An Alberta pipeline company did not discriminate against a job candidate with a disability who failed a pre-employment drug test when it revoked a job offer, the human rights tribunal has ruled.
The candidate, JG, was offered a role as a business continuity and emergency management advisor at Inter Pipeline in Alberta. The offer of employment was contingent upon passing a pre-employment drug test.
He took the test, but failed — it showed he had cannabis (THC) in his system at the time of the test. JG claimed he had a physical disability and he used cannabis to alleviate pain and symptoms, and said the revocation of the employment offer was because of that disability and the positive drug test.
Inter Pipeline denied it discriminated against him and said, at the time it revoked his job offer, it was not aware he had a physical disability. It was revoked for one reason: The failed drug test.
Military service
JG was a veteran who served in the Canadian Navy. During his service, he developed anxiety, stress and depression as a result of the stressful nature of the work.
He testified that he was diagnosed with Hashimoto’s disease and the symptoms include chronic pain, depress and low energy. He had a medical note which indicated he was being treated for the disease, along with anxiety disorder and depression.
Legalization of cannabis
After cannabis was legalized in Canada in 2018, he began using it to alleviate his pain. He said he uses CBD oil and does not smoke cannabis because he has respiratory issues related to a wildfire that happened in Fort McMurray, Alta.
He said he followed the science in using CBD oil, starting with low doses and gradually increasing it until it relieved his pain. It did not impair him, he testified.
JG didn’t have a prescription for it, because he wanted to try it out on his own and that his use of it at a former job was not an issue. After the job offer was revoked by Inter Pipeline, he obtained a prescription from a doctor for one gram of CBD oil per day.
He used three different products — two different oils and a vape. He used the vape, on the recommendation of his doctor, for immediate relief of pain when needed. He said he didn’t like the vapes because they caused impairment and dissipate quickly.
Resigning from other job, and a ‘great candidate’
JG said the formal job offer from Inter Pipeline included a $125,000 salary, four weeks’ holidays, stock option and a retirement savings plan. He accepted the offer, and said he would give two weeks’ notice to his current employer.
He said Inter Pipeline did not advise him against resigning from his current job.
The hiring manager testified he was devastated when the offer to JG was revoked because he was a great candidate for the job.
The sole reason for the withdrawal was the failed drug test, which was a condition of employment, and that revocation came from the human resources (HR) department, he said.
The ruling
The Human Rights Tribunal of Alberta said the primary issue in this case was whether JG was discriminated against because of a physical disability.
A second issue was whether, in these circumstances, Inter Pipeline had a duty to accommodate the disability.
The timing of everything was a key issue. Based on the evidence, the employer did not know about JG’s physical disability before it made the decision to revoke the employment offer.
“As well, (JG) has not provided any evidence on which one can reasonably conclude that the respondent ought reasonably to know that the complainant had a disability or that there may be a connection between the complainant’s disability and the complainant’s inability to satisfy the pre-employment drug test requirement,” it said.
Duty to inquire
JG argued that, when he told the company about his use of CBD oil, it should have triggered a duty to inquire why he was taking cannabis. But his counsel, when pressed by the tribunal, was unable to produce any case law authority on this point.
The tribunal said the duty to inquire only arises when the employer “must be aware or ought reasonably to be aware” of the disability and the employee’s ability to comply with a specific workplace rule. In this case, there was no evidence the employer knew about JG’s disability before the job offer was revoked.
“Overall, the complainant has a physical disability which arose primarily from his gallant and courageous service in the Canadian Navy,” it said. “However, the evidence does not support that the (employer) discriminated against the complainant based on his physical disability.”
The complaint was dismissed.
For more information, see Greidanus v Inter Pipeline Limited, 2023 AHRC 31 (CanLII)
