By Nahlah Ayed

Toronto-Dominion Bank Drug Testing Policy Discriminatory

OTTAWA (CP)

-- A drug-testing policy implemented by the Toronto-Dominion Bank to screen new hires is discriminatory, the Federal Court of Appeal ruled Thursday.

In the 2-1 decision, the court ruled the policy violates the Canadian Human Rights Act because it could discriminate against certain employees and because it isn’t sufficiently related to job performance.

It’s the latest development in a case that has dragged on since the Canadian Civil Liberties Association filed a complaint with the Canadian Human Rights Commission in 1991.

Martin Doane, legal counsel for the commission, said the organization is gratified by the decision.

"The policy overshoots any reasonable mandate for drug testing and constitutes a significant infringement on the privacy rights of individuals who are required to submit to it," he said.

But the ruling may not be the end of the saga, he added.

Kym Robertson, a spokeswoman for TD, said the bank is considering an appeal to the Supreme Court.

But in the meantime, the policy has been suspended until the bank explores all its options, she said.

TD implemented the drug testing policy in 1990. Robertson said new hires were asked to take a drug test within 48 hours of being offered a job.

The policy states the idea behind the testing is to "maintain a safe, healthy and productive workplace, to safeguard bank and customer funds and information and to protect the bank’s reputation."

The test checked for the presence of illegal drugs such as cocaine and opiates. If someone tested positive, the bank would offer rehabilitative counseling, said Robertson.

"We haven’t had a negative reaction from employees on it.".

Justice J.A. McDonald, one of the two judges who dismissed the bank’s appeal, said in his comments there was no evidence to suggest drug related crime was a problem at TD.

"A finding of a trace amount of drugs in one’s system does not mean that the employee is unproductive or about to engage in a work-related crime," he wrote.

The complaint was originally dismissed by a human rights tribunal in 1994, but the Federal Court upheld it in 1996. The bank then appealed that decision to the Federal Court of Appeal.