A recent decision from the Ontario Superior Court of Justice1 may pave the way for random alcohol and drug testing in the workplace. However, the final word is yet to come from a long-anticipated decision from an Ontario labour arbitrator.

Background

In 2008, the Toronto Transit Commission (“TTC”) approved the introduction of a “Fitness for Duty Policy” (the “Policy"). However, prior to the Policy coming into effect, the Amalgamated Transit Union (“ATU”) filed a policy grievance challenging the Policy. The arbitration hearing started on March 8, 2011 and is still not complete.

The Policy did not initially provide for random drug and alcohol testing. However, the TTC later amended the Policy to require such testing. As a result, the ATU applied for an interlocutory injunction restraining the introduction of random testing until the completion of the arbitration hearing.

The Policy on Random Drug and Alcohol Testing

Under the Policy, random drug and alcohol testing would be applied to employees in safety-sensitive, specified management, senior management and designated executive positions, including that of the Chief Executive Officer. Those employees randomly selected for such testing would be required to take an alcohol breathalyzer test and an oral fluid test.

Administration of breathalyzer tests and the collection of oral fluid samples would be carried out by qualified and trained technicians from a third party company, DriverCheck Inc., who would also facilitate the selection of employees for random testing. Under the Policy, the selection rate of employees for random testing would be 20% per year, meaning that an employee eligible for random testing would have a chance of being tested once every five years.

Under the Policy, a drug test result at or above the applicable cut-off or concentration levels would be followed by a review by a Medical Review Officer who would discuss the test results with the employee before determining whether a drug test should be reported to the TTC as positive or negative.

Analysis

In determining whether to grant the injunction, Justice Marrocco held that there was a serious issue to be tried at the arbitration. The majority of his decision was focused on the second part of the test for an injunction, being whether the ATU would incur irreparable harm if the injunction was not granted.

In holding that there would not be irreparable harm to the ATU if the injunction was not granted, the Court considered the nature of the workplace, noting that the workplace at the TTC includes the subway, buses and streetcars that travel throughout the city and that the workplace “genuinely is Toronto itself” and “literally the city of Toronto”.

The Court held that the procedures and methods set out in the Policy for randomly testing for drugs and alcohol are minimally invasive and superior to other methods of testing for drugs available on the market.

The Court concluded that the nature of the Policy is not only disciplinary but also remedial and that the employees have some degree of control over the information collected and generated under the Policy and that there is accountability for the information collected. The Court concluded that the Policy is reasonably tailored to its stated health and safety purpose.

The Court considered relevant to its decision the fact that should the arbitration hearing determine that the Policy contravenes the collective agreement and/or the Ontario Human Rights Code, the law of Ontario provides for the payment of monetary damages to those employees whose privacy has been “wrongfully” infringed by random testing. In other words, if the arbitration hearing ultimately strikes down the Policy, any wrongdoing to employees can be rectified with the payment of damages.

The Court accepted affidavit evidence which demonstrated that there is a workplace drug and alcohol problem at the TTC, which is currently hard to detect and verify. The Court also noted that drug or alcohol misuse at the TTC carries the complication that any accident can have tragic consequences for many people, not all of whom are TTC employees, and thus, the TTC is not a typical Ontario workplace.

What Does This Mean?

This decision is welcomed by Ontario employers who are seeking to introduce random alcohol and drug testing in the workplace for the purposes of maintaining a safe working environment. However, its impact may be limited, at least for the time being. As the Court emphasized the nature of the TTC workplace in its decision, referring to the workplace as “literally the city of Toronto”, the Court’s comments may not be easily transferred to other workplaces. While this case is a step in the right direction, whether the TTC’s Policy with respect to random drug and alcohol testing will be upheld remains in the hands of the labour arbitrator.