The decision of the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 addressed the issue of random alcohol testing by employers in the context of a collective bargaining relationship. The facts and the holding of the majority in this case are well summarized in a Davis LLP employment bulletin. This blog entry will focus on the dissenting judgment, and examine whether a better balance might have been struck between the competing interests in this case.

The arbitral jurisprudence of labour relations has developed a balancing test that deals with the unilateral imposition of workplace rules by an employer, in the context of a collective bargaining agreement. Specifically, with respect to alcohol testing, the interest of the employer in safety must be balanced with the privacy interest of the employee. Leaving aside the obvious difficulties presented by the characterization of this dichotomy (clearly safety in the workplace is in the employees’ interest just as much as the employer’s), this test takes minimal notice of the public’s interest in the safe conduct of a hazardous operation.

Given the difficulties posed by the collision of three interests in this case: those of the employer, employee and the public, it is clear to the outside observer that something ought to be done to address the public’s concerns. However, the dissenting Justices were unwilling to expressly modify the applicable proportionality test in cases that engage a considerable public interest, for the reason expressed in the following quote from their decision:

But the fact that the public interest — not merely that of employer and employee — is relevant in cases such as this one may counsel a reassessment of the legislative choice to delegate policy-making for drug and alcohol testing to the collective bargaining process and to labour arbitrators. It is one thing for employers and employees to negotiate a balance as they see fit with respect to their own privacy and safety. It is a different matter, however, to leave the public interest to the vicissitudes of the bargaining table. Of course, it would be counterintuitive to suggest that employees do not care for their own safety or, indeed, the safety of their neighbours. The point is simply that employees, employers, and the public may each strike the balance between privacy and safety differently. And where disputes between employers and employees emerge, it is not immediately apparent to us why an adjudicative body that is expert in the resolution of private labour disputes, but not in weighing broader considerations concerning the safety and environmental interests of the public at large, is best positioned to serve as the guardian of the public interest. Indeed, nothing in the relevant legislation even requires, let alone suggests, that labour arbitrators should assume this role.

The Court could have taken a more interventionist role given the admittedly compelling public policy concerns, although in the event the dissenting Justices would have found that the arbitrator’s modification of the existing test was unreasonable because reasons for the modification weren’t given. As for the public interest, they were content to point out that accounting for such interests was the role of the legislature in this case.

Frankly, this result and reasoning (both in the majority and dissent) is less than satisfying from a public policy perspective. While the importance of the maintenance of harmonious labour relations cannot be doubted, the Courts also have an important role to play as protectors of the public interest, within the bounds of the statutory framework created by the legislature. In this case, it was not a legislative boundary but rather a jurisprudential one that both sets of reasons refused to cross, although there is no doubt that it was capable of being crossed. The majority did not even acknowledge the public interest in the matter. Such an interest was identified by the dissent, and yet was not acknowledged as a sufficient basis to disturb the status quo. As a result of this abdication, the public must wait for the intervention of the legislature before its interests will be protected in such labour disputes.