Back in 2008, the Toronto Transit Commission (the "TTC") introduced a drug and alcohol testing policy. The policy, which only took effect in the fall of 2010, required drug and alcohol testing in prescribed circumstances for employees in safety sensitive positions, specified management and designated executives, for example, where there was reasonable cause to believe that alcohol or drug use resulted in the employee being unfit for duty.

The Amalgamated Transit Union, Local 113 (the "Union") filed a grievance following the introduction of the policy. The grievance proceeded to arbitration in the spring of 2011.

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

The TTC finally began its random testing some three years following the Supreme Court of Canada's decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper Limited, 2013 SCC 34. 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.

No Injunction Granted

In April 2017, the Ontario Superior Court of Justice dismissed the Union's request for an injunction.[1] 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 the public interest.

The Court quickly found 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.

When it turned to the question of irreparable harm, however, 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 information resulting from those tests. Further, any privacy violations, if established, could be compensated by an award for damages.

Notably, 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 the entire population of 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 the balance of convenience favoured the TTC, given that random testing could detect use of drugs or alcohol and protect the safety interests of the millions of TTC passengers.

What's Next?

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

Employers and HR professionals across Canada will watch closely for the decision in this case, particularly those in the transportation industry who may have, or be contemplating similar random drug testing policies.