The recent decision of Limited v. Communications, Energy and
Paperworkers Union of Canada, Local 30, 2011 NBCA 58,
by the New Brunswick Court of Appeal has upheld random alcohol
testing where the workplace is determined to be "inherently
dangerous" and the method of testing is minimally
In this case, a grievance was brought by a 34-year-old
millwright in the maintenance department of a pulp and paper mill.
He was randomly selected for an immediate breathalyser test. The
employer's policy on drug and alcohol use stated:
"Employees involved in safety
sensitive positions will be subjected to unannounced random tests
Although the employee passed the test, he challenged the policy.
His union alleged there were no reasonable grounds to test because
there had been no accident or incident that would justify such
The arbitration board that initially heard the case focused on
whether the policy struck a reasonable balance between the
competing interests of the employee and employer. The board found
that it did not. It ruled that the employer had to justify the
policy by demonstrating that the benefit of the policy was
proportional to the intrusion on employees' privacy rights. The
board acknowledged that alcohol and safety issues were a prominent
concern given the nature of the work at the employer's mill.
But it distinguished between an "ultra-dangerous"
workplace (such as a nuclear plant, an airline, a railroad or a
chemical plant), where no history would be required to justify such
a policy, and a merely "dangerous" one, where such
testing would only be reasonable if the employer could demonstrate
a history of alcohol-related incidents. The board ruled that there
was no evidence of a significant problem with alcohol-related
impaired performance in the employer's operations (there were 5
alcohol-related incidents but no accidents or injuries over 15
years). Furthermore, despite random testing of 10% of the
workforce, there had been no positive tests reported. As a result,
the board concluded there was no real advantage to be gained and
struck down the employer's policy.
The employer successfully applied to have the decision
overturned by the New Brunswick Court of Queen's Bench. In its
reasons, the court disagreed with the board's distinction
between "dangerous" and "ultra-dangerous." In
the court's view, once a workplace is found to be dangerous, no
further justification is required; the only issue to decide is
whether or not the policy was proportional to its potential
It was unreasonable to require a history of accidents or
incidents to justify a policy of random alcohol testing where the
potential for a catastrophe exists. The prevention of a single
catastrophe in the life of the employer's operations would be
enough to make the policy reasonable in the court's view. It
would be unreasonable to require an employer to wait until a
catastrophe occurred before taking proactive measures to prevent
The court ruled that breathalyser testing was minimally
intrusive. The policy only applied to a limited number of employees
in legitimately safety sensitive positions. As a result, the policy
was not out of proportion to the actual and expected benefit. The
policy was justified in the circumstances.
The union then appealed to the New Brunswick Court of Appeal.
The appeal was dismissed in a decision issued July 7, 2011. The appeal court
rejected the union's argument that sufficient evidence of a
pre-existing drug or alcohol problem in the workplace is a
precondition to the enforceability of such a policy unless the
workplace is "ultra-dangerous". The finding of the lower
court was upheld.
This decision is important for employers. It confirms the
employer's right to implement random alcohol testing for safety
sensitive positions in an inherently dangerous workplace. One does
not necessarily need to show a history of alcohol-related accidents
or infractions. Earlier decisions upheld testing where reasonable
grounds to test clearly exist, or after an accident has occurred.
This decision builds upon these prior cases. It confirms the
employer's right to randomly test employees employed in safety
sensitive positions, at least for alcohol.
It must be noted, however, that this ruling would not
necessarily extend to drug testing. While current methods of
alcohol testing can be used to assess an employee's impairment
at the time of the test, the courts have determined that current
drug testing methods are unable to provide this information. As a
result, the privacy intrusion associated with random drug testing
can often not be justified.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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