Generally
speaking, courts and arbitrators in Canada have held random drug and alcohol
testing is not permitted. The recent April decision of the Ontario Superior
Court in Amalgamated Transit Union, Local
113 v. Toronto Transit Commission, 2017 ONSC 2078 provides some insight into the
analysis a court may undertake when assessing random testing.
Historical Background
In 2013 in Communications,
Energy and Paper Workers Union of Canada, Local 30 v Irving Pulp & Paper,
Ltd (“Irving”), the Supreme Court of Canada confirmed a company may
conduct random alcohol testing for a safety-sensitive position where the
company can establish it operates a dangerous workplace and there is a general
problem with alcohol abuse in the workplace. This
two-pronged test is a very high obstacle to overcome.
In Irving The Supreme Court set out three specific instances, even in
safety-sensitive industries where testing may
occur:
(i)
there is reasonable cause to believe that the employee is
impaired while on duty,
(ii)
the employee has been directly involved in a workplace accident
or significant incident, or
(iii)
the employee is returning to work after treatment for substance abuse.
The Canadian approach to drug and alcohol testing,
unlike the situation in the U.S., places significant emphasis
on privacy rights.
The fact that a workplace is dangerous or safety-sensitive is
merely the beginning of the inquiry and the balancing of interests.
Irving set out the blueprint:
a) No employee can be subjected to random, unannounced alcohol or drug testing save as part of an agreed rehabilitative program
b) An employer may require alcohol or drug testing of an
individual where the facts give it reasonable cause to do so
c) It is within the prerogative of management’s rights under a collective agreement to also require alcohol
or drug testing following
a significant incident, accident or near miss
where it may be important to identify the root cause of what
occurred
d) Drug and alcohol
testing is a legitimate part of continuing contracts
of employment for
individuals found to have a problem with alcohol or drug use.
As part of an employee’s
program of rehabilitation,
such agreement
or policies requiring such agreements may
properly involve random, unannounced alcohol
or drug testing generally for a limited period
of time, most commonly two years. In a unionized workplace, the union must be involved in the agreement
which establishes the terms
of a recovering employee’s
ongoing employment,
including random, unannounced
testing. This is the only exceptional circumstance in which the otherwise protected employee interest of privacy and
dignity of the person must yield
to the interests
of safety and rehabilitation, to allow for random and unannounced alcohol or drug testing.
Since the Irving decision,
random drug testing has been struck down in countless cases.
The case law emphasizes a distinctly Canadian approach
requiring cogent evidence of “enhanced safety risks such as evidence of a general
problem
with substance abuse in the workplace” to justify random testing in a safety-sensitive workplace. Additionally, any testing must be likely to effectively address the problem.
Amalgamated Transit Union, Local 113 v.
Toronto Transit Commission (“TTC”)
In this recent decision the Amalgamated
Transit Union, Local 113 (“ATU”) applied
for an interlocutory injunction restraining implementation of random drug and
alcohol testing of members of the ATU until the completion of an arbitration
hearing concerning the validity of the TTC’s drug and alcohol testing policy.
In September
2008, the TTC approved implementation of a “Fitness for Duty Policy” (the
“Policy”). The Policy took effect on October 17, 2010. The purpose of the Policy was to “[e]nsure the health and safety of Commission employees and
the safety of Commission customers and members of the public.”
The
Policy was intended to achieve this goal by requiring that TTC employees and
senior management be mentally and physically fit to perform their assigned
tasks without any limitations resulting from, among other things, the use or effects
of drugs or alcohol. The Policy allows for the identification of individuals
who create safety risks in the workplace due to drug or alcohol use and for the
treatment and return to work of employees with substance abuse disorders. It
also provides for disciplinary action against employees in defined
circumstances.
The
Fitness for Duty Policy, provided for drug and alcohol testing of employees in
safety sensitive, specified management and
designated executive positions. The Policy required drug and alcohol testing in the following situations:
a)
where there is a reasonable cause to believe alcohol or drug use resulted in
the employee being unfit for duty;
b)
as part of a full investigation into a significant work-related accident or
incident;
c)
where an employee is returning to duty after violating the Fitness for Duty
Policy;
d)
where an employee is returning to duty after treatment for drug or alcohol
abuse; and
e) as a final condition of appointment to
a safety sensitive position.
After
the TTC announced its Fitness for Duty Policy but prior to it taking effect,
the ATU filed a policy grievance under its Collective Agreement. In the normal
course, the policy grievance was referred to
arbitration, which started on March 8, 2011 before Arbitrator M.K. Saltman.
Even though six years have elapsed, the arbitration is not yet completed. The
ATU has not yet completed its case and the TTC’s case has not started.
The ATU’s
position before the Arbitrator in the arbitration was that the entire Fitness
for Duty Policy is contrary to the Collective
Agreement and the Ontario
Human Rights Code, R.S.O. 1990, c. H.19.
In the arbitration, the ATU asked
for:
a)
an order prohibiting the
respondent from continuing the implementation of the Fitness for Duty Policy;
b)
an order requiring management to
receive human rights and antidiscrimination training with respect to the
matters raised in the grievance; and
c)
damages for breach of its right to be free from discrimination, for mental
distress and for other “non-economic losses”.
On
October 19, 2011, the TTC amended the Fitness for Duty Policy to require random
alcohol and drug testing.
The TTC had advised
the applicants that random testing would apply to employees in safety-sensitive, specified management, senior management and
designated executive positions including that of the Chief Executive Officer.
Employees
randomly selected for testing would take an alcohol breathalyzer test and an
oral fluid drug test.
Administration
of breathalyzer tests and the collection of oral fluid samples would be carried
out by qualified and trained technicians from DriverCheck Inc., a company that
provides alcohol and drug testing services to more than 5000 employers in
Canada [under agreed contracts with employees].
Random testing was added to the
Fitness for Duty Policy in October 2011. The approval of implementation of
random testing, however, was delayed for several years. The TTC approved
implementation of random testing on
March 23, 2016, slightly less than three years after the release of the Irving decision.
When the TTC announced
implementation of random testing, the ATU brought the motion for an
interlocutory injunction.
The Court looked at the
circumstances surrounding the decision to institute random drug and alcohol
testing. It noted the following:
•
First, external candidates interested in working for the TTC in a safety
sensitive or designated management or executive position must pass a
pre-employment urinalysis test for drug use.
•
The judge was satisfied that a reasonable person would assume that if he or she
had to test negatively for drugs and alcohol to get a job with the TTC, then he
or she would be required to continue to test negatively for drugs and alcohol
to keep that job with the TTC.
•
A notable number of TTC employees do not want to work with persons who test
positive for drugs or alcohol. “This attitude is not surprising. If a tragic
accident happens, its consequences will not be limited to the victims and the
person who was possibly unfit. Everyone caught up in the occurrence will be
affected by the resulting legal proceedings that can go on for years.”
• It was very
likely that an employee with a substance use disorder would report to work in
an impaired condition.
•
The TTC’s experience between October 2010 and December 2016, was that 187 (or
approximately 2.4%) external applicants for designated or safety-sensitive
positions — individuals who knew they would be subjected to drug testing —
returned positive urinalysis tests for drugs.
•
The negative attitude of TTC’s employees towards working with individuals who
test positive for alcohol or drugs, was one of
the circumstances surrounding the TTC’s decision to institute random drug and
alcohol testing. The judge was satisfied that TTC management and
its employees, both of whom assist people in making approximately 1.8 million
journeys on the TTC’s subway, buses and streetcars every day, expect that steps
will be taken to make sure that those in safety critical positions are fit for
duty. This safety concern would reasonably diminish their expectation of
privacy concerning their drug and alcohol consumption.
• The nature
of the workplace was also part of the circumstances surrounding the
respondent’s decision to institute random drug and alcohol testing. In Irving, the workplace
was a pulp and paper mill. In this case the workplace included the subway,
buses and streetcars that travel throughout the city.
The workplace genuinely is Toronto itself.
• The
procedure for and method of testing were also circumstances surrounding the
TTC’s decision to institute random drug and
alcohol testing. Just because an expectation of privacy is diminished does
not mean it is eliminated.
• The
Fitness for Duty Policy contained controls intended to ensure accountability
for the information collected. Further, there was no evidence that, under the
current testing policy, the results of drug and alcohol tests were used in a
manner inconsistent with the reasonable expectations
of the persons submitting to the testing.
•
The procedures for collection, laboratory analysis and reporting of the drug
tests provided for in the Policy gave employees an
opportunity to challenge and explain their test results before the results were
reported to the respondent.
• The fact
that a refusal to submit to a random test was considered a policy violation,
just like a positive test result, added a coercive element to the Fitness for
Duty Policy. The judge was satisfied that it is impossible to effectively
enforce the Policy if an employee can simply refuse to test. “There is no other
sensible way to view a refusal to submit to a random test.”
• The judge
was satisfied that the nature of the Fitness for Duty Policy was not only
disciplinary but also remedial. He was satisfied that employees had some degree
of control over the information collected and generated under the policy and
that there was accountability for the information collected.
• The judge
was satisfied that Fitness for Duty Policy was reasonably tailored to its
stated health and safety purpose.
• Part of the circumstances
surrounding the TTC’s decision to institute random drug and alcohol testing was the state of the law of damages
with respect to breaches of privacy. The
Ontario Court of Appeal recognized a common-law tort
of invasion of privacy in the context of intrusion upon seclusion in Jones v. Tsige, 2012 ONCA 32
(CanLII). In that case, the
Court of Appeal found that the defendant committed the tort
when she used her position as a bank employee to access private bank records of
her ex-spouse’s common-law partner 174 times. Significantly, for the purposes
of this motion, the Court of Appeal awarded damages for the privacy violation
committed by the defendant. The judge was satisfied that the
considerations in awarding damages outlined in Jones v. Tsige at paragraph 87 can be adapted
to this situation so that a court can calculate damages for wrongfully
obtaining breath or fluid samples from employees, should that be the result of
the arbitration.
• The judge was not persuaded by the evidence that
instituting random
drug and alcohol testing created the likelihood of psychological harm to the TTC employees. Despite random testing being commonplace
in the US, Australia and other foreign jurisdictions, there was is no
evidence that employees subject to random testing in those countries suffer any
emotional or psychological harm.
By denying the injunction, the Court
has permitted the TTC to begin to implement its random drug and alcohol testing
program pending the outcome of the arbitration. It has provided important
insight into the analysis that a court may undertake when assessing random
testing.
