The Supreme Court of Canada has released its decision in a
much-anticipated case about random alcohol testing in the
workplace. In a split decision, a majority of the Court decided
that a policy requiring employees in a New Brunswick pulp and paper
plant to submit to random alcohol testing was not reasonable.
Among other kinds of testing (which were not challenged), the
policy provided for unannounced alcohol testing of randomly
selected employees. Approximately ten per cent of employees would
be selected for random testing each year. Not long after the policy
was introduced, the union grieved on behalf of an employee who was
tested after being randomly selected. The employee in question did
not drink and tested negative, but objected to being required to
submit to the test.
The grievance was heard by a labour arbitration board. The
arbitration board heard evidence about whether there was an alcohol
problem in the workplace. The employer presented evidence of eight
documented incidents over a fifteen year period in which employees
consumed alcohol in the workplace or were impaired by alcohol at
work. There was no evidence of accidents or near misses related to
alcohol use by employees. The arbitration board concluded the
employer had not established that the need for random alcohol
testing justified the intrusion into workers' privacy. The
employer had therefore exceeded its rights by unilaterally imposing
it. The New Brunswick Court of Queen's Bench overturned the
arbitration board's decision on judicial review. The New
Brunswick Court of Appeal upheld the Court of Queen's
Six justices of the Supreme Court of Canada reversed the
decision of the New Brunswick Court of Appeal, holding that random
alcohol testing was unreasonable. Three justices would have upheld
the decision, permitting random alcohol testing in this
Both the majority and the dissenting justices sought consistency
with prior labour arbitration decisions. Both noted that Canadian
labour arbitrators have found random drug or alcohol testing to be
reasonable only if the evidence establishes a general problem in a
dangerous workplace. Labour arbitrators have rejected random drug
or alcohol testing imposed only to deter drug or alcohol use in a
workplace without a demonstrable problem. The differences between
the majority and minority concerned their interpretation of the
facts in this case.
The majority found it was reasonable to conclude that there was
no general problem with alcohol in this paper mill. Further, there
was little evidence about the effectiveness of random testing as a
deterrent in this workplace. Given the arbitration board's
factual findings, its conclusion was consistent prior labour
The minority interpreted the evidence differently. In its view,
there was some evidence of an alcohol problem in the workplace. It
was not necessary to establish a significant problem or that
alcohol use had led to accidents or near misses before introducing
random testing. The minority also found the arbitration board
wrongly minimized the deterrent effect of random testing.
The Supreme Court's decision does not significantly
change the law on random drug or alcohol testing in the workplace.
All the justices of the Court upheld principles already established
in labour arbitration case law. In drug and alcohol testing, safety
or other interests must be balanced against workers'
privacy interests. Random testing is considered especially
intrusive, and will be justified only if there is evidence that
safety cannot be achieved by less intrusive methods.
As we reported to you in December, an Alberta labour arbitrator
is currently hearing a case involving Suncor's plans to
implement random drug and alcohol testing of employees in
safety-sensitive positions. The decision in that case, which will
no doubt refer to the Supreme Court's decision, may provide
some further guidance on the circumstances where random drug or
alcohol testing will be justified. We will continue to keep you
informed of developments in this area.
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.
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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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