Court Renders Helpful Decision on Random Drug and Alcohol Testing

Case In Point

Court Renders Helpful Decision on Random Drug and Alcohol Testing

Date: May 10, 2017

In a helpful decision for employers, Amalgamated Transit Union, Local 113 v Toronto Transit Commission, the Ontario Superior Court recently denied an application by the Amalgamated Transit Union, Local 113 and others (Applicants) for an interlocutory injunction to restrain the implementation of the Toronto Transit Commission’s (TTC) random drug and alcohol testing, pending completion of an ongoing arbitration dealing with the validity of its general drug and alcohol testing policy.

In 2010, the TTC implemented a “Fitness for Duty Policy” (Policy) which provides for drug and alcohol testing of employees in safety-sensitive and certain management positions. Random drug and alcohol testing was not initially included in the Policy. Prior to it taking effect, the Applicants grieved the Policy under the Collective Agreement. That grievance commenced in March of 2011 and to date has not been completed.

In 2011, the Policy was amended to require random drug and alcohol testing for employees in safety-sensitive, specified management, senior management and designated executive positions, including the Chief Executive Officer. Testing would be conducted by an alcohol breathalyser test and an oral fluid drug test. The selection rate of employees selected for random testing would be 20% per year. Employees who failed to submit to a random test would be found in violation of the Policy. An employee who tested positive would be considered unfit for duty.

The random testing portion of the Policy was not implemented until March 2016, at which time the Applicants brought this application.

The Court began by stating the RJR-MacDonald test that must be met for granting an injunction:

1. there is a serious issue to be tried
2. the party seeking the interim relief will incur irreparable harm if the relief is not granted
3. the balance of convenience, taking into account the public interest, favours granting the interim relief.

It found there was a serious issue to be tried and thus the first part of the test was met.

On the second part of the test, irreparable harm, among other things the Court reviewed the employees’ reasonable expectation of privacy in relation to the Charter. It made the following findings:

• External candidates applying to the TTC in a safety-sensitive or designated management position must pass a pre-employment drug test. Therefore, a reasonable person would assume negative tests would need to be maintained to stay employed with the TTC.
• TTC employees attested to the negative perception of working with individuals who had tested positive for drugs or alcohol. Evidence established that TTC management and employees “expect that steps will be taken to make sure that those in safety critical positions are fit for duty.”
• The nature of the workplace (“the workplace genuinely is Toronto itself”) was an important consideration.
• The procedures and methods of testing utilized by the TTC were “minimally invasive and superior to other methods of testing for drugs available on the market.”
• A disciplinary response to a test refusal or positive result was reasonable to enforce the Policy, but the Policy also had a remedial component.
• The state of privacy law is such that should the Policy be found to infringe the Human Rights Code or the Collective Agreement, damages may be owing. Further, the Applicants’ argument regarding reputational damage was rejected as all designated employees might be tested, including the Chief Executive Officer.
• The TTC had distributed comprehensive information to all employees about the Policy.
• There was no evidence to support the assertion that instituting random drug and alcohol testing would create a likelihood of psychological harm to TTC employees.

The Court determined that no irreparable harm would be suffered if the injunction was not granted. This conclusion was sufficient to dismiss the application, but the Court also found that the balance of convenience favoured the TTC. It stated:

[…]        if random testing proceeds, I will increase the likelihood that an employee in a safety critical position, who is prone to using drugs or alcohol too close in time to coming to work, will either be ultimately detected when the test result is known or deterred by the prospect of being randomly tested. [para 153]

The Court’s decision is helpful for employers considering implementing random drug and alcohol testing policies, particularly if there is already a policy in place. However, employers should consider the factors articulated by the Court above, such as the nature of the workplace and the specific language in the policy.

With thanks to Jessica Toldo, 2016-2017 Articling Student with Hicks Morley