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Unionized employers often face resistance when attempting to introduce drug and alcohol testing in the workplace. This is particularly true where the testing is going to be carried out at random. Employers who introduce these types of testing policies often face policy grievances challenging both the legality of the policy itself, and the employer’s right to introduce it.

However, random drug and alcohol testing in “safety sensitive” workplaces can be a valuable tool to ensure both the health and safety of workers and, depending on the nature of the job, the general public as well. Recently, when the Toronto Transit Commission (“TTC”) tried to introduce random drug and alcohol testing of its drivers (as well as other employees), the Amalgamated  Transit Union (the “Union”) asked the Ontario Court of Justice to intervene and stop the TTC from conducting the testing until a labour arbitrator had ruled on the issue.

In deciding whether to prohibit the TTC from randomly testing its employees, the Court considered a number of factors, including what level of privacy TTC employees could reasonably expect while at work. Among other things, the Court found that the employees knew that the TTC would take steps to ensure that workers in safety sensitive positions were fit to perform their duties, particularly given that they “assist people in making approximately 1.8 million journeys on the TTC’s subway, buses and streetcars every day”[1],.and that an accident could have catastrophic results. This knowledge, the Court held, reduced the employees’ expectation of privacy.

The Court also considered evidence that there was a culture of drug and alcohol use in the TTC’s workplace, including that there were 116 positive or refused alcohol or drug tests between October 2010 and December 2016, and that 2.4% of external job applicants failed drug/alcohol tests. Based on that information, the Court was satisfied that the Policy was reasonably tailored to its purpose of addressing a real drug and alcohol problem in the workplace.

Finally, the Court accepted the TTC’s argument that the testing should be allowed to continue, at least until the arbitrator had rendered a decision, based on its effectiveness as a deterrent. This, in turn, meant that allowing the testing to proceed would increase public safety.

Ultimately, the Court denied the Union’s request, and allowed the TTC to continue randomly testing its employees. While the Court noted that the Union might be successful in its grievance and, as a result, that the testing could be found to be improper in the future, the Court outlined the ways that the affected employees could be monetarily compensated.

The Court’s decision in the case provides valuable guidance on what evidence employers will need to show in order to both substantiate a random drug and alcohol policy generally. It also suggests that where the safety of the public is an issue, decision makers may be more likely to allow random drug and alcohol testing to continue pending a hearing on the matter.

As a post-script, two TTC employees screened on the first day of random testing after the Court’s decision failed their drug/alcohol test, according to the Toronto Star.

[1] Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078 (CanLII), at para. 40.

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