Case Brief: Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34.

The ongoing efforts by Canadian employers to engage in random drug and alcohol testing suffered a further setback as a result of a decision released on June 14, 2013. In a 6-3 split, the Supreme Court of Canada has upheld a New Brunswick labour arbitration board decision that struck down a random alcohol testing policy at a mill owned by Irving Pulp and Paper Ltd. Although the facts in this case involved a unionized workplace, the implications of this decision may be far-reaching and impact all types of employment settings.

background

In 2006, Irving unilaterally adopted a "Policy on Alcohol and Other Drug Use" at one of its paper mills in Saint John, New Brunswick. Under the policy, 10% of employees deemed to be in "safety sensitive" positions would be randomly selected for unannounced breathalyser testing over the course of a year. Testing positive for alcohol or refusing to take the test could lead to disciplinary action, including, in certain cases, dismissal.

The Communications, Energy and Paperworkers Union filed a grievance on behalf of an employee who was tested under the policy. While the employee's breathalyser test revealed a blood alcohol level of zero, the union only challenged the random alcohol testing component of the policy.

reasons of the majority

In finding that the labour arbitration board's decision was reasonable, the Supreme Court of Canada identified the central legal issue in this case as being whether Irving's "policy was a valid exercise of the employer's management rights under the collective agreement." Writing for the majority, Abella J. relied upon the body of arbitral jurisprudence that has developed a "balancing of interests" proportionality approach, under which unilateral imposed testing in a dangerous workplace has generally been rejected unless the employer is aware of a drug or alcohol abuse problem in the workplace

The majority agreed with the board that Irving had no evidence of enhanced safety risks posed by alcohol use that would justify random testing. There had only been eight incidents involving alcohol over a 15-year period. Furthermore, the board had determined that Irving's safety gains under the policy ranged "‘from uncertain... to minimal at best', while the impact on employee privacy was found to be much more severe". In light of these findings, Irving's policy was held to be an unreasonable exercise of management rights under the collective agreement.

reasons of the dissent

At the heart of the dissenting opinion written by Rothstein and Moldaver JJ., with McLachlin CJ concurring, was the view that the labour arbitration board had departed from previous arbitral decisions and imposed a higher evidential burden on employers who wished to justify random alcohol testing policies. It is the position of the dissenting Justices and the Chief Justice that evidence of "a" problem, as opposed to a "significant" or "serious" problem would justify a random alcohol testing policy. In their view, "an employer does not have to wait for a serious incident of loss, damage, injury or death to occur before taking action." To require the causal connection "is not only unreasonable, it is patently absurd."

implications for employers

It is important to note that this recent decision does not prevent employers from ordering random drug and alcohol testing in a dangerous workplace. The majority in this decision makes it clear that policies representing "a proportionate response in light of both legitimate safety concerns and privacy interests ... may well be justified." Furthermore, employers in a unionized setting remain at liberty to negotiate the implementation of drug and alcohol testing with their union(s).

While the Supreme Court of Canada held that random drug and alcohol testing policies and the intrusion on employee privacy must be proportionate and justified by the employer, it also confirmed the scope of permitted testing, which had been unchallenged by the union at the labour arbitration board. This included circumstances where there is reasonable cause to suspect an employee's use of alcohol or drug use in the workplace following a direct involvement in a workplace accident or injury, or even as part of a monitoring program for an employee's return to work following a substance abuse treatment program.

Co-authored by Timothy Cullen, summer student.