Over the last several years, the debate surrounding the legal
parameters of alcohol and drug testing in Canada has escalated,
particularly for industrial employers engaged in safety sensitive
The complexity of the debate stems from several factors. First,
unlike the situation in the United States, there are no statutes or
regulations that directly address alcohol and drug testing in
Canada. Second, challenges to alcohol and drug testing policies
come in various forms, including human rights complaints, labour
arbitration grievances and complaints to privacy commissioners. The
analysis in these venues differs, making it difficult to articulate
a unified, coherent approach. Finally, alcohol and drug testing
raises a number of competing interests and values that are not
easily reconciled, as demonstrated by the conflicting case law
Although these factors make it difficult to provide definitive
answers in this area, there is a growing body of case law that
provides a certain degree of guidance. While a summary of all
alcohol and drug testing cases is beyond the scope of this paper,
we have highlighted below the leading and most recent authorities
in an attempt to provide those affected by alcohol and drug testing
with information about the current scope of alcohol and drug
testing in Canada.
What follows is a general summary of the law at the time of
writing. This paper is not intended to be an exhaustive survey of
the case law, but rather will provide a broad overview of the
approaches taken in alcohol and drug testing cases. It must also be
noted that the law in this area is constantly evolving and is
heavily fact-specific; as a result, employers are strongly urged to
obtain legal advice when drafting or implementing a policy that
incorporates alcohol and drug testing.
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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