The Labour & Employment department at BLG understands
that the Supreme Court of Canada will tomorrow be releasing its
long-awaited (by us anyway!) decision in Irving Pulp &
Paper Ltd v Communications, Energy and Paperworkers Union of
Canada, Local 30.
Irving Pulp is a case which originated in New Brunswick
and in which the issue of the legitimacy of policies relating to
random alcohol testing in the workplace, will be considered.
In brief, Irving Pulp operated a kraft paper mill (which will
presumably be held to have been a safety-sensitive work
environment) and in 2006 introduced a policy of random alcohol
testing for safety-sensitive positions. The union challenged
the legitimacy of such a policy and the case has made its way to
the Supreme Court of Canada. The matter was heard in December
In coming to its decision, the Supreme Court will need to
balance issues of safety (especially in safety-sensitive work
environments) versus potential breaches of privacy and
human rights, in the conduct of random alcohol tests. We hope
that some useful guidance for employers will be given by the
Supreme Court on this issue and that such guidance can potentially
be related to the more complex issue of random testing for
drugs. The main difference between these two types of test is
that alcohol testing shows current impairment whereas drug testing
does not. In the past the courts have been more willing to
allow random alcohol testing and so it will be interesting to see
if the Supreme Court of Canada follows suit.
The issue of random drug testing is currently being considered
in Alberta (where the oil sands environment makes this a hot topic)
by an arbitration board in a matter involving Suncor and
Communications, Energy and Paperworkers Union of Canada, Local
We will, of course, update you once the decision of the Supreme
Court has been released.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).