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3. Code protections

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Section 5(1) of the Code prohibits discrimination in employment on 16 grounds including disability. Section 10(1) of the Code includes an expansive definition of the term “disability” which encompasses physical, psychological and mental conditions. Drug and alcohol (substance) addictions[17] are disabilities protected by the Code. Examples include alcohol addiction and addictions to legal (e.g. prescription) or illegal drugs.[18]

The Supreme Court of Canada accepted the following definition of addiction, used by the Canadian Society of Addiction Medicine:

A primary, chronic disease, characterized by impaired control over the use of a psychoactive substance and/or behaviour. Clinically, the manifestations occur along biological, psychological, sociological and spiritual dimensions. Common features are change in mood, relief from negative emotions, provision of pleasure, pre-occupation with the use of substance(s) or ritualistic behaviour(s); and continued use of the substance(s) and/or engagement in behaviour(s) despite adverse physical, psychological and/or social consequences. Like other chronic diseases, it can be progressive, relapsing and fatal.[19]

The following examples are situations where the use or perceived use of drugs or alcohol may fall within the Code’s protection:

  1. Where a person’s use has reached the stage that it constitutes an addiction (“substance use disorder”).[20]
  2. Where an individual is perceived as having a drug or alcohol addiction.

Example: An employer refuses to promote an employee because of the belief that the employee has an alcohol addiction. Because of this perception and the employer’s consequent action, the person's right to equal treatment under the Code may have been infringed.

People who use substances recreationally are not protected by the Code, unless they are perceived to have disabilities.[21]

  1. Where an individual has had a drug or alcohol addiction in the past, but no longer has an ongoing disability.

Example: A company decided to put a drug and alcohol policy in place. The policy made it mandatory for employees in safety-sensitive positions to disclose a current or past “substance abuse problem.” After disclosing an alcohol abuse problem from more than seven years earlier and from which he was in remission, an employee was automatically reassigned to a non-safety-sensitive position. The company required him to complete a two-year rehabilitation program followed by five years of abstinence and abide by other controls before he would be allowed to work in his original position. The policy was found to be discriminatory.[22]

[17] The OHRC uses “addiction” as an all-encompassing term to refer to people who in the past would have been referred to as having substance “abuse” or substance “dependency” disorders. In the newest version of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), addictions are no longer divided into the categories of the less severe substance “abuse” and the more severe substance “dependency.” Instead, these are combined into the same category of “substance use disorders.” American Psychiatric Association, “Substance-related and addictive disorders,” Diagnostic and Statistical Manual of Mental Disorders: DSM-5 (Arlington, VA: American Psychiatric Association, 2013) online: Psychiatryonline (Retrieved August 21, 2014). Many legal cases referred to in this policy use the terms “substance abuse” and “substance dependency” because these decisions were issued before the publication of the DSM-5.

[18] Drug and alcohol programs typically test for six substances: marijuana, cocaine, opioids and opiates, amphetamine (including methamphetamine), phencyclidine (PCP) and alcohol. Frone, supra note 3.

[19] Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 at para 101, 3 SCR 134. See endnote 20 for a more specific diagnostic definition and diagnostic criteria.

[20] According to the DSM-5, a “substance use disorder” is a pattern of substance use leading to clinically significant impairment or distress, as manifested by at least two of 11 patterns of behaviour, or criteria, occurring within a 12-month period. These patterns of behaviour relate to a person’s impaired control over their substance use, social impairment due to using the substance, risky use of the substance and pharmacological criteria (that is, tolerance and withdrawal symptoms). Severity of the substance use disorder is “mild,” “moderate” or “severe,” depending on the number of criteria the person meets. American Psychiatric Association, supra note 17. Note that not all disorders that meet this definition are necessarily protected as disabilities under the Code. For example, the case law on whether addiction to nicotine or tobacco constitutes a disability is still inconclusive. See McNeill v Ontario (Ministry of the Solicitor General and Correctional Services),1996 CanLII 14947 (Ont Sup Ct); Cominco Ltd v United Steelworkers of America, Local 9705, [2000] BCCAAA No 62 (QL); Club Pro Adult Entertainment Inc v Ontario (Attorney General), 2006 CanLII 42254 (Ont Sup Ct).

[21] See section 7.2. for more information.

[22] Entrop, supra note 9.

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