On June 14, 2013, the Supreme Court of Canada released its anticipated ruling in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.. In a 6 to 3 decision, the majority of the Supreme Court accepted as reasonable a decision of a board of arbitration striking down Irving’s random alcohol testing policy.

This is the first time that the Supreme Court of Canada has weighed in on workplace alcohol testing. The Majority found that the unilateral imposition of random alcohol testing must be balanced against the privacy rights of individual employees. The Court held that it was reasonable for the board of arbitration to find that the testing regime instituted by Irving failed to respect the privacy-safety balance.

In an important consideration, the majority found that the evidence of a workplace alcohol problem at Irving’s workplace was lacking. However, the entire court agreed that if there was sufficient evidence of workplace problems, unilaterally introduced random testing could be appropriate.

Further, the Court specifically approved the employer’s right to unilaterally introduce in a unionized workplace an alcohol and drug policy that includes:

  • For cause testing
  • Post incident testing
  • Post-rehabilitation testing

Background

This case arrived at the Supreme Court of Canada following a judicial review of a grievance arbitration decision and a subsequent appeal.

The underlying grievance arose from Irving’s unilateral decision to introduce a drug and alcohol policy that included random alcohol testing of employees in safety-sensitive positions. A unionized employee was randomly tested under the policy. He was a teetotaller and saw no reason why he should be tested at all. He filed a grievance on the basis that the employer lacked the power to impose a random alcohol testing policy on its unionized employees.

The board of arbitration did not accept that Irving’s testing regime was reasonable in the absence of proof that the workplace was affected by an alcohol abuse problem. It upheld the grievance. On judicial review, the arbitration decision was reversed. The New Brunswick Court of Appeal upheld the judicial review result. The union appealed to the Supreme Court of Canada. Given the issues, many parties obtained intervenor status.

The Supreme Court of Canada Decision

Arbitrators have developed, through numerous cases, a theory of privacy rights which is different from that established by the common law or statute for non-union workplaces. The majority purportedly sought to balance that privacy interest with the right of the employer to make rules to promote a safe workplace.

It is important to keep in mind that this decision only applies in workplaces governed by a collective agreement. In non-unionized workplaces, the test as set out in Entrop v. Imperial Oil1 should be followed.

Random testing allowed where there is a demonstrated workplace problem of alcohol abuse

It may give employers with unionized workforces some comfort to know that the full Court agreed that random alcohol testing may be justified in particular circumstances: if the employer is able to demonstrate evidence of an alcohol problem in the particular workplace, it can justify the unilateral imposition of random alcohol testing.

Unfortunately there was little further analysis on the part of the majority as to what evidence might be enough to tip the scales in favour of the introduction of random alcohol testing.

Minority finds Board of Arbitration decision unreasonable

Three members of the Court dissented from the Majority decision. While the Majority found no evidence of a demonstrated workplace alcohol problem, the Minority read the evidence completely differently and found the Board of Arbitration’s decision unreasonable.

The Minority found that there is an arbitral consensus that in order to introduce a policy of random alcohol testing, an employer must demonstrate evidence of an alcohol problem in the workplace. The Minority held that the Board of Arbitration wrongly changed the test to require the employer to show evidence of a “significant” or “serious” problem, and to present evidence of a causal link between alcohol and a workplace incident or near miss.

As a result of this change in the test to a higher evidentiary standard, among other reasons, the Minority found the Board’s decision unreasonable. The minority held that an employer should not have to wait for a serious incident of loss, damage, injury or death to occur before taking action and that to require such a causal connection is not only unreasonable but is “patently absurd.”

Conclusion

It is the opinion of many stakeholders that employers’ duties to manage workplace safety risks may justify random alcohol testing. The Court’s decision in CEP v. Irving opens the door to such testing in the unionized workplace, in specific circumstances, but leaves unexplained the conditions which would make random alcohol testing clearly legal.

This lack of clarity isn’t just a concern for employers – it also concerned the Minority of the Court, which took the unusual step of encouraging employers and employer associations to lobby their legislatures for change to law to include a right to impose random drug and alcohol testing in unionized workplaces. It may be that legislative action will be required to provide employers with the tools they need to ensure safety in their workplaces.