Canada: New Supreme Court Of Canada Decision Considers An Employer’s Right To Test For Alcohol: Communications, Energy And Paperworkers Union Of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34
On June 14, 2013, the Supreme Court of Canada released a much
anticipated decision concerning a unionized employer's right to
unilaterally impose random alcohol testing in a dangerous or
As a service to our valued clients, we are circulating this
summary of the Court's decision and the possible impact that it
will have on employers.
Irving Pulp & Paper, Ltd. ("Irving") operates a
paper mill in New Brunswick.
Both Irving and the union were in agreement that the mill is a
dangerous or safety sensitive workplace. Where the parties
disagreed, however, is whether this justified the unilateral
imposition of random alcohol testing.
Relying on the management rights clause in the applicable
collective agreement, Irving argued that the safety-sensitive
nature of the workplace was sufficient to justify the
implementation of random alcohol testing. The union took a
different view. It argued that this constituted an invasion of
privacy that was not justifiable in the absence of evidence to the
effect that alcohol was a problem in the workplace.
In the 15 years leading up to the introduction of the random
alcohol testing, there had only been eight documented incidents of
alcohol consumption or impairment at the mill - and none of these
incidents was connected to accidents, injuries or near misses.
In a 6-3 split decision, the Supreme Court of Canada found in
favour of the union.
The Court found that operating in a dangerous or
safety-sensitive environment does not, in and of itself, justify
random alcohol testing. It is only one consideration in determining
whether such testing is appropriate.
In their reasons for judgment, both the majority and minority
found that an employer must provide evidence that alcohol has
historically been a problem in the workplace. The majority and
minority reasons for judgment differ with respect to the extent of
the problem that must be demonstrated on the evidence. The majority
held that the evidence needs to show a significant problem. The
minority, however, held that there need only be evidence of a
problem. According to the minority, an employer does not have to
wait for a serious workplace incident to occur before taking
proactive steps, including random alcohol testing.
What does this decision mean for employers?
While this case deals solely with random alcohol testing, a
number of the principles articulated by the Court will apply to
random drug testing as well.
The Court's decision reinforces the fact that even
employers operating in safety sensitive workplaces do not have
automatic justification for unilaterally imposing a random testing
program with respect to alcohol or drugs.
The decision also confirms that cases involving random alcohol
or drug testing are likely to be decided on a case-by-case basis.
It is thus important for employers to be meticulous in documenting
any problem with alcohol or drugs in the workplace.
In this case, Irving proffered evidence to the effect that there
had been additional incidents involving alcohol in the workplace
but that these had not been adequately documented. It is possible
that further concrete proof of these incidents could have led to an
entirely different result before the Court. In addition to
carefully documenting any workplace incident involving alcohol or
drugs, an employer considering implementing a random testing
program would be wise to document any previous, less intrusive
attempt to address a problem with alcohol or drugs in the
Employers should remember that this decision of the Court
applies only to random alcohol testing and does not alter the law
with regard to other kinds of alcohol or drug testing for employees
in safety-sensitive positions.
When a workplace is dangerous or safety-sensitive, an employer
will still be able to test for alcohol or drugs if there are
reasonable grounds to believe that the employee in question was
impaired while on duty, where the employee was involved in a
workplace accident or incident, or where he or she is subject to
testing as the result of a last-chance agreement or monitoring or
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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