Canada: Random Drug And Alcohol Testing – Supreme Court Of Canada Releases Irving Pulp And Paper Decision

Last Updated: January 27 2014
Article by Rob Boswell

This morning the Supreme Court of Canada released its decision in the matter of Communications, Energy and Paper Union of Canada, Local 30 v Irving Pulp & Paper, Ltd. The decision is important in that it comments on the standard of review in a judicial review of an arbitration decision, and more important in that it does so in the context of an employer's exercise of its management rights to implement a random alcohol testing program for workers employed in safety sensitive positions.

The ruling is a split decision of a full panel of all nine judges of the SCC.   The majority decision, written by Madame Justice Abella, concluded that the decision of the arbitrator in striking down the employer's random alcohol testing program was reasonable.  As a result, the SCC allowed the appeal from the New Brunswick Court of Appeal.  The minority of three judges found the arbitration board's decision to be unreasonable.  Most importantly, the minority found that the board appeared to apply a higher evidentiary standard to which the employer needed to demonstrate alcohol problems in the workplace.  That standard, the minority found, was not supported by the body of arbitral jurisprudence and therefore the arbitrator's decision was unreasonable.


Irving Pulp & Paper sought to implement a random alcohol testing program for its workers who were employed in safety sensitive work.  The program would randomly select 10% of this workforce for testing on an annual basis.  The program was established by the employer unilaterally.  It was not a program established through collective bargaining.  As a result, the employer relied upon the management rights clause of its collective agreement in order to establish and implement the program.  A failure during testing could result in the discipline and possible dismissal of a worker.

The union challenged the program through a grievance.  The board struck down the employer's policy.  In so doing, the board concluded that a balance between safety and privacy was necessary in the workplace.  In order to justify the program, the employer was expected to demonstrate that there were "enhanced" safety risks and that there was a significant or serious problem of alcohol abuse in the workplace.  The board found that the employer had failed to establish either of these elements and therefore the invasion of employee privacy resulting from the implementation of the random alcohol testing was not justified.

The board's decision was overturned on judicial review on the basis that the decision was unreasonable.  That decision was confirmed by the New Brunswick Court of Appeal.


The majority of the SCC focused on the reasonableness of the board's decision.   In assessing that reasonableness, the majority accorded the arbitration board a high degree of deference.  They agreed that the employer had failed not only to demonstrate the significance of alcohol use as a problem in the workplace, but that the employer had failed to demonstrate that there was a meaningful safety risk associated with such use.

The minority, in its dissenting judgment, concluded that the board's decision was not reasonable.  It found that the standard of evidence expected of the employer was not consistent with that in the arbitral jurisprudence.  That is, it was not necessary for the employer to demonstrate a "serious" and "significant" alcohol abuse problem in the workplace, but merely to demonstrate that there was "a" problem.    The minority also attacked the reasoning of the board that required that the evidence of alcohol use should be casually linked to an accident, injury or near miss incident in the workplace.  The minority indicated that it was unreasonable for an employer to have to wait for such an incident before taking steps to ensure safety, and concluded that this part of the board's decision was "patently absurd".

Analysis and Guidance for Employers

The decision may trouble many employers who maintain workplaces where safety risks are abundant and the need for workers to attend at work and perform safety-sensitive work in a non-impaired manner is critical.  Taken at its highest, the majority decision appears to adopt the reasoning of the arbitration board that an employer must demonstrate evidence of significant or serious alcohol problems in the workplace and then also demonstrate that alcohol use must be causally linked to an enhanced safety risk.

However, the decision can be seen as an acknowledgement that the decision of the board, though it might deviate from the body of arbitral jurisprudence (as suggested by the minority decision) still falls within a reasonable range of outcomes from which an arbitrator could have ruled.  In other words, it is not merely open to the Court to substitute its own view on the evidence when the decision of an arbitrator (while not necessarily being the same decision the Court might have made) is nevertheless "reasonable".

The minority, it appears, focused more on the need to ensure safety in a dangerous workplace.  Its challenge to the board's deviation from the evidentiary standard established in the arbitral jurisprudence suggests that another board who may have agreed with the minority's view of the case could also have been seen to have made a "reasonable" decision.  It is therefore difficult to assert with a high degree of confidence that a further arbitration decision would necessary follow the line of reasoning in the original decision in this case.

For employers who wish to establish mandatory random drug and alcohol testing for workers in safety sensitive positions, it would be wise to approach this issue in a manner that would survive the highest level of scrutiny.  In particular, an employer should consider the following:

  • Adoption of a drug and alcohol testing program that is developed with the involvement and endorsement of the union.
  • Establishing detailed evidence about the safety-sensitive nature of the workplace, generally, and specific jobs within that workplace specifically.  As part of this review, the employer should be able to demonstrate the likely effect of a drug or alcohol impairment on the ability to safety perform work in each position that is targeted by the testing program.
  • Establishing detailed evidence about the "problem" of alcohol and drug use in the workplace.  To the extent that there is evidence linking such use to safety incidents, that evidence should be clearly established and relied upon in the development of a policy.

The cost of developing and implementing effective drug and alcohol testing programs is significant. It is important that employers carefully construct the programs so as to withstand a challenge such as in Irving Pulp & Paper.   Programs and policies that are already in place should be scrutinized to ensure that they meet the standard supported by the SCC in this decision.

The CCP team has considerable experience drafting and reviewing such policies, in assessing safety risks and balancing safety and privacy considerations in the crafting of a policy, and on advising employers regarding appropriate discipline in the event of failed test.  Consider consulting a CCP lawyer prior to developing such a policy or program, or in reviewing the programs that you currently have in place.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Rob Boswell
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions