Canada: Hard Pill to Swallow: Drug and Alcohol Testing by Employers in Canada

Ogilvy Renault's Employment and Labour Law practice is one of Canada's largest management-side practices.  We represent a significant number of private and public sector employers and provide a wide variety of advocacy services and strategic advice.  This newsletter deals with issues of importance in Canadian labour and workplace law.

In Canada, drug and alcohol testing of employees continues to be viewed with concern because of its inherently intrusive nature.  Canadian law circumscribes, to a significant extent, when it may occur.  An employer seeking to implement a drug and alcohol testing protocol in Canada is compelled to engage in, essentially, a balancing act as between workplace safety and employee privacy rights.  Furthermore, because drug or alcohol dependency (and perceived dependency) is regarded as a "disability" under anti-discrimination legislation in Canada, employers must ensure that any proposed drug and alcohol testing protocol does not discriminate against employees due to such disability.

The law on drug and alcohol testing in Canada is not captured by a single statutory code.  However, a "Canadian model" has recently emerged from the jurisprudence to govern employers' actions in this area.  Generally, it has been recognized that employers may have a right to impose drug and alcohol testing policies that apply to employees in safety-sensitive positions.  These can be defined as positions in which the employee has a direct role, with limited supervision, in a workplace operation where impaired performance could result in a catastrophic incident affecting the health and safety of the employee and others. 

Although the safety-sensitive characterization is a primary factor in assessing whether drug and alcohol testing policies are acceptable, it is not determinative.  The following summarizes the different scenarios in which testing is permissible under Canadian law:

  • Pre-Employment Drug and Alcohol Testing: May be permissible for employees being hired into safety-sensitive positions, but failing the test or refusing to take it cannot necessarily result in the withdrawal of an offer of employment;
  • Random Drug and Alcohol Testing: Random drug testing is not permissible except possibly as part of a return to work rehabilitation program, while random alcohol testing may be permissible as long as a positive test does not result in the automatic termination of the employee; and
  • Reasonable Cause and Post-Incident Drug and Alcohol Testing: Permissible, but automatic termination of an employee who fails or refuses to submit to a test under these circumstances will not always be justified.

Several recent cases described below have helped define these scenarios in Canada.

Pre-Employment Drug and Alcohol Testing

Until lately, pre-employment drug and alcohol testing was held to be unlawful where the failure of a drug or alcohol test resulted in the revocation of an offer of employment.  However, in The Director of Alberta Human Rights and Citizenship Commission and Chaisson v. Kellogg Brown & Root ("Kellogg"), the Alberta Court of Appeal concluded that the employer did not breach human rights legislation when it refused to hire a prospective employee who tested positive for marijuana through a pre-employment drug test.1   As the prospective employee was only a recreational user of marijuana, the Court of Appeal concluded that he did not suffer from a disability and it was unnecessary to consider the question of human rights accommodation. 

Similarly, in Weyerhaeuser Co. (c.o.b. Trus Joist) v. Ontario (Human Rights Commission) ("Weyerhaeuser"), the Ontario Divisional Court concluded that a prospective employee failed to establish a prima facie case of discrimination when a conditional offer of employment was withdrawn after he failed a pre-employment drug test.2   The complainant was also a recreational user of cannabis and the Divisional Court concluded that this did not constitute a disability. 

Despite these decisions, the law has not yet evolved to such a point that the failure or refusal to submit to a pre-employment drug or alcohol test can necessarily result in the blanket withdrawal of an offer of employment. 

Random Drug and Alcohol Testing

In Canada, differences in the law have emerged between random alcohol testing and random drug testing and between the unionized and non-unionized sectors as a result of the decisions of the Court of Appeal for Ontario in Entrop v. Imperial Oil Ltd.3  ("Entrop") and Imperial Oil Ltd. v. Communications, Energy & Paperworkers Union of Canada, Local 9004  ("Imperial Oil"). 

In Entrop, the Court of Appeal was required to assess whether an Ontario Board of Inquiry had correctly interpreted the applicable human rights legislation when it decided that random alcohol and drug testing was discriminatory.  The Court determined that the Board's decision regarding random alcohol testing was incorrect and overturned it, on the basis that random alcohol testing by way of breathalyser measures present impairment and produces immediate results without impinging on an employee's right to privacy.  However, the Court went on to say that automatic termination as a result of a positive test result would likely be found to contravene human rights law if the need for accommodation had not first been explored. 

The Court in Entrop determined that random drug testing, however, even for employees in safety-sensitive positions, could not be justified and that the decision of the Board of Inquiry in this regard was correct. 

In Imperial Oil, the primary issue that a labour arbitrator was originally asked to consider was whether the employer's random, unannounced alcohol and drug testing policy was reasonable.  The Arbitrator did not consider the issue of alcohol testing because the employer's practice in this regard had gone unchallenged by the union since 1992.  However, the Arbitrator adopted the "Canadian model" regarding drug testing and found that random drug testing is not permissible since the methods of testing currently available, either urinalysis or buccal (oral) swabs, are highly intrusive and incapable of measuring present impairment in a timely way.  The Arbitrator further concluded that such testing was not reasonably necessary to accomplish an employer's goals of maintaining safety or promoting deterrence of drug use.  The Court of Appeal for Ontario eventually opted to defer to the Arbitrator in this regard and did not overturn his award.

As a result of the decision in Imperial Oil, random drug testing can generally only be performed in the unionized context as part of a rehabilitative program for employees with a proven drug or alcohol dependency.  Often such arrangements are imposed in lieu of termination of employment and are agreed upon by the employer, employee and union in the form of a "last chance" or "return to work" agreement.  However, where a drug and alcohol policy requires automatic return to work testing in every case, it could be viewed as unreasonable and/or contrary to Canadian human rights law.  Furthermore, in circumstances where there is no evidence of dependency or abuse, but only a positive drug test, it is unlikely that an employer can impose random, unannounced return to work testing.

Reasonable Cause Drug and Alcohol Testing

Where employees occupy safety-sensitive positions, in most cases employers have the right to require employees to submit to a drug or alcohol test where there is "reasonable cause" to suspect impairment on the job, absent any contrary provision in a policy, contract or collective agreement.  In United Association, Local 663 v. Mechanical Contractors Association of Sarnia (Drug and Alcohol Policy Grievance)5 , a labour arbitrator upheld the validity of alcohol and drug testing policies that included reasonable cause and post-incident testing.  A request to perform reasonable cause testing will generally be considered proper where the employee has exhibited signs which sufficiently arouse the employer's suspicion of impairment.  In such a case, a test is ordered only as an objective measure of the employer's subjective view of the employee's actions, behaviour or physical characteristics (e.g. glassy eyes, the odour of alcohol, slurred speech, dilated pupils, impaired gait, etc.).

Where an employee fails or refuses to submit to a reasonable cause drug or alcohol test, it may not always be possible to automatically terminate.  If a drug or alcohol dependency surfaces, the employer is generally required to accommodate the employee's disability, which could include placing the employee in an alternative non-safety-sensitive position for a period of time, if one is available. 

Post-Incident Drug and Alcohol Testing

After an accident, dangerous incident or near miss has occurred, drug or alcohol testing may be justified where there is reason to believe that an employee's acts or omissions could have been a contributing factor and that there may have been impairment at the time of the incident.  Testing of this nature has been consistently deemed to be acceptable by labour arbitrators.  In Canadian National Railway Company v. CAW-Canada6 , while the Arbitrator struck down certain portions of the policy, he upheld testing for safety-sensitive positions where there is an accident, dangerous incident or reasonable cause, i.e. some demonstrable justification for post-incident drug and alcohol testing.  

Again, however, it may not always be appropriate to immediately terminate employment when a post-incident test result is positive. 


Employers contemplating the adoption of testing in Canada as part of a drug and alcohol policy will need to show that testing is necessary as one facet of a larger process of preventing drug or alcohol abuse in the workplace.  Canadian courts and adjudicators will continue to be sceptical about any practice of random drug testing that does not indicate immediate impairment or was not premised upon reasonable cause, post-incident or as part of an individual employee's rehabilitation plan.

Employers must also be mindful of their obligation to demonstrate the reasonableness of each testing standard and their duty to accommodate employees suffering from addiction problems (including alcoholism).  Accordingly, it is imperative that employers review their drug and alcohol testing policies in order to minimize exposure to a successful challenge.


1. The Director of Alberta Human Rights and Citizenship Commission and Chaisson v. Kellogg Brown & Root (2007), 289 D.L.R. (4th) 95 (Alta. C.A.); leave to appeal to the Supreme Court of Canada refused, [2008] S.C.C.A. No. 96.

2. Weyerhaeuser Co. (c.o.b. Trus Joist) v. Ontario (Human Rights Commission) (2007), 279 D.L.R. (4th) 480 (Ont. Div. Ct.).

3. Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18 (C.A.).

4. Imperial Oil Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 900 (2006), 157 L.A.C. (4th) 225 (M.G. Picher), aff'd (2008), 169 L.A.C. (4th) 257 (Ont. Div. Ct.), aff'd (2009), 96 O.R. (3d) 668 (C.A.).

5. United Association, Local 663 v. Mechanical Contractors Association of Sarnia(Drug and Alcohol Policy Grievance), [2008] O.L.A.A. No. 621 (QL) (T. Jolliffe).  This case, wherein the employer was represented by Ogilvy Renault, reversed the decision of the Ontario Labour Relations Board in Sarnia Cranes Limited, [1999] OLRB Rep. May 479 (Shouldice) which struck down drug and alcohol policies that provided for reasonable cause and post-incident testing.

6. Canadian National Railway Company v. CAW-Canada, [2000] C.L.A.D. No. 465 (QL) (M. G. Picher).  This case, wherein the employer was represented by Ogilvy Renault, clarified for the first time in Canada that post-incident and reasonable cause testing may be permissible.

About Ogilvy Renault

Ogilvy Renault LLP is a full-service law firm with close to 450 lawyers and patent and trade-mark agents practicing in the areas of business, litigation, intellectual property, and employment and labour. Ogilvy Renault has offices in Montréal, Ottawa, Québec, Toronto, and London (England), and serves some of the largest and most successful corporations in Canada and in more than 120 countries worldwide. Find out more at

Voted best law firm in Canada two years in a row.
2008 and 2009 International Legal Alliance Summit & Awards.

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.

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.