Mandatory random drug and alcohol testing has been at the centre
of a litigious tug-of-war at arbitration boards and courts across
Canada. However, the relevant legal principles may soon be
clarified as the Communications, Energy and Paperworkers Union of
Canada, Local 30 (the "Union") has been granted leave to
appeal to the Supreme Court of Canada, a decision of the New
Brunswick Court of Appeal which upheld Irving Pulp & Paper
Limited's ("Irving") policy on mandatory random
alcohol testing on "inherently dangerous" work sites.
Irving operates a kraft paper mill which is considered an
inherently dangerous work site. Irving instituted a mandatory
random alcohol testing program for employees holding "safety
sensitive" positions. At arbitration, the Union successfully
argued against the random alcohol testing of its members. Irving
subsequently appealed to the New Brunswick Court of Queen's
Bench where the Arbitration Board's decision was quashed. The
Union then appealed to the New Brunswick Court of Appeal where the
Court of Queen's Bench Appeal was upheld, justifying
Irving's policy on mandatory random alcohol testing.
The Union sought leave to appeal the New Brunswick Court of
Appeal decision and leave was granted on March 23, 2012. It is
expected that the decision of the Supreme Court of Canada will
provide much-needed clarification regarding drug and alcohol
testing of employees, and will almost surely have an impact on the
adoption and administration of drug and alcohol testing policies in
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
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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