The Supreme Court of Canada has granted the union leave to
appeal in the Irving Pulp & Paper case, in which the
New Brunswick Court of Appeal decided that an employer can conduct
random alcohol testing of employees in safety sensitive positions
in an inherently dangerous workplace, without having to show a
pre-existing alcohol problem.
The facts of the case are as follows:
the employer adopted a policy of mandatory alcohol testing for
employees in safety sensitive positions;
the workplace in question used hazardous materials, including a
pressure boiler that could potentially explode, and was located in
a city and near water bodies;
a computer randomly selected employees in safety sensitive
positions to be tested by breathalyser;
the testing was mandatory, unannounced and positive results
could result in sanctions;
an employee who did not drink for religious reasons was
selected for testing and subsequently grieved the alcohol testing
The majority of the arbitration board applied a balancing of
interests approach, taking into account the employer's
right to make workplace rules and an employee's right to
privacy. In order to justify the testing, the employer was required
to either provide evidence of alcohol problems in the workplace or
show that the workplace was "ultra dangerous". Because
neither was established, the grievance was upheld. The New
Brunswick Court of Queen's Bench overturned the arbitration
board's decision, rejected the "ultra dangerous"
requirement (finding that "dangerous is dangerous"), and
held that the potential for a catastrophic accident justified the
employer's alcohol testing policy.
The Court of Appeal upheld the Court of Queen's Bench
decision, also rejecting the "ultra dangerous"
requirement. More importantly, the Court of Appeal questioned the
balancing of interests approach in the context of random alcohol
testing in inherently dangerous workplaces. The Court of Appeal
held that random alcohol testing for employees in safety sensitive
positions is justified in an inherently dangerous workplace, and
that evidence of an existing alcohol problem in the workplace is
This is the first case in which the Supreme Court of Canada will
directly address alcohol testing in the workplace. We are
interested to see whether the Supreme Court of Canada will also
question the balancing of interests approach, which has been
regularly followed by arbitrators in similar cases. Of equal
interest is whether the Supreme Court will restrict its decision to
the facts of the case or whether it will take the opportunity to
clarify the state of the law on workplace alcohol and drug testing
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