Although the Code distinguishes between direct and constructive discrimination,[12] the distinction is less important than it used to be, particularly in the area of disability. This is a result of the combined impact of two factors. First, the Supreme Court of Canada has blurred the distinction between the two for practical purposes and has developed a single three-step test.[13] The Ontario Court of Appeal has applied similar reasoning in the Ontario context, specifically in the area of disability and drug and alcohol testing.[14]
Second, Section 17 of the Code provides a defence where a person with a disability is unable to perform an essential requirement. However, the defence is only available if the requirement is bona fide and reasonable, and only after the person has been accommodated to the point of undue hardship. Since employers usually argue that the requirement for impairment-free performance is essential, s. 17 of the Code will be an important part of a respondent’s defence.
In either event, the Ontario Court of Appeal has indicated that except in the most obvious cases of direct discrimination, the focus should be on determining whether the employer can justify the policy or standard using the new three-step test set out by the Supreme Court of Canada.[15] Applying this approach, company-wide policies such as drug and alcohol testing polices will attract the need to accommodate employees and, most importantly, on an individual basis.[16] The OHRC supports this position. Individualization is central to the notion of dignity for persons with disabilities and to the concept of accommodation on the ground of disability, regardless of whether a particular form of drug testing or alcohol testing is likely to be considered to be “direct” or “constructive.”[17] “Blanket” rules that make no allowances for individual circumstances are necessarily unable to meet individual requirements and are therefore likely to be struck down.
[12] See, e.g. ss. 5 and 11 of the Code.
[13] British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., (1999) 176 D.L.R. (4th ) 1 (S.C.C.) [hereinafter Meiorin].
[14] Entrop v. Imperial Oil Ltd. (unreported decision of the Ontario Court of Appeal, 21 July 2000).
[15] Ibid. at para. 79-82.
[16] Ibid.
[17] See generally the OHRC's Policy and Guidelines on Disability and the Duty to Accommodate, available at the OHRC website: www.ohrc.on.ca.