Canada: Supreme Court Of Canada Rules On Random Alcohol Testing: The Door Is Open, But The Path Is Unclear

Last Updated: June 26 2013
Article by Anna Abbott and David K. Law

Most Read Contributor in Canada, October 2018

On June 14, 2013, the Supreme Court of Canada released its anticipated ruling in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.. In a 6 to 3 decision, the majority of the Supreme Court accepted as reasonable a decision of a board of arbitration striking down Irving's random alcohol testing policy.

This is the first time that the Supreme Court of Canada has weighed in on workplace alcohol testing. The Majority found that the unilateral imposition of random alcohol testing must be balanced against the privacy rights of individual employees. The Court held that it was reasonable for the board of arbitration to find that the testing regime instituted by Irving failed to respect the privacy-safety balance.

In an important consideration, the majority found that the evidence of a workplace alcohol problem at Irving's workplace was lacking. However, the entire court agreed that if there was sufficient evidence of workplace problems, unilaterally introduced random testing could be appropriate.

Further, the Court specifically approved the employer's right to unilaterally introduce in a unionized workplace an alcohol and drug policy that includes:

  • For cause testing
  • Post incident testing
  • Post-rehabilitation testing


This case arrived at the Supreme Court of Canada following a judicial review of a grievance arbitration decision and a subsequent appeal.

The underlying grievance arose from Irving's unilateral decision to introduce a drug and alcohol policy that included random alcohol testing of employees in safety-sensitive positions. A unionized employee was randomly tested under the policy. He was a teetotaller and saw no reason why he should be tested at all. He filed a grievance on the basis that the employer lacked the power to impose a random alcohol testing policy on its unionized employees.

The board of arbitration did not accept that Irving's testing regime was reasonable in the absence of proof that the workplace was affected by an alcohol abuse problem. It upheld the grievance. On judicial review, the arbitration decision was reversed.  The New Brunswick Court of Appeal upheld the judicial review result. The union appealed to the Supreme Court of Canada.  Given the issues, many parties obtained intervenor status.

The Supreme Court of Canada Decision

Arbitrators have developed, through numerous cases, a theory of privacy rights which is different from that established by the common law or statute for non-union workplaces. The majority purportedly sought to balance that privacy interest with the right of the employer to make rules to promote a safe workplace.

It is important to keep in mind that this decision only applies in workplaces governed by a collective agreement. In non-unionized workplaces, the test as set out in Entrop v. Imperial Oil1 should be followed.  

Random testing allowed where there is a demonstrated workplace problem of alcohol abuse

It may give employers with unionized workforces some comfort to know that the full Court agreed that random alcohol testing may be justified in particular circumstances: if the employer is able to demonstrate evidence of an alcohol problem in the particular workplace, it can justify the unilateral imposition of random alcohol testing.

Unfortunately there was little further analysis on the part of the majority as to what evidence might be enough to tip the scales in favour of the introduction of random alcohol testing.

Minority finds Board of Arbitration decision unreasonable

Three members of the Court dissented from the Majority decision. While the Majority found no evidence of a demonstrated workplace alcohol problem, the Minority read the evidence completely differently and found the Board of Arbitration's decision unreasonable.

The Minority found that there is an arbitral consensus that in order to introduce a policy of random alcohol testing, an employer must demonstrate evidence of an alcohol problem in the workplace. The Minority held that the Board of Arbitration wrongly changed the test to require the employer to show evidence of a "significant" or "serious" problem, and to present evidence of a causal link between alcohol and a workplace incident or near miss.

As a result of this change in the test to a higher evidentiary standard, among other reasons, the Minority found the Board's decision unreasonable. The minority held that an employer should not have to wait for a serious incident of loss, damage, injury or death to occur before taking action and that to require such a causal connection is not only unreasonable but is "patently absurd."


It is the opinion of many stakeholders that employers' duties to manage workplace safety risks may justify random alcohol testing. The Court's decision in CEP v. Irving opens the door to such testing in the unionized workplace, in specific circumstances, but leaves unexplained the conditions which would make random alcohol testing clearly legal.  

This lack of clarity isn't just a concern for employers – it also concerned the Minority of the Court, which took the unusual step of encouraging employers and employer associations to lobby their legislatures for change to law to include a right to impose random drug and alcohol testing in unionized workplaces. It may be that legislative action will be required to provide employers with the tools they need to ensure safety in their workplaces.


1Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3rd) 18 (C.A.) applies the British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Service Employees' Union [1999] 3 S.C.R. 3, 1999 SCC 48 (Meiorin)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Roper Greyell LLP – Employment and Labour Lawyers
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Roper Greyell LLP – Employment and Labour Lawyers
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions