TO:
Lawyer X
FROM:
Student Z
DATE:
November 21, 2019
RE:
Sandy Frasier – Human Rights Claim
Introduction
Pursuant to your request, I have prepared a memo to determine whether our client, Sandy
Frasier, can illustrate that she has a viable Human Rights Claim. In the event that a valid Human
Rights Claim exists, I have investigated jurisdiction to examine whether this matter would be
best pursued under the Canadian Human Rights Act or the Ontario Human Rights Code
(OHRC).
For your reference, I have attached an appendix in my Research Plan and Log submitted
November 4th 2019.
Facts:
Sandy Frasier was hired by LAB studio and following a strong work record, was placed
in charge of an important client of LAB’s, Flow Digital (“Flow”). She was held out as a model
employee due to her strong client management strategy with flow and creativity by her
supervisor, Frieda Zimmerman.
Starting at some point from December to April however, Sandy began receiving negative
feedback from Frieda concerning faltering work performance. Frieda also approached Sandy
concerning health plan provided therapy in response to Sandy’s weight loss. in response Sandy
claimed fatigue to Frieda, as well as friends and family who asked.
Frieda was contacted approximately two months ago by the head of marketing at Flow,
who asked that Sandy be fired due to a complaint of cocaine usage or face a loss of future
business with Flow – Frieda obliged and terminated Sandy, threatening her reputation should she
object to the claim of just cause. This came as a surprise to Sandy, who had previously
networked and partook in cocaine alongside Flow employees, Frieda and LAB’s Vice-President
of marketing. She felt it was a part of LAB’s client culture. Following her termination, Sandy
was diagnosed with a cocaine addiction by the Canadian Centre for Addiction and Mental Health
(“CAMH”) and checked in to a program for residential care1.
Issues
1) Is addiction a disability under the OHRC?
2) Does Sandy have a viable claim of discrimination against LAB?
3) Did LAB properly accommodate Sandy under the OHRC?
Short Conclusion
1. Addiction is considered a disability under the OHRC
2. Sandy does have a prima facie claim of discrimination under section 1, 5, 7, or 10 of the
code.
3. LAB failed to provide adequate accommodation under the OHRC
Discussion
1) Addiction is considered a disability under the OHRC.
Sandy’s addiction qualifies as discrimination on the basis of disability under the OHRC.
Section 1(a) of the OHRC offers protection against discrimination in the workplace on the basis
of disability. This is specified further in 5(1) to describe circumstances of employment and
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defined in 10(1a) to include any degree of physical disability or infirmity2. In Entrop v. Imperial
Oil Limited an employee claimed constructive dismissal after the employer discovered a
previous addiction and imposed changed their position and imposed mandatory drug testing.
Relevantly, the court of appeal found that illness or disease creating disability included severe
forms of drug dependence or substance abuse.
In Stewart V. Elk Valley (“Stewart”), an employee was terminated for using cocaine on the
job following a workplace accident after which he tested positive on a drug test. The trial judge
found (and the appeals court and SCC conceded) that the employee’s addiction to cocaine
constituted a disability. Correspondingly, it can be said that Sandy’s cocaine addiction would
qualify as a disability under the OHRC.
2) LAB’s Treatment Towards Sandy Constitutes Prima Facie Discrimination.
LAB’s Treatment Towards Sandy Constitutes Prima Facie Discrimination. In Stewart, a
three-step test was established to demonstrate prima facie discrimination (6). A complainant is
required to show that:
(1) a disability which is protected under the Act; (6)
(2) adverse treatment with regard to his employment or a term of that employment; and
(3) that the disability was a factor in the adverse treatment (6).
The court conceded that the employee met the first two criteria in that the employee had an
addiction and the employee experienced an adverse impact due to the termination. For the third
part of the test it was ultimately found that the employee was not adversely impacted because
they failed to comply with the terms of the policy, whose terms they were in fact capable of
complying with (27). Applying this test to Sandy then, step 1 is already satisfied as per the
previous section. Step 2 is satisfied in that Sandy was fired on the basis of possessing and sharing
drugs and the termination resulted in adverse treatment. According to some sources, evidence of
inconsistent application of a rule may provide evidence towards part 3 of the test. In Sandy’s
case, there seems to have been inconsistent application of the policy, though this will be
discussed further in section 3.
3) LAB Failed to Meet their Burden to Accommodate
LAB failed to meet their burden to accommodate even in light of any Bona Fide
Occupational Requirement considerations. (54) Of course, if a Bona Fide Occupational
Requirement (“BFOR”) did exist, LAB would be permitted to discriminate on a finding of prima
facie discrimination. In British Columbia v. B.C.G.E.U. (“BC 1999”) the court laid out a threestep test for when a finding of prima facie discrimination is permissible:
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 workrelated 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.”
Step one relates to an assessment of objectives of the workplace standard. In this case, the
general objective (not to say the specific objective in this circumstance) of the policy prohibiting
the sharing and possession of illicit drugs with a consequence of termination. In
In this policy, there must exist a rational connection between the purpose and the objective
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requirements of the job. In BC 1999 the employer maintained a relation of fitness to the duties of
a firefighter. In Caldwell, the employer sought to maintain a prima facie finding of religious
discrimination on the basis that a requirement of the job was to uphold the religious integrity of
the institution and curriculum. It is plausible in Sandy’s case that adoption of a policy prohibiting
the use of illicit drugs could be rationally connected to the performance of a job for a variety of
reasons, however on step two, Sandy’s particular circumstances make good faith difficult to
justify.
Part two of the test lies in establishing that the employer used and/or adopted the test in good
faith in the particular case and generally (60). Finding the inverse would be sufficient to
demonstrate failure of a BFOR. Sandy may have grounds to address a BFOR claim of her
employer on this basis. Specifically, Sandy could allege that the policy was not held or applied
consistently during the course of her employment. That is, on the other occasions in which both
Freida and Sebastien were present for and aware of her cocaine usage and sharing with Flow
employees.
Finally, Step three of the test requires that an employer “demonstrate that the impugned
standard is reasonably necessary for the employer to accomplish its purpose”, such that it cannot
accomplish this purpose without experiencing “undue hardship” (62) were it to accommodate the
employee. The standard of undue hardship is high, and in creating accommodations for
employees, “tribunals and judges are expected to be “flexible […], innovative and practical”
with applying a test to a particular circumstance (63, 64). In Central Alberta Dairy Pool v.
Alberta (“Central”) an employee was denied an absence for observance of a holy day due to
Mondays being a particular busy day. The employer claimed a BFOR/BFQQ on the basis of
financial cost, disruption of a collective agreement, problems of morale of other employees,
interchangeability of work force and facilities. The court found against them, even after
considering the small size of the employer (74). In particular, the supreme court found that the
employer made no significant effort to accommodate the request and this lack of an attempt to
accommodate constituted a failure of the BFOR/BFQQ test.
In British Columbia Public Service Agency v. B.C.G.E.U. an employee, the manager of a
liquor store, was confronted by the employer for heaving stolen liquor. The employee was
dismissed and brought action against the employer alleging a failure to properly accommodate.
The Court of Appeal found in favour of the employee, dismissing the employer’s appeal,
establishing that the employer’s stance that the employee could not call for accommodations
after an incident was contrary to the objective of the BC human rights code addressing
discrimination and a promotion of a climate of understanding and mutual respect (67). In
Stewart, the dissent found that the employer failed to consider accommodation in light of
Stewart’s affiliation with the company or circumstances such as his: employment record,
circumstances surrounding the test, impact on performance or stated record of usage, calling the
policy “uncompromisingly stringent” and demonstrating “no sensitivity to the experience of
those suffering from addiction, or to Mr. Stewart’s unique circumstances”3. When
accommodating an employee with an addiction then, it can be said that at least some
consideration of the above factors to the particular circumstances of the employee is necessary to
discharge a duty to accommodate. Evidence of this individualization standard persists in
Imperial Oil v. Entrop (“Imperial”), where a formally alcoholic employee who was reassigned
and subjected to mandatory drug tests claimed constructive dismissal4. Among other things, the
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court found that the mandatory sobriety period, and drug testing were insufficient controls to
appraise dismissal and relevantly, that accommodations must account for individual differences
up to the point of undue hardship, signaling that some degree of customization may be required
in accommodating employees where necessary5. Additionally, these accommodations must be
composed of arrangements less severe than dismissal, and “where appropriate, the necessary
support to permit the employee to undergo a treatment or a rehabilitation program”6. (112). In
Sandy’s case, the only accommodation offered by her employer was a leave of absence to attend
therapy of some kind as per a blanket employee policy. While an employer might argue that this
individualization is provided by the therapist, this presumes that the level of accommodation
necessary is either adequately covered by a therapist, or that accommodation requiring a leave of
absence is the minimum necessary level of accommodation. In either case, Sandy was not
consulted and so individualization could not be adequately explored. In fact, it is at no point clear
that her employers consulted Sandy or considered any of the Stewart factors. Correspondingly, it
can be said that a very minimal, if any, level of consideration to these factors was given and in
turn, LAB did not adequately discharge its duty to accommodate.
Conclusion
Sandy likely has a viable case alleging a claim of discrimination on the basis of disability
for her cocaine addiction while working at LAB. The definition of disability has been found to
include addiction and in turn, Sandy’s cocaine addiction likely qualifies as a disability. Sandy
also establishes a prima facie case of discrimination in that her termination constituted adverse
treatment. Finally, the inconsistent application of LAB’s drug policy and the failure of LAB to
attempt to meet the requirements set by jurisprudence identifying the necessity of efforts which
are both individualized and significant mean that a BFOR claim would likely not succeed.
Consequently, Sandy likely has a viable Human Rights Complaint claiming discrimination under
the OHRC.
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