trimac had not done so in
that case.
97 The arbitrator described the deterrence argument as a "boot step" approach. This was because, if the Employer could not
prove impairment and could not prove that the residual effects of drug taking posed a risk sufficient to justify testing, then a
decline in positive test scores was irrelevant, except to the question of an employees drug use outside of work. The arbitrator
concluded on the basis of this analysis that the policy in question was unenforceable.
98
While we do not need to pursue this point due to our other conclusions, we are struck by a conclusion that comes out of
many of these cases. They speak of a balancing process, weighing what is generally (and in our view correctly) referred to as an
individual right to privacy against an Employer's right to prevent the effects of drug related impairment within its workforce.
99 Two important assumptions appear to underlie this balancing of interests analysis. The first is that it is only the particular
Employer's interest balanced against the privacy rights of the particular employees. However, if one accepts the evidence of
commentators like Dr. Fransiscutti (whose evidence we review below) that workplace incidents are not accidents at all but
predictable and avoidable events, then there are broader interests involved. Industrial accidents can hurt not just the impaired
worker, but that worker's colleagues and others with whom the worker comes into contact, such as other drivers in the example
of truck collisions related to impairment. Unlike the Employer, these persons have no ability to pass or enforce policies; they
must rely upon others to do so, (assuming appropriate policies exist which can indeed reduce the risk that impairment or any
residual effect of drug use exposes them to). It is important in assessing where the balance lies to recognize that the Employer
is fixed with a public duty to ensure a safe workplace under the provisions of the Occupational Health and Safety Act.
2(1) Every employer shall ensure, as far as it is reasonably practicable for him to do so,
(a) the health and safety of
(i) workers engaged in the work of that employer, and
(ii) those workers not engaged in the work of that employer but present at the work site at which that work is
being carried out, and
(b) that the workers engaged in the work of that employer are aware of their responsibilities and duties under this
Act and the regulations.
100
Second, the cases (most notably IOCO and Trimac) appear to insist the proof of a problem in need of a solution
must specifically arise from the plant or bargaining unit in question. While we are not experts on the topic, it appears to us
wrong to conclude that the risks attached to a problem like workplace drug impairment should be assessed only on a workplace
by workplace basis. Our bargaining units are designed for industrial relations purposes not as appropriate risk assessment
groupings. That an employee might attend work impaired is more a function of personal inclination or personal addiction
problems then of the employee's workplace. Certain workplaces or types of workplaces may generate higher stress levels that
trigger these phenomena, but again, intuitively, we think this is more likely to be industry based then specific to a particular
worksite. Perhaps, as suggested in the Toronto Dominion Bank case, it is insufficient to project statistics for society at large upon
the specific workforce, but that does not force one to go to the other extreme and focus solely on the particular bargaining unit.
Clearly, certain industries are more safety sensitive than others, but even here this seems industry based more than Employer
based.
26
101
These two points; the interests of parties beyond the individual worker and the Employer in a safe environment; and
the industry wide nature of the appropriate risk analysis, suggest a wider solution to these problems may be appropriate. There
is indeed a balancing to be undertaken but the interests involved are important social interests not just commercial and privacy
interests. This suggests it is an area where initiatives ought to come from broader industry groups where all affected parties
can participate in setting priorities and discussing solutions, or else through governmental action through occupational health
and safety laws or similar programs.
102 We now turn to the cases dealing with discrimination, recognizing still that these cases deal with general policies rather
than specifically within the imposition of individual discipline or employment conditions.
Discrimination
103
The argument that the policy, or the application of the policy in this case, is discriminatory has two sources. First,
Article 4.03 of the collective agreement provides:
The Company will not discriminate or harass on the basis of race, religion, creed, color, sex, marital or family status, sexual
orientation, age, national and ethic origin, political belief, handicap, or holding a Union position.
104
Second, s. 7 of the Human Rights, Citizenship and Multiculturalism Act ("The Human Rights Act") prohibits
discrimination in employment matters on certain stipulated grounds.
7(1) No employer shall
(a) refuse to employ or refuse to continue to employ any person, or
(b) discriminate against any person with regard to employment or any term or condition of employment,
because of the race, religious beliefs, colour, gender, physical disability, mental disability, marital status, age, ancestry,
place of origin, family status or source of income of that person or of any other person.
...
(3) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide
occupational requirement.
...
11.1 A contravention of this Act shall be deemed not to have occurred if the person who is alleged to have contravened
the Act shows that the alleged contravention was reasonable and justifiable in the circumstances.
(emphasis added)
105
The term "physical disability" is defined in the Act as follows:

38(1)(i) "physical disability" means any degree of physical disability, infirmity, malformation or disfigurement that is
caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes epilepsy,
paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment,
muteness or speech impediment, and physical reliance on a guide dog, wheelchair or other remedial appliance or device;
106
Absent some special indication of some other intention, words like handicap, when used in a collective agreement,
can reasonably be interpreted to be the equivalent to similar words, in this case mental or physical disability, as used in the
Human Rights Act.
27
N.A.P.E. v. Newfoundland (1996), 134 D.L.R. (4th) 1 (S.C.C.)

Qubec (Commission des droits de la personne & des droits de la jeunesse) c. Montral (Ville), [2000] S.C.J. No. 24
(S.C.C.).
107
For the purpose of this analysis, we will proceed on the assumption that the prohibition on discrimination based on a
handicap covers the same territory as prohibited physical and mental disability under the Human Rights Act.
108
It is therefore unnecessary for us to analyze the extent of our authority as arbitrators to use the Human Rights Act
as a source of interpretative guidance, additional substantive jurisdiction, or remedial authority. It also means that the cases
interpreting the scope of the Human Rights Act protection and the process to be used in analyzing situations that call those
issues into play can be relied upon as having equal force in the interpretation of this collective agreement.
109
Entrop has held that substance abuse is a handicap and qualifies as mental or physical disability. However, that case
also distinguishes "casual users" from "substance abusers."
110 The perception that a person is a substance abuser may also result in discriminatory conduct towards that person. Entrop
so holds at paragraph 88 (although on Ontario's extended definition of the term handicapped).
[88] This definition provides protection to persons who have a handicap, persons who had a handicap but no longer suffer
from it, persons believed to have a handicap whether they do or not, and persons believed to have had a handicap, whether
they did or not. In other words, the definition protects those who have or have had an actual or perceived handicap.
111
The Supreme Court of Canada has adopted the same approach to charter cases involving handicaps, without the need
of an extended definition specifically covering perceived handicaps.
79 Thus, a "handicap" may be the result of a physical limitation, an ailment, a social construct, a perceived limitation or
a combination of all of these factors. Indeed, it is the combined effect of all these circumstances that determines whether
the individual has a "handicap" for the purposes of the Charter.
80 Courts will, therefore, have to consider not only an individual's biomedical condition, but also the circumstances in
which a distinction is made. In examining the context in which the impugned act occurred, courts must determine, inter
alia, whether an actual or perceived ailment causes the individual to experience "the loss or limitation of opportunities to
take part in the life of the community on an equal level with others": McKenna, supra, at pp. 163 and 164. The fact remains
that a "handicap" also includes persons who have overcome all functional limitations and who are limited in their everyday
activities only by the prejudice or stereotypes that are associated with this ground: British Columbia (Superintendent of
Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] S.C.J. No. 73, [1999] 3 S.C.R. 868, at para. 2.
81 It is important to note that a "handicap" may exist even without proof of physical limitations or the presence of an
ailment. The "handicap" may be actual or perceived and, because the emphasis is on the effects of the distinction, exclusion
or preference rather than the precise nature of the handicap, the cause and origin of the handicap are immaterial. Further,
the Charter also prohibits discrimination based on the actual or perceived possibility that an individual may develop a
handicap in the future.
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des
droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] S.C.J. No. 24
112
See also the discussion at paragraph 185 of Sarnia Crane (supra).
113 As noted in our comments on the Entrop decision (supra) the approach to be taken in a discrimination analysis has been
recently recast in the Supreme Court of Canada's decision in:
28
British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U., [1999] S.C.J. No. 46 (S.C.C.).
114 In that case, the Court resiled from its earlier bifurcated process which depended on whether the alleged discrimination
was direct discrimination or adverse effect discrimination. In its place the Court adopted a three-part test, set out at paragraph 54:
4. Elements of a Unified Approach
54 Having considered the various alternatives, I propose the following three-step test for determining whether a prima
facie discriminatory standard is a BFOR. An employer may justify the impugned standard by establishing on the balance
of probabilities:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the
fulfillment of that legitimate work-related purpose; and
(3) that 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 individual
employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
115
The Union, in its submission, conceded steps 1 and 2 as follows:

The Union accepts that the general purpose for adopting the Policy is workplace safety and is rationally connected to the
performance of work at the Strathcona Refinery.
...
Again, for the purpose of this case, the Union is prepared to accept that the Policy and specifically the rule in (I)(5) was
adopted in good faith.
116 It does not concede point 3. The Employer, for its part, does not get into the three parts of the test since, in its view, the
policy is not a prima facie discriminatory standard vis a vis this employee.
117
Chief Justice McLachlin framed the Human Rights issue as follows, at paragraph 2:
Like human rights legislation throughout Canada, the British Columbia Human Rights Code seeks to counter this by
requiring employers to justify their standards where prima facie discrimination is established.
(emphasis added)
118 Evidence in that case demonstrated that most women have lower aerobic capacity than most men. No evidence showed
the prescribed aerobic capacity was necessary for either men or women to perform the firefighter's job. The arbitrator at first
instance concluded from this that the standard had a disproportionately negative effect on women as a group. The legislation
prohibited discrimination based on sex.
119
For either direct or adverse effect discrimination, the initial onus was on the person challenging the policy to establish
a prima facie case of discrimination before the burden shifted to the Employer to justify the impugned standard. See: B.C.
Firefighters at paras. 13 and 19. That prerequisite did not change when the Court recast the test for the available defences once
that prima facie evidence of discrimination was made out. This can be seen from the Court's description of the application of
this new approach in the B.C. Firefighters case, at paragraphs 69 and 70:
69 Ms. Meiorin has discharged the burden of establishing that, prima facie, the aerobic standard discriminates against
her as a woman. The arbitrator held that, because of their generally lower aerobic capacity, most women are adversely
29
affected by the high aerobic standard. While the Government's expert witness testified that most women can achieve the
aerobic standard with training, the arbitrator rejected this evidence as "anecdotal" and "not supported by scientific data."
This Court has not been presented with any reason to revisit this characterization. Ms. Meiorin has therefore demonstrated
that the aerobic standard is prima facie discriminatory, and has brought herself within s. 13(1) of the Code.
70 Ms. Meiorin having established a prima facie case of discrimination, the burden shifts to the Government to demonstrate
that the aerobic standard is a BFOR. For the reasons below, I conclude that the Government has failed to discharge this
burden and therefore cannot rely on the defence provided by s. 13(4) of the Code.
(emphasis added)
120
Two points are significant for our analysis. First, the person alleging discriminatory treatment via the application of a
rule bears the initial onus of showing a prima facie case of discrimination.
121
This means identifying the discriminatory impact of the impugned policy, the group that carries the burden of that
discriminatory impact and the fact that group's characteristics bring it within a class of protected persons under the legislation
in question.
122
Second, complainants must show that the impugned policy discriminates against them as a member of that class. For
individual grievances or individual complaints it is not enough for the person to show that the rule discriminates against others
in the class to which they belong even though it does not have that effect on them personally. Put simply, Ms. Meiorin would
not have reached the Supreme Court of Canada had she been able to pass the test that other women might have failed.
123
The result of the recasting of the test for defences to discrimination charges accomplished in B.C. Firefighters is to
focus attention away from the question of whether this "abnormal" individual can be fit into "normal" rules. Instead, the rules
themselves must be flexible enough to accommodate those protected classes of persons to the extent that accommodation can
be provided without undue hardship. However, moving from an assessment of the individual to an assessment of the governing
rules, at the defence stage, does not turn every individual complaint into a class action. The whole inquiry in individual cases
is still predicated upon the person, as a member of a protected class, at the very least alleging that they suffered personal
discrimination as a result of application of the impugned rule.
124
Entrop reflects a similar approach. The Ontario Court of Appeal criticized the Inquiry's expansion of its focus into
drug testing because Mr. Entrop never had a drug abuse problem and never alleged that the drug related aspects of the policies
discriminated against him in any way. See paragraphs 55 and 56. At paragraph 59 the Court added:
Second, the inquiry into the Policy's provisions on drug testing lacked a proper factual underpinning. Entrop had never
been tested for drugs. Apart from his use of Tylenol 3 under prescription, he did not consume drugs. Thus, his complaint
did not raise a live dispute about drug testing.
125
The Gabriel decision took a similar position. Initially it did so considering the question firstly as one of direct
discrimination (page 87) and secondly as adverse effect discretion (page 94). They came to the same conclusion using the B.C.
Firefighters approach, at p. 96:
In the case before this Board, there is a fundamental threshold problem. There is no prima facie case of discrimination.
The Grievor did not give any evidence and we do not know whether he is an alcoholic or not. There is no evidence that
anyone at the Strathcona Refinery suffers from alcoholism. There is some evidence of alcohol use in the Canadian Facts
Survey but this falls short of demonstrating that a certain number, or proportion, or indeed any, employees suffer from
alcoholism. There is no prima facie case of discrimination and no evidence of discrimination at all.
The evidence here is markedly different from that presented by the Grievor in British Columbia Government and Service
Employees Union. There the Grievor was a victim of the discriminatory standard. She failed the test because it was
effectively designed to screen out women. There was clearly a prima facie case of discrimination on the basis of sex. As
30
we have noted above, the lack of evidence in this case stands in stark contrast to the evidence presented in Entrop. Here
there is no evidence that the Grievor is a victim of discrimination. Instead we are asked to speculate that the policy will
have a discriminatory effect on hypothetical, alcoholic employees.
This is not a policy grievance in which the Union directly challenges the policy based on evidence called to support such
an attack. Instead, the policy is attacked as being unreasonable in order to afford a defense to the Grievor.
Given the absence of evidence of prima facie discrimination, it is difficult, if not impossible, for this Board to carry out
the analysis envisaged by the Chief Justice. It may be helpful to set out the conclusions we would come to, in the event
it is found we are wrong about our finding that there is no evidence of discrimination let alone a prima facie case of
discrimination.
126
The Union relies upon:

Canadian Civil Liberties Assn. v. Toronto Dominion Bank (1998), 163 D.L.R. (4th) 193 (Fed. C.A.)
127
The bank in that case adopted a policy of testing all new and returning employees for drugs. Refusal to take the test
resulted in dismissal. Those who tested positive and were drug dependent were offered rehabilitative services, but would lose
their jobs if they refused the services or if they proved unsuccessful. Casual users who tested positive three times would also
lose their jobs.
128
A Canadian Human Rights Tribunal dismissed the discrimination complaint brought by the Canadian Civil Liberties
Association attacking the policy itself. The decision was challenged on judicial review and ended up before the Federal Court
of Appeal. Much of the three judgments from that Court are devoted to the issue of whether this case involved direct or
indirect discrimination, a debate now settled by the decision in Meiorin. However, the Union still relies upon the manner in
which the Court analyzed the arguments about whether the policy was reasonably necessary or was rationally connected to job
performance. These are elements that remain relevant under Step 3 of the Meiorin analysis. Addressing the matter first as direct
discrimination, the Court (per Robertson J.A.) at p. 238 divided the issue into two objective criteria:
1. That the job qualification be rationally connected to the employment concerned, and
2. That the policy be designed to ensure that it is met without placing undue burden on those to whom it applies. This
latter requirement has been taken to impose an obligation on an employer to show that there is no other more reasonable,
or less intrusive alternative to the policy.
129
On the rational connection issue, Robertson J.A. reviewed and accepted the Tribunal's findings. They were that the bank:
had not established the validity of applying broad societal data about drug use to the bank's employee population.
had insufficient evidence to establish a relationship between drug use and criminal involvement amongst its employees.
had by excluding current employees from the scope of its testing undermined the argument that its policies were
reasonably necessary to assure job performance.
130
The Court similarly reviewed and upheld the Tribunal's conclusion that, if observation was a sufficient control for
current employees, it was also sufficient for new employees and rehires. To deal with indirect discrimination, Robertson J.A.
compared the decisions setting out the two tests, saying, at p. 244:
I am prepared to accept that the "rational connection test" differs from the "reasonable necessity test" to the extent that the
former does not impose an obligation on the employer to establish that other reasonable and less burdensome alternatives
to the neutral work rule are available. I say this solely for the reason that if in law a distinction between the two tests does
exist, then the only meaningful difference has to lie in the "reasonable alternative criterion." Whether or not the distinction
is rationally supported is, however, a matter on which the Supreme Court should adjudicate.
31
131
The Court reviewed the Tribunal's findings and concluded at p. 245:

These findings include the determination that the Bank acted on impressionistic assumptions; that there was insufficient
evidence to establish that a drug problem exists within the Bank; that there is no correlation between illegal drug use and
crime, nor evidence to support such a concern. In my opinion, the Tribunal's analysis and reasons amount to a finding of
fact that there was no rational connection between the Bank's policy and the performance of the job. Though that finding
was made in the context of the BFOR defence, it is equally applicable in the context of the accommodation issue. It must be
remembered that, at best, the Bank's policy reveals whether an employee has been exposed to certain illegal drugs within a
certain time frame. Such information reveals nothing about an employee's ability to perform the job in question. For these
reasons, I am of the opinion that the Bank's policy fails even if it constitutes indirect discrimination.
132 McDonald J.A. agreed with Robertson J.A. on everything except that he found the policy involved indirect (or adverse
effect) rather than direct discrimination.
133
The Union argues, by analogy to the Toronto Dominion Bank case that:
Imperial has failed to establish that there is a drug problem at the Strathcona Refinery;
the Policy is underinclusive in that it does not address other forms of workplace impairment such as physical illness
and stress;
drug testing creates nothing more than a deemed impairment, unsupported by supervisor observation or other
corroborating evidence; and
Imperial failed to demonstrate that drug testing was the least intrusive of the reasonable methods for addressing its safety
concerns.
134
The Gabriel decision dealt with the underinclusivity argument in the following terms at p. 92-93 and we agree with
that analysis.
There is a related challenge, that the safety-sensitive employees, as a class, are victims of discrimination because the
Employer does not take steps to detect and eliminate other forms of impairment, besides alcohol or drugs. Or, framed
somewhat differently, the singling out of alcohol impairment for elimination is irrational because other forms of impairment
are not rooted out. In other words, the Policy is defective because it is underinclusive.
...
Merely because there is not simultaneously introduced a Policy to catch every conceivable form of impairment does not
render irrational a Policy to deal with drug and alcohol abuse. If the Union were right, the rationale for CheckStop's would
be subject to challenge because the police do not have a similar program to catch tired drivers.
We believe the challenge of underinclusivity is also answered by the Alberta Court of Appeal in Byatt v. Alberta (Chief
Electoral Officer) (1998) 158 D.L.R. (4 th ) 644 (Alta. C.A.) Per Fraser C.J. and Cote and Conrad J.J.). The Court dealt
with whether or not a person convicted of a crime was being wrongfully banned from voting under the Charter. One of
the arguments made by the applicants was that the ban on voting did not extend to other people in a similar position
to themselves. The applicants argued that this so-called underinclusivity should be seen as a reason to not uphold the
legislation. Fraser C.J.A. and Cote J. stated at p. 660:
Unless one suggested that the impugned legislation is irrational vis--vis its objects (not done here), underinclusivity
seems to be irrelevant, even benign. Aside from cases about discrimination on grounds listed in section 15 or analogous
thereto, I know of no authority on underinclusivity. None was cited to us.
32
There was no argument advanced by the Union nor evidence to support the proposition that the Policy is not rational
in relation to its objects. Indeed the Union supported the objective of the Policy the attainment of a "safe and secure
workplace free of substance abuse and impairment." The fact that all forms of impairment may not be dealt with points
to the Policy's underinclusivity and as the Court said in Byatt is "irrelevant, even benign."
135
The Sarnia Crane decision also addressed the policy from the point of view of discrimination, both as contrary
to the agreement and as prohibited by the Human Rights Code. To a large extent the reasons follow the Divisional Court
Decision in Entrop (supra) and Canadian Civil Liberties Assn. v. Toronto Dominion Bank (supra). The Board found the policy
discriminatory, again primarily because the drug tests could not establish impairment at the time the sample was taken (see
paragraph 204).
136
The Trimac decision comes to a similar conclusion on the discrimination argument at p. 278.
137
With that review of the jurisprudence dealing with the "unreasonableness" and "discrimination" challenges to drug
abuse policies generally and mandatory random testing in particular, we now return to Mr. Parson's specific situation. This
requires us to consider the extent to which these principles may apply to his "hybrid" situation where the imposition of a testing
regime arose from individualized discipline that incorporated the policy's processes rather than just from the application of the
policy per se. We will review Mr. Parson's particular situation chronologically, recognizing throughout that the grievance is
about his November 1998 termination.
The April 17 th Incident
138
We set out one of the two letters of discipline at the outset of this decision. The other reads as follows:
May 5, 1997
Our license to operate specifies that we will not overflow tanks in SSPP. Failure to meet this requirement could result in
heavy fines and in the worst case, our license being suspended and our plant being shut down.
On the afternoon of April 17, 1997, 40 to 50 gallons of product overflowed tank 1036. You were the blender responsible
for transferring the blend into tank 1036. As you are aware, we undertook an investigation into this incident in an effort
to determine root cause and mitigate future occurrences. We appreciated your and your colleague's help in participating
in the investigation.
The investigation concluded on Friday, May 2, 1997. The findings demonstrated that you and your peers were capable,
well trained in and clearly understood the procedures for transferring blends to tankage. In addition, the investigation team
verified that there were adequate standards in place and sound procedures to ensure excellence in work performance.
The root cause for the incident was determined to be operator inattention. Although you claimed to have followed the
procedures correctly, your execution of responsibility in carrying out this transfer was unacceptable.
As a result of these findings we have determined that discipline will be: placement of this letter on your file for a period
of two years.
139
We heard an explanation of why two letters were issued. In our view the two arise from the same incident and need to
be read together to understand the total circumstances. It is important that we set out what took place in this incident because:
The Union argues the Employer had no basis for requiring a test on April 17 th .
It is relevant in understanding and assessing the validity (if necessary) of the conditions set out in the May 2 nd letter.
33
It is important in assessing the degree to which the conditions of the May 2 nd letter depend upon, or derive from, the
Alcohol and Drug Abuse policy as opposed to the April 17 th event itself.
It is relevant to the argument that the penalty for the culminating incident in this case was unduly harsh.
140 A management conducted investigation showed that, on the day in question, Mr. Parsons was assigned to blend a product
called glx40 in a blender. The tank (#1036) had three gauges by which the operator could tell the volume of liquid inside.
The tank itself had a capacity of 12,250 gallons. At the beginning of the blend Mr. Parsons apparently verified that the tank
was empty because gauge levels were recorded to that effect. The target was to make 10,300 gallons. Mr. Parson's calculation
showed there was sufficient room in the tank, i.e. 21 feet 490 gallons per foot.
141
Once the blend was complete, Mr. Parsons transferred the blended product into tank 1036. After disconnecting the
transfer hose in the hose room, he went to tank 1036 to close the run-down valve. At this point he discovered that approximately
40 gallons (there is some suggestion it may have been as much as 50-100 gallons) of product had run over the top of the tank.
Imperial's policy is to leave a three-foot gap at the top of a full-tank as a safety precaution. This means that, to have overflowed
the tank by 40 gallons or more, over 1,900 gallons of liquid went into tank 1036 that should not have done.
142
Mr. Parsons informed the area's senior blender and the area supervisor of this spill. Arrangements were immediately
made to have a contractor come in to clean up. Three management officials, Mr. Ron Urich, the SSPP Plant Manager, Mr.
Ken McMullan, Operating Supervisor and Mr. Ron Gurak, the Business Unit Leader, began to investigate. They checked the
mechanical equipment involved, checked for open valves, checked that the gauges were working and checked the calculations.
They were unable to identify any cause for the spill so they decided to obtain a post-incident test to rule out alcohol or drugs
as a contributing factor. The test was administered and the 369 nanograms/ml reading for cannabinoids revealed. The question
we must address at this point is whether the Employer was entitled to require Mr. Parsons to take the test on April 17 th .
143
To complete the picture of April 17, 1997, we note that the shift supervisor was contacted as was the testing company.
Mr. Parsons was told a test would be taken and he went with Mr. Ken McMullan and Mr. Ron Urich to the SSPP administration
area. At 4:00 p.m. Mr. McMullan escorted Mr. Parsons to the test. At 5:00 p.m. Mr. Parsons returned to the SSPP administration
area where he helped document the initial report. Following the test Mr. Parsons was told to go home for the weekend and then
report to Mr. McMullan on the next Monday morning. While Mr. Parsons was sitting waiting for the test with Mr. Urich and
Mr. McMullan he said (by Mr. McMullan's account):
... Dave had said he was probably going to lose his job. We said, no, we don't think you are going to lose your job, Dave,
why would you think that? Dave then said, well, I was at the hockey game last night, the Oiler game. And we said, yeah,
so? Well, I had a few beers. Well, Urich immediately says, well, Dave, it's like 3 in the afternoon, a few beers, I don't think
it's going to be a problem. Dave then said it wasn't just the beers I had. Well, what else was it? Well, I had some type of
muffins or brownies with marijuana in them, that's going to probably show up. Our thoughts were like, Jesus, Dave, why?
144 Mr. Urich's account is virtually the same. Mr. Parsons did not testify and we accept that this admission of deliberate and
proximate marijuana use was made. Mr. Parsons' saying, "he was probably going to lose his job" suggests he was conscious that
his marijuana use was sufficiently proximate or sufficiently substantial, or both, to test positive. That of itself does not amount
to an admission of on-the-job impairment. However, it does suggest he was conscious of being at work when his drug level
might well violate what he knew to be the Employer's rule, something he could have avoided by staying away from work.
The Alcohol and Drug Policy and the April 17 th Test
145
The Union challenges the proposition that the events of April 17 th justified testing Mr. Parsons for alcohol or drugs.
The applicable provision of the policy reads:
34
(I)(2) All job applicants or employees are subject to mandatory testing for alcohol or drugs under the following
circumstances, as further defined in the Alcohol and Drug Program Administrative Guidelines:
(b) a test for alcohol and specified drugs:
(i) after a significant work accident, incident or near miss as determined by management;
(ii) where reasonable cause exists to suspect alcohol or drug use or possession in violation of this policy; and
146
The Administrative Guidelines for post-incident testing provide, in part:

GENERAL
Employees in all job categories are subject to testing for alcohol and specified drugs after a significant incident as
determined by management based on these guidelines. The primary purpose of this type of testing is to determine whether
substance use was a possible contributing factor in an incident; a second purpose is to reinforce the deterrent aspect of
the overall testing program. It is recognized that a positive post-incident test does not independently prove that substance
use was the "root cause" or a contributing factor in a particular incident. As such, it does not relieve the company of the
obligation to complete a thorough investigation. However, a positive post-incident test automatically indicates a violation
of the Alcohol and Drug Policy and is therefore grounds for disciplinary action.
CRITERIA FOR CONDUCTING POST-INCIDENT TESTS
Supervisors, managers and other company representatives authorized to order post-incident tests are expected to exercise
careful judgment in deciding when to conduct a test and which workers to test. As a general statement, testing must be
conducted after all significant incidents, as defined below, unless there is clear evidence that worker performance could not
have been a potential contributing factor. Because post-incident testing is an investigative procedure, testing is required
even in the absence of direct evidence or suspicion of alcohol or drug misuse.
... Normally, the preliminary phase of the incident investigation will indicate which individuals had a reasonable possibility
of being directly involved in the chain of acts or omissions leading up to the event. If there is doubt, it is better to
include a particular individual than to forfeit the opportunity to obtain a potentially important piece of information for
the investigation.
Post-incident testing may be conducted at management discretion for near misses or lower-level incidents if they are
considered to have had significant potential for more serious consequences. However, reasoned judgements are required
in such cases to avoid treating employees in an arbitrary fashion or discouraging them from reporting lower-level incidents
or near misses.
For significant incidents which meet the criteria below, the onus is on the company representative to demonstrate and
document that a test is not necessary. Where lower-level incidents or near misses are concerned, the onus is on the
representative to show and document that a test is appropriate.
SIGNIFICANT INCIDENT
For purposes of the Alcohol and Drug Policy, a "significant incident" is defined as a work-related accident which caused
any of the following:
(a) a fatality or serious personal injury to a worker (classified as a 'restricted work" incident or worse);
(b) a fatality or personal injury requiring medical treatment beyond first aid for a member of the public;
(c) a spill or abnormal discharge of gaseous, liquid or solid material which causes any of the following:
35
(i) a high probability of measurable long-term health effects on employees or non-employees;

(ii) a public evacuation; or
(iii) serious environmental damage where fauna or flora populations require long restoration periods (six months
or longer), or there is a high probability of long-term adverse impact to sensitive populations, or there is a
significant effect on community income or well-being;
(d) significant loss or damage to vehicles, equipment or property (threshold levels to be set and updated by local
management. with a corporate minimum of $5000; suggested limit for damage to property or equipment of $25000
US or more (Exxon reportable 8021): or
(e) significant loss of revenues to the company (threshold levels to be set and updated by local management with a
corporate minimum of $500,000).
AUTHORIZATION TO TEST
Since incidents are a particularly concrete form of "reasonable cause" an individual supervisor, manager or authorized
company representative (e.g. loss control advisor) may order a post-incident test. (Other "reasonable cause" tests require
the agreement of two supervisory-level people: see section 3.4). The authorizing individual does not need to personally
witness the incident or be physically present at the site of the incident. However, he or she has an obligation to make a
reasonable assessment of the need for a test, and the appropriate employees to test, as part of the preliminary incident
investigation.
DOCUMENTATION
An authorizing individual must document the basis for a decision to test or not to test as soon as practicable, noting the
date, time, factual circumstances, names of involved workers or witnesses and any other relevant information. This may
be incorporated in the standard incident report documentation or as a separate memo to file.
Note should be taken of any unusual worker behaviour around the time and place of the incident, e.g. failure to report the
incident promptly, attempting to leave the scene without permission (other than to call for help) and any lack of cooperation
with the test procedure or other aspects of the incident investigation.
The Decision to Conduct an Alcohol and Drug Test on April 17 th
147
Three people participated in the decision to order an alcohol and drug test on April 17 th . Mr. Urich testified that they
had two reasons for deciding on the test. One was that they had reasonable cause, because they had been unable to identify
any cause for the spill, either by direct investigation or by speaking to Mr. Parsons. The other reason was that the tank had
overflowed with the potential of causing an environmental incident.
148
Mr. Urich was asked whether there were any other factors involved in the decision to have the test taken. He said:
Yes, there was ... we had checked back on a few other incidents, and there was two other incidents that Dave Parsons was
involved with, not necessarily that he was the contributing factor to it, but he was involved with them. One was a GLX30
and one was GX89. And so we said it looked like there could be a trend involved. And all three incidents, then, with the
one on April 17 th , and the other two, all happened within a year. And he was involved in all three of them.
149
Mr. McMillan's account of the decision is that:

The three of us, then, Ron Gurak, Ron Urick and I, went back to Ron Gurak's office. We reviewed what we had seen,
heard, saw, did our process of elimination, determined we could not identify a root cause.
36
We reviewed the A & D policy with regards to the next steps, what could we do. We considered this a significant spill.
We had no real reason why it had happened, and the only way we could rule out A & D was to do a post-incident [test].
... we sat down and determined that, one, we don't have a root cause; two, we don't have an explanation; three, we have a
significant spill here; and fourth, this is the third overflow of a tank in the blending operation in less than a year. Through
all three of which were involving Dave Parsons, not totally towards him, the first two, but he was involved with three
spills. And this was the second in less than a month. We had a trend developing.
The decision was then made that we would do a post-incident test for A & D to rule that out.
Was the April 17 th Test Allowed under the A & D Policy?
150
The policy provides for mandatory testing in two circumstances; after an incident or where reasonable cause exists to
suspect drug or alcohol use. The test requisition form gives the basis for the test as "post-incident." The managers involved in
the investigation, far from suggesting they had reasonable cause to suspect drug or alcohol impairment say they directed the
test to rule out alcohol or drugs as a potential cause. Mr. McMullan's documentation in support of the post-incident alcohol or
drug test recites that he reasonably believed the incident may have caused "a spill or abnormal discharge impacting significantly
on the environment or on the community." It says of Mr. Parsons that impairment of this employee cannot be ruled out as a
potential contributory factor.
151 The Union maintains that, on the evidence before us, and on the evidence available to the three managers who decided
to test Mr. Parsons, there was no "significant incident" within the meaning given that terms in the A & D Policy. We agree
with that conclusion. Mr. Fukushima was taken through each of the sub-clauses involved and agreed that none of them fit the
definitions in the circumstances.
152
However, in our view the Union's argument downplays the "near-miss" aspect of the administrative guidelines. The
Policy says post-incident testing may be conducted at management's discretion for near misses or lower-level incidents if they
are considered to have had significant potential for more serious consequences. The policy places the onus on management
to demonstrate its reasoned judgment why that is so, and cautions against arbitrary treatment. However, the policy clearly
contemplates tests for incidents that fall short of the "serious incident" definition.
153 In our view, there was a reasoned basis for the decision to test under the policy even though we find it was not a "serious
incident" within the definition. First, the excess amount allowed to flow into the tank was not 40 gallons, it was in excess of
1,900 gallons of product. This puts the degree of inattention in a slightly different perspective. Second, the Employer perceived
a pattern of spills, and no evidence was called to suggest this was unfounded or an unreasonable matter to consider. Third, we
are not persuaded that the decision was tainted by preconceived notions that Mr. Parsons was a drug user. Some suggestion
was made of this in cross-examination, but the participants denied it was so or that it was a factor that influenced the decision.
The Employer had eliminated mechanical causes. Mr. Parsons apparently offered no explanation himself and since he was the
operator responsible, some explanation at the time was called for, even if it was only something like "I went for a smoke."
154 We also note that, while it occurred only after the decision to test was made (although before the actual test) Mr. Parsons
in fact admitted drug use. At that point the Employer had reasonable cause to test on that ground even if its decision to test on
the basis of a near miss significant incident was wrong.
155
In our view the policy, on its face, allowed for management's decision to test in this case.
Consent to the April 17 th Drug Test

156
The Employer argues that it had Mr. Parsons' consent to take the April 17 th drug test. Mr. Parsons signed a consent
form and has not taken the stand to cast doubt on the validity of that consent.
37
157
The Union's answer to this is fourfold. First, the Union filed a policy grievance on October 10, 1996 claiming that the
policy exceeded management's rights and was discriminatory, unlawful and a violation of the privacy rights of its members. It
asked Imperial to stop implementing the policy at Strathcona. It argues that there is no evidence that the Union has withdrawn
this grievance or has expressed any different position respecting the policy. We agree with the Union that they notified the
Employer of their opposition to the policy and asked that it not be applied in the facility. However, it is equally clear that
the Employer took a different view of its rights and declined the Union's request. The parties differ sharply on the fate of the
policy grievance. The Employer urges us to find it has lapsed while the Union treats it as still outstanding. That question is
not before us directly and we see no necessity to decide the issue. The parties' view of the law clearly differs. There has been
no final and binding ruling on the issue. Even if the policy grievance is lapsed or deemed withdrawn it does not preclude the
Union reasserting its rights at a later time. However, even though Mr. Parsons signed his consent form while the Union was
challenging the validity of the policy, that alone does not vitiate his consent to the test. Second, the Union argues that the use
of such standard form consent documents was criticized in the IOCO decision (supra). That arbitration, by agreement, had
authority to modify the policy and in the course of doing so took out the requirement that the employee complete an informed
consent document, saying at p. 68:
Viewed realistically, the test has not been imposed by management. The employee may not have consented to the test at all.
158
That case stands for the proposition that requiring a consent form is an inappropriate part of a policy. It does not go so
far as to say a consent can never be given, or that all consents given in the face of such a policy are ineffective. On April 17,
1997 Mr. Parsons signed the consent form and submitted a sample for testing. If it is his position that the consent was coerced,
then the onus is upon him to assert that proposition; either through a refusal at the time (or through compliance accompanied
by a grievance) or else by adducing evidence now that the consent was not freely given. This is a question of fact not law, and
in the absence of evidence to the contrary, we treat the consent as effective.
159
The Union's third point is that parties cannot contract out of Human Rights legislation. The Union cites, in support
of this proposition:
Fantom Technologies Inc. v. U.S.W.A., Local 6444 (1998), 70 L.A.C. (4th) 241 (Ont. Arb.) (Beck) and
Toronto District School Board v. C.U.P.E. (1999), 79 L.A.C. (4th) 365 (Ont. Arb.). (Knopf)
160 That proposition is true, but we do not understand the law to be that all Employer policies which might for some reason
be found to discriminate against a prohibited class of people are void in all respects vis vis all persons whether they fall
within the protected class or not. Even if this were so, while Mr. Parson's consent was sought and given pursuant to the policy,
the consent is not the policy, and was not necessarily ineffective even if the policy were void at the time. Even if the policy
did not exist at all, Mr. Parsons could consent to a test. We agree with the Employer's submission that any right to privacy is
individual in the sense that the individual employee can give consent without the Union having to be involved. This is not to
suggest, however, that a Union would be unable to negotiate a contractual provision that allowed testing without consent from
the individual. Again, the onus is on the person seeking to set aside the consent to provide the evidentiary basis for so doing.
161
The Union's fourth point on consent in part answers its third point:
(4) Even if Parsons consented to being tested, he did not consent to being disciplined for a positive test. It is not the testing
itself that is discriminatory. It is the rule that prohibits employees from having a positive test result and subjects them to
discipline that is unreasonable and discriminatory.
162
This question really goes to the validity of the May 2 nd and 5 th disciplinary letters which we deal with below.
163 The Employer argues that, assuming it was not entitled to demand the drug test of April 17 th , and even if Mr. Parsons'
consent was ineffective, this does not affect the admissibility of the results of the test.
38
164
While this is generally the law, absent Charter issues, it has not always been accepted in labour arbitration where
the evidence in question has been obtained in direct contravention of the collective agreement. For example, arbitrators have
excluded statements made without a shop steward's presence when such a presence is required under the agreement. In light
of our other findings we do not need to decide this point.
The May 1997 Discipline
165
The Employer's response to the April 17 th incident was to give him a warning letter disciplining him for the incident
itself, the root cause of which the Employer attributed to his "operator's inattention and his unacceptable execution of his
responsibility in carrying out the product transfer." In addition, he received the letter reproduced at the outset of this decision.
That letter provided that:
1. He had violated the alcohol and drug policy by not being drug free while at work.
2. He could only return to work once he had passed a drug test.
3. He stood warned that if he violated the drug and alcohol policy within two years he would "be subject to further discipline
up to and including immediate termination.
4. An ongoing requirement will be your demonstration of compliance with the alcohol and drug policy as measured through
periodic unannounced alcohol and drug tests for a period of two years at a frequency of at least once per quarter.
5. He should, if necessary, seek help for substance abuse, with an offer of employer support should he do so.
166
Mr. Parsons took a test on March 12 to try to comply with item 2. He failed that test with a positive reading of 17 ng/ml on
the confirmatory test. He took a further test on May 23 rd , which came back negative, after which Mr. Parsons resumed work.
167
On June 9, 1997 Mr. Fukushima and Mr. Parsons met to go over Mr. Parson's obligation "under the Imperial Oil A &
D Policy and requirements of reinstatement" (Agreed facts paragraph 24). Mr. Parson's signed to acknowledge receipt of the
policy and to say "I understand the procedure and my responsibilities associated with the procedure."
Ungrieved Discipline
168
The Employer argues that it is far too late to contest whether Mr. Parsons could be tested on April 17 th , or to contest
the discipline and conditions imposed on May 2 nd and May 5 th .

169
The collective agreement contains a method for resolving disputes. Article 13 provides, in part:
13.01 Both the Company and the Union recognize that it is mutually beneficial to settle complaints and grievances
promptly at the work level where they occur.
13.02(a) Where an employee has a complaint, they shall first discuss the problem with their Supervisor within 30
calendar days of the occurrence, or becoming aware of the occurrence.
(b) If the employee desires, a Steward may accompany them for this discussion.
(c) If a settlement is unsatisfactory and the employee wishes to file a grievance, then the employee will follow the
procedures outlined below.
13.03 Step 1 Grievance Process
39
(a) A grievance is defined as any dispute between the parties concerning the interpretation, application,
administration, or alleged violation of this agreement.
(b) The employee, accompanied by a Steward (if the employee desires), will meet and present their grievance
in writing to the Business Unit Leader or designate, within 14 calendar days of the occurrence or discussion
with their Supervisor as per Clause 13.02(a). The Business Unit Leader or designate will give a decision to the
employee, in writing, within 14 calendar days following the meeting.
(c) If settlement satisfactory to the employee is not arrived at and the employee wishes to pursue the grievance
further, Step 2 will be followed within 14 calendar days of the response as per Clause 13.03(b).
...
13.06(d) Any grievance not referred to Arbitration within 30 calendar days from the response in Clause 13.06(c) will be
deemed to be abandoned.
(e) The time limits in this article may be extended by mutual agreement.
170
Mr. Parsons was required to take the test on April 17 th . He was disciplined for the incident and the result of the test
on May 2 nd and May 5 th . The Union received the letter on May 13, 1997. Mr. Parsons had a shop steward's help during the
process. No grievance was ever filed. By the time of the test that ultimately led to his dismissal, any complaint Mr. Parsons
had about the process he went through and the discipline imposed on him was long since time barred under Article 13 of the
grievance procedure. We find that it was too late in the day, on November 17, 1998, for Mr. Parsons to grieve the validity of
the company's actions.
171
As with the April 17, 1999 requirement that he take a drug and alcohol test, Mr. Parsons could also have grieved the
letters of May 2 nd and May 5 th . He did not do so. Rather, he took the tests necessary to secure his reinstatement.
172
It is too late now for Mr. Parsons to grieve directly the conditions under which his reinstatement was secured. They
were fully known at the time of his reinstatement and nothing has since happened to trigger a new right to grieve. At the latest,
Mr. Parsons was fully aware of the scope of the conditions imposed by the time Mr. Fukushima reviewed the procedures with
him on June 9, 1997.
173 To succeed before us, the Union must thus convince us that the discipline imposed, or the conditions imposed on May
of 1997, are invalid and cannot be enforced despite Mr. Parson's having failed to grieve them at the time and despite his having
accepted the benefits of his reinstatement while (silently at least) feeling unbound by the burdens.
174 The Union's argument is that the terms of reinstatement require ongoing compliance with the policy, which it argues is
illegal because it is overbroad and thus discriminatory. Also, it required Mr. Parsons to submit to random tests which themselves
are unreasonable since those drug tests, even if positive, tell the Employer nothing about impairment.
175
The Employer argues that the results of the testing following the April 17 th event demonstrate that Mr. Parsons was
actually impaired at work that day and that this impairment was the probable cause of the inattention that led to the overflow. The
significance of this proposition that that proven on the job impairment may justify imposing disciplinary conditions such as "no
drugs in your system" and a random testing regime that may be unjustified for people who had not been found impaired at work.
176
The Employer tenders three items of proof of impairment. First, there is the incident itself. Mr. Parsons was in charge
of a simple operation which resulted in a spill. This meant for some reason he allowed 1950 gallons to flow when he should
not have done. Despite being involved in the investigation he offered no explanation as to how this could have happened. The
Employer's investigation ruled out any possible mechanical cause. This of itself points to inattention by Mr. Parsons. When
tested for drugs he came up with a high score. He subsequently retested in an effort to be reinstated. On May 12, 1997 he tested
40
at 17 nanograms. Only on May 23 rd did his test yield a negative result. Third, Mr. Parson's failure to testify that he was not
impaired gives rise to an adverse inference.
177
The two experts called before us disagree on the conclusions that can be drawn from these test scores.
178
Before reviewing this expert opinion evidence it is important to focus on the reasons these questions are important. As
the review of the case law shows, several decisions that hold the drug testing policy unreasonable or discriminatory turn on
the proposition that a drug test of the type used here cannot tell you whether the employee was impaired at the time the test
was taken. So the evidence was called and challenged because of its significance to the validity of testing as a response to the
problems of controlling impairment by drugs in the workplace generally.
179
However, the evidence was also called and challenged for more specific purposes. That is to determine what can be
drawn from Mr. Parson's specific test results, first in April and May 1997 and then again in November 1998. The arguments
at times tended to blur these two purposes into one.
180 Dr. Bhushan M. Kapur has a Ph.D. in Organic Chemistry. For many years he worked with Ontario's Addiction Research
Foundation, as their Director of Laboratories. More recently he has worked with Toronto's Sick Children's Hospital and engaged
in private consulting. He testified as an expert in Entrop, Sarnia Cranes and Toronto Dominion Bank cases. We accepted him
as an expert in the interpretation of drug testing results, subject to the caveat that his only knowledge on the effects of marijuana
on cognitive and motor ability comes from reviewing the literature.
181
Dr. Kapur testified about what one can conclude from a single positive urine test for cannabis. His opinion is that the
only thing one can conclude is that the person has used the drug, but nothing more. He says you cannot conclude anything about
the person's degree of impairment or the timing of that impairment. You cannot say anything about the frequency or pattern
of use, whether the person was addicted or clinically dependent or whether the person was under the influence of the drug at
the time the sample was collected.
182
He ascribed two reasons for this inability to draw conclusions. First, there is a large variability due to the level of fluid
intake. Second, since you only have one sample, you cannot tell when the person last used the drug. Dr. Kapur knew of no
published research that correlates positive urine tests with cognitive impairment, although some research provided a correlation
to blood tests. With blood tests, a nave marijuana user may be impaired at 5 nanograms per milliliter of blood.
183 Dr. Kapur described a process used to provide a check on the dilution issue in urine samples when testing for marijuana
use. Tests can be performed on a substance called creatinine to measure the dilution factor. This has been developed to provide
a way to counter efforts by those being tested to literally water down the results by drinking a lot of water. Dr. Kapur says
in his practice he views creatinine levels of 20-30 as showing dilution. The significance in this evidence related particularly
to the November 1998 test. However, the testing done at that time included a check for creatinine levels which are recorded
as within the normal range.
184
The Employer called Dr. Robert E. Willette who has a Ph.D. in Medicinal and Organic Chemistry. He is the President
of Duo Research Inc. One activity of his company is to do the quality control monitoring of the labs authorized to conduct
employee drug and alcohol testing for Imperial Oil. He has been associated with the U.S. National Institute on Drug Abuse and
acted as a leader in the introduction of drug testing in the US military.
185
Dr. Willette was accepted by the Board as qualified to give expert evidence in the following areas:
1. the origin and existence of applicable standards for drug control and abuse;
2. what those standards are;
3. the meaning and significance of those standards;
4. the use of those standards in government and private industry;
41
5. the meaning of screening and other tests;

6. the meaning and appropriateness of the standards specified in the Imperial Oil drug and alcohol policy;
7. the accreditation process for drug testing laboratories;
8. the accreditation status of the laboratory that did the tests in this case;
9. the tests used by the laboratory in this case;
10. the testing methods used by, and the standards met by, the laboratories that undertook testing in this case; and
11. the effect of marijuana on cognitive and motor skills.
186 Dr. Willette testified as to the prevalence of drug testing and particularly random testing in the military and in industry.
Some of this testing is "deterrent testing" where the screening out of level is a high 50 nanograms/ml. He described his
experiences with some of these programs which reduced the incidence of drug use in military personnel and in the transportation
industry by very significant amounts.
187
Dr. Willette explained the procedure used in drug testing which involves two steps, a screening test followed if there
is a positive result by a confirmatory test. The screening test cut off level is set at 20 nanograms/ml which Dr. Willette says
is an industry standard, and in his opinion an appropriate one given the purpose it serves and the state of the technology. The
confirmatory test, which tests for a single metabolite, requires 15 nanograms/ml or more for a positive result. Dr. Willette views
this "if anything ... to high, based on the analytical capabilities we now have." It is set at a level to eliminate the possibility
of a false positive result.
188
When the body absorbs and processes the active ingredients in marijuana, it breaks the chemicals down into about 30
derivatives called metabolites. As a class, these are called cannabinoids. The concentration of cannabinoids can be measured
through a process called an immune assay.
189
The confirmation test focuses on one particular metabolite that tends to predominate in most individuals THC-9acid or THCA. The test uses a gas chronograph test to separate the various metabolites and then a mass spectrometer to detect
and measure the amount of THCA in the sample.
190
Dr. Willette was asked to describe the effects of marijuana on motor skills and cognitive ability. He described tests
done in a vehicle simulator that measured responses to events likely to arise while driving. He says that while alcohol and
marijuana create impairment by different pharmacological mechanisms, their overall effect was found to be similar. The higher
the marijuana dose the higher the impairment level.
191
He went on to describe further work that had been done firstly to correlate performance impairment with THC in the
blood, and then to correlate those blood THC levels with urine screening tests for metabolites. He concluded that if a screening
test exceeded 200 nanograms per milliliter, "there was a 75-percent probability that there was sufficient active THC in the blood
that one could relate to significant impairment."
192
Dr. Willette gave his opinion on the April 17, 1997 test result in the following exchange:
Q To what degree of probability would you then say that someone with a confirming test level of 369 nanograms per
milliliter was significantly impaired in motor skills and cognitive ability?
A Well, 369 confirmation level, if we assume that to represent the average percentage of the THC-carboxylic acid
relative to the screening level, and one could do this, but it's not done routinely, if that were run in an appropriately
calibrated screening test, it would exceed four times that. It would be over 1,000 on the screening test.
42
Now, the way screening tests are routinely run, like at Maxxam, they run to show if it's over the cutoff. They don't
actually quantify the screening test.
Q So at a screening level of 1,000, what is your opinion of the probability of significant impairment of motor skills
and cognitive ability?
A With that concentration in the urine, it would be an extremely high probability that the individual producing that
much metabolite had sufficient active THC circulating in the blood to cause some level of impairment.
Q I had asked you to read tab 10, Exhibit 10, which is the description of an incident at a blending tank and then a
pouring of product from a blending tank to a holding tank.
A Yes.
Q And then my question is if the operator in question shortly thereafter achieved a confirming level of 369 nanograms
per milliliter, is that consistent with a finding of operator inattention as a cause of this incident?
A I would say it would be highly likely with that level.
193 Dr. Willette's evidence is that a 369 nanogram result on April 17, 1997 followed on May 12 by a 17 nanogram reading
(i.e. 25 days later) indicates new use prior to, and more than likely close to the second test. The other way such results could
be explained is that the individual was a very heavy user of marijuana, heavy being at least daily use, perhaps more than one
or two joints, perhaps even more than that, for at least some two or three weeks of daily use prior to the first test.
194
The Union cross-examined Dr. Willette vigourously on his willingness to testify that Mr. Parsons was probably impaired
on April 17 th . The thrust of the Union's challenge was, as Dr. Kapur testified, that one cannot conclude impairment from a
single test score. Dr. Willette generally agreed with opinions expressed by two colleagues of his at the National Institute of
Drug Abuse, Dr. Chiang and Dr. Hawks given in a published Research Monograph (#73) called Urine Testing for Drugs of
Abuse, to which he also contributed.
195 In their article Implications of Drug Levels in Body Fluids in Basic Concepts (at p. 62) Chiang and Hawks demonstrate
that THC, the active ingredient in marijuana, absorbs faster into the blood and leaves the blood quicker than the person's
subjective feeling of being high, which takes longer to rise and leaves slower than the blood count figures. They conclude,
and Dr. Willette agreed:
... the estimation of the degree of intoxication from a single value of THC plasma level is very difficult, due not only to
this time delay but also to large individual variations in both effects and plasma levels.
196
Dr. Willette cautioned that it is more significant to correlate test results to specific measures of impairment then a
subjective "feeling of high." However, he agreed that since the test scores differed from the degree of impairment scores over
time, as a general statement he agreed with the Chiang and Hawks' conclusion.
197
He also agreed that:

Data currently available indicate that wide ranges of drug concentrations for different individuals may be present at equal
levels of impairment. Conversely, evidence of impairment is often lacking in some subjects at drug concentrations that are
associated with impairment in others. A general consensus of forensic toxicologists stated that the blood concentrations
associated with impairment after smoking of marijuana and after use of many other drugs has not been sufficiently
established to provide a basis for legal testimony in cases concerning driving under the influence.
198 He also agreed that urine levels yield even greater uncertainty than blood levels. He knew of no more recent consensus
report by any similar group of well-respected forensic toxicologists.
43
199
Dr. Willette further agreed that there are several variables that contribute to the inability to relate the results of urine
tests to impairment.
Each individual's body may handle the drug differently.
The drug concentration in urine is more variable than in blood since the urine volume and ph level may change
considerably.
Renal excretion rates affect the urine concentration.
200
From this, Chiang and Hawks concluded, and as general statements, Dr. Willette agreed that:
For single samples, the variables involved create a sufficiently great range of possible interpretations to render any specific
interpretation questionable other than that drug was probably used in the immediate past (days) by the individual.
...
Drug levels in the body depend on the dose given; a higher dose in general produces higher drug concentrations in plasma
and urine, etc.
It would therefore be very difficult to predict a time of administration from the plasma concentration, even in this idealized
situation, if the exact dose were not known. It would be more difficult, if not equal, for the estimation of the time of drug
administration without the knowledge of the exact dose.
...
Drug concentrations in biological fluids are affected by the dose, route of administration, pattern of drug use and the
dispositional kinetics, (distribution, metabolism, and excretion) of the drug. As most drugs are distributed to the site of
action by blood, drug concentration measurement in this body fluid provides the best information as to the potential
effect on behaviour such as driving impairment or on psychological high. Due to wide individual variations in the
pharmacokinetics and pharmacodynamics of drugs, however, the use of plasma drug concentrations for the estimation of
impairment has not been established for most drugs.
As for urinalysis, drug concentrations in the urine are further complicated by other factors such as urine flow and pH.
Even if a specific method is used for the quantitation of a specific drug (the active species, not the inactive metabolite),
interpretation in forensic samples to predict time of drug use or impairment is not possible, except within broad time
periods because of the variations in urine drug concentration as well as the limited knowledge available about the dose
or the route of adminstration.
201
He also agreed with the conclusion Chiang and Hawks reached in a second article in the same Monograph "Examples
of Specific Drug Assays" (at p. 84).
A positive urinalysis for THC metabolites indicates that the individual has consumed marijuana and marijuana derivatives
within one hour to as much as several weeks before the specimen was collected.
...
A single positive urine test does not mean that the person was under the influence of marijuana at the time the urine
specimen was collected.
202
Dr. Willette noted, however, that a single positive test did not mean the subject was not "under the influence." He
agreed that:
44
A true positive urine test means only that the person providing the specimen used marijuana in the recent past, which could
be hours, days or weeks, depending on the specific use pattern.
203
In another article in the Monograph entitled "Interpretation of Urinalysis Results." Dr. Joseph E. Manno expressed
the view that:
If the test was properly performed and the results from laboratory are valid, the result means that the drug indicated was
present in the urine. A positive result does not mean that the individual tested was under the influence of the drug at the
time that the specimen was collected.
204
Dr. Willette agreed with this as a general statement. Dr. Manno continued, and Dr. Willette agreed that:
An expert would be able to provide some general information regarding the timeframe of the drug use. Even experts will
vary in their opinions, however.
205
Dr. Willette was then asked, given that he accepted these opinions, how he could testify that Mr. Parsons was probably
impaired on April 17 th , based on the simple 369 nanograms/ml confirmatory test. He agreed that he could not state with
any degree of certainty when Mr. Parsons last used marijuana. As to impairment at the time of the test he said that from the
concentration there was "a high probability of impairment, but the degree of certainty, it would be a high degree of probability."
206 In support of his being willing to correlate a high level of metabolite in the urine sample to a probability of impairment,
Dr. Willette referred to a study he had been involved in that addressed the issue of impaired driving. Their testing correlated
blood sampling to impairment and then urine sampling to the blood sample. He says they found a high degree of correlation if
the urine concentration was over 200 nanograms in screening units. Mr. Parson's 369 score was in the confirmatory test, which
is only a fraction of the score of an equivalent screening test.
207 Dr. Willette was only able to refer to one other study that reached a similar conclusion and it suggested either that a 100
or 200 nanogram screening level was too low. However, in Mr. Parson's case the score was well beyond either level.
208
The Union referred Dr. Willette to a study from Norway published in the Journal of Analytical Toxicology Vol. 23,
September 1999 Urinary Excretion of II Nov. 9 Carboxy [triangle] 9 Tetrahydro Cannabinol and Cannabinoids in
frequent and infrequent drug users. It made reference to a subject who tested over 200 nanograms/ml for four days. Dr. Willette
agreed it was unlikely that an individual would be impaired after four days. The study involved inmates and the researchers
cautioned that new usage might have been involved. However, Dr. Willette accepted that a high figure could last for many days
(and thus presumably past the point of impairment) for really heavy users.
209 To complete the expert evidence, Dr. Louis Francescutti was called and qualified to give technical evidence concerning
injury prevention and injury control. In addition, without reference to the facts of this case, he spoke of research into the
predictability of injury and injury prevention and control. Dr. Francescutti is the chair of the advising body for the Alberta
Centre for injury Control and Research.
210
Dr. Francescutti, in addition to being an emergency room physician, devotes his attention to injury prevention. It is
his view that society perpetuates a myth when it refers to injuries as accidents since they are frequently totally predictable
and totally preventable. He argues that there are four tools for prevention; education, engineering principles, enforcement and
economic incentives. He described a tool Hadden's Matrix, which is useful in analyzing injury to determine the relevant preinjury, contemporaneous and post-injury factors. Using such an analysis following an injury, steps can be taken to prevent the
same injury reoccurring. In his experience as an emergency room physician, substance abuse (first alcohol and then drugs) is
directly related to 30% - 40% of the injuries the hospital emergency ward encounters.
211
Having reviewed the expert opinions, we can now turn to the second point in time where we need to assess the
party's rights. The overflow incident occurred and Mr. Parsons was tested. The confirmatory test indicated a high level of
45
cannabinoids in his system. We conclude from Dr. Willette's evidence that it is more probable than not that Mr. Parson's
marijuana consumption impaired his cognitive abilities while he was at work and were a contributing factor in the overflow
that occurred.
212
We have weighed carefully the expert evidence that a single sample based on urinalysis may be insufficient evidence
upon which to base a firm conclusion about impairment at the time of testing. However, some of these observations are directed
generally at the question of whether universal screening tests can be used as a routine way of checking for impairment at work.
The answer has been no, and Dr. Willette agrees with that. So it appears, does Mr. Harold Moyer, Imperial's Manager for the
Alcohol and Drug Program who wrote in an article in Canadian Labour Law Journal (Volume II 4) Titled "The Ontario
Law Reform Commission's Report on Drug and Alcohol Testing in the Workplace: A Critique." at p. 539:
A confirmed positive test for drugs, following a Medical Review Officer review, indicates with a high degree specificity
which drug(s) were ingested recently and provides data about their concentration. It is true that the test does not provide
information on the degree or timing of impairment frequency or pattern of use, whether clinical dependency or addiction
exists, or whether the person was under the influence of the drug when the sample is collected.
213
However, in the case of the particular test taken by Mr. Parsons the confirmatory test level is high. Dr. Willette's
evidence is that as the test score rises so does the probability of impairment. In his view, at 369 nanograms/ml the probability
of impairment is sufficiently high to make that assessment, even though a lower test would not justify such a conclusion.
214
On the basis of the test score alone, we would not be willing to accept the single score as proof of impairment. Only
Dr. Willette was prepared to draw a conclusion of impairment (albeit only probable impairment) from a single score and then
only on the basis of a high reading. He cited only one article in support of this proposition and was not able to point to any
academic study that accepted the proposition that a single test alone could reliably lead one to conclude impairment. However,
we do accept his evidence that the likelihood of impairment rises with the level of cannabinoids revealed in the sample. In this
case we do not need to decide the validity of a conclusion of impairment on the basis of a single test score because we have
some additional evidence. First, we have Mr. Parson's admission that he used marijuana the previous evening, which establishes
the time of consumption. Second, we have the otherwise unexplained overflow. Third, we have Mr. Parson's failure to offer
an explanation, then and now.
215 We find it was reasonable for the Employer to conclude from the incident, the subsequent test score and from the absence
of any explanation from Mr. Parsons that Mr. Parson's abilities at that time were impaired due to marijuana consumption. The
gravity of the offence is not just his being impaired at work. The underlying seriousness is the employee's willingness to attend
at work when not in an appropriate condition to do so. It is the lack of judgment and reliability; the undermining of the trust
that the employee, when he finds himself impaired for whatever reason, will stay away that is worrisome. Mr. Parson's default
is similar to that of Mr. Walker described in the wrongful dismissal case quoted above in the Gabriel decision.
Walker v. Imperial Oil Ltd. (1998) Action No. 9403-11151, Alberta Queen's Bench, Nash J. at paragraph 82-83.
Exxon had a right to ensure that an employee in a safety-sensitive position was not impaired by alcohol thereby constituting
a risk to the lives and safety of others. Mr. Walker, in my view, displayed a lack of judgment by going to work after
several hours of drinking and with less than four hours sleep, having regard to the nature of his employment. In doing
so, he placed at risk the lives and safety of other employees. Exxon had a duty and a responsibility to its employees to
ensure a safe working environment, and to the community to ensure a safe environment. Exxon was justified in finding
that Mr. Walker's failure to disclose to Exxon was a betrayal of trust and indicated a lack of candour as was his arrival at
work with alcohol in his body. I do not accept Mr. Walker's explanation concerning his reasons for failing to disclose. The
requirements of the Policy are in simple language and easily understood by a man of Mr. Walker's intelligence.
Imperial Oil had cause for concern about Mr. Walker. He had exhibited a lack of judgment by going to work and, in effect,
hoping that all of the alcohol was out of his system and that he would be capable of completing his twelve hour shift
46
without incident. He had failed to comply with the requirement of self-declaration while working for Exxon. His choices
could have had disastrous consequences for Exxon and for other employees.
(emphasis added)
216
We recognize that Mr. Walker was a safety sensitive employee, while Mr. Parsons was not, however, the nub of the
offence is similar. The question then becomes is it appropriate to impose and sustain as a condition of Mr. Parson's continued
employment, the requirement that he submit to and pass random quarterly drug tests? This encompasses the rule that he not have
drug levels beyond the test thresholds present in his body while at work, which means he has to limit his off-hours consumption
at least in amounts and at times that may carry over into working hours. As we have already decided, Mr. Parson's could have
grieved and did not grieve these conditions. The only point of the inquiry at this stage is to determine whether there is some
residual invalidity to the condition that would make it illegitimate (despite his failure to grieve) for the Employer to conduct
the tests in the future, and imposed disciplined based on the result.
217
It is at this point we need to decide whether imposing testing conditions upon Mr. Parsons as a result of an incident
involving impairment by drugs are subject to similar objections as have been upheld in respect to random testing for work
forces in general. We deal first with the question of whether the imposition of the 2-year testing regime upon Mr. Parsons is
ineffective or void because it is discriminatory contrary to the provisions of the collective agreement or the Human Rights Act.
We include here the question of whether holding Mr. Parsons to the rule that prohibited presence in the body of illicit drugs
while on company business or premises is acceptable in these circumstances. Ultimately, it is not the testing that is the issue, but
the imposition of a disciplinary consequence for failing the test. This rule also incorporates the cut off levels set out in the policy.
218 We find the imposition of the testing regime on Mr. Parsons was not discriminatory. Imperial Oil's policy would not, in
the ordinary course, call for Mr. Parsons to be subjected to random tests since he was not employed in a safety sensitive position.
219
The cases on discrimination require that the person challenging the rule alleged to be discriminatory must make out
a prima facie case that they have been discriminated against (directly or indirectly, deliberately or unintentionally) because of
their membership in a class protected from discrimination.
220 Mr. Parsons has never raised the suggestion that he is disabled in any way. We know he has used drugs. The tests prove
it and he admitted as much to the Employer. Casual social drug use is not in itself an addiction. Mr. Parsons has had several
opportunities to come forward and raise this issue if addiction was indeed the cause of his attending at work under the influence
of cannabis. He could have done so at the time of the April 17 th incident or once the test results were revealed. He could have
done so through a grievance over the May 1997 discipline. The letter of May 2 nd included the following invitation:
I strongly recommend that you be assessed, and if necessary treated, for substance abuse. Should the assessment indicate
that you have a substance abuse problem, I want to assure you that we will offer you all the support we can so that you
can overcome this problem.
221
He did not respond to this, either directly, or when he met with Mr. Fukushima in June to go over the policy. Mr.
Parsons was not a safety sensitive employee, so seeking assistance would not have subjected him to the disadvantages suffered
by Mr. Entrop.
222
He could have raised any substance abuse problem in November 1998 in response to the results of the failed test.
Instead, he advanced the explanation that he had been exposed to the drugs through second-hand smoke and, implicitly that he
had abstained from use. We recognize that one of the significant features of a substance abuse problem is often the inability
to admit that a problem exists. However, even after his dismissal, at the Board's hearing, Mr. Parsons raised nothing that would
suggest he suffers from a substance abuse problem.
223
In its comments on Gabriel and Entrop , the Union argues:
47
The majority of the Board concluded that there was no prima facie evidence of discrimination as there was no evidence as to
whether Gabriel was or was not an alcoholic. In the majority's view, a different analysis of the discriminatory impact of the
Policy was required in an individual grievance as opposed to a policy grievance. The majority imply that the Union would
be entitled to challenge the Policy as generally discriminatory in a policy grievance but that in an individual grievance the
Union must establish that the individual grievor falls within the protected class. The Union disagrees with the conclusion
of the majority of the Board.
224 In Entrop , it was common ground that Mr. Entrop fell within the protected class or was perceived to do so. Therefore,
in their analysis of whether a prima facie case had been made out they did not need to question whether the policy was
discriminatory in respect to Mr. Entrop. In addition, Entrop involved a policy of general application, catching him as a member
of its protected class within its net. Despite the Union's argument we find we agree with the decision in Gabriel, that for an
individual complaint (which a grievance over specific discipline involves), the requirement to prove prima facie discrimination
includes the obligation to at least assert that the person involved is a member of a protected class. We recognize that the decision
in the Meiorin case has refocused the analysis away from the individual and towards the validity of the policies that impact
upon the individual. However, we do not believe this change goes so far as to allow a person not in a protected class to avoid the
disciplinary consequences of a policy because that same policy, if applied to a person within a protected class, might challenge
its impact on them.
225 One can see this as an interpretation of the prima facie discrimination requirement. However, one can also view it from
the perspective of the appropriate remedy. The remedy for a discriminatory policy is customarily not to strike it down for all
purposes, but to read it down so as to avoid its discriminatory impact on the protected class. If the Union's proposition is correct,
a grievor not protected by the human rights legislation would be able to totally void a policy which is otherwise justifiable vis
a vis them, and we find that is not the current state of the law.
226 We must still deal with the Union's argument that Imperial Oil disciplined and imposed conditions on Mr. Parsons because
they perceived him to be a drug abuser. The Union points to three pieces of evidence in support of this proposition. They are:
(a) The notes of Dr. Barry Kurtzer, Imperial's Medical Review Officer of April 29, 1997 note a conversation with Howard
Moyer in which Mr. Moyer is quoted as stating: "Heresay at company suggests he is a user." (Exhibit 29 backside of page 4).
(b) Ken McMullen testified that Mr. Ron Urick indicated to him that "the rumour was or they heard or they thought that
Mr. Parsons was a drug user." (p. 139, 1.15-p.140, 1.12)
(c) Imperial's notes of the Step 2 grievance meeting (Exhibit 26) indicate that Imperial justified the periodic unannounced
testing of the Grievor pursuant to Section 1(3) of the Policy. Section I(3) of the Policy provides:
Testing for alcohol or specified drugs may also be conducted on a voluntary basis during or after a rehabilitation
program. Mandatory testing will be conducted on an unannounced periodic or random basis as part of a postrehabilitation monitoring and aftercare agreement permitting an employee with a past substance abuse problem to
enter or return to a safety sensitive position.
227
The answer to points (a) and (b) are that they indicate that Imperial may have felt Mr. Parsons was a drug user, but
they do not suggest they felt he was a substance abuser. Mr. Parsons admitted to the Employer, on April 17 th that he had
used drugs. Despite the several opportunities to suggest he had a problem with drugs, and despite being invited to say so if that
was the case, Mr. Parsons never indicated, by word or action, that his use of drugs was anything other than casual. As noted
above, in respect to the Entrop decision, casual use and the perception of casual use alone, does not bring a person into the
protected class of persons who are physically or mentally disabled. An Employer should be sensitive to signs of addiction, for
humanitarian reasons and because it may indicate a duty to accommodate the individual. However, it would be presumptuous
for an Employer to assume all drug use stems from an addiction. In the absence of obvious signs of addiction, the Employer
often has to rely upon the user's assertion that addiction is not involved. This is particular so where they have raised the issue
48
with an offer of help that has received no reply. Knowledge of drug use alone, absent an indication of addiction does not oblige
an Employer to accommodate the employee.
228 We do not accept the argument that Imperial Oil, by subjecting him to random testing was treating Mr. Parsons as if he
were disabled by substance abuse. Rather, their response was to his lack of judgment in attending work, after casual use, with
reckless disregard for the dangers impairment presented. To say, "we are not sure we trust you not to do this again," which is in
essence what the imposition of the testing regime says, does not lead to the conclusion that he was treated as having a substance
abuse problem, only that he could not be trusted to avoid letting his casual use encroach upon his workplace responsibilities.
229
The Union's third point is that the sections of the policy under which Imperial Oil justified its testing regime only
apply to persons with a past indication of substance abuse; therefore, this is how they must have perceived him. The answer
to this is the imposition of testing comes primarily from the letters of discipline and does not have to depend upon the policy
for its justification. These conditions were imposed specifically upon Mr. Parsons as a condition of his continued employment;
that is, as an alternative to terminating him at the time. The fact the policy imposes the same consequences on those in postrehabilitation monitoring does not establish that the Employer viewed Mr. Parsons in the same light as those persons.
230
The next issue is whether the reasonableness objections stemming from the KVP rule, which have been successfully
used to challenge Imperial Oil's policy, also serve to undermine the enforceability of the conditions imposed on Mr. Parsons
in the May 2 nd letter.
231
The imposition on Mr. Parsons was firstly the requirement to submit to two years of quarterly random drug tests.
Secondly, because testing would reveal violations, he was made particularly susceptible to the existing rule that he had to so
conduct himself in his off hours that any time he attended at work the level of cannabinoids would be below the established
confirmation level.
232 We accept the expert evidence, and the conclusions in the several cases we have cited that the confirmation test level to
which Imperial Oil was subjecting Mr. Parsons was not something that, if failed, would prove that he was impaired at work. All
these tests would tell Imperial, if failed at these levels, is that he had used drugs in sufficient quantities or in sufficient proximity
to reporting for work to fail its standard. This is the level at which Imperial considered the risk of impairment too high to accept.
233
Obviously, the testing regime was intrusive of Mr. Parson's right to privacy, although it was limited to eight occasions
over a two-year period. It also interfered with his off hours lifestyle, because of the random nature of the tests. The purpose of the
testing was clearly to influence Mr. Parson's conduct away from work. The testing regime may not represent a total prohibition
on drug consumption, but it is clearly intended to deter any such activity in an amount or at a time when cannabinoids might
remain in the body during working hours.
234
Mr. Parsons was not in a safety sensitive position, so the potential for harm is less than for those so designated.
Nonetheless, his duties could result in loss, as shown by the April 17 th incident. The conditions imposed in the letter did not
provide for any automatic penalty.
235
Leaving aside for now the timeliness of the challenge, was the Employer justified in imposing these conditions on Mr.
Parsons or are they void, or incapable of being enforced, because they are based on the policy?
236 We accept the balancing of interests approach applies to the imposition of disciplinary conditions as well as to policies
of general application. Conditions that are unrelated to the Employer's legitimate objective, are ineffective in achieving that
objective, or are unduly intrusive of privacy rights, have no greater place in disciplinary sanctions or conditions than they do
in policies. However, in our view the factors that go into that balance are somewhat different. Partly this is because they must
be judged for their suitability to one individual's situation, not that of the workforce as a whole. Partly it is because they are a
response to earlier misconduct and often a substitute for greater discipline.
49
237 An employee who has never shown irresponsibility in coming to work under the influence of drugs is entitled to a higher
level of respect for his or her private conduct than an employee who has failed to exercise responsible judgment in that area.
This is just the "workplace experience factor" applied to the individual. In our view, it is not unreasonable to say in light of
such an event, and in lieu of termination, "we will keep you on if you agree to limit your pre-work time consumption so that
you never have a confirmatory level of drugs in your system at work. Furthermore, we will test this, and try to deter you from
breaking this condition by random testing." To say such testing is inappropriate because it does not reveal at work impairment
would be to say the employee should be free to nonetheless use drugs proximate to his working time provided he does not
show-up impaired. However, that is a serious workplace offence even without a policy, and it is an offence the employee has
committed already. The probation period or condition of continued employment can reasonably, in our view, extract a higher
even if more invasive standard.
238
These conditions were imposed by the Employer and not grieved. However, similar conditions frequently appear in
"last chance" agreements negotiated to avoid, or to substitute for, employee terminations. While failure to grieve at the time
does not create quite such a strong case for sticking with what has been agreed to or, from the arbitrator's perspective, holding
the employee to their express or tacit agreement, this is still an important consideration. Parties should not readily be allowed
to negotiate or accept conditions of continued employment and then attempt to avoid them, once the contingencies occur, as
having been unreasonable.
239
We find that the fact the tests do not prove impairment, in this circumstance, does not create an unreasonableness
defence. The tests do serve as a deterrent against previously exhibited conduct that caused a problem. They also, while not
proving impairment, establish use prior to working time, although not with any ability to distill the factors of amount, time and
impairing effect. Such tests, vis a vis a previous offender, still bear a rational relationship to the Employer's objective, which
is preventing the continuation of a risk that has already come to fruition once.
240 In accepting that the May 2 nd and May 5 th letters pass such a balancing test, we note two factors that are important in
that consideration. First, that the warning is of further discipline to be determined rather than automatic termination. Second,
it is accompanied by an invitation to advise of and seek help with any addiction problem. Imperial left the door open to any
evidence of disability even though none had been advanced to that point.
241 We now turn to the November 2, 1998 test. This was a routine random test. While we heard evidence about how the date
was selected, we have no reason to conclude anything other then that it was random. Nothing convinces us it was picked because
Mr. Parsons was particularly susceptible on that day, or in any way other than was contemplated by the letter of discipline.
242
There is no evidence to suggest Mr. Parsons was impaired at work when the November 2, 1998 sample was taken. Dr.
Willette was not asked and did not offer an opinion on the point. Indeed Dr. Kapur's evidence as well as Dr. Willette's own
evidence suggest that a reading at that level could not be used to provide such an opinion.
243 When told the November 2, 1998 test was positive, Mr. Parsons gave the Employer an explanation. That explanation is
canvassed in the Employer's analysis document (Exhibit 24) prepared by Mr. Brian Fairley. It is reporting on a meeting between
Mr. Fukushima, Mr. Parsons and Mr. Fairley.
Dave stated that he had been in contact with Dr. Barry Kurtzer, Medical Review Officer (MRO), on the previous Friday
and today and was aware that he failed (positive result) the drug portion of the A & D test of November 2, 1998. Dave said
that he and the doctor discussed a break down of the results (positive for marijuana) and was just over the threshold for a
passing resulting (22 versus a threshold of 15 nanograms). Dave said that they discussed possible sources with the doctor
(second hand smoke, spiked drink) and that if the test would have been one day later he would have passed the test. He
said that he has been on "pins and needles" since the first phone call and had not slept much as he was very nervous.
I asked Dave if he knew how he could have failed this test and have a positive result. Dave explained that he did not take
any drugs but was exposed to them at a Halloween party on Saturday October 31. Dave said that he was riding in a car to
50
the party and other passengers were smoking marijuana. He said that he cracked open a window as he had been informed
that this would be good enough for him not to ingest anything from the air. He went on to say that there was significant
use of marijuana at the party he attended. Other people commented to him that they were surprised by how much smoke
there was especially with the police patrolling the party. He commented that he had a question from Dr. Kurtzer regarding
spiking of his drink at such a party. Dave said that he did not recall leaving his drink anywhere that it could have been
tampered with or recall anyone pouring a drink for him. Dave felt that the likely cause was second hand smoke from the
car ride and being at the party.
I commented to Dave that I felt he was putting himself at risk when he allowed himself to be in situations where he was
in direct contact with drugs/smoke knowing he agreed to not have it in his system and could be tested. I told Dave that
I was holding him out of service with pay pending the completion of the investigation. I requested Dave to return for a
follow up meeting on Friday November 13, 1998 at 1 PM in room 120 of the administration building. Dave agreed to
that timing. John Fukushima offered Dave a ride home since he was tired and nervous. Dave declined the offer and said
he was capable to drive home.
244
Mr. Fukushima's evidence is that Mr. Parsons said at that meeting that:
"... he didn't do anything to his knowledge that would create this impairment, that he was going to a party the previous
weekend. He was in a car where people were smoking, and he rolled down the window so that he can be free of the smoke.
And during that party there were a lot of people smoking. [pot]
245
The "second-hand smoke" explanation was a decisive part of the decision to dismiss Mr. Parsons as the same
memorandum goes on to show. On November 10, 1998 Mr. Fairley discussed his investigation with Mr. Jim Strasser, the
Operation and Supply Manager for Lubricants and Specialty Products. Mr. Fairley's memorandum records:
We were both undecided as it was unclear whether the second hand smoke is truly an issue and whether all of the
information received from Dave was accurate. We ended our discussion with the opinion of:
If there is some basis for second hand smoke argument only and everything else was completely accurate then we
could move to a major suspension of say 2 weeks.
If there is no basis for the second hand smoke or the information received is untruthful, then appropriate discipline
would be termination.
246
After consulting with senior Imperial Oil officials and experts, a conclusion was reached that the second-hand smoke
explanation was scientifically implausible and the story thus false. This led directly to the decision to terminate.
247
The Employer's position now, based on the expert evidence presented by Dr. Willett is that Mr. Parsons' explanation
is demonstrably false.
248 Dr. Willett was asked to assume that someone tested on November 2 nd , 1997 at 22 nanograms per milliliter confirmation
level and claims that the origin of the marijuana was on the night of October 31 to November 1, the test now is on November
2, and that the cause of the 22 nanograms per milliliter on November 2 nd is passive inhalation.
249 His opinion was that the probability of this being an accurate description of the source was zero. He described tests that
involved an 8' 7' room so full of smoke you could not see across the room as achieving no greater a level than 12 nanograms.
Any degree of ventilation as described in Mr. Parsons' explanation would reduce any absorption dramatically to the point where
you do not even get a positive test result.
250 We heard no evidence to counter this testimony and accept it as true. We heard no evidence from Mr. Parsons and draw
an adverse inference for his failure to testify.
51
251
A very similar fact situation faced Arbitrator M.G. Picher in:

Canadian National Railway v. B.M.W.E. (1998), 75 L.A.C. (4th) 300 (Can. Arb.).
252 The grievor in that case was initially discharged for falsifying Company records, operating a Company vehicle without
a valid driver's license and causing damage to a Company vehicle. During the grievance procedure the Union negotiated an
agreement under which the grievor was reinstated on conditions. These conditions generally called for random drug and alcohol
testing including:
1. You must agree to be medically examined, including tests for drug/alcohol abuse prior to reinstatement. You must agree
to unannounced tests for drug/alcohol use for a minimum of five years from the date of return to service.
5. While employed by CN Rail, should you fail to abstain from drug and alcohol use, and/or fail to comply with the full
conditions of this contract, you will be discharged from the Company and will not be considered for reinstatement.
253 The grievor was subjected to a random test the result of which showed positive for cannabinoids at 24.6 nanograms per
milliliter. The grievor maintained this was due to second-hand smoke absorbed first during a car ride and then at a house party.
Two experts testified about the probability of such a test resulting from second-hand smoke, one of which was the Employer's
expert in this case, Dr. Willette. Dr. Willette's evidence there was much the same as before us on the second-hand smoke issue.
In that case the grievor gave evidence before the arbitrator denying cannabis use, whereas Mr. Parsons did not take the stand.
In that case the grievor was under a negotiated "last chance" argument whereas here the terms of reinstatement were imposed
by the Employer and not grieved.
254
The arbitrator framed the question before him as follows:

The sole issue in this dispute is entirely factual. It is whether the grievor did in fact deliberately consume marijuana, contrary
to the terms of his reinstatement contract of employment. If it should be established, on the balance of probabilities, that he
did consume marijuana, he is plainly subject to discharge for violation of the terms of his reinstatement agreement. Given
the importance of such arrangements as a final "last chance" instrument for disciplinary rehabilitation, arbitrators do not
lightly interfere with the consequences of their violation, and I would not be disposed to do so in the instant case. The issue
then becomes whether the positive drug test reading registered for Mr. Ouellette can be viewed as equally consistent with
passive or second-hand smoke inhalation, or whether, on the balance of probabilities, the positive drug reading is more
consistent with conscious and deliberate direct consumption of cannabis on his part.
255
After an extensive review of the evidence adduced on the scientific question associated with the absorption of
cannabinoids from second-hand smoke the arbitrator concluded at pages 313-4:
It appears to the Arbitrator that, in the face of a positive drug test whose technical accuracy is not contested, there is a
certain onus upon an individual who seeks to advance the defence of passive smoke inhalation. At a minimum, such a
defence should contain an account of facts, preferably supported by competent medical opinion concerning the grievor's
own physical condition, such as to bring the test results of the individual employee within some reasonable relationship
with those positive tests encountered in the generally accepted clinical studies of passive inhalation of marijuana smoke. In
making comparisons, it is important to appreciate that there are apparently no clinical studies which support the theory of a
positive test for cannabinoids by passive inhalation in a ventilated setting. Such studies as exist suggest that ventilation at
the point of exposure to second hand smoke is a significant factor tending to discount passive inhalation as an explanation
for a positive test reading.
...
In the circumstances, in light of the state of scientific knowledge and the expert testimony adduced, the Arbitrator is
compelled to the conclusion, on the balance of probabilities, that the grievor's explanation for his positive drug test is not
52
plausible, and is substantially less probable than the contrary inference, which is that he caused the positive drug reading
by his own active consumption of cannabis.
The evidence in the case at hand, quite apart from the grievor's own doubtful credibility, brings the grievor well outside the
ambit of all of the accepted clinical studies, and renders his explanation incredible. It should be stressed that if there are any
shortcomings in the evidence, they must lie at the feet of the grievor, and not of his bargaining agent, whose representatives
and counsel provided him the most thorough and informed representation possible.
256
The Union referred us to two cases (referred to above in respect to contracting out of Human Rights protections) of
employees under similar reinstatement or probationary conditions who challenged their being disciplined for violation of those
conditions. The first is:
Fantom Technologies Inc. v. U.S.W.A., Local 6444 (1998), 70 L.A.C. (4th) 241 (Ont. Arb.) (Beck)
257
The grievor in that case had been discharged for absenteeism and for some incident of misconduct at work. The Union
negotiated a "last chance" argument for the grievor. As part of that agreement, the grievor admitted addiction problems and
agreed to a treatment program. The agreement also contained a clause saying that the grievor was on probation for a year and that
"any absence from work and/or reporting for work late (without reasons that are acceptable to the Company) will result in the
Grievor's immediate discharge without recourse to the grievance and/or arbitration procedure." The Board held that the grievor's
addiction was a handicap and the conditions set out above discriminated against him because of that handicap. Therefore, the
last chance argument was void and unenforceable. The arbitrator awarded no back pay and ordered the grievor reinstated under
an understanding as to how the Employer would, in future, accommodate the grievor's handicap to the point of undue hardship.
It is central to this decision that the grievor was conceded by the parties to suffer from addiction.
258
Somewhat similar circumstances arose in a case decided by Arbitrator Paula Knopf.

Toronto District School Board v. C.U.P.E. (1999), 79 L.A.C. (4th) 365 (Ont. Arb.).
259
The grievor was an admitted alcoholic. Her alcoholism had led to attendance problems. The Employer attempted to
accommodate her by pointing her to treatment services, many of which she attended, but subsequently let lapse. Rather than
terminate her, the Employer allowed her to enter into a "last chance" agreement. That agreement called for a strict rehabilitation
regimen during a leave period followed by a reinstatement to active employment on conditions, including an absolute prohibition
on consuming alcohol without a doctor's clearance and in any event never at work. She was also required to provide medical
evidence from any day taken off work due to illness. Any breach of these terms resulted in a deemed resignation or termination
for cause without the ability to seek a lesser penalty.
260 The grievor was soon drinking again. She declined to resign and was treated as having been terminated by virtue of her
breach of the agreement. She grieved and the Employer challenged the arbitrator's jurisdiction to do anything other than uphold
the termination. The Union argued that the clause requiring her not to drink discriminated against her because of her alcoholism
and sought to have the agreement declared void under the rationale of the Fanton Technologies case (supra). Arbitrator Knopf
accepted, on the basis of Fanton that (at p. 386):
... parties cannot contract out of the protection of the Human Rights Code and that the Union and the Employer cannot
bind a disabled employee with conditions that violate the protection of the Code.
261 However, she held that the agreement was bona fide within the protective provisions of the Code as a reasonable effort
to accommodate the grievor's disability. Further, the Employer had made out a case that the grievor's conduct made further
employment an undue hardship.
262
We find the approach taken in the Oulette case sound and of strong persuasive value in deciding this case. Unlike the
grievors in Fantom and Toronto District School we find this grievor is not in a protected class so as to be able to set aside
the conditions imposed on him from human rights reasons, and as we find above, they were not unreasonable to impose in his
53
particular circumstances. We find that Mr. Parsons breached the condition of his continued employment and that this was cause
for discipline. We also find he offered an implausible explanation for the failed test and that the Employer was entitled to take his
lack of frankness into account by drawing an adverse inference as to the true state of affairs about his November drug use. It was
also entitled to consider his lack of veracity as a sign of untrustworthiness. This brings us to the appropriateness of the penalty.
Is Termination the Appropriate Penalty
263
Section 140(2) gives this Board jurisdiction, in certain circumstances, to vary a disciplinary penalty.
(2) If an arbitrator, arbitration board or other body determines that an employee has been discharged or otherwise
disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that
is the subject-matter of the arbitration, the arbitrator, arbitration board or other body may substitute some other penalty
for the discharge or discipline that to the arbitrator, arbitration board or other body seems just and reasonable in all the
circumstances.
264 Neither the collective agreement nor the warning letter of May 2 nd specifies a penalty. The policy is not sanctioned by the
collective agreement. Therefore, we have the jurisdiction in s. 140(2) should we find it an appropriate jurisdiction to exercise.
We agree we are not bound by any automatic penalty and that this is a jurisdiction we can exercise in all the circumstances,
even if the grievor fails to testify on his own behalf.
265
The Employer argues that Mr. Parsons was dishonest in his secondhand smoke explanation of the failed November
test. Dishonesty, it argues, is always a ground for termination. It cites in support of this an extract from Batt, Law of Master
and Servant, 5 th edition (1967) at p. 66:
Dishonesty is always a ground for dismissal, even one isolated act. As Lord Atkinson forcibly put it in the Federal Supply,
Etc. of South Africa v. Angehrn & Piel (1910), 103 L.T. 150: "An agent who takes a secret commission does a dishonest
act, and that act shows that he is unfit for a position of trust and confidence. It is the revelation of character which justifies
dismissal." If this reasoning of Lord Atkinson is correct the act of dishonesty need not be against the master or in relation
to his business, but the writer knows of no case actually deciding that an isolated act of dishonesty unconnected with the
master or his business justifies him is dismissing the dishonest servant.
quoted in:
Hardie v. Trans-Canada Resources Ltd. (1976), 71 D.L.R. (3d) 668 (Alta. C.A.)
266
However, neither the quotation, nor the Hardie case itself is quite as categorical on the point as the Employer suggests.
Brown and Beatty, Canadian Labour Arbitration (3 rd edition) 7:3300 discusses the topic at length. While theft and matters
tantamount to theft routinely (although not absolutely) attract dismissal, not every falsehood results in automatic termination
in the face of other mitigating factors. That said, however, we accept on the evidence, that Mr. Parsons' secondhand smoke
explanation was not true. This means he failed to be candid with the Employer and that does nothing to assist him in his request
for reinstatement. It also justified the Employer concluding, in the absence of a believable statement, that Mr. Parsons consumed
the substance that resulted in the positive test at a time or in a quantity that he should have known might result in a positive
test once he appeared at work. If this was not the case, the Employer could fairly assume Mr. Parsons would say so rather than
offer an implausible story.
267 The Union urges us not to simply accept the Employer's decision to terminate for breach of the condition of the May 2,
1997 letter. We have the statutory power and obligation to review the penalty imposed and to substitute some other penalty that
"seems just and reasonable in all the circumstances." The Union refers us to a useful description of this task and the importance
of progressive discipline contained in:
Ontario Store Fixtures v. C.J.A., Local 1072 (1993), 35 L.A.C. (4th) 187 (Ont. Arb.), at 195and 196-97.
54
268
In that decision Arbitrator McDowell commented that:

Obviously, each case must be weighed on its own facts. However, if an employer does not consider the efficacy or equity
of the penalty "in all the circumstances", an arbitrator may be obliged to do so and may come to a different conclusion.
On one level, setting aside a discharge and substituting some lesser penalty is merely a common sense response to the
equities of the situation where the penalty appears disproportionate to the employee's misconduct. It would be "unjust" to
uphold a discharge when a more moderate response was called for. Discharge is to be reserved for the most serious forms
of employee misconduct and imposed only in the last resort.
269
The Union asks that we consider the evidence that Mr. Parsons is a 16 year employee who had good performance
appraisals and was viewed by the witnesses before us as a good blender.
270 It also notes that 18 months passed between the original test and the failed test. However, we note that the testing period
was set for two years. In cases where collective agreements provide for the erasure of a record after a set period, arbitrators
have been reluctant to consider as a virtue, the fact the grievor almost completed that period without incident.
271
The Employer counters the Union's submission by drawing a comparison to the Oulette case (supra) where the
arbitrator upheld the termination in the face of very similar circumstances. That is, the employee has 15 years seniority, had
previous discipline, was discharged for breach of a "last chance" agreement, attempted to explain away the test failure with an
unconvincing story about second-hand smoke, and was ultimately dismissed for a test close to but still above the cut off level.
Mr. Parson's Prior Record
272
In addition to the April 17 th overflow incident, which we have already adequately described, Mr. Parsons has one
other significant item of discipline on his record. On March 3, 1996 he received a written reprimand which recites the reasons
as follows:
The reason for this written reprimand is for your inappropriate use of the Corporate VISA credit card, specifically for your
personal use. The account balance is approximately $6,400.00 including interest. This balance is now due in full by VISA.
Imperial Oil will undertake to repay this balance for you immediately if agreement is made as to repayment terms. The
total owing to Imperial Oil will be adjusted by the actual amount Imperial Oil repays on your behalf.
The Corporate VISA policy states that the card is for company business expenses only. You had been made aware of this
policy when you received your card.
273
That reprimand laid out a repayment schedule then ended with the following warning:
The consequences of failure to respond to the corrective action and timing indicated in this reprimand will subject you to
further disciplinary action including suspension or termination of employment.
If no further disciplinary action is required, over the next two years, this document will be destroyed.
274
As it happened, the May 2 nd discipline intervened to disqualify Mr. Parsons from having this aspect of his record
purged. It therefore remains a valid consideration in assessing the penalty at hand.
275
In these circumstances we do not find it appropriate to exercise our jurisdiction to vary this penalty.
276
The grievance is dismissed.
55
End of Document
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Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S.

Most Negative Treatment: Distinguished

Imperial Oil Limited and C.E.P. Local 777

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

The collective agreement requires just cause for discipline:

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

(a) use of illicit drugs while on company business or premises;

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

The arbitrator then concluded from these extracts at p. 387:

This approach necessitated a balancing process, alluded to at p. 424:

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

The Imperial Oil policy in this case was considered in:

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Justifying this distinction, the Board said at p. 57:

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

These issues were also canvassed in

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

The Board then concluded, at paragraph 177:

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

On drug testing specifically, the Court said at paragraph 99:

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

The Union argued in Trimac that:

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

At p. 270 the arbitrator says:

The arbitrator goes on to say,

The arbitrator then considered three points:

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

The term "physical disability" is defined in the Act as follows:

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

N.A.P.E. v. Newfoundland (1996), 134 D.L.R. (4th) 1 (S.C.C.)

See also the discussion at paragraph 185 of Sarnia Crane (supra).

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

The Union, in its submission, conceded steps 1 and 2 as follows:

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

The Union relies upon:

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

The Court reviewed the Tribunal's findings and concluded at p. 245:

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

The Administrative Guidelines for post-incident testing provide, in part:

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

(i) a high probability of measurable long-term health effects on employees or non-employees;

Mr. McMillan's account of the decision is that:

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339

Consent to the April 17 th Drug Test

Imperial Oil Ltd. v. C.E.P., Local 777, 66 C.L.A.S. 339