Case Brief:Communications, Energy
and Paperworkers Union of Canada, Local 30 v Irving Pulp &
Paper, Ltd, 2013 SCC 34.
The ongoing efforts by Canadian employers to engage in random
drug and alcohol testing suffered a further setback as a result of
a decision released on June 14, 2013. In a 6-3 split, the Supreme
Court of Canada has upheld a New Brunswick labour arbitration board
decision that struck down a random alcohol testing policy at a mill
owned by Irving Pulp and Paper Ltd. Although the facts in this case
involved a unionized workplace, the implications of this decision
may be far-reaching and impact all types of employment
In 2006, Irving unilaterally adopted a "Policy on
Alcohol and Other Drug Use" at one of its paper mills in
Saint John, New Brunswick. Under the policy, 10% of employees
deemed to be in "safety sensitive" positions would be
randomly selected for unannounced breathalyser testing over the
course of a year. Testing positive for alcohol or refusing to take
the test could lead to disciplinary action, including, in certain
The Communications, Energy and Paperworkers Union filed a
grievance on behalf of an employee who was tested under the policy.
While the employee's breathalyser test revealed a blood alcohol
level of zero, the union only challenged the random alcohol testing
component of the policy.
Reasons Of The Majority
In finding that the labour arbitration board's decision was
reasonable, the Supreme Court of Canada identified the central
legal issue in this case as being whether Irving's "policy
was a valid exercise of the employer's management rights under
the collective agreement." Writing for the majority, Abella J.
relied upon the body of arbitral jurisprudence that has developed a
"balancing of interests" proportionality approach, under
which unilateral imposed testing in a dangerous workplace has
generally been rejected unless the employer is aware of a drug or
alcohol abuse problem in the workplace
The majority agreed with the board that Irving had no evidence
of enhanced safety risks posed by alcohol use that would justify
random testing. There had only been eight incidents involving
alcohol over a 15-year period. Furthermore, the board had
determined that Irving's safety gains under the policy ranged
"'from uncertain... to minimal at best', while the
impact on employee privacy was found to be much more severe".
In light of these findings, Irving's policy was held to be an
unreasonable exercise of management rights under the collective
Reasons Of The Dissent
At the heart of the dissenting opinion written by Rothstein and
Moldaver JJ., with McLachlin CJ concurring, was the view that the
labour arbitration board had departed from previous arbitral
decisions and imposed a higher evidential burden on employers who
wished to justify random alcohol testing policies. It is the
position of the dissenting Justices and the Chief Justice that
evidence of "a" problem, as opposed to a
"significant" or "serious" problem would
justify a random alcohol testing policy. In their view, "an
employer does not have to wait for a serious incident of loss,
damage, injury or death to occur before taking action." To
require the causal connection "is not only unreasonable, it is
Implications For Employers
It is important to note that this recent decision does not
prevent employers from ordering random drug and alcohol testing in
a dangerous workplace. The majority in this decision makes it clear
that policies representing "a proportionate response in light
of both legitimate safety concerns and privacy interests ... may
well be justified." Furthermore, employers in a unionized
setting remain at liberty to negotiate the implementation of drug
and alcohol testing with their union(s).
While the Supreme Court of Canada held that random drug and
alcohol testing policies and the intrusion on employee privacy must
be proportionate and justified by the employer, it also confirmed
the scope of permitted testing, which had been unchallenged by the
union at the labour arbitration board. This included circumstances
where there is reasonable cause to suspect an employee's use of
alcohol or drug use in the workplace following a direct involvement
in a workplace accident or injury, or even as part of a monitoring
program for an employee's return to work following a substance
abuse treatment program.
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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