In Irving Pulp & Paper, Limited v. Communications,
Energy and Paperworkers Union of Canada, Local 30, a
decision released on June 14, 2013, the Supreme Court of
Canada has confirmed the limited ability of management to
unilaterally impose random alcohol testing policies for employees
in a dangerous workplace – unless the imposition of any such
policy is a "proportionate response" that balances the
legitimate safety concerns of management with the privacy interests
In its decision, the Supreme Court of Canada reviewed whether
the management rights clause of Irving's collective agreement
was sufficiently broad to enable Irving to unilaterally adopt a
policy whereby ten percent of employees in safety-sensitive
positions at its paper mill would be randomly selected for
unannounced alcohol (breathalyzer) testing.
While the Court split (6/3) in its decision, both the majority
and minority generally agreed to the tests to be applied when
considering if the arbitration board's decision was reasonable:
namely, the use of the "KVP test", which provides, in
part, that any rule unilaterally imposed by management in a
unionized workplace must be consistent with the collective
agreement and be reasonable if the breach of the rule results in
disciplinary action and the use of the 'balancing of
interests' approach when assessing such reasonableness.
Applying these tests, the majority of the Supreme Court held
that Irving failed to demonstrate "the requisite problems with
dangerousness or increased safety concerns such as workplace
alcohol use that would justify universal random
testing". Accordingly, the majority found that
Irving's policy was an unreasonable exercise of management
rights under the collective agreement: the "uncertain"
and "minimal" safety gains Irving obtained did not
outweigh the significant impact that the random tests had on its
In a strongly worded dissenting judgment, the minority concluded
that the arbitration board that had struck down Irving's random
alcohol testing policy had "elevat(ed) the threshold of
evidence Irving was required to introduce in order to justify a
policy of random testing" and thus that its decision to strike
down the policy was unreasonable.
The minority concluded that evidence of "a" problem of
alcohol misuse at the Irving mill was sufficient to justify random
testing of employees in safety sensitive positions (rather than
evidence of a "significant" or "serious"
problem as required by the board), and that the requirement imposed
by the board that evidence of alcohol use be "tied" or
"causally linked" to the "accident, injury and
near-miss history" at the plant was "patently
While the Court split on the extent of the evidence of a problem
with alcohol that was required to meet the tests, it is clear that
some evidence of a problem, even in safety sensitive environments,
will be required.
In view of the decision in Irving Pulp and Paper,
and in particular the comment by the majority of the Supreme Court
that "...an employer would be justifiably pessimistic that a
policy unilaterally imposing random alcohol testing in the absence
of reasonable cause would survive arbitral scrutiny",
management should be mindful of this decision when considering
whether to unilaterally impose a random drug and/or alcohol testing
policy at the workplace. If such a policy has already been
implemented, management may wish to review same in light of this
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