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Matthew Maharajh v. Atlantic Offshore Medical Services Limited (File # 14-9023)

IN THE MATTER OF a complaint pursuant to Section 14 of the Human Rights Act, 2010 S.N.L. 2010 c. H-13.1 BETWEEN

Matthew Maharajh COMPLAINANT

AND

Atlantic Offshore Medical Services Limited

RESPONDENT AND

Newfoundland and Labrador Human Rights Commission COMMISSION

BOARD OF INQUIRY DECISION

Adjudicator Adjudicator: C. Brodie Gallant Dates Hearing Date: February 21, 2020 Decision Date: July 14, 2020 Complaint File: File: # 14-9023 Appearances On Behalf of the Commission: Donna Strong On Behalf of the Complainant: Matthew Maharajh (self-represented) On Behalf of the Respondent: Geoffrey Boyd

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PROCEDURAL HISTORY OF THE COMPLAINT & RECORD OF MATERIALS CONSIDERED

1. On November 19, 2014 Matthew Maharajh submitted his Complaint to the Human Rights

Commission naming Altlantic Offshore Medical Services Ltd (“AOMS”) and Husky Energy Inc. (“Husky”) as Respondents. The complaint is made pursuant to section 14 of the Human Rights Act, 2010 (“Act”) alleging discrimination in the context of employment.

2. On December 29, 2014 AOMS filed its Response.

3. On January 19, 2015 Mr. Maharajh filed a Reply1 providing additional information in support of his complaint.

4. On January 28, 2015 Husky filed a Response challenging the jurisdiction of the Human Rights Commission on the grounds that it was not Mr. Maharajh’s employer.

5. On June 3, 2015 the Executive Director of the Human Rights Commission dismissed the complaint

against Husky for lack of jurisdiction pursuant to section 32(1)(a) of the Act. The complaint against AOMS remained to be decided.

6. On May 14, 2018 the complaint against AOMS was referred to this Board of Inquiry for adjudication.

7. On September 26, 2019 a pre-hearing teleconference was held and the parties agreed upon a process to move this matter forward by setting filing timelines for the submission of materials to be considered by the Board of Inquiry, and by agreement that this matter was suitable for determination by way of an informal hearing.

8. On September 27, 2019, with the consent of the parties the commission provided this Board of Inquiry with a copy of the record and decision relating to the dismissal of the complaint against Husky.

9. On October 22, 2019 AOMS filed a book of documents relating to the matter at issue for consideration. These included:

October 18, 2019 Letter from AOMS to Human Rights Commission re: Termination of Nursing Position at Husky Site

October 18, 2019 Letter from AOMS to Human Rights Commission re: difference in Clinic Nurse Position and Senior Occupational Health Nurse Position.

September 1, 2015 Agreement between Husky Oil Limited and AOM Services (NS) Limited

1 “Additional Information Form” filed Jan 19, 2015 by Matthew Maharajh.

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June 11, 2015 Husky – Alcohol and Drug Policy

August 23, 2014 Unsigned Contract of Employment

August 19, 2014 On-site Drug Testing Report and Donor Consent

March, 2013 Agreement between Bourchier Site Services Ltd. and AOMS

10. On October 31, 2019 Mr. Maharajh filed income documentation and a letter outlining his income/employment subsequent to the events at issue in this complaint.

11. On November 28, 2019 AOMS filed 4 affidavits:

Affidavit of Liam O’Shea (Director of AOMS) dated November 20, 2019;

Affidavit of Shane Fudge (Medical Services Coordinator with AOMS) dated November 26, 2019;

Affidavit of Louise Gallant (Human Resources Quality Operations Manager with AOMS) dated November 26, 2019; and

Affidavit of Dr. Charles McVicker (Director of Emergency and Primary Care, and a Medical Review Officer (“MRO”) with AOMS) dated November 28, 2019.

12. On October 29, 2019 Mr. Maharajh filed the Affidavit of Dr. D. Leonard.

13. On December 16, 2019 Mr. Maharajh filed written submissions2.

14. On January 27, 2020 the Commission filed written submissions.

15. On January 30, 2020 the AOMS filed written submissions.

16. On February 21, 2020 the hearing proceeded. Mr. Maharajh, Mr. O’Shea, Mr. Fudge, and Dr.

McVicker attended and gave evidence supplementing their affidavits.

17. On February 26, 2020 the Commission filed a Post-Hearing Brief;

18. On March 19, 2020 AOMS filed a Post-Hearing Brief along with a copy of a sample medical test response, and a copy of AOMS’ Drug and Alcohol Policies.

2 Mr. Maharajh filed a document labeled an affidavit but it is more accurately characterized as “written

submissions” containing a statement of his position on certain issues and argument in an unsworn/affirmed format.

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MATERIAL FACTS

19. The Complainant is Matthew Maharajh. He is a Registered Nurse/Occupational Health Nurse. In

1999 he was diagnosed with Ewing’s Sarcoma, bone cancer of the spine which was treated with chemotherapy, radiation therapy, as well as surgeries in 2003 and 2012. He has been treated with pain medications including morphine, codeine, and oxycontin. In 2013 he was prescribed medical marijuana for chronic pain, insomnia and anorexia. In the summer of 2014 he sought employment with the Respondent.

20. The Respondent is Atlantic Offshore Medical Services Ltd. (“AOMS”) a company that provides industrial medical services including the supply of medical personnel to remote worksites. During the time period material to this complaint AOMS was a subcontractor of Bouchier Site Services Ltd. (“BSS”) who were in turn contracted by Husky Energy Inc. (“Husky”) to provide medical personnel to work at Husky’s Sunrise Oil Sands Project (“Sunrise Site”). The Sunrise Site is a remote work site operated by Husky in Alberta, Canada with its own medical center where paramedics and nurses provide medical care. In the summer of 2014 AOMS was in the process of hiring Mr. Maharajh to work at the Sunrise Site but ultimately AOMS did not proceed with Mr. Maharajh’s employment.

21. In July 2014 Mr. Maharajh submitted his resume to AOMS seeking employment with the company. Over the next month representatives of AOMS spoke with Mr. Maharajh over the phone and in person.

22. In August 2014 AOMS offered Mr. Maharajh the position of Senior Occupational Health Nurse at the Sunrise Site and asked Mr. Maharajh to come in for training and to complete a pre-employment drug screen.

23. On August 19, 2014 Mr. Marharajh attended at AOMS’ offices. Upon arriving he was taken in for his drug and alcohol screen. He was told that after the test was complete he would meet with Louise Gallant the Human Resources/Quality Operations Manager to review his contract, benefit enrollment and other human resources policies.

24. Prior to providing his urine sample Mr. Maharajh advised the AOMS representative that he was prescribed medical marijuana for chronic pain, insomnia and anorexia and he produced documentation of his Medical Marijuana Access Program (MMAP) license. Mr. Maharajh told the AOMS representative that it was his plan to abstain during his 3 week rotations on site.

25. Mr. Maharajh provided his sample and the initial screen was non-negative for “THC”, one of the chemicals contained in marijuana. The sample was also sent to a qualified laboratory which later confirmed the presence of THC in the sample. Mr. Maharajh was advised that his drug screen would be referred to AOMS’s Medical Review Officer (“MRO”) for verification of the result in light of his medical marijuana prescription.

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26. On August 22, 2014 Mr. Maharajh was contacted by AOMS’ MRO, Dr. Shane McVicker. Mr. Maharajh emailed Dr. McVicer additional documentation regarding his use of medical marijuana including a letter from his prescribing physician Dr. Cindy Shaw, and a copy of his Health Canada Authorization to Possess Dried Marijuana for Medical Purposes. Dr. McVicker wrote back by email and advised “the official result will be negative with the proviso that your employer may be advised of a possible safety issue”.

27. The Affidavit of Dr. Charles McVicker dated November 28, 2019 was provided to this Board of Inquiry and Dr. McVicker attended the hearing to give testimony to supplement his Affidavit.

28. Dr. McVicker is the Medical Review Officer employed with AOMS. Dr. McVicker describes that a Medical Review Officer is accredited by the American Association of Medical Review Officers. The conduct of an MRO is governed by a set of procedures and regulations referred to as the Code of Federal Regulations (“CFR”). These are prescribe by law in the United States, and AOMS has adopted these as its procedure and policy regarding drug and alcohol testing. Dr. McVicker’s affidavit incorporates by reference sections 40.123, 40.137, and 40. 327 of the CFR.

29. The MRO becomes involved after a non-negative drug and/or alcohol test result is observed and

it is the role of the MRO to confirm if there is a valid reason for the non-negative test (ie. a valid medical prescription issued to the applicant). The MRO’s role is to act as an independent and impartial “gatekeeper” and advocate for the accuracy and integrity of the drug testing process. Ultimately it is the MRO who must determining whether there is a legitimate medical explanation for a “positive” drug test result3, such as a prescription, and if the MRO concludes the there is a legitimate medical explanation for the positive test then the MRO must verify the test as being “negative”4 and “negative” becomes the final result of the drug screen.

30. Even when a drug screen is verified to be negative by the MRO, the CFR does permit a MRO to disclose “results and medical information you learned as part of the verification process”5 to certain third parties including “the employer, a physician or other health care provider”6 without the employee’s consent if the MRO determines “the information indicates that continued performance by the employee of his or her safety-sensitive function is likely to pose a significant safety risk”7.

31. Dr. McVicker testified that as part of his telephone call with Mr. Maharajh on August 22, 2014 he would have reviewed a standard form entitled “Medical Review Officer – Employee Contact Record” form with him. He would have read to Mr. Maharajh a portion of the form8 which states“…I am required to report to third parties without your consent drug test results or medical

3 CFR 40.123(a)&(c) 4 CFR 40.137(d) 5 CFR 40.327(a) 6 CFR 40.327(a)(2) 7 CFR 40.327(b) 8 Dr. McVicker referred to this as a “Miranda Warning”

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information affecting performance of safety-sensitive duties…” He acknowledge that in some circumstances the MRO would contact the physician who prescribed the medication which caused a non-negative test and discuss options for alternative medications and treatment modalities. Dr. McVicker did not contact Dr. Shaw or explore any alternative medication or treatment options for Mr. Maharajh. He explained that in this case he did not do so because he felt it was not necessary since he was verifying the test result as negative.

32. Dr. McVicker clarified at the hearing that he would complete a standardized form which would be the official result of the drug screen and this would state the result as either positive or negative. Although the official result form for Mr. Maharajh’s test was not produced to this Board of Inquiry, Dr. McVicker testified that it would have shown a negative result. Dr. McVicker explained that he would have raised the safety issue by a separate letter or email to the employer (AOMS) explaining that the test was negative but that the verification process had revealed information raising a possible issue with Mr. Maharajh suitability to safety sensitive work.

33. At the hearing Dr. McVicker acknowledged that there were some aspects of Mr. Maharajh’s situation which were outside Dr. McVicker’s ordinary process. Dr. McVicker testified that ordinarily AOMS would be conducting drug testing on the employees of third party companies rather than its own employee. It would be these third party employers who he would contact to provide the test results and to advise of any potential issues related to safety sensitive work. Upon doing so this would have ended his involvement as the MRO. However, he explained, where an employer is informed by an MRO that there is a potential safety issue, this would trigger a requirement to perform a “Fitness for Work Assessment”. Dr. McVicker testified that he also performs such assessments in addition to his MRO function for some employers.

34. Dr. McVicker explained that a Fitness for Work Assessment would be an individualized process where the medical history of the particular employee is explored in detail, alternative treatment modalities would be considered, the duties and the requirements of the position would be considered, and the purpose of the assessment would be to determine whether the individual employee could adequately perform the duties and responsibility of the particular position.

35. Dr. McVicker was not requested to do a Fitness for Work Assessment in relation to Mr. Maharajh and he did not do so.

36. On Monday August 25, 2014 Dr. McVicker disclosed the test results and the information he had

learned during to Louise Gallant, AOMS’ Human Resources Quality Operations Manager.9 This ended the involvement of the MRO.

37. On the same August 25, 2014 AOMS decided to disclose to BSS and Huskey that Mr. Maharajh had been flagged as a potential safety risk notwithstanding his verified negative drug test results.10 It is this decision which is at the core of Mr. Maharajh’s complaint. This disclosure

9 Affidavit of Louise Gallant at para 8. 10 Affidavit of Shane Fudge at para 8.

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prompted Husky to deny Mr. Maharajh access to the Sunrise Site. AOMS takes the position that it was this denial of site access which disqualified Mr. Maharajh from employment and not his disability. AOMS takes the position that it did nothing wrong and that it was obligated to disclose the information pursuant to its contract and Husky’s Drug and Alcohol Policy.

38. On August 26, 2014 Doug Pinsent, a senior Occupational Health Nurse with AOMS and Louise Gallant, Human Resources Quality Operations Manager with AOMS, contacted Mr. Maharajh and advised him that Husky had rejected his application but that AOMS was prepared to consider him for future employment.11

39. On September 17, 2014 at Mr. Maharajh’s request Ms. Gallant and Mr. Fudge had a meeting with Mr. Maharajh. Mr. Maharajh was advised that AOMS did not have a position for him and that a decision to refuse access to the Sunrise Site had been made by Husky. 12

40. I reiterate that it is AOMS’ decision to flag Mr. Maharajh as a safety risk to BSS and ultimately

Husky which is at the core of this complaint. This disclosure prompted Husky to deny Mr. Maharajh access to the Sunrise Site. AOMS takes the position that it was this denial of site access which disqualified Mr. Maharajh from employment and not his disability.

41. AOMS takes the position that it did nothing wrong and that because Mr. Maharajh was applying for a “safety sensitive position” AOMS was obligated to disclose any safety risk concerning Mr. Maharajh pursuant to its contract and Husky’s Drug and Alcohol Policy.

42. Mr. Maharajh and the Commission argue that AOMS’s actions do not comply with the Human Rights Act, 2010 that AOMS discriminated against Mr. Maharajh, and AOMS has not discharged its duty to accommodate up to the point of undue hardship.

ISSUES I. Does the Complainant have a disability? II. Has the Complainant established a prima facie case of discrimination.

III. Has the Respondent established that the standard it applied was a Bona Fide Occupational Requirement/Qualification (BFOR/Q) and that it could not reasonably accommodate the Complainant?

11 Affidavit of Louise Gallant at para 9 12 Affidavit of Louise Gallant at para 10

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LAW & ANALYSIS Issue 1: Does the Complainant have a disability? 43. The Human Rights Act, 2010 provides protection from “Discrimination” on the basis of certain

personal characteristics referred to as “the prohibited grounds” which include a person’s race, colour, nationality, ethnic origin, social origin, religious creed, religion, age, disability, disfigurement, sex, sexual orientation, gender identity, gender expression, marital status, family status, source of income and political opinion.

Reference: Human Rights Act, 2010 SNL2010 c. H-13.1 s. 9 (the “Act”)

44. “Disability” is defined at section 2(c) of the Act: Definitions

2. In this Act

(c) "disability" means one or more of the following conditions:

(i) a degree of physical disability,

(ii) a condition of mental impairment or a developmental

disability,

(iii) a learning disability, or a dysfunction in one or more of the

processes involved in understanding or using symbols or

language, and

(iv) a mental disorder;

Reference: Human Rights Act, 2010 SNL2010 c. H-13.1 s. 2

45. In Human Rights Commission (Critch) v. Newfoundland and Labrador the Newfoundland and Labrador Court of Appeal interpreted physical disability to include:

...infirmity, malformation or disfigurement of the body suffered by a person as a result of injury, illness or birth defect” that has a degree of severity and permanence.

Reference: Human Rights Commission (Critch) v. Newfoundland and Labrador, 2007 NLCA 10 (Canlii).

46. In our case Mr. Maharajh asserts that he suffers from chronic pain and that this meets the

definition of disability within the meaning of the Act. Mr. Maharajh’s complaint describes that in 1999 Mr. Maharajh was diagnosed with Ewings Sarcoma, bone cancer of the spine which was treated with chemotherapy, radiation therapy, as well as surgeries in 2003 and 2012. He has

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been treated with pain medications including morphine, codeine, and oxycontin. In 2013 he was prescribed medical marijuana for chronic pain, insomnia and anorexia. The complainant asserts that he has a disability.

47. The Respondent does not dispute the Complainant’s medical history or that he has a disabillity,

and at paragraph 33 of its submissions the Respondent states that “AOMS takes no position regarding the Complainant’s claim of disability pursuant to the Act.

48. The Commission submits that chronic pain has been found to meet the definition of disability and, in support of this submission, has directed me to the decision of the Newfoundland and Labrador Supreme Court in IBEW v. Lower Churchill Construction Employers’ Association Inc. 2019 NLSC 48 (Canlii) Reference: IBEW v. Lower Churchill Construction Employers’ Association Inc. 2019 NLSC 48 (Canlii).

49. Based on the uncontested evidence before me I accept that Mr. Maharajh has experienced chronic pain secondary to a cancer diagnosis in 1999 and its subsequent treatment. This pain has persisted for years notwithstanding treatment by various medications, most recently medical marijuana. I find that this chronic pain is an infirmity of the body as resulting from illness which has a degree of severity and permanence.

50. I accept that Mr. Maharajh has established that he has a disability within the meaning of the Act ISSUE 2: has the Complainant established a prima facie case of discrimination?

51. Discrimination in the employment context is governed by section 14 (1) of the Act which prohibits

an employer from refusing to employ, or to continue the employment, or to impose terms and

conditions of employment that otherwise discriminate on the basis that the individual has any of

the personal characteristics recognized as “prohibited grounds” except when such limitations,

specifications, or preferences are based on good faith occupational qualifications:

Discrimination in employment

14. (1) An employer, or a person acting on behalf of an employer, shall not refuse

to employ or to continue to employ or otherwise discriminate against a person in regard to

employment or a term or condition of employment on the basis of a prohibited ground of

discrimination, or because of the conviction for an offence that is unrelated to the employment of

the person.

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(2) Subsection (1) does not apply to the expression of a limitation, specification or

preference based on a good faith occupational qualification.

Reference: Human Rights Act, 2010 SNL2010 c. H-13.1 s. 14.

52. Discrimination in contravention of the Act does not require an intention to discriminate and often

a discriminatory distinction is made innocently in the sense that the distinction is made without the intent to disadvantage a particular group, but nevertheless the imposition of adverse consequences and disadvantage is the result.

Reference: Human Rights Act, 2010 SNL2010 c. H-13.1 s. 14.

53. A refusal to employ or termination of employment are clearly subject to scrutiny as potentially

discriminatory actions, but the Act’s protection also extends to protect individuals from being “otherwise discriminated against” in regard to employment or a term or condition of employment. The scope of “Discrimination” is consistently accepted to mean:

… a distinction, whether intentional or not but based on grounds relating to personal

characteristics of the individual or group, which has the effect of imposing burdens,

obligations, or disadvantages on such individual or group not imposed upon others, or which

withholds or limits access to opportunities, benefits, and advantages available to other

members of society. Distinctions based on personal characteristics attributed to an individual

solely on the basis of association with a group will rarely escape the charge of discrimination,

while those based on an individual's merits and capacities will rarely be so classed.

Reference: Andrews v. Law Society of British Columbia 1989 Canlii 2(SCC) (“Andrews”).

54. At this stage the Complainant bears the burden of proof and he must establish a prima facie case

of discrimination on a balance of probabilities. Mr. Maharajh must establish that his disability was a factor in the AOMS’ decision not to hire him or that he was “otherwise discriminated against” in regard to the terms or conditions of employment.

55. To paraphrase the test in Andrews supra, I must decide whether there is evidence to support the conclusion that AOMS made a distinction based on the fact that Mr. Maharajh has a disability, and that this decision, regardless of AOMS intention, did have the effect of imposing burdens, obligations, or disadvantages on Mr. Maharajh which were not imposed upon others, or which withheld or limited his access to opportunities, benefits, or advantages which were available to others.

56. It was Mr. Maharajh’s evidence that he suffers from chronic pain for which he is prescribed

medical marijuana by his doctor. Because he takes his prescribed medication his pre-

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employment drug test was non-negative for marijuana. Upon review of Mr. Maharajh’s medical prescription and supporting documentation the MRO verified the test negative but determined that he was obligated to inform AOMS of a possible safety issue. AOMS did not perform a Fitness for Work Assessment to determine if Mr. Maharajh could perform the particular duties of the position in question. Instead AOMS decided to advised BSS and Husky of a potential safety issues notwithstanding the verified negative test results. When this information was relayed to Husky it prompted Husky’s decision to deny Mr. Maharajh site access. AOMS then decided that without site access it could not proceed with Mr. Maharajh’s employment.

57. Mr. Maharah asserts that his disability and his use of prescribed medication are inextricably linked to AOMS’s decision to release the information to Husky, and the consequences that flowed naturally from the release of this information including the ultimate decision to deny him employment.

58. Before discussing the Respondent’s position, I note that until the day of the hearing it was not

clear what information AOMS disclosed to BSS and Husky, and whether AOMS had characterized

Mr. Maharajh’s drug test results as “positive”, “non-negative”, “negative”, or “negative with a

proviso indicating a potential safety issue”. This confusion arose because of conflicting assertions

in the pleadings, brief, and affidavits submitted to this Board of Inquiry by AOMS.

59. Dr. McVicker’s evidence was that he verified the final result of the drug screen to be “negative”.

He explained at the hearing that he would have completed a standardized form stating the result

as negative and this form would have been provided to AOMS. In addition he would have sent a

separate letter or email to AOMS advising them of a potential safety issue regarding Mr. Maharajh

working in a safety sensitive position.

60. The Affidavit of Liam O’Shea (a Director of AOMS) states that “AOMS advised Mr. Maharajh that

his drug and alcohol test would be classified as a ‘non-negative’ result for marijuana. AOMS was

obligated to disclose Mr. Maharajh’s drug and alcohol testing results to Bouchier and Husky; and

on August 25, 2014 proceeded to do so”13.

61. The Affidavit of Shane Fudge (a Medical Services Coordinator with AOMS) states that “AOMS’s

policy is to classify the “result as negative and include a proviso notifying the owner/operator of a

potential safety concern and/or violation of the governing drug and alcohol policy. AOMS

followed this procedure… AOMS was obligated to notify Bouchier in the manner described

above…”

13 Affidavit of Liam O’Shea at para 9.

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62. AOMS also produced a text message exchange from August 25, 2014 between Doug Pinsent,

AOMS Manager of Medical Operations, and Crystal Young, BSS Project manager. In this exchange

the results are characterized as “Negative Test with proviso that may impact on safety sensitive”:

Crystal Young Doug Pinsent Hey, Husky is still saying no.

Got it writing from them?

Question though, If it was a negative drug test why did you even ask husky No it’s over the phone Now we opened a can of worms.

Negative Test with proviso that may impact on safety sensitive

Ok. Can you send me something so I can coward (sic) that email to husky and ask for the written response?

In the interest of full disclosure we felt you should be aware. You guys went to husky.

Oh yes. Kevin turner. Shawn hare directed us to him. Bouchier said they

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didn’t care it boiled down to what the client said. If you send me something in written (sic). I will directly send it to Kevin and ask for a resonse (sic) in writing so all out (sic) butts are covered.

63. Finally at the hearing Mr. O’Shea, acting as the corporate representative of AOMS, testified and

acknowledged that the information in his affidavit was incorrect and AOMS did not disclose a

“non-negative” test to Husky or relay information indicating he was prescribed marijuana. Mr.

O’Shea confirmed that it was AOMS’ final position that it would have relayed the information

exactly as it received it from Dr. McVicker. Mr. O’Shea was also candid in acknowledging that

AOMS did not review or consider the Husky Drug and Alcohol policy prior to making this

disclosure.

64. With this clarification from Mr. O’Shea some of AOMS’s written arguments become strained.

AOMS’ written submissions asserted that it was under a contractual obligation to notify BSS and

Husky of the Complainant’s the “non-negative” drug test result, and the decision to refuse

employment was based exclusively on Husky’s decision to deny Mr. Maharajh access to the

Sunrise Site. In its written submissions the AOMS asserts:

36. The Actions of AOMS which are the subject of this proceeding are not the arbitrary development/and or implementation of a Drug and Alcohol policy that allegedly disadvantaged the Complainant. The alleged discriminatory action in this proceeding is: AOMS notifying Bouchier Site Services and Husky of the Complainant’s non-negative drug test result and requesting confirmation from Bouchier and Husky that the Complainant could access the Husky Site. 37. AOMS reiterates the fact that they were contractually obligated to comply with the Drug and Alcohol policies of the property owner for whom work and services were being provided. AOMS had an obligation to ensure that the employees provided to the Husky Sunrise Site satisfied the requirements for workers in safety sensitive positions.

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38 AOMS submits that its’ request for Bouchier and/or Husky to confirm the Complainants ability to access the Husky Sunrise Site does not amount to discrimination on the part of AOMS … 56. AOMS reiterates that the actions which are currently being investigated are: AOMS decision to notify Bouchier and Husky of the Complainants drug test results. Ultimately, it was Husky’s decision to withhold site access to the site and preclude the Complainant from employment at the Husky Sunrise Site.

65. AOMS’ pleadings assert that its obligation to disclose arises from its contractual obligation to

comply with the Husky Drug and Alcohol Policy. AOMS brief directed me to Section 7 of the

Alcohol and Drug Policy which states:

When a pre-employment drug screen is determined by the Health Services Provider to

test positive (indicates the presence of drug in the individual’s system), they will advise

Human Resources and the department manager immediately. Human Resources will

contact the department manager to determine the appropriate course of action, in

accordance with Supervisor/Manager Identification in this section.

66. This argument implies the Husky Drug and Alcohol policy required AOMS to disclose Mr.

Maharajh’s drug test results because it had been “positive”, but Mr. Maharajh’s test results were

not “positive”. The MRO returned a verified “negative” test to AOMS. By a separate email the

MRO flagged potential issue concerning safety sensitive work

67. According to the Husky Drug and Alcohol Policy any information regarding drug or alcohol testing

is to be treated as confidential and shared on a need to know basis only. The policy explicitly

states that the Health Services Provider will report the drug screen as either “positive” or

“negative” and “no further detail is to be provided”14:

8 CONFIDENTIALITY GUIDELINES Any information regarding an drug or alcohol related issue will be treated as confidential and information given only on a ‘need to know’ basis as described in this policy. All documents, letters and records will be kept in a private and secure file in Human Resources.

14 Husky Drug and Alcohol Policy “Confidentiality Guidelines” page 16 of 23

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The Health Services Provider will report the drug screen and/or drug and alcohol assessment results as either positive or negative. No further detail is provided. The Health Services Provider will provide positive drug screen and/or drug and alcohol

assessments results to Human Resources and the Department Manager only.

68. The Husky Drug and Alcohol Policy does state that it applies to subcontractors15. The policy

confirms that contract workers employed through a third party are not required to undergo an

in-house drug screen if the third party provides evidence of a negative drug screen for that worker

within the previous 12 months.16 Ultimately the policy states that it is the subcontractor and not

Husky who responsible to ensure its workers adhere to the policy.17

69. Interestingly with respect to the use of prescription medications such as medical marijuana, the

Husky Drug and Alcohol Policy expresses a general policy mandating “responsible use medication,

both over-the-counter and prescribed”18. In the context of safety sensitive work the policy states

that it is the employee’s responsibility “to use legitimate (prescription and over-the-counter)

medications responsibly when engaged in safety sensitive work.”19 Where there is concern

regarding the “legitimacy of the medication”, its legitimacy is to be determined by the

occupational health service provider “in consultation with the treating physician”20; and where

the medication “may create a safety risk”, the policy mandates a process of accommodation and

an attempt to “accommodate the employee into a non-safety sensitive position until the employee

has been given medical clearance to return to work”21.

70. The process for verification and accommodation outlined in the Husky policy is similar to what Dr.

McVicker’s described in his evidence at the hearing. Dr. McVicker explained that once an MRO

has verified a drug test result as “negative” but flags a potential issue related to the employee

working in a safety sensitive position, the ordinary next step for an employer would be to

complete an individualized assessment that Dr. McVicker called a “Fitness for Work Assessment”.

The objective of the Fitness for Work Assessment is to determine whether this particular

employee could perform the duties and responsibilities of the position in question

notwithstanding his prescription. It would also be during the Fitness for Work Assessment that

alternate medications and treatment modalities would be considered to explore options for the

15 Husky Drug and Alcohol Policy “Scope” page 3 of 23 16 Husky Drug and Alcohol Policy “ Pre-Employment Drug Screens” page 8 of 23 17 Husky Drug and Alcohol Policy “ Contractors and Contract Workers” page 7 of 23 18 Husky Drug and Alcohol Policy “Policy Statements” page 2 of 23 19 Husky Drug and Alcohol Policy “Employee Responsibilities” page 5 of 23 20 Husky Drug and Alcohol Policy “Employee Responsibilities” page 5 of 23 21 Husky Drug and Alcohol Policy “Prescription and Over-The-Counter Drugs” page 13 of 23

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worker to remove the potentially impairing medication from the equation. I find this remarkably

similar to the process outlined in the husky policy:

Prescription And Over-The-Counter Drugs:

If an employee engaged in safety sensitive work is using a prescribed or over-the-counter

medication while on the job which may create a safety risk, as determined by the Health

Services Provider, the supervisor should attempt to accommodate the employee into a

non-safety sensitive position until the employee has been given medical clearance to

return to work. If there is no other work, the employee must go on Sick Leave. While on

Sick Leave, the employee is subject to the normal disability management process.22

71. At this stage I am not assessing whether the Respondent’s actions were justified as a BFOR/Q and

therefore non-discriminatory. I am only concerned with the first part of the discrimination analysis and whether Mr. Maharajh has discharged his burden to demonstrate a prima facie case. I am careful not to conflate these distinct issues.

72. I explore the Respondent’s position to demonstrate that it is focused on its justification of why it

disclosed the information about Mr. Maharajh to Husky and AOMS and does not offer any

explanation to show that Mr. Maharajh was in fact not treated differently from any other

prospective employee without a disability.

73. Probing the Respondent’s position confirms that Mr. Maharajh was treated differently because

of he was taking his prescribed medication. More of his personal information was shared with

Husky than would be required under Husky’s Drug and Alcohol Policy. He was flagged as a safety

issue without any assessment of his fitness for work. The handling of Mr. Maharajh’s test results

by AOMS did not comply with the process described by Dr. McVicker or the process outlined in

the Husky Policy. He was treated differently.

74. I conclude that Mr. Maharajh has discharged his burden and he has established a prima facie case

of discrimination. There is more than a link between his disability and the manner in which his application for employment was handled. It is because Mr. Maharajh’s uses medical marijuana to treat his chronic pain that his drug test results were flagged as a potential safety issue. This was a concern for AOMS and it decided to disclose this information and to defer to BSS and Husky before proceeding with Mr. Maharajh’s employment. AOMS’ decision to characterize Mr. Maharajh as a safety risk prompted Husky to deny him site access. I’m satisfied that but for Mr.

22 Husky Drug and Alcohol Policy “Prescription and Over-The-Counter Drugs” page 13 of 23

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Maharajh’s disability none of this would have happened and Mr. Maharajh would not have been denied employment.

75. I find that a prima facie case for discrimination is established. ISSUE 3: has the Respondent established that the standard it applied was a Bona Fide Occupational Requirement/Qualification (BFOR/Q), and that it could not reasonably accommodate the Complainant? 76. Discrimination in the employment context is subject to an exception which recognizes the

practical necessity that employers be permitted to impose and expect compliance with a standards which represent a “good faith occupational qualification”. In other Canadian jurisdictions the language “bona fide occupational requirement” is used and these terms are functionally equivalent and often abbreviated as “BFOR/Q”. The “Meiorin test” outlined by the Supreme Court of Canada in 1999 remains the test to determine if a prima facie discriminatory standard is justified as a BFOR/Q.

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 fulfilment 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.

55 This approach is premised on the need to develop standards that accommodate the

potential contributions of all employees in so far as this can be done without undue

hardship to the employer. Standards may adversely affect members of a particular group,

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to be sure. But as Wilson J. noted in Central Alberta Dairy Pool, supra, at p. 518, “[i]f a

reasonable alternative exists to burdening members of a group with a given rule, that rule

will not be [a BFOR]”. It follows that a rule or standard must accommodate individual

differences to the point of undue hardship if it is to be found reasonably necessary.

Unless no further accommodation is possible without imposing undue hardship, the

standard is not a BFOR in its existing form and the prima facie case of discrimination

stands.

Reference: British Columbia (Public Service Employee Relations Commission v. BCGSEU,

[1999] 3 SCR 3, 1999 Canlii 642 (SCC) (“Meiorin”).

77. Once the Complainant has established a “prima facie” case of discrimination meaning the burden

shifts to the Respondent to show that its actions were justified as a BFOR/Q and that it could not accommodate the Complainant without suffering undue hardship:

A prima facie case in this context is one which covers the allegations made in which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent/employer.

…once the prima facie proof of discriminatory effect is made it will remain for the employer to show undue hardship. …

Reference: O’Malley v. Simpson-Sears Ltd., [1985] 2 SCR 536,1985 Canlii 18.

78. Returning to the present case, having found that a prima facie case of discrimination is established

I must now consider whether AOMS’s decision to disclose to BSS and Husky that Mr. Maharajh

had been flagged as a potential safety risk was justified by the application of a standard which

satisfies the Meioirn test. Can this decision be justified as bona fide occupational requirement or

qualification - BFOR/Q such that AOMS could not reasonably accommodate Mr. Maharajh without

suffering undue hardship.

Has the employer adopted the standard for a purpose rationally connected to the performance of the job 79. Step 1 of the test will be satisfied if the employer can show an objectively rational connection

between the impugned standard it applied and the general purpose the standard is intended to achieve.

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80. In this case it was not seriously in dispute that there that there is a rational connection between

AOMS’s decision to disclose potential safety risks and the general purpose of ensuring a safe work environment at the Sunrise Site. I find that this rational connection is sufficient to discharge AOMS’ onus as stage 1 of the Meiorin test.

Has the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and

81. At the second step of the Meiorin test the focus is on the subjective intentions of the employer

and whether the impugned standard was adopted in good faith with an honest belief that the standard was necessary to achieve the legitimate purpose of the employer.

60 Once the legitimacy of the employer's more general purpose is established, the employer must take the second step of demonstrating that it adopted the particular standard with an honest and good faith belief that it was necessary to the accomplishment of its purpose, with no intention of discriminating against the claimant. This addresses the subjective element of the test…

Reference: British Columbia (Public Service Employee Relations Commission v.

BCGSEU, [1999] 3 SCR 3, 1999 Canlii 642 (SCC) (“Meiorin”).

82. AOMS asserts that it had an obligation to disclose the results of Mr. Maharahj’s drug test results

to Husky and to flag a potential safety issue concerning Mr. Maharajh. AOMS argues that this

obligation arises from the fact that the position in question was “safety sensitive”. In its pleadings

AOMS relied upon on the Husky’s Drug and Alcohol Policy which is incorporated by reference into

its contract with BSS. AOMS asserted that compliance with this policy required AOMS to disclose

that Mr. Maharajh had been flagged as a safety risk notwithstanding his negative test result.

During the hearing AOMS was directed to various provisions of the Drug and Alcohol Policy which

appeared to contradict AOMS position and suggested that only the verified negative result should

have been shared. AOMS was not able to direct the Board of Inquiry to any clause of the Drug

and Alcohol policy, or the contract documents to support the duty to disclose AOMS relies upon.

83. At the hearing Liam O’Shea, Director of AOMS testified and explained that AOMS would not have

reviewed the Husky Drug and Alcohol Policy prior to disclosing information concerning Mr.

Maharajh. He confirmed that AOMS was concerned about its own potential liability and it disclose

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the information to BSS and Husky in order to mitigate AOMS’ litigation risk and to preserve the

company’s reputation.

84. Mr. O’Shea explained that AOMS was concerned it could be sued if there was any onsite incident

involving Mr. Maharajh and AOMS hadn’t disclose this information to Husk. As an example Mr.

O’Shea described a hypothetical scenario where Mr. Maharajh might be performing a medical

procedure such as drawing a blood sample from a worker and he could cause a bruise that the

worker might report as an “incident”. Mr. O’Shea described that this would prompt an immediate

drug screen for Mr. Maharajh and if he tested positive AOMS “would be 100% liable”.

85. Mr. O’Shea explained that it is common practice within the industry whenever an individual is

flagged as a potential safety issue following a drug test, that the information gets relayed up the

chain of communication to the operator or lead contractor. Mr. O’Shea acknowledged that when

a potential safety issue is flagged regarding a prospective employee, that employee will inevitably

be denied access to the operator’s site and will become disqualified from the position as a result.

From AOMS’ perspective, Mr. O’Shea testified, if it was ever discovered that AOMS was aware of

Mr. Maharajh’s prescription and hadn’t disclosed a safety risk to Husky, AOMS’ reputation would

be irreparably damaged within the industry. AOMS would lose contracts and in Mr. O’Shea’s

words it would be “the end of its business”.

86. Mr. O’Shea indicated that he regrets the impact on Mr. Maharajh and asserts that AOMS had

wanted to hire Mr. Maharajh until Husky denied him site access. However, he says that AOMS’

hands were tied and AOMS had to disclose the information concerning Mr. Maharajh. It was up

to Husky whether or not to permit him access to the Sunrise Site.

87. Ultimately AOMS maintained its position that this practice of disclosing all potential safety risks is

essential to ensuring safety of workers within this safety sensitive industry and that this AOMS’s

compliance with this industry standard is justified as a BFOR/Q.

88. The onus and burden of proof at this second stage of the Meiorin analysis rests with AOMS. I

must be satisfied on a balance of probabilities that AOMS adopted the standard it applied in good

faith and with an honest belief that it was necessary to achieve a legitimate workplace objective.

This step of the Meiorin analysis is examining the subjective intentions of the Employer.

89. Although framed as mitigation of litigation risk and maintaining business reputation, the issue of

safety issue does appears to have been at the core of AOMS’ concern. Addressing safety mitigates

the risk of litigation, and the risk of lost business reputation. These concerns are all linked. I find

that the evidence of AOMS’ subjective intentions discharge its onus at stage 2 of the Meiorin test.

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Was the standard applied by AOMS reasonably necessary to accomplish its legitimate work-related purpose and was there no way to accommodate Mr. Maharajh without AOMS experiencing undue hardship.

90. At the third step of the Meiorin test the burden of proof remains with the employer and the employer must establish that the standard or practice it applied is reasonably necessary to accomplish its legitimate purpose and that it could not accommodate the complainant without the employer experiencing undue hardship.

62 The employer's third and final hurdle is to demonstrate that the impugned standard is reasonably necessary for the employer to accomplish its purpose, which by this point has been demonstrated to be rationally connected to the performance of the job. The employer must establish that it cannot accommodate the claimant and others adversely affected by the standard without experiencing undue hardship…

Reference: British Columbia (Public Service Employee Relations Commission v.

BCGSEU, [1999] 3 SCR 3, 1999 Canlii 642 (SCC) (“Meiorin”)

91. At this point the analysis shifts away from the general nature of the standard adopted by the

employer. The focus is placed on the application of that standard to the individual and whether there were alternatives to accommodate the individual while still achieving the goal of the impugned standard. Within the Accommodation/Undue Hardship analysis a number of important questions should be explored:

(a) Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard? (b) If alternative standards were investigated and found to be capable of fulfilling the employer's purpose, why were they not implemented? (c) Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established? (d) Is there a way to do the job that is less discriminatory while still accomplishing the employer's legitimate purpose? (e) Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?

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(f) Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles? As Sopinka J. noted in Renaud, supra, at pp. 992-96, the task of determining how to accommodate individual differences may also place burdens on the employee and, if there is a collective agreement, a union.

Reference: British Columbia (Public Service Employee Relations Commission v.

BCGSEU, [1999] 3 SCR 3, 1999 Canlii 642 (SCC) (“Meiorin”).

92. In the context of medically authorized cannabis the Newfoundland and Labrador Court of Appeal

recently confirmed that the duty to accommodate requires an employer to take positive steps to

accommodate individuals prescribed medical marijuana. It is not sufficient to rely upon a general

standard when the effect of its application is to exclude and disqualify from employment the

entire class of individuals who access medical marijuana. The employer must explore alternative

options to achieve the purpose of the impugned standard and implement those options in lieu of

the mechanical application of the impugned standard, unless the employer can demonstrate that

such individual accommodation would cause the employer undue hardship.

35 Considerations discussed in Meiorin, when applied in the context of this case, lead to the

conclusion that there is a danger in treating impairment by the use of medically authorized cannabis

on the basis of the class of individuals who access that treatment. Rather, given the individual nature

of the possible accommodation, the analysis requires an assessment regarding what alternatives were

investigated by the employer that may have allowed for individual testing of the grievor. Was a

scientific or medical standard the only option? If so, why? If alternate options were identified, why

were they not implemented? For example, was a functional assessment of the grievor before his

shift considered? If rejected, why? What discussions were had with the Union to identify and assess

alternate options for determining whether the grievor was capable of safely performing the job

despite his use of cannabis in the evening? The employer failed to address these questions or provide

evidence as necessary to discharge the onus of demonstrating that accommodation of the grievor on

an individual basis would result in undue hardship.

36 The conclusion follows that the arbitrator’s decision was unreasonable insofar as he failed to

address the employer’s onus to establish that to accommodate the grievor by means of individual

assessment of his ability to perform the job safely, regardless of the absence of a scientific or medical

standard, would result in undue hardship.

Reference: International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill

Transmission Construction Employers’ Association Inc. 2020 NLCA 20, 2020

CarswellNfld 133.

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93. AOMS argues that Mr. Maharajh was applying for a “safety sensitive” position and that Husky’s Drug and Alcohol Policy, or industry standard, obligated AOMS to disclose that Mr. Maharajh had been flagged as a potential safety risk. AOMS takes the position that once Husky denied site access there was nothing else AOMS could have done to accommodate Mr. Maharajh without suffering undue hardship.

94. For the reasons which I will set out below I find that (1) AOMS has failed to establish that the particular position in question was safety sensitive; (2) AOMS has failed to establish that the Husky Drug and Alcohol Policy would require AOMS to disclose that Mr. Maharajh was flagged as a safety risk or that such disclosure was the only way to achieve workplace safety. (3) AOMS could have completed an individualized Fitness for Work Assessment to determine if Mr. Maharajh was fit to perform the particular duties and responsibilities of the occupational health nurse position; and (4) AOMS has failed to establish that it explored options or took any steps to accommodate Mr. Maharajh or that such efforts would have caused AOMS to experience undue hardship.

95. Turning to the first point and whether the position of Senior Occupational Health Nurse was a

“safety sensitive” at paragraph 10 of its written submission AOMS referred this Board of Inquiry to the Husky Drug and Alcohol Policy:

10. The Agreement required AOMS to follow Husky’s Drug and Alcohol Policies. Due to the inherent risks associated with working at a remote industrial worksite, and by virtue of the OHN being the highest level of medical care available at the Husky Sunrise Site, the OHN was deemed, by Husky, to be a Safety Sensitive Position”.

96. I have reviewed the Husky Drug and Alcohol Policy and AOMS has drawn my attention to several particular excerpts including the following definition of Safety Sensitive Position from the policy:

4. SAFETY SENSITIVE POSITIONS Safety Sensitive positions referred to within this policy, include individuals in positions and with duties and responsibilities of such a significant and risky nature such that even a momentary lapse of attention (whether by impaired performance, judgment or perception) would reasonably be expected to have a direct negative impact upon the health or safety of employees, contractors, customers, the public, or the environment, or could lead to significant property damage. This includes employees and contract workers who are required to rotate through, or temporarily relieve, safety sensitive positions. Included would be employees, contractors and contract workers at worksites i.e. remote worksites and camps, where they would be expected to respond even when off shift Supervisors and senior managers who directly supervise these working level positions on site, or who perform the same duties or exercise the same responsibilities, are also deemed to hold safety sensitive positions.

24

Department managers are responsible for determining and documenting which positions are safety sensitive. Human Resources will provide advice when requested.23

97. AOMS interprets the policy as deeming all workers at remote sites such as the Sunrise Site to be

safety sensitive regardless of the nature of the job.

98. I disagree with AOMS’ interpretation of the Husky Drug and Alcohol Policy and in my view the definition of Safety Sensitive Positions within the policy links “safety sensitivity” to the nature of the “duties and responsibilities” of the particular position. The definition delegates the responsibility to determine if a position is safety sensitive to department managers who may avail of advice from Human Resources, and the key question appears to be whether the position entails “duties and responsibilities” that are “of such a significant and risky nature such that even a momentary lapse of attention (whether by impaired performance, judgment or perception) would reasonably be expected to have a direct negative impact, upon the health or safety of employees, contractors, customers, the public, or the environment”.

99. One can imagine a category of positions at a remote worksite that would clearly be “safety

sensitive” such as an operator of heavy equipment or a blaster engaged in the use of high explosives. One can also imagine a category of positions at a remote worksite site that probably would not be considered “safety sensitive” such as those employed as housekeeping staff or an administrative assistant.

100. I find that considering each position on site individually is consistent with the jurisprudence which has established a distinction between a “safety sensitive industry” and a “safety sensitive position within an operation”. Whether or not a particular position is “safety sensitive” must be determined by examination of the particular duties and responsibilities of that position.

101. In IWA-Canada v. Weyerhaeuser Co. 2004 CarswellBC 2039, one labour arbitrator expressed

133 An inherently safety sensitive industry and a safety sensitive position within an operation must be distinguished. Neither depends upon the other for its existence. For example, though open pit mining was determined by Arbitrator Hope in Fording Coal Ltd. to be a safety sensitive industry, not all positions could be deemed safety sensitive (para.25). CN Rail made the same distinction holding that the employer had not demonstrated that drug and alcohol testing "is a reasonable or necessary incursion into the privacy of employees who hold non-risk sensitive positions ..." (p.400).

23

25

134 The designations of "inherently safety sensitive" industries and "safety sensitive positions" have different purposes. An employer, designated inherently safety sensitive, is not required to prove the existence of a drug and alcohol problem in the workplace as a pre-condition to the introduction of a substance abuse policy. The designation of a position as "safety sensitive" determines to which employees the testing policy will apply.

Reference: IWA-Canada v. Weyerhaeuser Co. 2004 CarswellBC 2039.

102. In International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission

Construction Employers' Association Inc. 2018 CarswellNfld 198 a labour arbitrator held:

130 The Project Agreement clearly has an intended focus on the importance of safety. Article 10 provides the expression of the Parties’ intent. That the Project in the overall is a safety-sensitive industrial undertaking cannot be questioned. But not every job within that enterprise is necessarily deemed safety-sensitive as a consequence.

Reference: International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill

Transmission Construction Employers' Association Inc. 2018 CarswellNfld 198. 103. In its written submissions AOMS does argue briefly that even if not all positions at the Sunrise Site

were safety sensitive, the particular Occupational Health Nurse position that Mr. Maharajh was applying for was safety sensitive:

9. The OHN [Occupational Health Nurse] provided by AOMS to the Husky Sunrise Site was the primary and highest level of care available at the Husky Sunrise Site. The OHN’s responsibilities included: administering emergency care, driving patients in third party vehicles, performing invasive bio-screening procedures, administering alcohol and drug tests, and managing situations where other workers may be impaired and/or require special treatment. The OHN was expected to be available, as needed on a 24/7 basis while on shift at the Husky Sunrise Site.

104. I have reviewed the duties and responsibilities of “nurse on site” as outlined in the contract

documents produced to the Board of Inquiry. Those duties and responsibilities include:

Nurse

Provide primary and emergency nursing care for occupational and non-occupational illnesses and injuries.

Management of the medical facility, supplies and equipment.

Assure compliance with government representative, company policies and procedures and levels of service delivery appropriate to operational needs.

Responsible for provision of occupational health programs which help maintain a healthy workforce and minimize health risk to employees

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Responsible for the safe and legal ordering, usage, storage and documentation of all non-prescription and prescription medications available in the medical facility.

Provide case management for the light/modified duty program.

Accountable for accurately recoding medical information and maintaining confidentiality of that information.

Participate in meetings when requested to do so.

Participated in the emergency response team.

Participate in the occupational health and safety meetings.

Accountable, to immediate supervisor, for evaluation of occupational health services provided for appropriateness and effectiveness.

Responsible for maintaining professional license and certifications.

Participate in daily site walk through and site inspections.

Conduct regular kitchen inspections as per government regulations.

Provide Drug and Alcohol testing as required. This may be carried out in a standard bathroom.

105. I have also reviewed a job description produced by AOMS which states the additional duties of

the Site Senior Occupational Health Nurse Senior:

Duties and responsibilities in addition to those of Site Occupational Health Nurse:

Single point of contact and interact with site management and supervisor personnel as required on matters of health and fitness.

Manage, supervise and provide leadership for on site medical personnel to ensure optimum functioning of on site medical facilities and processes.

Advise Bouchier Representative of reliability and maintenance issues with site vehicles or emergency conveyance vehicles.

Manage and maintain health center inventory and supplies, maintain inventory and reorder and stock as required.

Participate in annual performance appraisals of site medical personnel.

Perform periodic chart reviews of on site medical personnel to ensure compliance with processes.

Complete weekly timesheets for on site medical personnel.

Complete weekly health center reports, maintain electronic records and statistics.

Complete Bouchier daily reports.

Notification of appropriate personnel of occupational occurrences.

Participate in site new hire orientation as required.

Participate in bi-weekly Emergency Response Plan meetings.

Participated in site coordination meetings as required.

Continuously evaluate the quality and effectiveness of health services, to identify opportunities in collaboration with stakeholders for improving services and patient outcomes.

27

106. Most of the specified duties and responsibilities of the position are administrative or managerial

in nature. The nurse does provide direct patient care including primary and emergency nursing care for occupational and non-occupational illnesses and injuries. However, these responsibilities appear to be performed within the relative safety of a medical clinic, removed from the inherently dangerous operations one would ordinarily associate with a remote industrial worksite.

107. In my view AOMS has failed to produce evidence upon which I could conclude that this positon of

senior occupational health nurse at the sunrise site was “safety sensitive” in the sense that it

entails duties and responsibilities that are of such a significant and risky nature such that even a

momentary lapse of attention (whether by impaired performance, judgment or perception)

would reasonably be expected to have a direct negative impact on the health or safety of

employees, contractors, customers, the public, or the environment.

108. Even if I concluded that this position were a “safety sensitive” position I am not satisfied that the

Husky Drug and Alcohol Policy would require AOMS to disclose that Mr. Maharajh was flagged as

a potential safety risk. In my view the policy would require AOMS to report only the verified

negative result to Husky and the policy would require AOMS to engage in an individualized

assessment to determine if Mr. Maharajh could perform the duties of the position while ensuring

an appropriate level of workplace safety.

109. AOMS was a subcontractor of BSS who were subcontractors of Husky. The Husky Drug and

Alcohol Policy does apply to subcontractors and delegates the responsibility of compliance to

those subcontractors. 24 The policy expressly states that contract workers employed through a

third party are not required to undergo an in-house drug screen if the third party provides

evidence of a negative drug screen for that worker within the previous 12 months25. The policy

explicitly states that drug screen results are to be reported as either “positive” or “negative” and

“no further detail is to be provided”. Any information regarding a drug or alcohol related issue

will be treated as confidential and information given only on a ‘need to know’ basis.

110. The Husky Drug and Alcohol Policy is not a “zero tolerance” policy when it comes to prescription

medications. The policy requires the “responsible use medication, both over-the-counter and

prescribed”26. The policy outlines a process for accommodating the legitimate use of prescribed

medication such as medical marijuana. Specifically in the context of safety sensitive work the

policy states that it is the employee’s responsibility “to use legitimate (prescription and over-the-

24 Husky Drug and Alcohol Policy “ Contractors and Contract Workers” page 7 of 23 25 Husky Drug and Alcohol Policy “ Pre-Employment Drug Screens” page 8 of 23 26 Husky Drug and Alcohol Policy “Policy Statements” page 2 of 23

28

counter) medications responsibly when engaged in safety sensitive work.”27 Where there is

concern regarding the “legitimacy of the medication”, its legitimacy is to be determined by the

occupational health service provider “in consultation with the treating physician”28; and where

the medication “may create a safety risk”, the policy mandates a process of accommodation and

an attempt to “accommodate the employee into a non-safety sensitive position until the

employee has been given medical clearance to return to work”29.

111. At the hearing of this matter Dr. McVicker explained that when an MRO has verified a drug test

result as “negative”, but flags a potential safety risk related to the employee working in a safety

sensitive position, the ordinary next step for an employer would be to complete an individualized

assessment that Dr. McVicker called a “Fitness for Work Assessment”. The objective of the Fitness

for Work Assessment is determine whether this particular employee could perform the duties and

responsibilities of the position in question notwithstanding his prescription. It would also be

during the Fitness for Work Assessment that alternate medications and treatment modalities

would be considered to explore options for the worker to remove the potentially impairing

medication from the equation.

112. No Fitness for Work Assessment was considered or offered in Mr. Maharajh’ case. No options to

accommodate Mr. Maharajh were considered. No evidence was presented as to why any option

to accommodate Mr. Maharajh would cause AOMS undue hardship.

113. Mr. Maharajh testified that he felt he could perform the duties of the position safely. At the time

he planned to abstain from using Medical Marijuana while on rotation to the Sunrise Site and he

indicated that he could effectively rely upon other pain management techniques such as the use

of a hot water bottle, spending less time in the gym, getting more rest. Mr. Maharajh testified

that he had in the past abstained from using medical marijuana for more than three weeks at a

time on numerous occasions, and that he has abstained two week work rotations at remote sites

for a previous employer. Without any Fitness for Work Assessment none of these options were

explored by AOMS.

114. I conclude that instead of simply disclosing the results of the MRO’s findings to BSS and Husky,

AOMS should have made arrangements for a Fitness for Work Assessment to be conducted and options to accommodate Mr. Maharajh should have been explored. Ultimately the burden of proof rests with the employer, AOMS, to demonstrate that it could not accommodate Mr. Maharajh without suffering undue hardship. I find that AOMS has failed to discharge its evidentiary burden under stage 3 of the Meiorin test.

27 Husky Drug and Alcohol Policy “Employee Responsibilities” page 5 of 23 28 Husky Drug and Alcohol Policy “Employee Responsibilities” page 5 of 23 29 Husky Drug and Alcohol Policy “Prescription and Over-The-Counter Drugs” page 13 of 23

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Remedy

115. Complainant outlined his request for a remedy in his written submissions filed December 16, 2019 wherein he states:

I believe lost wages for a year’s salary (minus the avg salary 2014/2015), as addition to $10,000 for the negative impact this has had on my personal and professional life. Although I still had employment after this incident, I was only a casual employee with Eastern Health and the discrepancies in salary were quite significant. I also request a formal apology from AOMS as this has caused me plenty of stress, embarrassment. I worked hard to get this education and after this incident I couldn’t find work in this sector. Lastly, I would like to be considered for any positions that may arise in the future. I look forward to finding a resolution to this situation and putting it behind me, and hope we can come to a just settlement for all.

116. The Commission submitted the following remedies would be appropriate in this case:

(1) General damages for the loss of dignity, self respect and humiliation of the complainant

(2) Loss of Income and benefits of the Complainant (less any employment wages and benefits received);

(3) Review of Workplace Policy to ensure that the Respondent provides for accommodation of disabled employees using medical marijuana;

(4) Human Right Training for the Respondent which focuses on accommodating the use of medical marijuana in the workplace;

(5) Pre-judgement interest, under the Judgment Interest Act.

117. The Respondent denies liability but in the alternative submits that the appropriate remedy would

be a review of work place policies to be conducted by AOMS. In the event damages are ordered, AOMS submits that the figure of $750.00 in general damages would be appropriate and that Mr. Maharajh’ income loss claim should be limited to $20,000.00.

118. With respect to the income loss claim the Respondent argues that I should reduce the award because Mr. Maharajh might have been denied site access by Husky even if AOMS had not flagged Mr. Maharajh as a safety risk. The Respondent also submits that one of the two OHN positon at the Sunrise Site was not filled from on June 2, 2015 onward, and the remaining OHN position was phased out by a new contract executed on September 1, 2015 between AOMS and Husky. The Respondent submits that any income loss claim would be limited to the period August 2014 – June 2015.

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119. The Commission argues that if I were to reduce the loss of income award I could do so on the basis of a percentage contingency for the uncertainty whether Mr. Maharajh would be hired. The Commission has submitted two cases Winkelmeyer v. Woodlands Inn and Suites and Chopra v. Canada (Attorney General). Both of these cases involve discrimination prior to employment being offered. In Winkelmeyer the complainant was denied a job interview and the tribunal reduced his loss of income claim by 30% as a contingency to account for the uncertainty whether the complainant would have been hired. In Chopra there was evidence the complainant would ultimately have been screened out on other grounds and his claim for lost income was reduced by two thirds. Reference: Winkelmeyer v. Woodlands Inn and Suites, 2012 BCHRT 312.

Chopra v. Canada (Attorney General), 2007 FCA 268.

120. Mr. O’Shea’s evidence was that flagging Mr. Maharajh as a safety risk caused him to be denied site access. He described that when someone is flagged as a safety risk they are inevitably denied site access. Mr. O’Shea’s evidence was clear that AOMS wanted to hire Mr. Maharajh and would have hired Mr. Maharajh except for Husky’s denial of site access. No theory was presented for why Mr. Maharajh would be denied site access other than AOMS’ disclosure to Husky. As stated above to comply with the Husky Drug and Alcohol Policy, AOMS should have reported Mr. Maharajh’s pre-employment drug test results to Husky as “negative”30, and no additional information or proviso should have been included.31 If AOMS had done this, in all likelihood Mr. Maharajh would not have been denied site access. AOMS could then complete a Fitness for Work Assessment to explore options which would allow Mr. Maharajh to safely carry out the duties of the nurse position as part of the accommodation process.

121. I do accept AOMS’s argument that the position Mr. Maharajh applied for was phased out by a subsequent contract dated September 2015. I also accept that one of the two nurse positions was phased out in June and this could have resulted in Mr. Maharajh being laid off at that time. Mr. Maharajh’s unexecuted contract of employment with AOMS indicates an annual salary of $115,000 per year. I will apply a 10% reduction ($-11,500) to this figure to account for the possibility that Mr. Maharajh would not have been hired or would have been the nurse laid off in June 2015.

122. Mr. Maharajh also had a duty to mitigate his loss and to seek alternate employment. Mr. Maharajh acknowledges that in 2014 he was primarily occupied with pursuing studies to prepare to write the MCAT exams so he could pursue his dream of becoming a doctor. He did have some casual employment with Eastern Health that year and he earned $13,727.72. In 2015 Mr. Maharajh focused his efforts on working and saving to pay for his schooling and he earned $52,807.32.

30 Husky Drug and Alcohol Policy “ Pre-Employment Drug Screens” page 8 of 23 31 Husky Drug and Alcohol Policy “Confidentiality Guidelines” page 16 of 23

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123. I find that Mr. Maharajh did not fully discharge his duty to mitigate his loss in 2014. In my view Mr. Maharjh’s 2015 income is a better representation of the level of income he could have earned if he had fully discharged his duty to mitigate his loss during the period from August 2014 – August 2015. I will reduce his income loss claim accordingly.

124. I find that Mr. Maharajh’s total income loss is $115,000 - $11,500 - $52,807= $50,693.

125. With respect to the issue of general damages Mr. Maharajh described feeling stress, sadness and embarrassment from this incident. He described that he had told family and friends of his new job opportunity with AOMS. When AOMS did not proceed with the hiring Mr. Maharajh had to explain to his family and friends that he had been disqualified by the position. In my view Mr. Maharajh is entitled to compensation for the mental distress and loss of dignity he suffered as a result of this incident. I do not agree with the Respondent’s position that $750 achieves this objective.

126. In Yuille v. Nova Scotia Health Authority, the Nova Scotia Human Rights Commission ordered $15,000 in general damages for discrimination in an employment context. In providing its reasons the tribunal considered jurisprudence supporting a range of general damage awards between $1,000 - $25,000 in Nova Scotia. In Newfoundland and Labrador the decision in Malone v. Dave Gulliver’s Cabs Limited is one example of a $5000 award for general damages for discrimination based on disability (vision). General damages should be consistent with the range established by prior jurisprudence. I set general damages for Mr. Maharajh at $7500.00. Reference: Yuille v Nova Scotia Health Authority, 2017 CanLII 17201 (NS HRC). Malone v Dave Gulliver’s Cabs Limited, 2016 CanLII 152826.

127. I agree with the Commission that the public interest would be served by AOMS participating in

review of its workplace policies and a training program to be facilitated by the Commission and which focuses on an employer’s duty to accommodating within the employment context generally. I would expect this program to address the use of prescription medications including medical marijuana in the workplace.

128. In my view Mr. Maharajh is entitled to a written apology from AOMS.

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C. Brodie Gallant Adjudicator