The SCC in its First Review of Random Alcohol Testing Strikes a Blow in Favour of Unions and Workers

On June 14, 2013, the Supreme Court of Canada issued its decision inCommunications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, striking down certain portions of a New Brunswick company’s unilaterally-imposed drug and alcohol policy which provided for random alcohol testing in a safety-sensitive workplace that had no significant history of drug or alcohol abuse.

In this case, the Union filed a grievance against the Employer, Irving Pulp and Paper Ltd, challenging the random alcohol testing component of the company’s drug and alcohol policy instituted in 2006 at a company mill in St. John. Prior to the imposition of the new testing policy, only eight documented incidents of alcohol consumption or impairment at the workplace over a period of 15 years from April 1991 to January 2006 had been documented. The grievance was filed in 2006 on behalf of an employee who had refrained from drinking since 1979, and who took issue with the randomness of the company’s testing policy. There was no dispute between the Union and the Employer that the employees being tested did, in fact, occupy safety-sensitive positions.

The Supreme Court reviewed the prior decision of the arbitration board, who had found that the testing policy disproportionately invaded the privacy of employees, and the New Brunswick Court of Appeal, which held that the policy was reasonable. The NB Court of Appeal went even further, stating that employers had a right to unilaterally impose random alcohol testing in any dangerous workplace, unionized or non-unionized, without having to show reasonable cause, such as a history of accidents or evidence of an existing problem with alcohol use in the workplace.

The Supreme Court overturned the NB Court of Appeal and upheld the arbitration award. The Court began by noting that in situations where the employer has unilaterally imposed policies or rules under a collective agreement that could lead to discipline, the policy or rule must be a reasonable one. The Supreme Court reviewed decades of case law arising out of drug and alcohol testing, including the recent Ontario Court of Appeal decision in Imperial Oil Ltd. v. CEP, Local 900, 2009 ONCA 420 (argued by Doug Wray and Michael Church) and noted that it could not find any cases in Canada where an employer was permitted to unilaterally implement random alcohol or drug testing, even in a highly dangerous workplace, absent a demonstrated workplace problem.

The Court held that the Arbitrator’s decision was reasonable, and that Irving’s policy was an unjustified invasion into employee privacy. The Court agreed with the arbitration board that “the expected safety gains to the employer in this case were found by the board to range ‘from uncertain . . .  to minimal at best’, while the impact on employee privacy was found to be much more severe.” The Court noted that drug and alcohol policies could be negotiated through collective bargaining, and that, in this day and age, an employer which instituted a unilaterally imposed random alcohol testing policy without reasonable cause would be “justifiably pessimistic” that the policy would survive at arbitration.

The Supreme Court’s decision in this case may have far-reaching implications for employees and employers in unionized workplaces. Employees and unions in Ontario should also take note that the Ontario Court of Appeal recently recognized in January 2012, for the first time, a common law right to privacy under Ontario law, and that some provinces – BC, Saskatchewan, Manitoba, Quebec and Newfoundland - provide a statutory right to privacy, which could be seen as another hurdle against an employer instituting random drug and alcohol testing.

It goes without saying that the above analysis deals with the Court’s decision which, of course, is focused on the facts of that specific case. Accordingly, while the decision is helpful and precedent setting in this subject area, it can only provide general guidance. Each situation will be determined on its own specific facts.

CaleyWray lawyers have extensive experience in cases involving drug and alcohol testing.

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