2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
Random Drug and Alcohol Testing OK For Now at the Toronto Transit Commission
In a recent court case from Ontario, Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078, the Amalgamated Transit Union, Local 113 (the “Union”) applied for an injunction to prevent the Toronto Transit Commission (the “TTC”) from implementing random drug and alcohol testing for its employees.
The TTC implemented a “Fitness for Duty Policy” back in 2010 (the “Policy”). The Policy permitted drug and alcohol testing in several situations, including where there was reasonable cause to believe alcohol or drug use resulted in an employee being unfit for duty and as a final condition of the appointment to a safety sensitive position. The Policy did not initially provide for random testing, but the TTC advised the Union that it reserved its right to implement same. The Union filed a policy grievance and the arbitration commenced in March 2011. To date, the arbitration is still ongoing with no end date in sight.
In October 2011, the TTC amended the Policy to require random drug and alcohol testing. The implementation of same was not approved until March 2016. In response, the Union applied to the Ontario Superior Court of Justice for an injunction to prevent the TTC from implementing the random testing, pending the outcome at arbitration. Of note, although random testing was not added to the Policy until after the Union’s grievance was filed, Arbitrator Saltman ruled that she had jurisdiction to determine the appropriateness of same.
In determining whether the injunction would be granted, Mr. Justice Marrocco applied the three-part test for an injunction set out by the Supreme Court of Canada (SCC) in RJR-MacDonald Inc. v Canada (Attorney General),  1 SCR 311. In order to meet the test, the Union was required to demonstrate: 1) that there was a serious issue to be tried; 2) that it would incur irreparable harm if the injunction was not granted; and 3) that the balance of convenience, taking into account the public interest, favoured granting injunctive relief.
Justice Marrocco very quickly dispensed with the first part of the test for an injunction, finding that there was a serious issue to be tried at arbitration, holding that the arbitrator is tasked with applying the principles set out in the 2013 SCC decision regarding random alcohol and drug testing. In Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd., 2013 SCC 34 (Irving Pulp and Paper), the SCC held that employers in a safety sensitive, unionized workplace must demonstrate a general drug or alcohol problem in the workplace to justify random drug and alcohol testing policies.
On the second part of the test for an injunction, Justice Marrocco concluded, upon a review of affidavit evidence presented by both sides, that there would be no irreparable harm to the Union based on the following circumstances surrounding the TTC’s decision to implement random drug and alcohol testing:
- Prospective employees were required to pass a pre-employment urinalysis for drug use. Therefore, a reasonable person would assume that if one had to test negatively for drugs and alcohol to get a job with the TTC, they would have to continue to do so in order to keep that job with the TTC;
- Employees at the TTC do not want to work with persons who test positive for drugs or alcohol and expect that steps will be taken to make sure those in safety critical positions are fit for duty;
- The workplace for the TTC is the city of Toronto – it includes subways, buses and streetcars that travel throughout the city;
- The procedures and methods for random alcohol and drug testing chosen by the TTC, which was via oral fluid testing and breathalyzer, are minimally invasive and superior to other methods of testing for drugs available on the market. Justice Marrocco noted that the drug cut-off levels were higher in the Policy than those currently proposed in the draft Mandatory Guidelines for Federal Workplace Drug Testing Programs by the U.S. Substance Abuse and Mental Health Services Administration;
- The nature of the Policy is reasonably tailored to its stated health and safety purpose. The Policy has a treatment component, contains controls intended to ensure accountability for the information collected, and there is no evidence that the results of testing will be used in a manner that is inconsistent with persons submitting to the testing. Employees also have an opportunity to challenge and explain their test results before the results are reported to the TTC;
- If the Policy is found to have contravened the collective agreement between the parties, or found to violate applicable human rights legislation, or if an employee is terminated due to a proven false positive result, he or she can be compensated with money; and
- The evidence does not indicate that instituting random drug and alcohol testing creates a likelihood of psychological harm to TTC employees.
Notwithstanding that Justice Marrocco was willing to dismiss the Union’s application on the basis that there was no irreparable harm to the Union by TTC’s implementation of random testing, he continued to consider the third part of the test, addressing whether the balance of convenience favoured granting the injunction.
In considering which of the two parties would suffer greater harm from the granting or refusal of the injunction, Justice Marrocco found that the balance of convenience favoured random testing. He held that the TTC was not a typical workplace; it had 11,000 employees and drug or alcohol misuse could have tragic consequences for many people, not all of whom were TTC employees. There were 116 instances where employees either tested positive or refused to be tested pursuant to the Policy between October 2010 and December 2016, with 27 incidents occurring in 2015. Accordingly, Justice Marroco found, that based on the evidence, there is a “demonstrated workplace drug and alcohol problem at the TTC which is currently hard to detect and verify”. He again added that if the Union was ultimately successful at arbitration, an invasion of an employee’s reasonable expectation of privacy could be compensated with damages.
The Union’s application for an injunction was therefore dismissed.
What Does This Decision Mean for Employers?
The outcome in this decision means that the TTC can proceed to perform random alcohol and drug testing at its workplace, in accordance with the Policy at least until the matter concludes at arbitration. While this case presents a win for the TTC, it will be interesting to see how it is applied to other employers given the uniqueness of the workplace at issue in this case (namely, the entire City of Toronto). Employers in safety-sensitive workplaces would be wise to remain wary of implementing random drug or alcohol policies unless there is demonstrable evidence of a general problem with substance abuse in the workplace, as confirmed by the SCC in the 2013 decision of Irving Pulp and Paper. Guidance on what constitutes a general problem with substance abuse in the workplace is currently working its way through the courts in Alberta (see Suncor Energy Inc. and Unifor, Local 707A, 2016 ABQB 269), and will, without a doubt, be addressed by the Supreme Court of Canada in due course. What remains clear, is that the law of drug and alcohol testing in Canada continues to be in a state of evolution.