Canada: Fitness For Duty In The Nuclear Industry : Ontario Court Denies Injunction Restraining Random Drug And Alcohol Testing

Last Updated: April 6 2017
Article by Stanley D. Berger

On April 3, 2017 (ONSC 2078) Ontario Superior Court Judge Frank Marrocco denied the Amalgamated Transit Union Local 113 an interlocutory injunction restraining implementation of random drug and alcohol testing of members of the Local until the completion of an arbitration hearing into the validity of the Toronto Transit Commision (TTC) drug and alcohol testing Policy. The Transit Union argued that the TTC Policy was contrary to the Collective Agreement and the Ontario Human Rights Code, R.S.O. 1990, c.H.19.


The reasons for decision should provide helpful guidance to other industries where fitness for duty poses safety concerns not only to workers but members of the public. For example, in November 2015 the Canadian Nuclear Safety Commission released Draft Regulatory Document 2-2-4 on Fitness for Duty. The Draft provides at par. 4.6.2 that:

"...workers in safety-sensitive positions shall be required to submit to for-cause testing when there is reasonable cause to believe, through observed behaviour, physical condition or after receiving credible information, that the individual is unfit to perform his or her duties, due to the adverse effects of alcohol or drug use. The grounds for for-cause testing shall be independently verified by at least two people (one of whom is the supervisor)...Observed behaviours and physical conditions that may establish for-cause reasonable grounds testing include: breath odour, observed use or possession of alcohol, illicit drugs, or drug paraphernalia, speech patterns, physical appearance and behaviour or an episode or events that suggest irrational or reckless behaviour."


As with the CNSC Draft Regulatory Document, the TTC Policy provides for drug and alcohol testing where there is reasonable cause to believe alcohol or drug use resulted in an employee being unfit for duty. Failure to submit to a random test is a violation of the Policy. The Judge was satisfied that "it is impossible to effectively enforce the Policy if an employee could simply refuse the test. In my view there is no other sensible way to view a refusal to submit to a random test." (61) Under the Policy, alcohol testing involves breathalyzer tests and drug tests involve oral fluid tests rubbing something like a Q-tip against the inside of a person's cheek. For drug tests, two samples are taken concurrently. One is used for testing and the other is kept in case the employee wants to have the oral fluid sample retested. Evidence was led that the oral fluid sample provided a better indicator of recent use and was a more accurate measure of likely impairment at the appropriate cut-off levels. The advantage of the fluid sample over the uranalysis, was that it did not compromise privacy by having to directly observe specimen collection to prevent adulteration of the sample. Other measures to minimize the intrusion of privacy were that those selected for random testing would be contacted confidentially, testing would occur in a private room or area at the assigned work location and the results of drug tests would be reviewed by a Medical Officer who would discuss the results with the employee before determining whether to report them as a positive or negative. The evidence was that employees were given 3 days to discuss the lab results with a Union representative before discussing it with the Medical Officer. A positive alcohol test meant a blood alcohol concentration above .04 mg. per litre while the oral fluid drug test cut off for marijuana, cocaine, opiates acetylmorphine, phencyclidine and amphetamines was set higher than the draft guidelines for workplace drug testing set by the U.S. Substance Abuse and Mental Health Services Administration. The evidence introduced led Judge Marrocco to conclude that the substances covered "can impair psychomotor and cognitive abilities of persons under the influence of those drugs." (at par.22) The TTC employed Integrated Workplace Solutions to provide substance abuse professional services to support their Policy. Disclosure of any recommendations made to the employee by the substance abuse professional could only occur with the employee's consent.


The Judge found from the above mentioned elements of the Policy that the Policy had a remedial as well as disciplinary component, that employees had some control over the information collected and there was accountability for the information collected. The Judge dismissed the Union's argument that the random testing exposed employees to reputational damage. Each year the Policy would indiscriminately test 20% of safety sensitive employees, specified management and designated executives meaning that the entire population subject to random testing, would have a chance of being tested within 5 years. Any stigma attached to compelling an employee to attend for testing would be quickly eliminated. In denying the application for injunctive relief Marrocco J. had made two other significant findings. First, he had been persuaded that there was a workplace drug and alcohol problem at the TTC which currently was hard to detect and verify (139). Secondly, drug or alcohol misuse at the TTC could have tragic consequences for many people, not all of whom were TTC employees. Unlike other Ontario workplaces, the Judge noted that the workplace "is literally the City of Toronto." (151)


Weighing the balance of convenience as he was required to do on such an application, Judge Marrocco concluded that if random testing proceeded it was likely that an employee in a safety critical position, prone to using alcohol or drugs close in time to coming to work, would either be ultimately detected when the test result became known or deterred by the prospect of being randomly tested. On the other hand, if the Union succeeded in challenging the Policy in the arbitration, employees whose reasonable expectation of privacy had been invaded could be compensated with damages. The scales weighed in favour of public safety and denial of the injunction.

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.

Stanley D. Berger
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
Check to state you have read and
agree to our Terms and Conditions

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.

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 by clicking here .

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.


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.