Like most sensible people, I’m saddened by the fact that the Mayor of my great city supports the crack dealing industry, admits to committing criminal offences, lies incessantly, takes time off work to pound back vodka in parks and parking lots with criminals, and routinely gets hammered in public. This is a guy who has called for the immediate termination of a city employee who put his head on a desk! The hypocrisy of this guy is staggering. And yet Rob Ford remains the Mayor, enabled by some odd faction of the city who thinks his behaviour is just fine for a Mayor of one of the world’s great cities.
Almost everyone, friend and foe alike, has called on Mayor Ford to admit he has an addiction problem (to alcohol and/or illicit illegal drugs) and to enter a rehab program. But Ford insists he is not an addict. This means little of course, since one thing addicts do is refuse to acknowledge that they are addicts. Yet being an addict is Ford’s only defence to his repulsive behavour. If he is not an addict, then he is just a mean, lying, nasty, law-breaking enabler of Toronto’s illicit drug dealing industry, which has produced dozens of senseless murders across the city. Usually, we expect our elected officials to fight the illegal drug industry, not be one its customers. But if he is an addict, then at least he can claim his disgusting conduct was the result of an addiction and disability that affected his judgment.
Human Rights and Worker Addiction
I mention all of this to make a point about human rights law and employment.
One of the first cases I had as a new lawyer in British Columbia back in the 1990s involved a unionized employee of a big beer company who’d been fired for being intoxicated at work. This was the third such time he’d been disciplined for this offence, and the employer had had enough. I remember sitting in my Vancouver office going over the evidence with the employee. I asked him why he kept coming to work drunk, and suggested that perhaps he has a drinking problem. This angered him, and he insisted he was NOT an alcoholic, and that he had just had “a beer or two”. I explained to him how things work: If he is an alcoholic, I could maybe help him get his job back by claiming his conduct was caused by his disability. We would still have to establish a causal link exists between his alcohol addiction and the misconduct (see this case explaining that a causal link cannot just be assumed). But if he was not a alcoholic, then I could not rely on the human rights disability argument, and he was probably toast given this was his third such offence.
This is a point that a lot of people don’t understand. Alcoholics or drug addicts are considered disabled in Canadian human rights law, and it is a violation of that law for an employer to discriminate (including terminate) a person for conduct related to their disability, unless accommodation of that disability is not possible short of undue hardship. See Section 17 of the Ontario Human Rights Code. This usually means in practice that an addict gets at least one (and maybe more than one) chance to take time off from work to go through a rehab program before they can be fired for substance related misconduct. In Ontario, it is also illegal to discriminate against an employee based on ‘perceived disability’ [Section 10(3)]. Therefore, if an employer terminates someone who it thinks is an addict without first offering to accommodate the employee by allowing a period of rehabilitation, then it may be found to have violated the Code, even if in fact the employee is not an addict.
We can see these scenarios play out in a couple of cases. In Weyerhaeuser Company v. OHRC (2007), an employee was dismissed after a drug test showed he’d smoked pot in the preceding days before the test. When asked about this, the employee initially denied smoking pot, but then admitted it when pressed. The employee filed a human rights complaint alleging that he was terminated because the employer ‘perceived’ that he was addicted to marijuana. The employer said that it fired the employee because he lied about having smoked the pot, which demonstrated dishonesty. The Divisional Court found that there was no reasonable basis to believe the employee could win the complaint and dismissed the complaint. Since the employee did not claim he was an addict and in fact insisted he was only a recreational user, and there was no evidence to suggest the employer believed he was an addict, the human rights code did not apply. There was no disability or perceived disability.
In Klumpenhouwer v. Lowes (2013), an employee was dismissed after the employer learned he smoked marijuana in a hotel room paid for by the employer, but during his off hours. The Tribunal refused to dismiss the employee’s complaint for failing to show there was a reasonable prospect of success, distinguishing the Weyerhaeuser case on the basis that the employee here claimed he was addicted to pot. Therefore, it was possible that he could win an argument after a hearing of the evidence that he was terminated based on a disability or a presumption by the employer that he was addicted, and without any attempt at accommodation. However, in a follow up decision, Klumpenhouwer’s case was dismissed because he failed to submit any medical evidence that he was addicted. Thus, in the absence of any medical evidence of addiction, there was no basis to conclude that a breach of the Code had occurred.
Question for Discussion
Assume Rob Ford were a regular city employee. I’d submit that by any reasonable standard in employment law, his behaviour over the last year would be grounds for dismissal of either a unionized or non-unionized employee. Lying, drinking on the job, verbally abusing coworkers and staff, crack smoking with criminals by an employee in a job requiring leadership and law enforcement–these are all serious employment offences that would lead to immediate termination of almost any employee in Canada. If the regular employment standard applied to elected Mayors, Rob Ford would have been terminated by now, for cause.
Now assume two scenarios:
In scenario one, employee Rob Ford insists he is not addicted to drugs or alcohol (which is in fact his position). The employer says, “okay good, then you are just a lying, dishonest, law-breaking poor excuse for a human being and you are fired for cause”. Would Rob Ford have a human rights complaint on those facts?
In scenario two, employee Rob Ford tells the employee he is sorry for his behaviour and that it was the result of an addiction that impaired his judgment. He asks for an opportunity to go into a rehab program. Would the employer have a legal obligation to accept Ford’s request, or could the employer still terminate Ford?