FTR Now
Arbitrator Strikes Down TTC’s Random Drug and Alcohol Testing Program
Date: August 10, 2026
A significant decision concerning workplace drug and alcohol testing, has found that the Toronto Transit Commission’s (TTC) random drug and alcohol testing program was unreasonable, contrary to the collective agreement and inconsistent with employees’ rights under section 8 of the Canadian Charter of Rights and Freedoms (Charter).
In Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (Toronto Transit Commission), Arbitrator Laura Trachuk considered a challenge by the Amalgamated Transit Union, Local 113 (Union) to aspects of the TTC’s Fitness for Duty Policy (Policy). The arbitration, which began more than a decade ago, addressed the TTC’s use of random testing, as well as aspects of its testing methodology and thresholds. The decision provides important guidance on the evidentiary burden required to justify random testing in unionized workplaces.
The decision also stands as support for the continued use of oral fluid testing in Reasonable Cause and Post-Incident circumstances. The arbitrator accepted that a positive oral fluid test may be a relevant piece of evidence that can form part of that inquiry.
Background
The TTC introduced its Fitness for Duty Policy in 2010. The Policy initially required employees to report and remain fit for duty. It also provided for drug and alcohol testing in a number of circumstances, including post-incident and reasonable-cause testing.
The Policy was subsequently expanded to include random drug and alcohol testing for employees in safety-sensitive and certain designated positions. This included approximately 87% of the TTC’s 16,000-person workforce. The Union sought an injunction to prevent the TTC from implementing the random testing program under the Policy pending arbitration. The Ontario Superior Court declined to grant the injunction in Toronto Transit Commission. The Court accepted evidence that the TTC’s testing regime could contribute to public safety and that oral-fluid testing (using an appropriate threshold) could identify employees presenting an increased safety risk.
Random testing was ultimately implemented by the TTC in 2017. Oral fluid testing would be used for random testing (as well as post-incident and reasonable-cause testing). Breathalyzers were used for alcohol.
The Union challenged the random testing regime as an unreasonable exercise of management rights and an unjustified intrusion on employee privacy. It also challenged the reliability of oral fluid testing as the testing mechanism for a random testing program. Notably, the Union did not challenge the TTC’s right to conduct reasonable-cause, post-incident and post-treatment monitoring testing under the Policy, subject to the circumstances of the individual case.
Under the Policy any employee who tested positive on a random oral fluid test for THC (at a cut-off of 10 ng/ml) or cocaine (at a cut-off of 50 ng/ml), would be subject to discipline, up to and including the termination of their employment, unless the employee had a Substance Use Disorder (SUD). The TTC’s practice was to terminate the employment of employees who tested positive on an oral fluid test unless they were assessed as having a SUD.
The evidence before Arbitrator Trachuk included evidence from TTC management and safety personnel responsible for designing and implementing the Policy, medical and toxicology experts, union representatives and employees affected by the testing and experts in human factors, impairment science and drug testing methodology. The evidentiary record also included statistical and incident data relied on by the TTC to justify random testing, internal TTC reports and safety assessments, expert reports addressing the relationship between drug presence and impairment and evidence concerning the reliability and interpretation of oral-fluid testing results.
Eight individual grievances of terminated employees were heard alongside the Policy grievance. These individual grievances were addressed by Arbitrator Trachuk through separate awards.
The Legal Framework
The Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. (Irving) establishes the framework for assessing random drug and alcohol testing in a unionized workplace. The test set out by the Supreme Court requires a balancing of the employer’s safety interests against employees’ privacy interests.
Arbitrator Trachuk noted that random testing with disciplinary consequences is not a reasonable exercise of management rights unless the workplace is safety-sensitive and there is “evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace”. Although Arbitrator Trachuk acknowledged that the Supreme Court in Irving had left open the “slim possibility that a safety-sensitive workplace could be sufficient alone to justify Random Testing”, this would only arise “in extreme circumstances.”
Arbitrator Trachuk went on to consider whether those “extreme circumstances” existed for the TTC. She concluded, on the facts before her, that they did not. Although the arbitrator accepted that the safety risks to the TTC’s operations were real and significant, she did not accept that the TTC could impose random testing short of establishing an enhanced safety risk. As noted above, random testing under the TTC’s policy would apply to almost 14,000 employees and the TTC would treat a positive random test above the cut-off levels as a basis for discipline for employees who did not have SUDs.
Arbitrator Trachuk concluded that the onus rested with the TTC to establish evidence of enhanced safety risks to support its random testing program, including evidence supporting the existence of a workplace substance-use problem. The TTC had to establish that this problem was of sufficient significance to warrant random testing.
The Evidence Did Not Support a Workplace Substance-Use Problem
Arbitrator Trachuk found that the evidence before her in the specific circumstances of these parties did not establish a general problem that would support the implementation of a random testing program. She found that the TTC’s evidence showed, at most, that drug and alcohol use existed in the workforce in a manner consistent with society generally. She did not find support for a workplace specific problem of a sufficient magnitude to justify random testing.
Findings Regarding the Reliability of Oral Fluid Testing
Arbitrator Trachuk spent significant time in her award addressing the reliability and utility of oral-fluid drug testing.
The TTC relied on oral-fluid testing to identify recent drug use. The stated objective was to identify employees whose recent drug use created an increased likelihood of impairment or unfitness for duty. As noted above, the TTC’s established threshold for THC was 10 ng/ml.
Arbitrator Trachuk concluded that oral fluid testing could not be relied on in that manner because it did not reliably establish that an employee was impaired or unfit for duty at the time of testing. She relied heavily on the evidence provided by the expert witnesses. She summarized the finding of the expert witnesses as establishing: (a) that a positive oral-fluid result shows recent exposure, not whether the person is impaired at the time of work, (b) that for cannabis in particular, THC can be detectable without any corresponding cognitive or psychomotor impairment at the time of testing, and (c) that the TTC’s cut-off levels were not shown to reliably identify employees who were actually unsafe to perform safety-sensitive duties. She accepted, based on this expert evidence, that even if drug use was detected through oral fluid testing, it did not follow that the employee was impaired at work or that they posed a safety risk at the time of testing.
Some of Arbitrator Trachuk’s key comments are as follows:
[944] There is no dispute among the experts or between the parties that there is enormous inter and intra variability related to the duration of impairment after cannabis use. They have cited dose, strength, experience, inexperience, methods of consumption, smoking topography and other factors. The TTC argues that variability does not really matter because it is concerned with the risk of impairment. Indeed, variability is part of the reason that the TTC contends that its risk of impairment approach is reasonable. In essence, the TTC maintains that since there are so many factors that can contribute to whether and how impaired a person will be, it must act on the risk of impairment not actual impairment, which is not knowable. However, the TTC is using that assessment of risk to terminate the employment of people who may or may not be impaired. The fact that it cannot know the factors at play and cannot, therefore, know if someone is impaired, cannot be used to justify assuming they are. That is especially the case if the consequences of that is discipline including termination. The evidence about the factors resulting in variability rather leads to the conclusion that there are many factors to be considered in assessing whether a positive OFT indicates impairment or not.
[…]
[946] The reasonableness of a policy which intrudes on the privacy of employees and can lead to the termination of their employment on the basis that a scientific test has identified them as unfit for duty is undermined if the science it relied on cannot explain why some employees will test positive and others negative. The consequences of this policy are so significant to the privacy of the employees and their continued employment, that the science that justifies it must be solid and explainable. But it is not.
[…]
[961] In conclusion, oral fluid testing at a cutoff of 10 ng/mL does not reliably identify employees who are under the influence of cannabis. Even if the majority of people who test positive at 10 ng/mL or above may be impaired, there is really no dispute that there will be false positives. The consequences of false positives are severe under the Policy and cannot simply be written off as necessary collateral damage. An oral fluid test for THC is not fit for the purpose for which it is being used by the TTC.
Despite the above findings on the issues involving the reliability of oral fluid testing, Arbitrator Trachuk expressly noted that she did “not find that the use of oral fluid testing for marijuana and cocaine in Reasonable Cause or Post-Incident testing [was] unreasonable”. The Reasonable Cause and Post-Incident testing programs under the Policy involved further investigation beyond a drug and alcohol test prior to discipline being imposed.
Random Testing Was a Significant Intrusion on Employee Privacy, Unreasonable and a Violation of Section 8 of the Charter
Arbitrator Trachuk found that TTC employees had a reasonable expectation of privacy and that random drug and alcohol testing represented a real and significant intrusion on that right. The Arbitrator accepted that the TTC’s objective – preventing the impaired operation of transit vehicles – was compelling. However, she concluded that the evidentiary record did not establish that random testing materially advanced that objective in a way that justified the level of intrusion. She focused on the fact that the evidence from both the fact and expert witnesses did not establish a clear causal link between random testing and improved safety outcomes, particularly given the existing testing measures.
In considering the Union’s argument that random testing amounted to a violation of section 8 of the Charter, Arbitrator Trachuk accepted that random drug and alcohol testing constitutes a search within the meaning of section 8, that the search was not justified on the evidentiary record because the TTC had not established a sufficiently serious workplace problem to warrant random testing and that the breadth of the intrusion was disproportionate to the safety benefits demonstrated. In reaching this conclusion, Arbitrator Trachuk considered the methodology that was being employed by the TTC in conducting its testing. As outlined above, she found that the oral fluid tests being used by the TTC did not reliably determine impairment. Further, while she accepted that random tests likely had some deterrent effect she found it was not clear, on the evidence, that a random testing program actually leads to a demonstrably safer workplace.
Arbitrator Trachuk also concluded, for the reasons set out above, that random testing was not a reasonable exercise of the TTC’s management rights and violated the collective agreement.
Arbitrator Trachuk also considered the disciplinary consequences attached to the Policy, including the TTC’s ability to terminate employees for positive oral-fluid tests. She held that while employers may generally impose discipline for non-compliance with a valid and reasonable workplace policy, that principle cannot be relied on where the underlying policy is unreasonable or unlawful.
Conclusion
Arbitrator Trachuk found that the TTC’s random testing program contravened section 8 of the Charter and violated the collective agreement, and ordered the TTC to immediately discontinue random drug and alcohol testing.
The question of whether the TTC had just cause to terminate the individual grievors was addressed as part of the individual grievances. The award did not make any blanket orders regarding broader discipline under the Policy.
Key Takeaways for Employers
There are a number of key takeaways that come from this decision for implementing and reviewing drug and alcohol policies:
Except in extreme circumstances, a safety sensitive workplace does not, by itself, justify random testing.
Even where the consequences of impairment could be severe, Arbitrator Trachuk’s decision affirms that an employer seeking to implement random testing will be required to establish an evidentiary foundation sufficient to justify the intrusion on employee privacy. Arbitrators distinguish between evidence demonstrating that impairment could create serious risks and evidence demonstrating that drugs or alcohol are actually a sufficiently significant problem in the particular workplace. The former does not necessarily establish the latter.
Drug use and impairment are not synonymous.
Arbitrator Trachuk found on the expert evidence before her that a test capable of detecting recent consumption does not necessarily establish current impairment or unfitness for duty. Employers relying on testing thresholds should ensure that the scientific evidence supports the conclusions they intend to draw from a positive result. Arbitrator Trachuk concluded that to ground discipline, or in the case of the TTC, termination, for a positive test there had to be evidence of impairment or a lack of fitness for duty.
Oral fluid testing is acceptable for reasonable cause and post-incident testing.
The Union in this case specifically did not challenge the TTC’s general ability to conduct reasonable-cause, post-incident and post-treatment monitoring testing under the Policy. Arbitrator Trachuk was, however, clear in the decision that this case was focused on random testing, and that oral fluid testing was not reasonable under a random testing program. She expressly acknowledged that the use of oral fluid testing in reasonable-cause and post-incident circumstances – which involve different and more expansive lines of inquiry and engage a materially different balancing of interests – is not unreasonable.
Arbitrators will not be bound by injunction decisions.
The test and standard on an injunction motion is different than the reasonableness or Charter analysis that is conducted before an arbitrator. Arbitrators will consider the evidence before them in determining whether an employer has established the required justification for random testing and whether the testing methodologies achieve the stated objectives of the program.
Bottom Line
- The TTC decision reinforces the high evidentiary threshold Canadian employers face when seeking to implement random drug and alcohol testing in a unionized workplace.
- At the same time, the decision does not undermine an employer’s ability to maintain a robust fitness for duty program or, where appropriate, to conduct testing in reasonable cause or post incident circumstances using oral fluid testing. The decision should instead stand as a reminder that the justification for random testing requires compelling evidence, particularly where the consequences of that policy are significant to employees.
For advice on implementing and enforcing drug and alcohol testing policies in a unionized workplace, please contact your Hicks Morley lawyer.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©