BLG's Labour & Employment Group held its 16th
Annual Symposium on November 20, 2013 in Toronto. The following is
a synopsis of a portion of a presentation given by Duncan Marsden
and Adam Guy at this symposium:
The case law surrounding drug and alcohol testing policies has
always been difficult to navigate for organizations that are
looking to enhance the safety of their workplace. However, the
recent Supreme Court of Canada decision in Communications,
Energy and Paperworkers Union of Canada, Local 30 v.
Irving Pulp & Paper, Ltd. ("Irving") has helped
provide some guidance in the area.
The facts of the case are relatively straightforward. In 2006,
Irving Pulp & Paper unilaterally implemented a drug and alcohol
testing policy which allowed for the random testing of employees
throughout the course of the year. If an employee tested positive,
the employee would be subject to disciplinary action, including
dismissal. If an employee opposed the test, this could be grounds
for immediate dismissal. An employee who was a self-identified
"teetotaller" was requested to take an alcohol test via a
breathalyser. This employee originally submitted to the testing,
but a complaint was subsequently filed by the union on his
The Supreme Court of Canada upheld the arbitrator's original
ruling that Irving Pulp & Paper's unilaterally implemented
random alcohol testing policy was not justified. In coming to their
conclusion, the Court attempted to balance the competing interests
of employers' safety concerns in the workplace, with
employees' rights to privacy and human rights protection.
In doing so, the Court focused on the lack of evidence that
there existed a drinking problem at the workplace which needed to
be addressed. The Court ruled that the 8 documented cases of
alcohol consumption at the workplace over a period of 15 years was
not enough to justify the imposition on an employee's
The Court also took the opportunity to reiterate where the law
currently stands. An employer can test an individual employee: 1)
if there is reasonable cause to believe that the employee was
impaired while on duty, 2) if the employee was involved in a
workplace accident or incident, or 3) who was returning to work
after treatment for substance abuse.
Despite deciding that the unilaterally imposed random alcohol
testing policy was unjustified, the Court did state that in the
right circumstances, a policy of this nature could be allowed.
Since Irving, a recent arbitral decision held that a proposed
pre-access alcohol and drug testing policy was a violation on the
Ontario Human Rights Code. At the time of the
presentation, another case dealing with random drug and alcohol
testing in the workplace seems to be heading towards the steps of
the Supreme Court.
It is important that organizations make themselves aware of this
ongoing issue, especially in light of the ongoing case law in the
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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