According to a recent ruling by the Human Rights Tribunal of Alberta in Greidanus v Inter Pipeline Limited, 2023 AHRC 31 (CanLII), a revoked job offer based on a failed drug test by an Alberta pipeline company was not discriminatory despite a disability claim.

The worker, JG, had previously developed anxiety, stress, and depression while with the Canadian Navy and was diagnosed with Hashimoto’s disease.

Subsequently, JG began using cannabis to treat his symptoms after its legalization in 2018. In addition, he primarily used CBD oil, with its cost covered by health benefits from Veterans Affairs Canada due to his disability arising during his military service.

JG had applied for a job as a business continuity and emergency management advisor with Inter Pipeline, based in Calgary, Alberta.
The job post described the work as an administrative position requiring predominantly office work, with occasional trips into the field to conduct training. The offer of employment was contingent upon passing a pre-employment drug test as the job position was considered safety-sensitive since it involved the operation of heavy machinery and equipment and responding to emergencies at the site.

Accordingly, JG took the test, which showed a positive result for cannabis (THC) in his system. He claimed he had a physical disability and he used cannabis to alleviate pain and symptoms. Inter Pipeline revoked the offer of employment and told JG the decision was final; however, JG had already resigned from his previous job.

“It’s important that employers make sure that they use licensed drug-testing companies to go through that process rather than something like a simple identification checkbox or some sort of quick test kit,” said Calgary labour and employment lawyer Nathaniel Bowles in his interview with HRReporter. “Keeping it official in that process allows them to have 100-per-cent security in the validity of the results – and it keeps the process formal with respect to making sure there’s a thorough questionnaire to give the employee that opportunity to identify any disability issues.”

Subsequently, JG filed a human rights complaint, alleging that Inter Pipeline discriminated against him due to his physical disability and that the job offer was revoked due to his cannabis use, which was directly related to his disability.

The tribunal determined that Inter Pipeline did not know and ought not to have known that JG had a physical disability. Moreover, JG did not disclose it or his cannabis use in the interview or when he received the job offer, despite being aware that the job offer was conditional on passing a pre-employment drug test.

Moreover, the tribunal determined that JG also did not disclose his disability and cannabis use to the testing company, despite being told he would be tested for cannabis.

Finally, the tribunal stated that 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 the worker’s disability prior to revoking the job offer.

“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.” As a result, the complaint was dismissed.