The Ontario Superior Court of Justice has declined to grant an injunction to suspend the Toronto Transit Commission's (TTC's) ability to implement its random drug and alcohol testing policy. In Amalgamated Transit Union, Local 113 v Toronto Transit Commission (2017 ONSC 2078) the court concluded that there was a serious issue to be tried in the arbitration of the TTC policy – namely, whether the threshold requirement of a demonstrated workplace problem with alcohol and drugs had been met.

Background

In 2008 the TTC introduced a drug and alcohol testing policy. The policy, which took effect in Autumn 2010:

  • required drug and alcohol testing in prescribed circumstances for employees in safety-sensitive positions;
  • specified management; and
  • designated executives (eg, when there was reasonable cause to believe that alcohol or drug use resulted in an employee being unfit for duty).

The Amalgamated Transit Union Local 113 filed a grievance following the introduction of the policy. The grievance proceeded to arbitration in Spring 2011.

Although the policy did not initially provide for random drug and alcohol testing, by the time it took effect in 2011 the TTC had amended it to include random testing. However, the implementation of random testing was delayed for a number of years.

The TTC finally began its random testing three years after the Supreme Court's decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp and Paper Limited (2013 SCC34). At that point, the union applied for an injunction restraining the TTC's implementation of the random drug and alcohol testing component of the policy, pending the completion of the grievance arbitration hearing which had been ongoing since 2011.

Decision

In dismissing the union's injunction request, the court applied the standard three-part test for an injunction. It considered:

  • whether there was a serious question to be tried;
  • whether irreparable harm would occur if an injunction was not granted; and
  • the "balance of convenience", taking into account public interest.

The court quickly concluded that there was a serious issue to be tried.

However, when it turned to the question of irreparable harm, the court found that there was no harm that could not be compensated by a damages award.

With respect to privacy considerations, the court found that the policy was tailored to take into account and protect employees' reasonable expectations of privacy, both in testing the employees and in the use and handling of the results. Further, any privacy violations, if established, could be compensated by an award for damages.

The court was not persuaded that there would be any reputational damage to employees who were subject to random testing; the presence of the policy and the fact that all employees who were subjected to testing would be tested within five years was found to eliminate any associated stigma. The court was also not persuaded that psychological harm would result from the testing, noting the absence of evidence in this respect.

While not required to consider where the balance of convenience lay given its finding on irreparable harm, the court noted that it would have found that it favoured the TTC, as random testing could detect use of drugs or alcohol and protect the safety interests of TTC passengers.

Comment

While the court's decision is not the final say on whether the TTC's policy will ultimately be upheld by the grievance arbitrator, its finding on the privacy considerations accounted for by the policy, among other things, undoubtedly weigh in the TTC's favour.

Employers and human resources professionals across Canada will monitor this case closely, particularly those in the transportation industry who may have, or may be contemplating, similar random drug-testing policies.

For further information on this topic please contact Rachel Younan at Fasken Martineau DuMoulin LLP by telephone (+1 416 366 8381) or email (ryounan@fasken.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.

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