The Labour & Employment department at BLG understands that the Supreme Court of Canada will tomorrow be releasing its long-awaited (by us anyway!) decision in Irving Pulp & Paper Ltd v Communications, Energy and Paperworkers Union of Canada, Local 30.
Irving Pulp is a case which originated in New Brunswick and in which the issue of the legitimacy of policies relating to random alcohol testing in the workplace, will be considered. In brief, Irving Pulp operated a kraft paper mill (which will presumably be held to have been a safety-sensitive work environment) and in 2006 introduced a policy of random alcohol testing for safety-sensitive positions. The union challenged the legitimacy of such a policy and the case has made its way to the Supreme Court of Canada. The matter was heard in December 2012.
In coming to its decision, the Supreme Court will need to balance issues of safety (especially in safety-sensitive work environments) versus potential breaches of privacy and human rights, in the conduct of random alcohol tests. We hope that some useful guidance for employers will be given by the Supreme Court on this issue and that such guidance can potentially be related to the more complex issue of random testing for drugs. The main difference between these two types of test is that alcohol testing shows current impairment whereas drug testing does not. In the past the courts have been more willing to allow random alcohol testing and so it will be interesting to see if the Supreme Court of Canada follows suit.
The issue of random drug testing is currently being considered in Alberta (where the oil sands environment makes this a hot topic) by an arbitration board in a matter involving Suncor and Communications, Energy and Paperworkers Union of Canada, Local 707.
We will, of course, update you once the decision of the Supreme Court has been released