Canada: A "Better Way" To Introduce Random Drug And Alcohol Testing?

The Ontario Superior Court of Justice recently issued a decision with significant implications for employers seeking to implement random drug and alcohol testing. In Amalgamated Transit Union, Local 113 v. Toronto Transit Commission ("Amalgamated Transit"), the court dismissed the union's application for an injunction prohibiting random drug and alcohol testing, holding that the union would not suffer irreparable harm if testing proceeds before the arbitration over the issue concludes.

Amalgamated Transit adds another chapter to the ongoing dispute over random drug and alcohol testing between the Amalgamated Transit Union, Local 113 ("ATU") and the Toronto Transit Commission ("TTC") and, in doing so, provides employers with guidance regarding the evidence required to support random drug and alcohol testing following the Supreme Court of Canada's 2013 decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. ("Irving").

Background

In October 2010, the TTC implemented a "Fitness for Duty Policy" (the "Policy"), which requires TTC employees and management to report to work free from impairment by drugs or alcohol. The Policy introduced drug and alcohol testing in specific situations, including as a pre-employment condition for appointment to a safety-sensitive position, and as part of a full investigation into a significant work-related accident or incident. Under the Policy, employees who are found to suffer from disabilities due to substance-related issues are accommodated. When the Policy was introduced, the TTC advised the ATU that it reserved its right to introduce random testing.

The Policy was amended by the TTC in October 2011 to require random drug and alcohol testing of employees in safety-sensitive and specified management positions; however, implementation of random drug and alcohol testing was delayed. In March 2016, the TTC announced that it would begin random testing in early 2017.

ATU grieved the Policy when it was implemented in 2010. The ATU asserted that the TTC could not impose the Policy as a management right, and claimed breaches of the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. At arbitration, the ATU is seeking an order prohibiting the TTC from continuing the implementation of the Policy, and damages for breach of its right to be free from discrimination, among other things.

Following the TTC's announcement regarding implementing random testing, the ATU sought an injunction to prevent implementation of random testing until the conclusion of the arbitration (which has been ongoing since 2011 with no apparent end in sight). The ATU argued that it was a violation of its members' section 8 Charter rights to be free from unreasonable search and seizure, and that there would be irreparable harm to their privacy and reputation if the testing was allowed to proceed.

Decision

In accordance with the criteria established by the Supreme Court in RJR-MacDonald Inc. v. Canada (Attorney General), in order to obtain an interlocutory injunction, an applicant must establish three things:

  1. There is a serious issue to be tried;
  2. The party seeking the injunction will suffer irreparable harm (i.e., harm that cannot adequately be compensated in damages) if the injunction is not granted; and
  3. The balance of convenience, taking into account the public interest, favours granting the relief.

While the court had no problem finding that there was a serious issue to be tried, it held that the ATU failed to satisfy the second branch of the test and dismissed the application on that basis. However, the court extended its analysis to the third branch of the test, finding that the balance of convenience did not favour granting relief.

In considering irreparable harm, the court observed that the guarantee of security from unreasonable search and seizure only protects a reasonable expectation of privacy, the determination of which required considering the circumstances around the decision to institute random drug and alcohol testing. Relevant circumstances included the fact that new applicants for safety-sensitive positions are tested for drugs and alcohol, which suggests that a reasonable person would assume that they are required to test negatively in order to maintain a safety-sensitive job; the nature of the workplace (i.e. the entire city of Toronto); and the reasonableness of the procedure and methodology for testing, which the court found to be "minimally invasive" due in part to the fact that the cut-off levels chosen by the TTC for a positive test are set high enough to screen out positive results that are unlikely to indicate impairment. Significantly, the court also found that, given the current state of the law of damages with respect to breaches of privacy, employees could be compensated for a privacy breach or wrongful dismissal.

For certainty, the court extended its analysis to the third branch of the test, considering the balance of convenience. The court accepted evidence of a workplace drug and alcohol problem at the TTC. A Staff Sergeant with the Investigative Services Unit at the TTC provided affidavit evidence (which was not challenged through cross-examination) regarding a culture of drug and alcohol use at the TTC and the difficulty of detecting employees who are unfit for duty. The court accepted the deterrent effect of random testing given the decrease in combined positive and refusal test results since drug and alcohol testing was introduced in 2010, and also accepted that the effects of drugs and alcohol can negatively affect performance. The court found that appropriately chosen oral fluid cut-off levels for positive tests, such as the TTC's, can be used to identify those posing an increased safety risk and that, given the fact that the workplace is the city of Toronto, this will increase public safety. Accordingly, the court concluded that the balance of convenience favoured the TTC.

Commentary

The consensus view of the Supreme Court of Canada in Irving was that, in a dangerous workplace, employers are generally entitled to test employees who occupy safety-sensitive positions without having to show that alternative measures have been exhausted in three circumstances:

  1. Where there is reasonable cause to believe that the employee is impaired while on duty (reasonable cause testing);
  2. Where the employee has been directly involved in a workplace accident or significant incident (post-incident testing);
  3. Where the employee is returning to work after treatment for substance abuse (post-treatment testing).

While this was positive for employers, Irving also established that employers seeking to implement universal random testing are required to demonstrate the existence of a safety risk (i.e. a dangerous workplace) and a general problem with drug or alcohol abuse.1

Amalgamated Transit provides useful guidance to employers regarding the evidence required to justify random drug and alcohol testing. In this case, the TTC was able to demonstrate a drug and alcohol problem in the workplace and, therefore, the necessity of random testing.2 This decision also provides support for the use of oral fluid testing, with appropriate cut-offs, to establish a likelihood of impairment. Further, the decision clarifies that alleged harms to privacy and alleged breaches of section 8 of the Charter resulting from random drug and alcohol testing are not "irreparable" for the purpose of requiring an injunction.

While this guidance is significant for employers, the decision should be approached with some caution given the unique nature of the workplace (i.e. the city of Toronto), the evidence of a demonstrated workplace drug and alcohol problem at TTC that is hard to detect and verify, and the far-reaching potential public health and safety consequences of TTC employees performing their job duties while impaired, all of which, combined, militated in favour of the TTC.

Footnotes

1 See Miller Thomson's communiqué on the Irving decision.

2 It was reported that, on the first day of the random drug and alcohol testing that was the subject of this decision, two TTC workers were found to be impaired. One employee who was given a breathalyzer blew over the limit. The results of a drug test for a second employee came back positive two days later. Both employees were suspended with pay. Neither of the employees is a driver or operator, but both hold positions that the TTC deems safety-sensitive.

TTC CEO Andy Byford reportedly said that the failed tests are "concerning" but show the transit agency's decision to implement the controversial testing policy "is both justified and vindicated."

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 Mondaq.com.

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

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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