une 14, 2013, the Supreme Court of Canada released its
highly anticipated decision in Communications, Energy and
Paperworkers Union of Canada, Local 30, v. Irving Pulp & Paper,
Ltd., 2013 SCC 34 (http://www.canlii.org/en/ca/scc/doc/2013/2013scc34/2013scc34.pdf).
In its decision, the Supreme Court of Canada signaled for the first
time that employers in safety-sensitive work environments may be
justified in implementing random alcohol testing when there is a
safety risk in the workplace due to alcohol, such as evidence of a
general problem with substance abuse in the workplace.
In 2006, Irving Pulp and Paper ("Irving") adopted a
new policy on alcohol and drug use at its kraft paper mill in Saint
John, New Brunswick. The mill is acknowledged to be a dangerous
workplace with malfunctions carrying the potential for
"catastrophic failures". As part of the new workplace
policy, Irving instituted a random alcohol testing program whereby
10% of the employees in safety sensitive positions were to be
randomly selected for unannounced breathalyzer testing over the
course of a year. In the 15 years which preceded the introduction
of this policy, there were only eight documented incidents of
alcohol consumption or impairment at the mill. Moreover, there were
no accidents, injuries or near misses connected to alcohol.
On March 13, 2006, mill employee Perley Day, was randomly
selected to submit to a breathalyzer test. As Mr. Day does not
consume alcohol, his test returned a blood alcohol level of zero.
Shortly thereafter, the Union filed a policy grievance alleging
that the random alcohol testing component of the new alcohol and
drug policy was unreasonable; the Union did not challenge the other
aspects of the policy.
The arbitration board found that although random alcohol testing
may be reasonable in some circumstances, there was not sufficient
evidence in this case of an existing problem with alcohol use in
the workplace. On judicial review, the Court of Queen's Bench
of New Brunswick set aside the arbitration decision. The New
Brunswick Court of Appeal dismissed the appeal.
The SCC's Decision:
While there was no debate about the safety-sensitive nature of
the workplace, the majority held that the dangerousness of a
workplace is only the beginning of the inquiry, "[w]hat has
been additionally required is evidence of enhanced safety risks,
such as evidence of a general problem with substance abuse in the
workplace." That said, Justice Abella, on behalf of the
majority, went on to say that "[t]his is not to say that an
employer can never impose random testing in a dangerous workplace.
If it represents a proportionate response in light of both
legitimate safety concerns and privacy interests, it may well be
justified." Considering the particular facts before them in
this case, the Court found that random alcohol testing was not
justified in the context of the Irving paper mill in Saint John,
The three judges in dissent noted that an employer should not be
required to wait for a serious incident of loss to take proactive
steps to mitigate risk.
Barbara B. Johnston and April Kosten represented the
Construction Owners Association of Alberta, Construction Labour
Relations – An Alberta Association and Enform at the Supreme
Court of Canada. Please feel free to contact Barbara or April
directly if you would like to discuss the implications of this
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