Intrusive Testing – Canadian Underwriter

Brian Thiessen, QC, Shaun Parker

May 1, 2017

A recent article in Canadian Underwriter looks at random drug and alcohol testing as a means for fleet managers to reduce the risk of impaired driving. In examining the implications and considerations of implementing such testing, associate editor Greg Meckbach explores case law involving random drug and alcohol testing, including Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (Irving) – the landmark Supreme Court of Canada ruling that held employers in a unionized workplace must lead evidence of a general workplace drug or alcohol problem in order to justify random drug and alcohol testing policies. The article also considers the more recent case of Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078 (TTC), which the article points out, as of late April 2017, is still before arbitration.

“It would be an aggressive move to try and implement random testing when you haven’t actually had any workplace problems” with substance abuse, says Shaun Parker, an associate in Osler’s Employment and Labour Practice Group. Shaun advises that employers may want to “start with baby steps” if they are looking to implement drug and/or alcohol testing of drivers. “You can start off by having, say, reasonable suspicion or post-incident testing of employees. You want to show that you have exhausted all reasonable alternatives before you go down that route.”

Brian Thiessen, a partner in Osler’s Employment and Labour Practice Group, comments on TTC. As the article indicates, the union applied for an injunction to restrain the employer’s universal random drug and alcohol testing policy, which was denied. Brian tells Canadian Underwriter that such a ruling against a union “is fairly common of these kinds of cases in that typically in a unionized workplace, the union files a grievance and the parties proceed to an arbitration on the policy itself (that is) whether the employer is entitled to implement random drug and alcohol testing.”

The type of injunction that the ATU Local 113 asked for “is a really extraordinary remedy of the court,” states Brian, who explains that the union is requesting the court (before establishing its main action) to order the employer “not to engage in any drug and alcohol testing while the arbitration is proceeding.” In order for the union to be successful, Brian says that “the union would have to show there is a serious issue to be tried, that … the union seeking the interim relief will incur irreparable harm if the relief is not granted.”

Read Greg Meckbach’s full article “Intrusive Testing” in Canadian Underwriter.

For more information on considerations and case law relating to random drug and alcohol testing, view our Employment and Labour Practice Group’s presentation Random drug and alcohol testing – Employer learnings from Suncor v Unifor.