Supreme Court of Canada releases decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd, 2013 SCC 34

On June 14, 2013, the Supreme Court of Canada (SCC) released its decision on management’s right to unilaterally implement random alcohol testing in a unionized workplace.

The Facts

Irving Pulp and Paper operated a paper mill in Saint John, New Brunswick. In 2006, the company implemented random alcohol testing for employees who worked in “safety sensitive” positions.

Perley Day was randomly selected for alcohol screening. Mr. Day, a teetotaller who had not had a drink since 1979, found the testing invasive on his privacy and the Union grieved the random testing policy on his behalf.

The parties agreed that Mr. Day worked in a safety sensitive position and that the workplace was a dangerous work environment.

SCC Decision

The majority of the SCC held that random alcohol screening in the circumstances was unreasonable and violated the collective agreement. The majority affirmed that under a collective agreement, management’s right to unilaterally make rules must be balanced against an employee’s right to privacy.

The employer’s interests in a safe workplace were, of course, legitimate. However, they had to be balanced against the invasive nature of the alcohol testing program which engaged broader interests including liberty, personal autonomy, and freedom from “public embarrassment”.

The SCC agreed that the safety benefits to the employer ranged from “uncertain to … minimal at best”, while the impact on employee privacy was severe. As a result, the SCC found the policy to be an unreasonable exercise of management rights under the collective agreement.

The SCC emphasised that a dangerous workplace alone has never been found to be sufficient to justify random alcohol or drug testing in the absence of a demonstrated alcohol or drug abuse problem. Indeed, Abella J. noted that she had only found two arbitral decisions upholding random alcohol testing programs and, in both cases, the employer had demonstrated a general problem with alcohol use in a dangerous workplace.

The SCC explicitly stated that it was not deciding that danger alone would never justify a testing program, and said that it was not “beyond the realm of possibility” that a random testing program might be justified without evidence of a substance abuse in “extreme circumstances”. However, given that dangerous workplace justifications have been rejected in the context of railways, chemical plants, and “workplaces that pose a risk of explosion”, employers should be extremely cautious before implementing a random drug and alcohol testing program in the absence of demonstrated substance abuse at work.

The three judges’ dissenting opinions questioned whether decisions with consequences to the public interest beyond the particular union and employer should be left in the hands of the arbitrators. That statement appears as a subtle invitation for the legislature to intervene, perhaps setting base rules that balance privacy with safety.

Take Away Points for Employers

The case has a number of lessons for employers, particularly for employers in unionized workplaces:

  • Random alcohol and drug testing will be carefully scrutinized. Likely, random testing will only be permitted in a dangerous work environment where there is evidence of a general problem of substance abuse in the workplace.
  • Testing will continue to be permitted where an employer has reasonable cause to believe an employee impaired, where an employee is involved in an accident or near miss, and as part of a return to work program for substance abuse.

The SCC made two other findings that deserve comment:

  • First, it held cases from non-union environments “were … of little conceptual assistance” and the judgment could be limited to unionized workplaces on that basis. That distinction is supported by recent developments in Alberta, where the balance of jurisprudence more strongly supports management’s safety interests in non-unionized workplaces.
  • Second, the SCC held that employers are free to negotiate random drug and alcohol testing policies directly with their union. However, such policies must be “expressly and clearly negotiated”. In our view, while such negotiations may be acceptable from a labour law perspective, we believe that human rights and privacy legislation would allow individual employees to bring complaints notwithstanding the collective agreement. Whether such complaints are successful will depend on the context of the employer’s and union’s agreement.