Organizations and employees alike should take note of the long awaited ruling of the Supreme Court of Canada (the SCC) in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited, which was released on Friday, June 14, 2013. Irving is the first decision from Canada's highest court to consider random drug and alcohol testing in the workplace.

The SCC attempted to confine its reasons to the unionized context in which Irving arose. However, the court's comments regarding the status of drug and alcohol testing in the workplace, the balance between workplace safety and employee privacy, and the need for employers to justify the implementation of drug and alcohol testing policies even in dangerous work environments, may have broader implications that extend to both union and non-union workplaces. Further, although the facts of Irving concerned random alcohol testing, the court's reasons appear to encompass random drug testing as well.

The court in Irving held that a dangerous work environment does not provide automatic justification for an employer's unilateral imposition of universal random testing. Instead, employers must be able to justify random testing policies on the basis of safety risks in the workplace environment, most notably by way of evidence of a general problem of drug or alcohol abuse in the workplace.

The Road to the SCC

On February 1, 2006, Irving Pulp & Paper Ltd. (Irving) unilaterally adopted a policy of mandatory random alcohol testing by way of breathalyzer for employees in safety sensitive positions. Shortly after the policy's adoption, an Irving employee was randomly selected and tested. Although the test revealed that the employee had a blood alcohol level of zero, the employee grieved to challenge the policy.

The arbitration board charged with hearing the employee grievance (the Board) found that Irving had failed to establish a need for the policy because it had not adduced sufficient evidence of prior alcohol-related impaired work performance incidents. The Board differentiated between "dangerous" and "ultra-dangerous" work environments – for example, nuclear plants, airlines, railways or chemical plants – with "ultra-dangerous" environments attracting a lighter burden for the employer in justifying the implementation of a random testing policy without evidence of a pre-existing alcohol problem in the workplace. The Board found that Irving's mill was only "dangerous" and not "ultra-dangerous".

The Board's decision was set aside by the application judge of the Court of Queen's Bench, who found the distinction between "dangerous" and "ultra-dangerous" work environments to be unreasonable. The application judge further opined that, once the Board found the work environment to be "dangerous", the only issue left for consideration was whether the policy was defensible as being proportionate to the potential danger. Commenting on the minimally intrusive nature of breathalyzer testing and the fact that testing was limited to employees in safety sensitive positions, the application judge concluded that the grievance should be dismissed.

The Court of Appeal considered the union's position that sufficient evidence of pre-existing alcohol problems in the workplace is a necessary pre-condition to the implementation and enforcement of random testing policies, unless the work environment is properly characterized as "ultra-dangerous". The Court of Appeal rejected this position and dismissed the appeal, holding that "[e]vidence of an existing alcohol problem in the workplace is unnecessary once the employer's work environment is classified as inherently dangerous" (para. 52). The court observed that employers engaged in the mining, forestry, and oil and gas sectors of the economy have successfully persuaded arbitrators that their operations qualify as "inherently dangerous", concluding that the kraft paper mill at issue should be similarly categorized. In support of this conclusion, the court commented on the mill's use of chemicals and hazardous materials, and the presence of a pressure boiler with a high potential for explosion.

Leave to appeal to the SCC was granted and a hearing was held in December 2012. There was much speculation amongst counsel and industry as to the breadth of the commentary that would result from the court's decision in Irving.

The SCC Decision

The SCC noted at the outset of its decision in Irving that the workplace at issue was governed by a collective agreement that did not provide for random alcohol testing. Therefore, the court defined the issue before them as pertaining to interpretation of the broad management rights clause in the collective agreement.  In analyzing the scope of management's power to unilaterally impose rules in the workplace, the court noted, based on well-established arbitral jurisprudence, that exercise of such power must be reasonable as measured by a "balancing of interests" approach.  In the context of drug and alcohol testing, such approach engages concerns of workplace safety on the one side and employee privacy on the other.

With respect to workplace safety, the court relied on a consensus in the arbitral jurisprudence indicating that it is not enough that testing is implemented in a dangerous workplace. Instead, as the court made clear, recognition of the dangerousness of the work environment at issue is only the starting point for the inquiry; as stated by the court at para. 31, "What has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace."

On the privacy side of the equation, the court described as "unassailable" the Board's conclusion that breathalyzer testing "effects a significant inroad" on privacy by causing a loss of liberty and personal autonomy (paras. 49-50).  The court further cited a number of criminal decisions decided on the basis of the Canadian Charter of Rights and Freedoms in which the SCC described the highly intrusive nature of seizing bodily samples.

The SCC concluded that the Board properly applied the "arbitral consensus" as to the applicable legal framework in this area of the law and arrived at a reasonable decision in holding that Irving had exceeded the scope of its management rights under the applicable collective agreement by imposing random alcohol testing without evidence of a workplace problem with alcohol use.

Initial Implications and Takeaways

Certainly non-union employers will press hard to say that Irving is limited to the labour context, and possibly restricted to random alcohol testing.  However, there are indications that the decision will have broader implications, most notably the court's comments at para. 20 referring to the Ontario Court of Appeal's decision in Entropv.Imperial Oil Ltd. in 2000: "even in a non-unionized workplace, an employer must justify the intrusion on privacy resulting from random testing by reference to the particular risks in a particular workplace. There are different analytic steps involved, but both essentially require attentive consideration and balancing of the safety and privacy interests."

Further, the court's strong language around the protection given to employee privacy, including reliance on cases decided under the Canadian Charter of Rights and Freedoms, despite the absence of any government action, suggests that employee privacy will feature prominently in any future dispute regarding drug and alcohol testing.

Employers in both union and non-union environments should therefore be prepared going forward to justify random testing initiatives on the basis of evidence of a general drug or alcohol problem in the workplace, and to respond in a fulsome way to arguments regarding the intrusiveness of such testing initiatives on employee privacy.

Irving provides little guidance with respect to the degree of seriousness of a drug or alcohol problem in the workplace that is required to justify random testing. The court's  decision suggests that it is reasonable to hold that "only" eight documented incidents of alcohol consumption or impairment in the workplace over a period of 15 years is insufficient. Nor was the deterrence value of random testing given real consideration. It may be that it will take a serious string of fatalities or truly catastrophic workplace incident before workplace safety is given greater consideration in the face of employee privacy concerns. This may be a call to action for the legislative branch of the provincial governments.