Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50884
soon. That means in-house counsel may be forced to roll the dice and create an A&D policy that could well end up on an arbitrator's desk or before a court or human rights tribunal. While that is nothing to look forward to, experts argue it's far better than spending mil- lions on a settlement after a workplace disaster or dealing with the fallout of a severely injured or deceased employee. For proof of the potential fallout from an impaired worker, one needs to look no further than the 1989 Exxon Valdez oil spill. A drunken captain played a role in that disaster, which led to a $500-million bill in civil liabilities alone. That incident helped push U.S. employers to enforce more A&D test- ing policies, and also prompted Exxon to take a firmer approach to workplace safety: the company abandoned an oil- field in the Gulf of Mexico due to dan- gerous conditions in 2006, even after it had spent $185 million on the project. At the end of the day, courts will look fondly on any measures taken to pre- vent a disaster, says Richard Charney, chairman of Ogilvy Renault LLP's employment and labour law group in Toronto. "From a pure corporate fidu- ciary perspective, it does show some measure of due diligence. And by the way, if you hire a decent lawyer, go to arbitration or court, and fight it and lose, I suppose you've still done your due diligence. Let the potential harm rest on the shoulders of the arbitrator or the judge." At the same time, Andy Robertson, chairman of Macleod Dixon LLP's employment practice group in Calgary, paraphrases one client's view on an A&D testing policy that may face scrutiny: "I'd rather talk to the Human Rights Commission than the parents of my dead employees." At the moment, it is impossible for in-house counsel to have complete cer- tainty when creating a testing policy, and none is expected until the Supreme Court of Canada weights in. Many were disappointed when Canada's top court took a pass at hearing an appeal of Kellogg Brown. "So far, the Supreme Court doesn't want to talk about it," says Charney. "I think there is going to be a case that's going to go there, and hope- ntitled-4 1 fully the court will clarify the rules. But in the meantime, they seem to want this work to be done in the lower levels." That must be unsettling for lawyers like John Martelli, senior legal counsel at Bruce Power in Tiverton, Ont. His com- pany — which operates nuclear reactors on 2,300 acres about 250 kilometres north of Toronto — continues to moni- tor the law with an eye to the possible creation of a testing policy in the future. Its current approach to on-the-job sub- stance abuse comes in the form of a "fit for duty" checklist, which managers use to question employees who they suspect are impaired. "We're thinking about it and following the law as it progresses throughout the country, in terms of whether or not we need to beef up our policies," says Martelli, who points to the wide use of testing by companies in the U.S. nuclear industry. He says the union � INHOUSE OCTOBER 2010 • 29 8/26/10 10:58:37 AM