Alcohol and drug testing: where are we now?

Alcohol and Drug Testing: Where Are We Now?
Prepared by:
Wendy-Anne Berkenbosch
Table of Contents
Page
INTRODUCTION .......................................................................................................................................... 1
THE HUMAN RIGHTS APPROACH ............................................................................................................ 1
A. General Human Rights Principles ........................................................................................... 1
B. The Human Rights Cases ......................................................................................................... 2
LABOUR ARBITRATION CONSIDERATIONS ........................................................................................... 9
A. Labour Arbitration Implications ............................................................................................... 9
B. Labour Arbitration Decisions ................................................................................................... 9
PRIVACY CONSIDERATIONS .................................................................................................................. 17
A. General Principles of Privacy Law ......................................................................................... 17
B. Decisions of the Privacy Commissioner ............................................................................... 18
THE CURRENT STATE OF THE LAW ...................................................................................................... 22
A. Pre-Employment and Pre-Access Testing ............................................................................ 22
B. Random Testing ...................................................................................................................... 23
C. Post-Incident Testing .............................................................................................................. 24
D. Reasonable Cause Testing ..................................................................................................... 24
E. Testing upon Return to Duty Following Treatment .............................................................. 24
F. Testing Where United States Department of Transportation (“DOT”) Regulations Apply25
G. The Manner of Testing ............................................................................................................ 26
H. Dealing with Information Gathered through Alcohol and Drug Testing ............................ 26
I. Information Sharing with Third Party Service Providers ...................................................... 27
CONCLUSIONS AND RECOMMENDATIONS .......................................................................................... 27
Introduction
Over the last several years, the debate surrounding the legal parameters of alcohol and drug testing in
Canada has escalated, particularly for industrial employers engaged in safety sensitive work.
The complexity of the debate stems from several factors. First, unlike the situation in the United States,
there are no statutes or regulations that directly address alcohol and drug testing in Canada. Second,
challenges to alcohol and drug testing policies come in various forms, including human rights complaints,
labour arbitration grievances and complaints to privacy commissioners. The analysis in these venues
differs, making it difficult to articulate a unified, coherent approach. Finally, alcohol and drug testing
raises a number of competing interests and values that are not easily reconciled, as demonstrated by the
conflicting case law across Canada.
Although these factors make it difficult to provide definitive answers in this area, there is a growing body
of case law that provides a certain degree of guidance. While a summary of all alcohol and drug testing
cases is beyond the scope of this paper, we have highlighted below the leading and most recent
authorities in an attempt to provide those affected by alcohol and drug testing with information about the
current scope of alcohol and drug testing in Canada.
What follows is a general summary of the law at the time of writing. This paper is not intended to be an
exhaustive survey of the case law, but rather will provide a broad overview of the approaches taken in
alcohol and drug testing cases. It must also be noted that the law in this area is constantly evolving and
is heavily fact-specific; as a result, employers are strongly urged to obtain legal advice when drafting or
implementing a policy that incorporates alcohol and drug testing.
The Human Rights Approach
A. General Human Rights Principles
Although each province has its own legislative scheme, human rights legislation across Canada protects
individuals against discrimination on the basis of mental or physical disabilities, including alcohol and drug
dependency. As a result, when a complainant files a human rights complaint based on alcohol or drug
testing, human rights tribunals (and sometimes the Courts) must determine whether the testing was
discriminatory. If an individual can show that he or she was subject to negative or differential treatment
based on alcohol or drug dependency, then the threshold test for discrimination will be met. In addition,
and depending on the specific facts of any particular case, an individual may be able to establish
discrimination if he or she was perceived to be alcohol or drug dependent.
Although human rights legislation prevents employers from discriminating based on alcohol or drug
dependency, employers may be able to avoid liability if they can establish that freedom from alcohol or
drug dependency or from impairment is a bona fide occupational requirement (“BFOR”). As a result, if an
individual can establish discrimination on the basis of alcohol or drug dependency, then the burden of
proof shifts to the employer to establish that the testing is a BFOR under what is called the “Meiorin” test,
which requires the employer to establish that:
A. it adopted the testing provisions for a purpose rationally connected to the performance of
the job;
B. it adopted the testing provisions in an honest and good faith belief that it was necessary
to the fulfillment of that legitimate work-related purpose; and
C. the testing provisions are reasonably necessary to the accomplishment of that legitimate
work-related purpose and it is impossible to accommodate individual employees sharing
the characteristics of the complainant without imposing undue hardship.
In most of the reported cases, alcohol and drug testing has been imposed by industrial employers to
ensure the safety of employees working in inherently dangerous or safety-sensitive conditions. These
employers have been able to establish the first two elements of the Meiorin test with relative ease.
However, the third element of the Meiorin test is much more difficult to establish, as it requires employers
to prove that their goal (which is often workplace safety) cannot be accomplished in a less invasive
manner and, furthermore, that their alcohol and drug testing policies incorporate every possible
accommodation to the point of undue hardship.
Although the degree to which an employer must accommodate depends on the facts of each case,
human rights tribunals and Courts have consistently held that automatic sanctions do not satisfy the duty
to accommodate; rather, individuals must be assessed based on their own unique circumstances and
accommodation must be approached in a broad and creative fashion. Furthermore, employers are not
generally entitled to offer accommodation only to those individuals who come forward voluntarily (though
a recent Alberta Human Rights Tribunal decision may suggest otherwise). It should also be noted that
individuals seeking accommodation must assist and actively participate in the accommodation process,
which may include obligations to undergo reasonable treatment.
B. The Human Rights Cases
Until relatively recently, the governing appellate authority on alcohol and drug testing in the human rights
arena was the decision of the Ontario Court of Appeal in Entrop v. Imperial Oil Limited.1 While to some
extent, Entrop has been called into question by the Alberta Court of Appeal’s decision in Alberta (Human
Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company,2 it remains an
important starting point, particularly in light of the current uncertainty regarding random testing.
In Entrop, the complainant was employed in a safety sensitive position at a refinery. Pursuant to the
employer’s alcohol and drug policy, he disclosed a prior history of alcohol abuse and was automatically
reassigned to another job. The complainant filed a human rights complaint, alleging that he was
discriminated against.
In a series of decisions, several of which were subsequently found to exceed its jurisdiction, an Ontario
Board of Inquiry3 found that parts of the employer’s policy discriminated against the complainant and
violated Ontario’s Human Rights Code.4 The employer appealed to the Ontario Divisional Court, which
held that the Board’s orders and conclusions were reasonable.5 The Ontario Court of Appeal, however,
allowed part of the employer’s further appeal.6
The Court of Appeal held that the complainant had established a prima facie case of discrimination
because the employer’s policy effectively treated any person testing positive as a substance abuser;
since both actual and perceived handicap are protected grounds, anyone failing an alcohol or drug test
was protected under the Human Rights Code. As a result, the policy provisions for pre-employment drug
1 Entrop v. Imperial Oil Limited, [2000] O.J. No. 2689 (C.A.) (“Entrop”).
2 Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, 2007 ABCA
426 (“Chiasson”).
3 Entrop v. Imperial Oil Ltd., [1996] OHRBID 30.
4 Human Rights Code, R.S.A. 1990, c. H-19.
5 Imperial Oil Ltd. v. Ontario (Human Rights Commission) (re Entrop), [1998] O.J. No. 422.
6 Supra note 1.
testing and for random alcohol testing were prima facie discriminatory and the onus shifted to the
employer to show that the provisions were BFORs under the Meiorin test.
The employer successfully established the first two elements of the test. With respect to the third element
of the test, the Court of Appeal found the provisions for random alcohol testing of employees in safety
sensitive positions was rationally justified as a deterrent and detector of alcohol impairment, due to the
effectiveness of breathalyser testing. Furthermore, the employer was entitled to take steps to deter and
detect alcohol impairment among its employees in safety sensitive jobs. Nonetheless, it held that random
alcohol testing will not satisfy the third step of the Meiorin test unless the employer meets its duty to
accommodate those who test positive.
On the other hand, the Court of Appeal held that random drug testing for employees in safety sensitive
positions could not be justified as reasonably necessary. The Court held that drug testing cannot
measure present impairment; it shows past drug use, and does not demonstrate that a person is
incapable of performing the essential duties of the position. Furthermore, the sanction of automatic
dismissal was too severe. The employer failed to demonstrate why it could not tailor its sanctions to
accommodate individual capabilities without incurring undue hardship.
The Court of Appeal upheld the Board of Inquiry’s acceptance of reasonable cause and post-incident
drug testing, but only if the employer could establish that it was necessary as one facet of a larger
assessment of drug abuse. The Ontario Human Rights Commission accepted that alcohol testing was
sufficiently related to job performance to justify reasonable cause and post-incident alcohol testing, so the
Court of Appeal did not make a specific finding in this regard. Finally, the Court of Appeal held that the
mandatory disclosure, reassignment and reinstatement provisions in the employer’s policy violated the
Human Rights Code.
Since Entrop, several human rights decisions have addressed alcohol and drug testing. In our view, the
following recent and substantively significant decisions merit brief consideration: Witwicky v. Canadian
National Railway;7 Weyerhaeuser Company Ltd. v. Chornyj;8 Chiasson;9 Luka v. Lockerbie & Hole
Industrial Inc.;10 Brooks v. Martin-Brower of Canada Co.;11 Leonard v. Noble Drilling (Canada) Ltd.;12
Stephens v. Winroc;13 and Bish v. Elk Valley Coal Corporation.14
In Witwicky,15 the complainant was a train conductor who, after completing a run between Kamloops and
Jasper, booked an eight-hour rest period and obtained a room at the “bunkhouse”, a facility in which
employees could rest before returning to work. After telephoning his estranged wife, the complainant
learned that she was seeking a divorce. He became distraught and booked himself off as unfit for duty.
That evening, the complainant was arrested by the RCMP when he was found passed out in a stolen
vehicle. When he returned to the bunkhouse the next morning, the complainant learned that he had been
called to take a train leaving for Kamloops at 7:10 a.m. He spoke to the Jasper supervisor by phone and
stated that he was fit for work, so the supervisor instructed him to get on the train as soon as possible.
Several months later, the complainant was suspended from work due to this incident. Following an
investigation, which included obtaining the RCMP report indicating that the complainant was severely
intoxicated on the night in question, the employer fired him. The employer’s policy provided for
reinstatement subject to conditions, including: assessment by a substance abuse professional;
completion of any recommended treatment; abstinence from drugs or alcohol for at least 2 years; no
further policy violations during the monitoring period; and maintenance of job performance according to
7 Witwicky v. Canadian National Railway, 2007 CHRT 25 (“Witwicky”).
8 Weyerhaeuser Company Ltd. v. Chornyj, [2007] O.J. No. 640 (Ont. S.C.) (“Weyerhaeuser”).
9 Supra note 2.
10 Luka v. Lockerbie & Hole Industrial Inc., 2008 AHRC 1 (“Lockerbie & Hole”).
11 Brooks v. Martin-Brower of Canada Co., [2008] BCHRTD No. 49 (“Brooks”).
12 Leonard v. Noble Drilling (Canada) Ltd., 2010 NLHRBID 1 (“Leonard”).
13 Stephens v. Winroc, [2011] BCHRT 269 (“Stephens”).
14 Bish v. Elk Valley Coal Corporation, 2012 AHRC 7 (“Bish”).
15 Supra note 7.
expectations. The complainant later accepted the employer’s offer to return to work on the conditions set
out in a “reinstatement contract”.
The complainant eventually filed human rights complaints, alleging discrimination based on a perceived
disability. The Canadian Human Rights Tribunal dismissed the complaints. The Tribunal noted that
under the Canadian Human Rights Act,16 both alcohol dependency and perceived alcohol dependency
constitute disabilities. However, the complainant failed to establish that the employer dismissed him
because it believed or perceived him to be an alcoholic. Rather, he was dismissed because the employer
felt that he had violated its rules and policies. Furthermore, the employer’s policy did not have the effect
of discriminating on the basis of addiction or perceived addiction. It was not directed at identifying all
users of alcohol or drugs; rather, it imposed sanctions against those who were identified as possessing or
consuming alcohol or drugs on the job. The Tribunal also found that the terms of the reinstatement
contract were not discriminatory because it had not been established that the complainant suffered from a
disability, real or perceived.
The second particularly significant case is the decision of the Ontario Divisional Court in Weyerhaeuser.17
On November 5, 2002, the complainant received an offer of employment, which was conditional on him
passing a pre-employment drug test. On November 7, 2002, the complainant’s drug test came back
positive for marijuana. On November 11, 2002, the complainant had a conversation with a human
resources representative in which the complainant was asked if he smoked marijuana. The complainant
said he hesitated, and then admitted he was a casual user. The company representative, however, said
the complainant repeatedly denied using drugs, then changed his story and admitted drug use. The offer
of employment was withdrawn on November 12, 2002.
The complainant filed a human rights complaint alleging that the company’s pre-employment drug testing
policy and its decision to revoke its offer of employment were discriminatory. The company made a
preliminary application seeking dismissal of the complaint. The company argued that the Human Rights
Tribunal lacked jurisdiction, because human rights legislation does not protect the right to lie, and
marijuana use, without evidence of disability, is not a protected ground. The Tribunal held there was a
critical factual dispute that would have to be determined after hearing all the evidence. The company
applied for judicial review.
A unanimous panel of the Ontario Divisional Court allowed the application and granted an order
prohibiting the Tribunal from hearing the complaint. The Court addressed two distinct issues. The first
issue was whether a claim of disability can be made by a person who admits he is not disabled by his
drug use. On this issue, the Court observed that the complainant did not claim to suffer from a disability;
rather, the only evidence before the Tribunal was that the complainant claimed to be a recreational user
of marijuana. The Court ruled that the Tribunal erred in law by failing to dismiss this aspect of the
complaint since there was no assertion of an actual disability.
The second issue was whether the company’s drug policy was prima facie discriminatory on the basis of
perceived disability. In this case, however, the evidence did not support a conclusion that the company
actually perceived the complainant to be disabled. Rather, the company perceived him to be dishonest.
This was true even on the complainant’s version of events, as he admitted that the company’s human
resources representative told him “The fact that you lied will seriously impact on whether you will be
allowed to work for us in the future.” Moreover, the Court stated that the consequences of the company’s
policy did not support an inference that the company perceived the complainant as having a disability,
because a positive test did not lead to automatic dismissal or revocation of employment offers.
The next human rights decision to be addressed is Chiasson.18 On June 26, 2002, the complainant was
hired by Kellogg, Brown & Root (“KBR”) to work on a Syncrude project in Ft. McMurray. His employment
was subject to the results of a pre-employment medical and drug screening. The complainant provided
urine samples on June 28, 2002 and started work on July 8, 2002, before the results of the drug
16 Canadian Human Rights Act, R.S.C. 1985, c. H-6.
17 Supra note 8.
18 Supra note 2.
screening were known. On July 17, 2002, the complainant received the results of his drug screen, which
showed positive for marijuana. The complainant advised KBR of the test results and was told to leave the
Syncrude site and travel to Calgary, where he was terminated.
The complainant filed a human rights complaint in October of 2002. At some point in the proceedings,
the complainant admitted that he smoked marijuana on or about June 22, 2002. He also maintained that
he was not and had never been dependent on any drug. He classified his use of marijuana as social and
recreational.
An Alberta Human Rights Panel dismissed the complaint in January of 2005,19 concluding that based on
the complainant’s own evidence, there was no actual disability due to drug addiction. Furthermore, there
was no perceived disability because, if KBR had perceived the complainant to be drug addicted, it would
not have assigned him to safety sensitive work. Nonetheless, the Panel went on to conclude that drug
testing is prima facie discriminatory and, if the complainant had established actual or perceived disability,
KBR’s policy would have failed to reasonably accommodate him to the point of undue hardship.
On judicial review, Madam Justice Martin of the Alberta Court of Queen’s Bench overturned the Panel’s
decision,20 finding that the complainant had been discriminated against on the basis of perceived
disability. Justice Martin held that recreational drug users were adversely affected by the KBR policy,
which treated all prospective employees who tested positive for drugs as if they were drug dependent and
likely to report to work impaired.
In considering whether the policy was a BFOR, Justice Martin accepted that prohibiting impairment at
work was a valid and compelling safety concern and that sobriety at work was a BFOR. Justice Martin
concluded, however, that KBR was not able to establish the third element of the Meiorin test as KBR did
not offer the complainant any accommodation, nor did it consider any alternative methods of meeting its
goal of preventing workplace impairment. Justice Martin specifically noted that unionized workers were
not required to test and KBR allowed the complainant to work for nine days without the results of his drug
screen, which significantly detracted from KBR’s argument that testing was required to ensure safety and
prevent impairment at work. In addition, KBR did not establish that implementing other methods for
testing workplace impairment would constitute undue hardship, nor did it establish the level of risk
associated with residual effects of marijuana.
In its appeal decision, which was rendered on December 28, 2007, the Alberta Court of Appeal set aside
Justice Martin’s decision and restored the Panel’s decision.21 The Court of Appeal addressed two
questions, the first of which was whether the KBR policy discriminated against casual marijuana users,
like the complainant, based on perceived disability. The Court of Appeal noted both the Panel’s
conclusion that KBR did not perceive the complainant to suffer from drug addiction and Justice Martin’s
conclusion that the effect of KBR’s policy was to exclude the complainant from employment based on
perceived disability. The Court of Appeal held that Justice Martin’s conclusion could not be sustained,
stating (at para. 33):
…The evidence disclosed that the effects of casual use of cannabis sometimes linger for
several days after its use. Some of the lingering effects raise concerns regarding the
user’s ability to function in a safety challenged environment. The purpose of the policy is
to reduce workplace accidents by prohibiting workplace impairment. There is a clear
connection between the policy, as it applies to recreational users of cannabis, and its
purpose. The policy is directed at actual effects suffered by recreational cannabis users,
not perceived effects suffered by cannabis addicts. Although there is no doubt overlap
between effects of casual use and use by addicts, that does not mean there is a
mistaken perception that the casual user is an addict.
19 Chiasson v. Kellogg Brown & Root (Canada) Company, 2005 AHRC 7.
20 Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, 2006 ABQB
302.
21 Supra note 2.
The Court of Appeal also stated that to the extent that the foregoing conclusion is at odds with the
decision of the Ontario Court of Appeal in Entrop,22 it declined to follow that decision.
The Court of Appeal went on to note that Alberta’s human rights legislation prohibits certain, but not all,
treatment based on human characteristics. While the jurisprudence has extended human rights
protection in instances where an employer incorrectly perceives an employee to be disabled, in this case,
KBR’s policy did not perceive the complainant to be a drug addict; rather, it perceived that persons who
use drugs at all are a safety risk in an already dangerous workplace. The Court of Appeal rejected the
complainant’s contention that what he did on his own time was his business, reiterating that the effects of
marijuana use can linger for days, particularly given that the concentration of active ingredients is now
many times higher than it was in the past. In light of its conclusion that there was no discrimination, the
Court of Appeal declined to consider whether the KBR policy was a BFOR.
The second issue addressed by the Court of Appeal was whether the application of KBR’s policy to drug
addicted persons generally was before the Panel. The Court of Appeal noted that section 20(1) of
Alberta’s human rights legislation permits a person to lodge a complaint on behalf of anyone, be it
themselves or other persons. Nonetheless, the Court of Appeal held that section 20 does not result in a
general complaint automatically arising every time an individual complaint is lodged. In this case, there
was nothing in the complainant’s complaint that related to the general application of KBR’s policy, nor
was there anything to suggest his complaint was brought on behalf of drug addicted persons. In such
circumstances, KBR could only reasonably conclude that it was defending its actions as they related to
the complainant and not to drug dependent persons generally. Thus, the issue of how the policy affected
drug addicted persons generally was not before the Panel and Justice Martin erred in making it central to
her determination.
On May 29, 2008, the Supreme Court of Canada dismissed the Alberta Human Rights Commission’s
application for leave to appeal the Court of Appeal’s decision. Therefore, in Alberta, the Court of Appeal’s
decision in Chiasson remains a governing authority, subject to the Court of Appeal’s more recent decision
involving Suncor, which will be discussed below.
In our view, both the end result and the analysis undertaken by the Court of Appeal in Chiasson are
encouraging, especially for industrial employers in Alberta. It is particularly encouraging that the Court of
Appeal: (1) accepted evidence that the effects of casual marijuana use can linger for days; (2) confirmed
that those lingering effects raise valid concerns about the user’s ability to function in a safety challenged
environment; and (3) concluded that employers who attempt to guard against drug use do not necessarily
perceive all drug users to be drug addicts, but rather perceive drug users to be a safety risk in an already
dangerous workplace.
It must be stressed, however, that the Court of Appeal’s decision in Chiasson does not signal an end to
the debate on pre-access drug testing. The Court of Appeal was careful to confine its analysis to the
facts before it, specifically declining to consider several of the arguments raised by the parties and
interveners. The decision does not foreclose the possibility of a human rights challenge based on the
effects of drug testing on drug addicted individuals, nor does it provide guidance on whether KBR’s policy
would have been upheld as a BFOR or the extent to which employers are required to accommodate
prospective employees.
Several months after the Alberta Court of Appeal’s decision in Chiasson, an Alberta Human Rights Panel
issued its decision in Lockerbie & Hole.23 Lockerbie, the complainant’s employer, was subcontracted by
Syncrude, who had a policy that subcontractors could not bring workers onto the site unless they passed
a drug test. The complainant was a recreational drug user who failed the pre-access alcohol and drug
test. Lockerbie asked him to attend an assessment, however, the complainant refused and was
terminated. The Panel held that while Syncrude was not an employer in the conventional sense, it was
an employer because it was utilizing Mr. Luka’s services indirectly through Lockerbie. Furthermore,
because the complainant denied that he was drug dependent, the Panel concluded that he did not have a
22 Supra note 1.
23 Supra note 10.
physical disability under human rights legislation, nor was there any evidence that either of the
respondents perceived the complainant to be disabled. As was the case in Chiasson,24 the Panel found
that the complaint related to the individual complainant only, and thus it was not necessary to consider
whether the policy in question led to systemic discrimination.
The Alberta Court of Queen’s Bench overturned the Panel’s finding that Syncrude was an “employer”
within the meaning of s. 7 of the Human Rights Act, concluding that the Panel’s understanding of
employment was overly broad.25 The complainant further appealed to the Alberta Court of Appeal, which
dismissed the appeal and held that the complainant was employed by Lockerbie.26 The Court of Appeal
held that the complainant’s relationship with Syncrude was too remote to justify a finding of employment,
even under the expanded meaning given to the term under human rights legislation.
There seems to be little doubt that at some point in the future, an Alberta complainant will advance either
an individual complaint as a drug addicted person or a broader complaint on behalf of individuals who are
drug addicted, which will allege that that pre-access and/or pre-employment drug testing discriminates
against individuals who are addicted to drugs. It remains to be seen how such a complaint will be viewed
in Alberta.
In Brooks,27 the complainant filed a human rights complaint against his employer and his union alleging
discrimination based on physical and mental disability, contrary to British Columbia’s Human Rights
Code.28 The complainant was employed by Martin-Brower, a food supply delivery company that identified
itself as a safety-sensitive employer. A supervisor witnessed the complainant smoke marijuana on his
lunch break, away from the worksite. The complainant admitted that he smoked marijuana and told the
employer that he was a drug addict. As a result, the complainant was not terminated. Instead, he was
sent for an examination with an addiction specialist, at the employer’s expense, who recommended that a
monitoring agreement be put in place for two years. The complainant signed the monitoring agreement,
which stipulated that he would abstain from all mood-altering drugs, and would be subject to random
testing and attend an outpatient treatment in the evenings.
The complainant did not register for the outpatient treatment program due its cost of $900 and location.
When he expressed his dissatisfaction, Martin-Brower offered an alternative, that being an 30-day
inpatient program which would be covered through his benefits. The complainant declined and was
terminated for cause for breaching the conditions of the monitoring program.
The complaint was dismissed without a hearing on the basis that the complaint had no reasonable
chance of success. The complainant failed to show that the union’s appointment of representatives or the
quality of its advice was in any way related to, or improperly influenced by his disability. With respect to
the employer, the Tribunal held that Martin-Brower took all reasonable steps to accommodate the
complainant upon learning of his disability and that it was the complainant who failed to cooperate in the
accommodation process. Moreover, the terms set out in the monitoring agreement were found to be
reasonable in the circumstances.
In Leonard,29 the complainant was required to submit to a drug test after it was reported that a marijuana
cigarette was found in the reception area of a heliport. Everyone on board the helicopter was required to
submit to a drug test. The complainant testified that he did not smoke marijuana on the day in question;
however, he admitted to smoking a puff of marijuana at a neighbor’s party. The complainant was advised
that his test came back positive, however, it was a borderline failure and as a result, he was permitted to
perform his office duties but was not permitted to perform the other duties of his position. The next day,
the complainant was asked to leave the site and was notified that he was suspended without pay pending
24 Supra note 2.
25 Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission), 2009 ABQB 241.
26 Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commissioner, Director), 2011
ABCA 3.
27 Supra note 11.
28 Human Rights Code., R.S.B.C. 1996, c-210.
29 Supra note 12.
an investigation of the incident. The complainant was also required to submit to another drug test, the
result of which was negative. Nonetheless, the complainant was terminated from his employment.
The Board, upon reviewing the evidence and witness testimony, determined that the complainant was not
a drug addict, and therefore suffered no disability within the meaning of the Human Rights Code.30 The
Board also dismissed the argument that because the complainant was terminated for having tested
positive for drugs, the employer must have perceived him to be a drug addict. The complaint was thus
dismissed.
The complainant appealed to the Newfoundland and Labrador Trial Division Court.31 The crux of the
appeal was whether the Board should have first assessed whether the employer’s drug policies were
prima facie discriminatory before determining whether the complainant had proven an actual or perceived
disability. The Court dismissed the appeal and reiterated the required analysis for human rights
complaints. First, the complainant must establish a prima facie case of discrimination, and second, the
onus the shifts to the employer to justify the discrimination as a BFOR. As such, the onus was on the
complainant to establish either that he was perceived to have a substance abuse problem or that it was
perceived that he would develop a substance abuse problem in the future. If a prima facie case is not
established, there is no need to consider the defence of BFOR.
Recently, in Stephens,32 the complainant filed a complaint against Winroc, his employer, claiming that
Winroc’s random drug testing policy was discriminatory and that Winroc perceived him to have a
disability. Winroc filed an application to dismiss the complaint on the basis that there was no reasonable
prospect that the complaint would succeed. The complainant was randomly selected for drug testing,
which he refused to attend. Following this incident, Winroc required that the complainant attend an expert
substance abuse assessment, where it was determined that the complainant did not meet criteria for a
diagnosis of substance abuse or dependence disorder. The complainant signed a Return to Work
Agreement, which stipulated that any further contravention of the drug policy would result in immediate
termination. After a further random drug test where the complainant tested positive for cannabis, his
employment was terminated.
The Panel accepted Winroc’s reasoning that based on the independent assessment, it did not perceive
the complainant to be disabled. Since the complainant did not provide any basis for his assertion that
Winroc perceived him to be disabled, the Panel determined that his complaint had no reasonable
prospect of success. Therefore, the Tribunal granted Winroc’s application to dismiss the complaint under
s. 27(1)(c) of the Human Rights Code. 33
Bish v. Elk Valley Coal Corporation,34 a recent decision of the Alberta Human Rights Tribunal, involved a
union employee who operated a hauling truck for an open coal mining operation. The employer
unilaterally imposed a policy that provided for post-accident drug testing. Pursuant to this policy,
employees who were using illegal drugs were urged to come forward to the employer to seek assistance
if needed, without fear of disciplinary action. The policy provided that if an employee who did not come
forward with their drug usage was involved in an at work accident and subsequently tested positive for
drugs, termination was a likely consequence.
After an accident at work, an employee of Elk Valley tested positive for cocaine-type drugs. He later
admitted to the use of crack cocaine on his days off. The employee had never come forward to disclose
that he had a drug addiction or to seek rehabilitative assistance, and was terminated on the basis that he
did not disclose his drug use. The employee’s union initiated a human rights complaint on his behalf,
alleging that he was terminated due to his drug addiction, in violation of the Alberta Human Rights Act.
30 Human Rights Code, R.S.N.L. 1990, c H-14.
31 Leonard v. Newfoundland and Labrador (Human Rights Commission), 2011 NLTD 48.
32 Supra note 13.
33 Human Rights Code, RSBC 1996, c 210.
34 Supra note 14.
The Panel dismissed the complaint, based primarily on the finding that the employer’s actions in
terminating the employee were not prima facie discriminatory. The Panel found that the employee was
not terminated due to an actual or perceived disability, but rather because he failed to come forward to his
employer about his drug use and therefore violated the employer’s policy. The policy clearly provided
that the consequence of failing to disclose a drug addiction could be termination. A key factor in this
analysis was expert evidence, which showed that while the employee had a mild drug addiction, it did not
interfere with his capacity to follow the policy, whether by discontinuing his drug use or by asking for
assistance to do so.
The Panel found the portion of the policy requiring employees to disclose drug use to be reasonable in
the context of the employer’s safety sensitive workplace. Based on the written decision, it does not
appear that the Panel considered the contrary finding of the Ontario Court of Appeal in Entrop.35
Labour Arbitration Considerations
A. Labour Arbitration Implications
In addition to human rights cases, there are numerous labour arbitration decisions that address alcohol
and drug testing policies. While many of these cases incorporate the human rights analysis summarized
above, they also contain what is called a “balancing of interests” approach, which assesses whether the
employer’s right to manage its business outweighs the employee’s right to privacy or vice versa.
B. Labour Arbitration Decisions
The labour arbitration cases can generally be divided into two categories: policy grievances challenging
all or part of an alcohol and drug testing policy and individual grievances. While the individual grievances
provide insight into the way in which specific circumstances will be addressed, the policy grievances
provide more guidance with respect to the broad and overarching legal principles applicable to alcohol
and drug testing. As a result, we have focused our analysis primarily on leading policy grievance
decisions.
The first case, Imperial Oil Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local
900 (Policy Grievance),36 involved a multitude of individual grievances and a union policy grievance over
the application of the employer’s alcohol and drug policy. The union objected to the employer’s use of
random and post-incident alcohol and drug testing. In a preliminary decision framing the issues to be
determined,37 the Arbitration Panel agreed with the employer’s argument that it would be unfair and
inequitable to allow a challenge to the administration of random alcohol tests, since that practice had
been followed since 1992. However, the Arbitration Panel did not feel that the issues surrounding
random and post-incident testing had been finally resolved in Entrop.38
After engaging in a review of the Canadian arbitral jurisprudence, the majority concluded that absent a
contrary provision in the collective agreement, an employer in a safety sensitive industry has the right to
require an employee to undergo a drug test in three general circumstances:
A. where there is reasonable cause to do so;
B. where there is a significant incident, accident or near miss, where it may be important to
identify the root cause of what has occurred; and
35 Supra note 1.
36 Imperial Oil Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 900 (Policy Grievance),
[2006] O.L.A.A. No. 721 (Ontario, Picher) (“Imperial Oil”).
37 Imperial Oil Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 900 (Lussier
Grievance), 2005 OLAA 213.
38 Supra note 1.
C. as a legitimate part of continuing contracts of employment for individuals found to have a
problem with alcohol or drugs. In such cases, agreements or policies may properly
involve random, unannounced alcohol and drug testing for a limited period of time.
An employee’s failure or refusal to undergo testing in these three circumstances may properly be viewed
as a serious violation of the employer’s policy, though failure to take a test, like registering a positive test,
does not necessarily justify automatic dismissal.
The majority also noted, however, that arbitrators have overwhelmingly rejected random drug testing as
being an implied right of management under the terms of the collective agreement. Furthermore, testing
that does not fall within the three categories enumerated above constitutes an unjustified affront to the
dignity and privacy of employees, which falls outside the legitimate interests of employers.
The employer attempted to justify its position on the basis that the Court of Appeal in Entrop had already
accepted the validity of random testing that could measure actual impairment. As a result, it argued that
its use of an oral fluid test for random testing was tantamount to a breathalyser because such testing
detects actual impairment. Although the majority accepted that the oral fluid test could measure
impairment, it rejected the employer’s argument, in part because due to the method of administration, the
results of an oral fluid test took days to receive, as compared to the instant read-out provided by the
breathalyser. Further, random testing for all employees could not be reconciled with jurisprudence that
suggests that safety sensitive employees can be required to submit to testing only in the above noted
three circumstances.
The majority refused to be bound by the human rights analysis in Entrop, stating that arbitrators in
Canada have consistently ruled against random testing, whether by breathalyser or otherwise, as a
matter of defining the appropriate limits of the relationship between employees and the employer. The
majority also noted the lengths to which the Crown must go to obtain a similar sample from an individual,
stating (at para. 119): “…it becomes difficult to understand on what basis a private employer can assert
the right to obtain the same material by random search, without at least the minimal justification of
reasonable cause”. Indeed, the majority went so far as to question whether random drug testing would
be acceptable even if such a test were able to provide immediate results of present impairment.
Ultimately, the majority concluded that absent contractual or statutory consent or reasonable cause, an
individual’s expectation of privacy should be respected. Thus, the aspect of the policy that subjects
employees to random drug testing, without reasonable cause, violated the collective agreement, which
required that employees be treated with respect and dignity, and could not be justified.
In January of 2008, the Ontario Divisional Court upheld the majority decision.39 Significantly, in its
discussion of the background facts, the Court expressly noted that “there is no dispute that the current
drug test does disclose impairment by cannabis, although the result is not available at the time it is
administered.” Nonetheless, the Court concluded that the majority’s decision was not patently
unreasonable. While the employer argued that the majority erred by failing to apply the Ontario Court of
Appeal’s decision in Entrop, the Court disagreed. It held that there was nothing in the collective
agreement that tied the obligation to treat employees with respect and dignity to the grounds of
discrimination in the Human Rights Code or to the jurisprudence under the Human Rights Code. The
Human Rights Code does not provide an exhaustive guide as to the meaning of dignity and respect in the
workplace generally and it was not unreasonable that employees under the parties’ collective agreement
received greater protection than they would have under the Human Rights Code.
Imperial Oil’s further appeal to the Ontario Court of Appeal was dismissed on May 22, 2009.40 The Court
of Appeal found that it was not unreasonable for the Arbitration Panel to use the Canadian Model as a
yardstick against which to measure Imperial Oil’s policy, nor did the fact that the Arbitration Panel failed to
39 Imperial Oil Ltd. v. Communications, Energy & Paperworkers’ Union of Canada, Local 900, [2008] O.J. No.
489.
40 Imperial Oil Ltd. v. Communications, Energy & Paperworkers’ Union of Canada, Local 900, 2009 ONCA 420.
mention the Human Rights Code mean that its interpretation of the collective agreement was
unreasonable.
The majority’s decision was followed by Arbitrator Kaplan in Petro-Canada Lubricants Centre
(Mississauga) v. Communications, Energy and Paperworkers’ Union of Canada, Local 593 (Alcohol and
Drug Policies Grievance).41 In this decision the union was grieving the employer’s unilateral change to its
alcohol and drug use policy to allow for random alcohol testing.
The arbitrator concluded that the changes to the policy were unreasonable and a violation of the
management rights and harassment provisions of the collective agreement. The changes also breached
the employer’s commitment in the collective agreement to create a working environment of trust. In no
case had an employee tested positive, and there had never been reason to believe any employee was
impaired prior to a test being given. Arbitrator Kaplan found that through years of spotless service the
employees had earned the trust described in the provision, and random testing contravened the
employer’s commitment.
Of note is the fact that Arbitrator Kaplan adopted several features of the Arbitration Panel’s decision in
Imperial Oil,42 going so far as to refer to them as the “generally applicable law.” The key points were that:
A. random and unannounced testing, even in a safety sensitive workplace, is not an implied
right of management under a collective agreement. It would require explicit language in
the agreement to support a finding that the employees, through their union, had
consented to random testing;
B. management can require alcohol or drug testing where there has been a significant
incident, accident, or near miss, if there are facts giving the employer reasonable cause
to demand a test, or if the random and unannounced testing is part of an agreed
rehabilitative program; and
C. where an employee refuses or fails to submit to a drug test in one of those three
circumstances it is a serious violation of the employer’s drug and alcohol policy and may
be grounds for serious discipline, although not necessarily termination.
Ontario arbitral jurisprudence is influential in Canadian labour law, and so recent judicial and arbitral
support for the position endorsed in Imperial Oil may be an indicator of larger changes.
In United Assn. of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, Local 488 v. Bantrel Constructors Co.,43 pursuant to its contract with Petro-Canada,
Bantrel Constructors Co. was required to adopt Petro-Can’s pre-access drug testing policy, which gave
current employees two months in which to undergo testing. Employees were provided with information as
to the amount of time it would take for various drugs to be eliminated from an individual’s system, as well
as an employee assistance program, and were advised that refusals would result in layoff from the site.
A positive test would result in assessment and counselling, with the ability to return to the site. It was
agreed that the worksite was hazardous and required a high emphasis on safety.
Bantrel was also subject to a collective agreement, which expressly incorporated the “2001 Canadian
Model for Providing a Safe Workplace, Alcohol and Drug Guideline and Work Rules”, the Guidelines to
which referred to “testing as a condition of employment” being applicable to those companies that require
it based on the specific nature of their operations.
41 Petro-Canada Lubricants Centre (Mississauga) v. Communications, Energy and Paperworkers; Union of
Canada, Local 593 (Alcohol and Drug Policies Grievance), [2009] O.L.A.A. No. 400 (Ontario, Kaplan) (“Petro-
Canada”).
42 Supra note 36.
43 United Assn. of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and
Canada, Local 488 v. Bantrel Constructors Co., [2007] A.G.A.A. No. 33 (Alberta, Smith) (“Bantrel”).
On December 22, 2004, three unions filed policy grievances alleging that the failure to grandfather
existing employees from the pre-access drug testing violated the collective agreement and human rights
law.
In a two-to-one majority, an Arbitration Panel chaired by Phyllis Smith dismissed the grievance, holding
that the policy was reasonable and did not breach the collective agreement or human rights legislation.
The majority noted the increased emphasis on workplace safety as a result of strengthening of safetyrelated
provisions in the Occupational Health and Safety Act and the criminalization of certain conduct in
the workplace through amendments to the Criminal Code. The majority relied on evidence that the
implementation of pre-employment alcohol and drug testing significantly reduced safety incidents,
including injury accidents in the workplace.
The majority specifically rejected the union’s argument that the policy was flawed because testing did not
measure impairment. The majority held as follows (at para. 92):
“…The design of the policy insofar as it applied to current employees was such that it would only detect,
through non-negative test results, the most significant risks to the workplace, namely persons who were
either unwilling to or unable to give up drug use for any time at all. This conclusion arises from the fact
that current employees were given up to two months to complete their testing after the policy was
announced and none of the drugs tested for under any scenario would remain in any form in the body for
any time approaching two months. This was not random testing in the sense considered by the cases. In
relative terms it was not intrusive in the same sense that typical random testing is.” (emphasis added)
On the issue of human rights, the majority concluded that the policy was not prima facie discriminatory,
given the absence of automatic termination and the existence of mandatory assessment and counselling.
The majority did not rule out the possibility that an individual case could arise where the policy was
discriminatory; however, the majority relied on the Ontario Divisional Court decision in Weyerhaeuser44
for the proposition that the mere existence of a drug testing policy does not mean that policy is prima
facie discriminatory. In this case, the majority held that the human rights debate was not even engaged.
Nonetheless, assuming prima facie discrimination could be made out the majority held that the policy met
the Meiorin test. The policy was rationally connected to job performance in that it reduced the risk of
having impaired employees on site, which would improve safety and allow the contract with Petro-Canada
to continue. Furthermore, Bantrel adopted the policy in good faith, honestly believing it was necessary to
reduce the risk of on-site impairment and improve safety. Finally, the policy was reasonably necessary to
improve workplace safety.
On judicial review, Justice Gill of the Alberta Court of Queen’s Bench held that the majority’s decision
regarding the validity of pre-access testing was reasonable, as the majority’s reasons showed “a clear
line of analysis from the law and the evidence to its conclusions”.45 Justice Gill also upheld the majority’s
discrimination analysis, finding that the majority correctly applied the Meiorin test to find that, even if the
policy was discriminatory, it constituted a BFOR.
On March 9, 2009, however, the Alberta Court of Appeal allowed the union’s appeal and quashed the
majority’s decision, holding that mandatory pre-access testing of current employees was not justified
under the parties’ collective agreement.46 The Court of Appeal held that the majority erred in extending
the meaning of the Canadian Model Guidelines’ reference to “condition of employment” to include not
only “pre-employment testing” but also “pre-access testing” of existing employees. The Court of Appeal
further emphasized that this case was not about combating substance abuse in the workplace but rather
about determining procedures for alcohol and drug testing of existing employees. The Court of Appeal
stated that worksite history and context could not override the terms or language of the collective
44 Supra note 8.
45 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States
and Canada, Local 488 v. Bantrel Constructors Co., [2007] ABQB 721.
46 United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States
and Canada, Local 488 v. Bantrel Constructors Co., [2009] ABCA 84.
agreement. Ultimately, and in light of the majority’s misinterpretation of the Guidelines to the Canadian
Model, the Court of Appeal could not find any line of analysis which could lead the majority from the
evidence to its conclusion. The majority’s decision was therefore found to be unreasonable and was
quashed.
While the fact that the majority decision in Bantrel was quashed is unfortunate, the Court of Appeal’s
decision is clearly restricted to the specific facts before it. We anticipate that the analysis used by the
majority of the Arbitration Panel in support of alcohol and drug testing generally will continue to be relied
upon, as that analysis was not challenged by the Court of Appeal.
In Communications, Energy, and Paperworkers Union, Local 707 v. Suncor Energy Inc. (Alcohol and
Drug Policy Grievance),47 the union argued that Suncor’s Alcohol and Drug Abuse Policy was
unreasonable. The Arbitration Panel held that in most respects, Suncor’s policy was reasonable;
however, the Arbitration Panel upheld the grievance with respect to one section of the policy, declaring
that s. 4.5 of the policy was unreasonable and invalid. Section 4.5 required an employee to take a drug
and alcohol test if the employee was involved in an accident, a near miss or other potentially dangerous
incident. It also gave supervisors discretion not to require testing, but only if they could rule out drugs and
alcohol being a factor.
The Arbitration Panel held that this discretionary power was unreasonable and invalidated the entire
section. The Arbitration Panel noted that unless the supervisor was in contact with the employee at all
times, the possibility of drug or alcohol use could never be ruled out. Section 4.5 unreasonably placed
the onus on supervisors to find evidence not to test, rather than placing the onus on supervisors to justify
the testing. The Panel’s conclusions in this regard follow (at para. 92):
Our decision is that, as written, section 4.5 does not meet the KVP test of
reasonableness for these reasons:
1. The right to privacy protects employees from alcohol and drug testing unless there are
reasons to justify a test.
2. Without an agreement between Suncor and the Union, the justifiable reasons for
breaching privacy and requiring a test will vary depending on many factors but ultimately
must meet the test of reasonableness in the context of the particular worksite.
3. The Arbitration Board is satisfied that the undesirable consequences of alcohol and
drug use at the worksite, coupled with the nature of Suncor's worksite, justifies the need
for an Alcohol and Drug Policy.
4. In most respects, Suncor's Alcohol and Drug Policy is exemplary. However, section 4.5
in its current form is not. The Arbitration Board finds section 4.5 to be unreasonable
because:
* it does not create a framework that requires a justifiable reason for an alcohol
and drug test. The fact of an accident, near miss or other potentially dangerous
incident is not, of itself, sufficient reason to breach an employee's right to privacy
* section 4.5 offends the right to privacy and dignity that must be afforded to
employees, unless there are sufficient reasons to breach the right to privacy and
dignity. There must be more than an accident, near miss or other potentially
dangerous incident to justify an alcohol and drug test.
47 Communications, Energy, and Paperworkers Union, Local 707 v. Suncor Energy Inc. (Alcohol and Drug Policy
Grievance), [2008] A.G.A.A. No. 55 (Alberta, Elliott) (“Suncor Energy”).
5. Section 4.5 creates an onus whereby a test is mandatory unless evidence shows, on
the basis of reasonable grounds, no test is required. This is an unreasonable obligation
given the privacy rights to which and employee is entitled. The onus should not be
placed on supervisors/managers not to find evidence not to test, but rather to have
justification for the test.
The Arbitration Panel provided language for a revised s. 4.5, which it believed would alleviate the
concerns identified.
The same issue of managerial discretion to test following an incident was at issue in United Association of
Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States of Canada,
Local 663 v. Mechanical Contractors Assn. of Sarnia (Drug and Alcohol Policy Grievance).48 In this
award, an Ontario Arbitrator dismissed a policy grievance concerning the drug and alcohol policies of the
member employers of the Mechanical Contractors Association of Sarnia (“MCAS”).
MCAS members supplied contractor supplies and services to the major industrial corporations operating
in the Sarnia/Lambton area, many of whom imposed alcohol and drug testing requirements on employers.
The union claimed that the impugned policies were prima facie discriminatory, that the reasonable cause
testing was too random and that the post-incident testing was too arbitrary.
The Arbitrator stated that it was well accepted that the safe operation of many industrial sites requires
freedom from impairment by both alcohol and drugs. On this basis, he stated that because the
employer’s focus was on the safe operation of the industrial sites, the reasonable-cause and post-incident
testing processes were acceptable both in operation and in language.
The Arbitrator declared that it was widely accepted in arbitral case law that reasonable cause testing
where managers were granted a certain level of discretion did not cross the line to randomness.
However, he did issue a warning for policies that may need to be revised. If a policy did not allow, in the
case of relatively insignificant incidents or accidents, some form of immediate inquiry or opportunity for
explanation to determine whether there was any realistic suspicion that drugs or alcohol played a role,
prior to testing, then it would need to be revised.
In Spectra Energy Transmission - West v. Communications, Energy and Paperworkers Union of Canada,
Local 686-B,49 a recent decision out of British Columbia, the grievor, who was employed in a safety
sensitive environment, attended an employer-retained occupational health and safety physician who
became aware of the grievor’s habitual marijuana use. The employer sent the grievor for an assessment
by an addiction specialist to determine whether he required treatment or monitoring in the interest of
safety. The addiction specialist found that the grievor met the diagnostic criteria for cannabis abuse and
that his consumption was incompatible with a safety sensitive occupation.
There was no evidence that the grievor had ever used marijuana at work or ever attended work impaired.
Further, there was no evidence of work performance or attendance issues related to the grievor’s off-duty
use of marijuana. The specialist recommended and the employer put into effect, a two-year period of
random drug testing. The union challenged this decision, primarily basing their argument on the assertion
that there was no link between the grievor’s off-duty use of marijuana and the workplace.
Arbitrator Hope found that the assessment by the addictions specialist that the grievor’s cannabis use
outside of work was incompatible with him functioning in a safety sensitive occupation was sufficient to
draw a link between his admitted use of marijuana and the workplace. This link gave the employer
reasonable cause to impose random drug testing on the grievor. The policy of imposing random drug
48 United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States
of Canada, Local 663 v. Mechanical Contractors Assn. of Sarnia (Drug and Alcohol Policy Grievance), [2008]
O.L.A.A. No. 621 (“Sarnia”).
49 Spectra Energy Transmission - West v. Communications, Energy and Paperworkers Union of Canada,
Local 686-B, [2012] BCCAAA No. 165 (QL).
testing on the grievor for a period of two years following his return to work was upheld, but the frequency
of testing was limited to six tests during that period.
There are two additional, recent cases that bear careful attention.
In Irving Pulp & Paper, Ltd. v. Communications, Energy and Paperworkers’ Union, Local 30 (Day
Grievance),50 Irving Pulp introduced a Limited Policy on Alcohol and Drug Use (the “Policy”) which
included mandatory unannounced random alcohol testing for employees working in safety sensitive
positions at their paper mill in Saint John. Perley Day, a devout Christian and teetotaller, was selected for
a random test. Under threat of discipline he complied, but felt that the experience had been degrading
and humiliating and filed a grievance alleging there were no reasonable grounds for the alcohol testing
policy, nor had their been a significant incident that would justify testing.
Because the Policy was not part of the collective agreement, the Arbitration Panel considered the issue to
be a conflict between employee privacy rights and management’s rights to make workplace rules.
Determining the proper balance between these two rights would hinge on the risk of impairment in the
particular workplace and the means adopted to address it. Where the employer could demonstrate that
the testing policy was reasonable in light of those two considerations using the KVP test, the employer’s
policy would be allowed to stand. Otherwise, the employee’s right to privacy would prevail.
Up to this point, the award of the 2-to-1 Arbitration Panel majority followed a well-established arbitral
framework. However, in considering risk within a particular workplace the majority moved off in an
unexpected direction. The majority accepted evidence that the mill in normal operation is a dangerous
work environment with the repercussions of malfunction potentially going well beyond the safety of the
actor who caused the incident. Despite this evidence, the majority concluded that the mill did not fall into
the category of “ultra dangerous industries” such as (at para. 103), “a nuclear plant, an airline, a railroad
or a chemical plant, or like industries.” When considering evidence of risk in the workplace, the majority
stated that the employer would be required to discharge a lighter burden of proof where the ultrahazardous
nature of the industry itself provided evidence of risk.
In September of 2010, Justice Grant of the Court of Queen’s Bench of New Brunswick emphatically
quashed the award.51 It was accepted that the key issue was whether or not the policy of random alcohol
testing was reasonable. Justice Grant interpreted the majority decision as being premised on its
distinction between a dangerous workplace and an ultra-dangerous workplace. Where the workplace
falls into the latter category, no evidence of historical risk due to employee alcohol use is necessary to
justify a policy of random testing; if it is merely “dangerous,” then a random testing policy can only be
reasonable where the employer can show there is a history of alcohol-related incidents. Justice Grant
then proceeded to reject this distinction (at para. 61), stating “dangerous is dangerous.” The mill may not
have carried the same inherent safety risks as a nuclear plant, but the potential existed for a catastrophic
accident. The Court considered it to be unreasonable to require a history of accidents in a dangerous
workplace where the potential for catastrophe exists in order to justify a policy of random alcohol testing.
The union appealed to the New Brunswick Court of Appeal on the basis that sufficient evidence of a preexisting
drug or alcohol problem in the workplace was a pre-condition to the enforceability of such
policies, unless the workplace qualified as ultra-dangerous.52 The Court of Appeal held that evidence of
an existing alcohol problem in the workplace is unnecessary once the employer’s work environment is
classified as inherently dangerous. It was determined that the paper mill satisfied the test of inherently
dangerous, as there was a high potential for explosion, and the intra-city location of the mill and its
proximity to the St. John River and the Bay of Fundy could have a tremendous potential impact on the
50 Irving Pulp & Paper, Ltd. v. Communications, Energy and Paperworkers’ Union, Local 30 (Day Grievance),
[2009] N.B.L.A.A. No. 28 (New Brunswick, Veniot) (“Irving Pulp & Paper”).
51 Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers’ Union of Canada, Local 30, [2010]
NBQB 294.
52 Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers’ Union of Canada, Local 30, [2011]
NBCA 58.
environment. Therefore, Irving did not have to adduce evidence of an existing alcohol problem in the
workplace, let alone sufficient evidence of a “significant problem” in the workplace.
The union then appealed to the Supreme Court of Canada and the decision was released in June
2013.53 The Supreme Court noted at the outset of its decision that that the workplace was governed by a
collective agreement and as such their decision was based on the relevant arbitral jurisprudence.
Further, the majority emphasized the employer’s ability to freely negotiate a drug and alcohol testing
policy with the union.
The Supreme Court’s decision can be seen to summarize two general scenarios where arbitral
jurisprudence has permitted employers to conduct drug and alcohol testing by exercising its management
rights (i.e. not a right bargained for in the collective agreement):
1. “for cause” or “reasonable grounds” testing where an employee has been involved in accident,
is suspected to currently be under the influence of drugs or alcohol, or as part of a return to work
program for substance abuse; and
2. random testing, only where there has been a history of drug or alcohol abuse in a dangerous
workplace.
The majority did not place any limits on an employer’s ability to test for drugs and alcohol in the former,
but has placed an evidentiary burden on the employer in the latter.
The Supreme Court upheld the arbiter’s decision, concluding that Irving had acted outside the scope of its
management rights by implementing a random testing regime without sufficient evidence of an alcohol
abuse problem. The majority stated that there were “…only eight documented incidents of alcohol
consumption or impairment at the workplace over a period of 15 years…” (at para. 13). The Supreme
Court clearly stated that, while relevant, classification of a workplace as “dangerous, inherently
dangerous, or highly safety sensitive” (at para. 31) has never been the basis for the unilateral imposition
of random drug or alcohol testing.
The application of the decision to non-unionized work environments will no doubt be the source of further
discussion, as the Supreme Court provided some mixed messaging. In reference to Entrop54 on both
occasions, the Supreme Court first stated that “[c]ases dealing with random alcohol or drug testing in
non-unionized workplaces under human rights statutes are, as a result, of little conceptual assistance” (at
para. 17) and later added that “…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.” (at para. 20)
Finally, back in Alberta, Suncor’s drug and alcohol policy was recently the subject of another challenge by
the Communications Energy & Paperworkers’ Union (the “Union”).55 In June 2012, Suncor announced to
the Union that it was imposing a new drug and alcohol policy imposing random drug and alcohol testing
on all Union members working in “safety sensitive” or “specified positions”. Those employees who would
be subject to random testing would be determined by a computer program, with a minimum of 50 percent
of qualifying employees being tested each year.
The Union applied to the Alberta Court of Queen’s Bench for an interim injunction, to halt the
implementation of the new policy until an arbitration board could rule on its legality. The Court applied the
three part test for an injunction, which requires the applicant to show there is a serious issue to be tried,
that irreparable harm will arise if the injunction is not granted, and that the balance of convenience
favours the applicant.
53 Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd. 2013 SCC
34
54 Supra note 1.
55 Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc., 2012 ABQB 627.
The Court of Queen’s Bench granted the injunction, finding that each of these factors was established by
the Union. In his decision, Justice Macklin considered the balance between the loss of dignity faced by
Union employees who would be subject to random testing before the legality of the Policy had been
determined, and the risk to health and safety which would be borne by Suncor if the Policy’s
implementation was delayed.
Justice Macklin found that Suncor had established that it was facing an ongoing alcohol and drug
problem with its workforce and that its purpose in implementing the new policy was to address and
minimize the risks associated with the use of alcohol and drugs. Justice Macklin also found that drug and
alcohol testing of employees can constitute a significant infringement of their personal privacy, dignity,
and bodily integrity.
In balancing the employee’s right to privacy and the employer’s right to manage its business and address
safety concerns, Justice Macklin found that the irreparable harm that could be suffered by Suncor’s
employees justified granting the injunction. In addition, Justice Macklin found that random alcohol and
drug testing may in fact do little to detect employees who pose a safety risk in the workplace. While the
threat of random testing may reduce the risk, the Court found that Suncor did not produce sufficient
evidence to establish this. This factor reduced the strength of Suncor’s argument that the policy was
necessary to ensure safety, and therefore that the it was reasonable.
Many of Suncor’s employees had been continuously employed there and had never been involved in an
accident or taken time off due to alcohol and drug abuse. This strengthened the argument that the
privacy and dignity of employees could be harmed if random testing was introduced.
Suncor appealed the decision to the Alberta Court of Appeal and the majority of the Court upheld the
injunction on the basis that there was not enough evidence that Suncor would suffer safety risks or loss if
the Policy was not immediately implemented.56 Building on the decision of the Court of Queen’s Bench,
Justice Bielby found that the evidence did not establish that random alcohol and drug testing would have
any immediate effect on prevention of job site accidents, or that it would do so more effectively that the
existing policy, which required evidence or suspicion of alcohol or drug use before employees are subject
to testing. Justice Bielby also found that Suncor failed to show that they would suffer immediate harm or
significant risk if the Policy was not implemented right away, stating that merely asserting that the Policy
is necessary to ensure “safety” did not tip the balance in favour of highly intrusive testing. She concluded
that the non-consensual taking of bodily fluids is “a substantial affront to an individual’s privacy rights”.
Justice Côté strongly disagreed. In his dissenting decision, he found that “privately giving a urine sample
to be tested for alcohol or drugs does not begin to equal death or dismemberment, or widowhood or
becoming orphaned, by an accident”. He held that the potential risks of substance impairment
outweighed any possible privacy issues.
This case was heard by an arbitration panel in January, 2013, but the decision has not yet been released.
Privacy Considerations
A. General Principles of Privacy Law
Broadly speaking, the right to privacy is the right to be free from the unwarranted intrusion of others into
one’s life. The underlying premise is that an individual should be free to live as he or she pleases without
interference or monitoring, as long as the individual’s behaviour does not adversely affect others. It is this
general concept of privacy that is considered by arbitrators in the labour context, as they assess employer
drug and alcohol testing policies and determine their legality.
In addition, in Alberta and some other Canadian provinces, legislation has been enacted to deal
specifically with privacy rights associated with personal information. Private sector employment
56 Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc., 2012 ABCA 373.
relationships in Alberta are governed by the Personal Information Protection Act (“PIPA”).57 PIPA sets
out the conditions under which organizations may collect, use or disclose personal information, and also
imposes a duty on organizations to implement reasonable safeguards to protect personal information
from unauthorized access and disclosure.
The general rule under PIPA is that consent is required in order to collect, use or disclose personal
information.58 Personal information is “information about an identifiable individual”. Where consent is
provided an organization can only use personal information for purposes that are reasonable, and only to
the extent that is reasonable for meeting that reasonable purpose.59
PIPA sets out other specific instances were an organization can use or disclose personal information
without consent, for example, where the disclosure is required to comply with a collective agreement that
is binding on the organization,60 or if the disclosure is authorized by law.61
In the context of the employment relationship, PIPA also specifically addresses “personal employee
information”. Personal employee information is defined as being personal information in respect of a
potential, current or former employee of an organization, that is reasonably required by the organization
for the purposes of establishing, managing, or terminating an employment relationship between the
organization and that individual. It does not include information that is not about an individual’s
employment.62 Information gathered in the course of employee alcohol and drug testing falls into this
category, therefore, the rules in PIPA relating to the use and disclosure of personal employee information
apply.
An employer will not need consent to collect, use, or disclose personal information if:
1. The information consists of “personal employee information”;
2. The use is reasonable for the purpose for which the information is being used;
3. The information consists only of information that is related to the employment relationship; and
4. Where the employee is a current employee of the organization, the organization has given the
employee reasonable notice that the personal employment information will be collected, used, or
disclosed, and of the purpose behind this collection, use, or disclosure.63
Organizations have an obligation to protect the personal employee information that they have in their
custody or control.64 This includes the results of alcohol and drug testing, diagnoses by medical
professionals who have assessed the employee, or recommendations made for the employee’s continued
employment. PIPA mandates that organizations make reasonable security arrangements to protect
against risks relating to unauthorized or accidental collection, use, disclosure, disposal etc.
B. Decisions of the Privacy Commissioner
Privacy challenges to employee alcohol and drug testing policies or the way in which employee
information was used or disclosed have focused on a few key issues. Decisions are highly fact based
and many issues have not yet been resolved by privacy commissioners, as this body of jurisprudence is
not yet fully developed.
57 Personal Information Protection Act, S.A. 2003, c. P-6.5 [PIPA].
58 PIPA, ss. 7, 8.
59 PIPA, s 16.
60 PIPA, s 20(c).
61 PIPA, s 20(b).
62 PIPA, s 1(j).
63 PIPA, s. 18.
64 PIPA, s. 34.
One issue that reappears regularly is the point at which information collect through testing ceases to be
“information related to the employment relationship”, and therefore becomes subject to the requirement of
consent for collection, use, and disclosure. Once information has crossed this threshold, the question
then becomes how much notice an employee should be given before the information is collected, used,
and disclosed?
Another important issue coming out of PIPA stems from the fact that often, a number of organizations
other than the employer are connected with the employee’s personal information relating to drug and
alcohol testing, either by collecting, controlling, or storing. How then should the obligation to comply with
PIPA be distributed among these parties? Even within the employer’s organization itself, certain
disclosures or uses of employee information will run afoul of PIPA.
United Assn. of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 170 v.
Vancouver Shipyards Co.,65 is a decision in the labour arbitration context. However, in this case,
Arbitrator Hope links labour, human rights, and privacy law principles in a way that highlights the blurred
divisions between these three approaches to assessing alcohol and drug testing.
The employer, Vancouver Shipyards, implemented a new testing policy requiring mandatory disclosure of
alcohol and drug dependency problems, both present and past, as a condition of future employment. The
policy also provided for reasonable cause and post incident testing.
A fellow employee reported to management that the grievor may have been smoking marijuana at the
shipyard. On the basis of this report, the employer asked the grievor to submit to a drug test, but he
refused. He was disciplined with a five day unpaid suspension.
The employee’s union grieved the suspension and both the mandatory disclosure and reasonable cause
drug testing provisions of the policy. Each of these issues was dealt with separately at arbitration.
Arbitrator Hope reversed the employee’s suspension on the basis that the employer did not have
sufficient evidence that the employee was in fact smoking or impaired by marijuana to establish a
reasonable basis for requiring the test.
The Arbitrator accepted that drug testing is allowed in Canadian workplaces only on a reasonable cause
basis, for example where an employee reported to work impaired or was in an accident or near miss. As
long as the employer proved that testing was a reasonable requirement in the circumstances, this
component of the policy was upheld.
Arbitrator Hope also upheld the portion of the policy relating to mandatory disclosure. In so doing, he
interpreted Entrop as standing for the proposition that the test for whether this portion of the policy could
be upheld under privacy legislation with respect to the disclosure of “personal employment information
without consent” should be the same as the Meiorin test in the context of human rights. Under this
framework, if a policy is found to be a BFOR under the Meiorin test, it would also pass the test under
privacy law, as the information would be required for the purpose of managing an employment
relationship or prospective employment relationship.
Arbitrator Hope’s reasoning in this respect was rejected by Arbitrator Picher in the Ontario labour
arbitration decision in Imperial Oil, discussed at length earlier in this presentation. Arbitrator Pincher
found that the Ontario Court of Appeal in Entrop dealt specifically with the application of the Human
Rights Code, and that the Meiorin test may be an inappropriate gauge of reasonableness when dealing
with privacy legislation and where a collective agreement is in place.
65 United Assn. of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 170 v. Vancouver
Shipyards Co., [2005] BCCAAA 296 (merits); [2006] BCCAAA No. 186 (supplementary award); [2006] BCCAAA
No 187 (supplementary award).
In Investigation Report P2007-IR-001,66 a decision of the Alberta Information and Privacy Commissioner,
Construction Labour Relations (“CLR’), an Alberta association, contracted with Wilson Banwell to provide
an employee and family assistance program (“EFAP”) for its member contractors. As a part of this
service, Wilson Banwell provided counselling and assessment to the members’ employees and their
families.
After a workplace accident, the complainant was asked by his employer to take a drug test in accordance
with their drug and alcohol policy. The complainant tested positive for marijuana. As a part of the
employer’s policy, the complainant was referred to Wilson Banwell for a return to work assessment with a
Chartered Psychologist.
Upon beginning his treatments, the complainant signed a written consent which set out that only
anonymous statistical data would be sent to his employer, and that no confidential information would be
disclosed without his written consent.
The complainant ultimately discovered that his entire confidential file, including records of past unrelated
sessions, were sent to both his employer and his union. He complained to the Office of the Information
and Privacy Commissioner, on the basis that Wilson Banwell disclosed more personal information than
was required to both parties.
Officer Clayton found that the information at issue was required to facilitate the complainant’s return to
work and was therefore “personal employee information” which, pursuant to PIPA, could be used and
disclosed without consent provided disclosure took place in accordance with PIPA. Aside from the
Psychologist’s recommendations respecting the complainant’s return to work, the remaining personal
information was not reasonably required to establish, manage, or terminate the employment relationship
and therefore could not be disclosed without consent. With respect to the transmitting of the same
information to the complainant’s union, the Privacy Officer found this to be a contravention of PIPA, as a
disclosure that was not for reasonable purposes.
The Privacy Officer also reviewed the issue of whether CLR, Wilson Banwell, or both parties were
responsible for complying with PIPA in respect of their dealings with the complainant’s information. While
the Privacy Officer rested the weight of the responsibility in this regard on Wilson Banwell, finding that it
had breached its obligations under PIPA, he found that CLR did have some accountability in this regard.
The Officer found that CLR had a degree of control over the complainant’s information as it had control
over what requirements with respect to the use and disclosure of private information it would put into its
contracts with service providers. In this case, the Officer found that CLR had met its duty to set out
privacy requirements and policies in its contract with Wilson Banwell.
This case shows that even where substance abuse treatment programs are run by third parties,
employers still have the responsibility to clearly establish requirements that the third parties must meet
when dealing with the personal information of employees.
In Investigation Report P2008-IR-003,67 TransAlta issued two letters to their employees advising them
that treatment programs for substance abuse problems were available to them as a part of the
implementation of a new alcohol and drug policy. The first letter set out that these treatment programs
were confidential if entered into voluntarily, and that no information would be released without a signed
consent.
The second letter attached a brochure setting out the services provided by Kelly, Luttmer & Associates
(KLA) which was contracted to deliver Occupational Health Services (OHS) and Employee and Family
Assistance Program (EFAP) services to TranAlta employees. This brochure stated that services would
be confidential and a signed consent would be required before any personal information is released to
anyone.
66 Investigation Report P2007-IR-001, [2007] AIPCD No. 4 [Order: February 12, 2007].
67 Investigation Report P2008-IR-003, [2008] AIPCD No. 35 [Decision April 10, 2008].
The complainant, a TransAlta employee, presented a medical note to the OHS nurse indicating that he
required a leave from work. The nurse referred him to an EFAP counsellor and the complainant attended
counselling at a treatment center, reporting back to the EFAP counsellor. After treatment, the
complainant was declared medically fit to return to work.
Prior to the complainant’s return date, his union president contacted the OHS to make general enquiries
about TranAltas’s disability management program, not making any specific reference to the complainant.
The OHS nurse ended up disclosing to the union president the complainant’s name and information
regarding his alcohol and drug treatment and follow up care.
The complainant became aware of this disclosure and faxed a letter to EFAP revoking all consents for
release of information. However, after this revocation of consent, the OHS nurse again emailed the union
present and TransAlta’s HR Advisor, disclosing information about the complainant’s follow-up care and
advising that he was non-complaint with certain TranAlta disability policies. TransAlta’s HR Advisor then
sent a letter to the complainant setting out that the complainant was non-compliant in this regard, and
copied the complainant’s direct supervisor and others in the company.
The complainant submitted a complaint to the Alberta Privacy Commissioner alleging that his private and
confidential information had been disclosed without consent.
In analyzing the first disclosure of information by the OHS nurse to the union president, Officer Clayton
found that the information in question was “personal employee information” as it was reasonably required
by TranAlta to manage the employment relationship. However, Officer Clayton found that the disclosure
did not fall under the exception to the requirement for consent because the complainant was not provided
with reasonable advanced notice that the information was going to be provided to the employer for the
purpose of assessing treatment compliance and fitness for work. In finding that this disclosure was in
breach of PIPA, Officer Clayton focused on the fact that the complainant believed he was participating in
a voluntary, confidential program, a belief supported in the materials provided to him by TransAlta.
With respect to the letter sent by TransAlta’s HR advisor to others in the company, Officer Clayton found
that this also violated PIPA, as it revealed more information than was reasonably required to achieve its
employment related purpose. All the supervisors needed to know was that the complainant was not
eligible to return to work, they did not need to know why.
Officer Clayton recommended that TransAlta and KLA clarified the types of service offered by KLA and
the privacy policies relevant to each. It was also recommended that TransAlta revise its disability
management policies, procedures, and consent forms to ensure that employees were fully notified as to
what information would be collected, used, and disclosed, particularly when they were referred to
specialists for assessment and/or treatment.
This case illustrates that although PIPA allows for the use of personal employee information without prior
consent, organizations must ensure that employees are given reasonable notice of the purpose for which
their information will be collected, used and disclosed. In addition, only that information that is required
for the employment related purpose can be disclosed without consent.
In Investigation Report P2010-002,68 a recent decision of the Alberta Information and Privacy
Commission, the complainant, who was an employee of Lafarge, took a random drug and alcohol test
which showed positive. The complainant’s employment was ultimately terminated as a result. The
complainant alleged that the employer shared information with its employees and other individuals that he
was dismissed for failing the alcohol and drug test. For example, the complainant alleged that the
employer’s Health and Safety Officer disclosed this information to the complainant’s foreman and the
general manager by having each of these individuals present at a meeting with the complainant to
discuss his situation.
68 Investigation Report P2010-002, [2010] AIPCD [Decision: November 10, 2010].
The Adjudicator found that the employer shared the complainant’s personal employee information with its
employees and other individuals. The Adjudicator also held that the employer did not have the
complainant’s consent before using or disclosing the information, and that while the information was
information that was related to the complainant’s employment relationship and that the use and disclosure
was reasonable, the employer did not provide the complainant with reasonable notice that the personal
employment information was going to be used or disclosed.
The Adjudicator noted that the amount of reasonable notification will depend on the type of information to
be disclosed. For example, if an employee fails an alcohol and drug test and must be removed from
employment, the employer would only need to provide a brief period of reasonable notice. Further the
Adjudicator noted that the organization also has the option of obtaining the employee’s consent at the
beginning of the employment relationship, pursuant to s. 8 of PIPA, to disclose information of this kind.
The Current State of the Law
The above cases reveal certain general principles regarding the various types of alcohol and drug testing.
The frustration for employers, however, is that those principles are not necessarily consistent in human
rights, labour arbitration and privacy cases, nor are they uniform across Canada.
A. Pre-Employment and Pre-Access Testing
Until recently, the governing human rights authority on pre-employment and pre-access testing was the
highly restrictive Alberta Court of Queen’s Bench decision in Chiasson;69 however, the subsequent
Ontario Divisional Court decision in Weyerhaeuser70 and the Alberta Court of Appeal decision in
Chiasson71 take a more lenient approach. Weyerhaeuser suggests that pre-employment or pre-access
testing may not necessarily be prima facie discriminatory, particularly where testing policies do not
include automatic sanctions or refusals to hire, while the Alberta Court of Appeal’s decision in Chiasson
reveals that Court’s recognition of the lingering effects of marijuana use and the validity of policies aimed
at reducing workplace accidents by prohibiting workplace impairment.
On the arbitration side, there is no jurisprudence on pre-employment testing, as arbitrators do not have
jurisdiction over issues that arise before there is an employment relationship. While in the Bantrel72
decision, a majority of an Alberta Arbitration Panel was prepared to uphold pre-access testing for existing
employees, that finding has now been overturned by the Alberta Court of Appeal (though on admittedly
restricted facts).
In Imperial Oil,73 a majority of the arbitration panel held that alcohol and drug testing is only appropriate in
three circumstances: (1) where there is reasonable cause; (2) post-incident or near miss; and (3) as a
legitimate part of continuing contracts of employment for individuals found to have a problem with alcohol
or drugs. While that case did not directly address pre-access testing, it seems likely that the majority
would have viewed such testing with a highly critical eye.
When these decisions are viewed in conjunction, they demonstrate that in appropriate circumstances,
properly drafted and implemented pre-employment and pre-access testing policies may be acceptable,
either on the basis that they are not discriminatory or on the basis that they are BFORs under the Meiorin
test. It must be emphasized, however, that the debate on this question is far from closed. Whether or not
pre-employment or pre-access testing is acceptable in any particular circumstances is largely fact
specific. There is no binding authority addressing a case in which an alcohol or drug dependent
69 Supra note 20.
70 Supra note 8.
71 Supra note 2.
72 Supra note 43.
73 Supra note 36.
individual suffered negative consequences as a result of a positive test and the degree to which
employers must accommodate prospective employees has not yet been determined.
B. Random Testing
As has been clearly demonstrated above, random testing has been treated differently by decision
makers. For example, random alcohol and drug testing were both upheld at first instance in a series of
cases involving the Elizabeth Métis Settlement,74 at least in part due to the special problems the
community had experienced. In 2003, the Alberta Court of Queen’s Bench upheld the Panel’s decision,
but in 2005, the Alberta Court of Appeal found that neither the Panel nor the Court of Queen’s Bench had
properly considered the threshold issue of whether, assuming the policy was valid, it was properly applied
to the complainants. The Court of Appeal remitted the case to the Panel, which subsequently determined
that the testing did not fall within the confines of the policy. We note, however, that this case has not
been broadly applied, likely because of its unique facts and because the Court of Appeal’s decision
rendered most of the analysis of the policy inapplicable.
Random alcohol testing was upheld by an Alberta arbitrator in Communications, Energy and
Paperworkers Union, Local 777 and Imperial Oil Limited, unreported (May 23, 2000, Christian) on the
basis that it was reasonable, minimally intrusive of employee rights and could have been upheld as a
BFOR. Similarly, in Entrop,75 the Ontario Court of Appeal held that random alcohol testing for safetysensitive
employees, while prima facie discriminatory, may nonetheless be justifiable under the Meiorin
test, as long as the employer meets its duty to accommodate those who test positive by tailoring any
sanctions to the circumstances of individual employees.
Random drug testing, however, was rejected by an Alberta Human Rights Panel in Halter v. Ceda-
Reactor, unreported (May 16, 2006, Beth Bryant) on the basis that the testing was discriminatory and the
employer failed in its duty to accommodate. Labour arbitrators have also almost universally rejected
random drug testing an unjustifiable intrusion into employees’ personal privacy and freedom. Indeed, the
majority in Imperial Oil rejected random drug testing even though oral swab testing could measure
impairment and questioned whether random testing of any kind was acceptable. The Arbitrator in Petro-
Canada76 adopted the majority’s position in rejecting an employer’s random alcohol testing policy. There
is one case in which random drug testing was found to be reasonably necessary under the third element
of the Meiorin test; however, the employer was found to have failed to accommodate to the point of undue
hardship: Milazzo v. Autocar Connaisseur Inc.,77 discussed further below.
Most recently in Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc.,78 the Alberta Court of
Queen’s Bench assessed the harm that could be caused to Suncor’s employees if a random alcohol and
drug testing policy was imposed pending arbitration. Justice Macklin considered the harm to employees’
dignity and privacy, especially for those employees who had a long history of service without any
incidents of alcohol or drug abuse, to be “irreparable harm”. The Court of Appeal, in upholding the
injunction, found that Suncor did not present sufficient evidence that random alcohol and drug testing
would be any more effective that reasonable cause testing, with respect to prevention of workplace
accidents. Suncor’s ability to impose random testing will be decided at arbitration.
Based on the foregoing, from a human rights perspective, random alcohol testing may be justified under
the Meiorin test, as long as the employer meets its duty to accommodate employees who test positive by
tailoring any sanctions to their individual circumstances. Random drug testing, on the other hand, has
never been fully justified under the Meiorin test in a binding human rights decision and has been
74 Jacknife v. Elizabeth Métis Settlement, [2002] AHRC 17; Alberta (Human Rights and Citizenship Commission) v.
Elizabeth Métis Settlement, [2003] ABQB 342; Alberta (Human Rights and Citizenship Commission) v. Elizabeth
Métis Settlement, [2005] ABCA 173; Jacknife v. Elizabeth Métis Settlement, [2006] AHRC 5.
75 Supra note 1.
76 Supra note 41.
77 Milazzo v. Autocar Connaisseur Inc., 2003 CHRT 37 (“Milazzo”).
78 Supra note 53.
universally rejected in the labour arbitration realm. While the Supreme Court of Canada’s decision in
Irving Pulp & Paper did not focus on the human rights element or the distinction between drug and
alcohol testing, it did draw on Charter-based privacy principles. The Supreme Court concluded that in
unionized work environments, random drug or alcohol will be permitted where the employer has sufficient
evidence of a drug or alcohol abuse problem in a dangerous work environment. As noted, it is unclear
how the Supreme Court’s decision in Irving will apply non-unionized work environments.
C. Post-Incident Testing
Post-incident alcohol and drug testing has generally been upheld where such testing is necessary as one
facet of a larger assessment of abuse. Arbitration decisions have indicated that post-incident testing is
acceptable where the employee’s condition is a “reasonable line of inquiry”.
For example, in Weyerhaeuser,79 Arbitrator Sims held that reasonable cause is not required for postincident
testing. The arbitrator highlighted three elements of post-incident testing: (1) there must be a
threshold level of harm before testing will be justified, though a near miss may suffice if there is sufficient
gravity to the event; (2) the decision to test must involve a balancing of rights between the employer and
employee during which the employer should conduct a thorough investigation, consider the employee’s
point of view and ultimately determine whether testing is warranted; and (3) there must be a link between
the incident and the employee’s situation and the employer should consider all realistic possibilities
before the decision to test is made.
Post-incident testing was recently challenged in Suncor Energy.80 The policy in question required testing
following any accident, no matter how minor and regardless of whether or not there was any indication
that alcohol and drugs were involved. Although the Arbitration Panel held that the policy was “exemplary”
in most respects, the section requiring mandatory post-incident testing in all circumstances was found to
be an unreasonable invasion of privacy.
While the decision in Sarnia81 may suggest a slightly more lenient approach to discretion in post-incident
testing, in our view, employers must be careful to ensure that some type of reasonable cause analysis is
conducted to justify post-incident testing.
D. Reasonable Cause Testing
Reasonable cause alcohol and drug testing has also been upheld where the employer can establish that
it is reasonably necessary as one facet of a larger assessment of substance abuse.
Reasonable cause testing is appropriate where the employer has reasonable grounds to believe that the
employee is impaired by alcohol or drugs. An employer must exercise judgement to determine whether
there are, in fact, reasonable grounds for the testing.
Reasonable cause testing has also been upheld from a privacy law perspective in decisions such as
United Assn. of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 170 v.
Vancouver Shipyards Co.82
E. Testing upon Return to Duty Following Treatment
There is a general consensus that mandatory random alcohol and/or drug testing upon return to duty
following attendance for treatment are justifiable for a reasonable period of time. It has been accepted
that in such circumstances, the employer has a legitimate interest in the employee’s continued use of
alcohol or drugs.
79 Supra note 8.
80 Supra note 47.
81 Supra note 48.
82 Supra note 63.
The Canadian Human Rights Tribunal in Witwicky83 lends support to this assertion, as does Arbitrator
Picher’s majority decision in Imperial Oil.84
The arbitrator in Spectra Energy Transmission - West v. Communications, Energy and Paperworkers
Union of Canada, Local 686-B upheld the testing of an employee for a period of two years after he
returned to work after attending drug and alcohol treatment85. The arbitrator did however, limit the
number of time that the employee could be tested within this two year period.
F. Testing Where United States Department of Transportation (“DOT”)
Regulations Apply
There is limited case law in which the implications of United States DOT regulations have been
considered in the context of alcohol and drug testing.
One of the few cases in which this issue was directly addressed is Milazzo.86 The complainant was a bus
driver for a company that provided coach services in Canada and the United States. After several years
of employment, he was required to take a drug test, at least in part due to the application of United States
DOT regulations. The complainant was terminated when the test was positive for cannabis metabolites
and filed a human rights complaint.
The Canadian Human Rights Tribunal dismissed the individual portion of the complaint because the
complainant was not disabled, but upheld his broader complaint about the discriminatory nature of the
policy. The Tribunal concluded that the policy discriminated against employees who were drug
dependent and could not be justified because the employer did not offer any accommodation to
employees who tested positive. Significantly, however, the Tribunal concluded that the policy, which
included pre-employment, random, post-incident and for-cause testing as required by United States DOT
regulations, was reasonably necessary due to the history of drivers abusing alcohol and drugs, the
transient nature of the workforce, the lack of supervision and the importance of risk identification. It was
satisfied that in a small company such as the one in this case, all drivers had “the reasonable potential for
crossing the border”, and that it would cause the employer undue hardship if it could not test all of its
drivers in accordance with American legislative requirements.
In at least two labour arbitration decisions in which the United States DOT regulations have been
considered, the unions have expressly declined to challenge testing for drivers who are subject to those
regulations. One of those cases held, however, that the employer was not entitled to expand random
testing requirements to employees who were not regularly assigned into the United States: Trimac
Transportation Services - Bulk Systems v. Transportation Communications Union.87
Finally, we note that in 2002, the Canadian Human Rights Commission issued a Policy Statement on
Alcohol and Drug Testing, which stated, in part:
“Canadian trucking and bus companies wishing to do business in the U.S. may be
required to develop drug-and alcohol-testing programs to comply with U.S. regulations.
Nevertheless, these programs must respect Canadian human rights law…However, for
trucking and bus businesses that operate exclusively or predominantly between Canada
and the U.S., not being banned from driving in the U.S. may be a bona fide occupational
requirement, provided the company can produce evidence that its continued employment
of banned drivers would constitute an undue hardship.”
83 Supra note 7.
84 Supra note 36.
85 Supra note 49.
86 Supra note 75.
87 Trimac Transportation Services – Bulk Systems v. Transportation Communications Union, [1999] C.L.A.D. No.
750 (Canada, Burkett).
It should be noted that this Policy Statement was revised in October of 2009 and now reads: “commercial
bus operators can subject their drivers to pre-employment and random alcohol and drug testing as long
as they accommodate employees who are found to be drug or alcohol dependent. The Commission has
extended the Tribunal’s decision to trucking operations.” Interestingly, the Policy Statement used the
Milazzo88 decision as the basis for the passage above, but has removed all reference to the United States
DOT regulations that formed the basis for that decision. This would suggest a more lenient stance on the
part of the Commission regarding alcohol and drug testing within the transportation industry generally.
In our view, the need to comply with United States DOT regulations will be a factor in the assessment of
any alcohol and drug testing policy in Canada, but it will not be determinative. Employers will still be
required to establish that the testing is reasonably necessary and that they accommodate disabled
employees to the point of undue hardship. If it is operationally feasible, employers may be obliged to
distinguish between those employees who are subject to the regulations and those who are not, with only
the former being subject to random testing. Employers may also have to consider whether alternate
employment is available for employees who are unable to comply with the DOT regulations.
Employers should also be aware that the United States DOT requirements recently changed. Effective
October 1, 2010, additional screening tests were added for ecstasy and heroin, and confirmation test
levels have been lowered for amphetamines and cocaine. If you are working in an industry that is
covered by the DOT requirements it is important to ensure that your policy complies with the new
requirements. The list of employers covered by these regulations is quite extensive and includes
employers in the aviation, railroad, and trucking industries as well as maritime shipping and pipeline
facilities.
G. The Manner of Testing
In all circumstances, alcohol and drug testing must be conducted in a manner that ensures the
employee’s privacy, modesty and dignity. Testing should only be conducted by accredited individuals
and strict guidelines should be put in place to protect and limit access to test results and employees’
private information.
Furthermore, in all of the circumstances described above, employers are obliged to assess and, if
necessary, accommodate employees who test positive.
H. Dealing with Information Gathered through Alcohol and Drug Testing
Only information that is reasonably required by an organization to manage the employment relationship
can be collected, used, or disclosed without the consent of the employee.
When obtaining consent it is important to clearly set out what uses of the information the employee is
consenting to, with respect to what information, and for how long. Then, these parameters must be
abided by. In Investigation Report #P2007-IR-001, involving disclosure of information by Wilson Banwell,
the employee executed a release of information form authorizing the release of “assessment and
treatment summaries” for “return to work” purposes.89 When a much broader range of communication
was later released by Wilson Banwell, including information relating to prior unrelated assessments, the
disclosure was found to violate PIPA.
Even where information falls under the category of “personal employee information,” such that consent is
not required for its collection, use, and disclosure, employees must be given reasonable notice before any
of these actions are taken. At this point, there are no decisions that establish factors going to a
determination of what the appropriate length of notice will be. However, in the Investigation Report
P2010-002,90 Adjudicator McAmmond found that if an employee fails a drug and alcohol test and must be
88 Supra note 75.
89 Supra note 64.
90 Supra note 65.
terminated, only a brief period of notice would be required to use that information for purposes related to
the termination.
I. Information Sharing with Third Party Service Providers
It is very common for employer organizations to contract with third party service providers to conduct
alcohol and drug testing, analyze results, assess employees dealing with alcohol and drug use, give
diagnoses, and make recommendations with respect to ongoing employment. When structuring
contractual relationships with third party service providers, it is important for employers to clearly set out
or reference requirements for dealing with employee information in accordance with PIPA. While the
conduct of third parties cannot be controlled by the employer, its liability for breaches of PIPA can be
reduced where the employer imposes parameters for use and disclosure of employee information in
service agreements.
Conclusions and Recommendations
The implementation of alcohol and drug testing in Canada remains subject to significant challenges, in
the context of human rights law, labour and privacy principles. While previous Alberta decisions had
afforded industrial employers some degree of flexibility in dealing with risk assessment and safety
considerations, more recent case law calls this flexibility into question. In addition, other Canadian
jurisdictions have taken a more restrictive approach to alcohol and drug testing.
While each case must be determined on its own facts, assuming fair and reasonable policy
implementation, alcohol and drug testing policies that incorporate the following elements stand a greater
chance of success than those which do not:
• an acknowledged safety sensitive environment;
• prohibited levels of substances in the body, as opposed to zero-tolerance for the presence of any
substances at all;
• fair warning to prospective and existing employees about alcohol and drug testing, which includes
education about elimination rates and the prohibited levels in the policy;
• demonstrated commitment to employees’ dignity and privacy through the use of certified testing
agents, substance abuse experts and effective mechanisms to prevent the unreasonable disclosure
of employees’ personal information;
• for random testing, evidence of a general problem of drug or alcohol abuse in a dangerous
workplace;
• individualized assessment and counselling for employees and prospective employees who test
positive along with appropriate accommodation for those who are substance abusers; and
• clear policies respecting the collection, use, and disclosure of employee personal information, which
must apply to third parties who have access or control over this information.
The law on these issues continues to evolve and different decision makers in different provinces remain
frustratingly willing to approach these issues differently. At this point in time, employers are best advised
to remain abreast of current developments and to respond accordingly.