In April 2017, the Ontario Superior Court of Justice allowed the Toronto Transit Commission (TTC) to proceed with implementing random drug and alcohol testing of safety-sensitive employees, pending the outcome of an ongoing arbitration. The decision, finding in favour of the employer, is a rare and important case on the issue of random workplace drug and alcohol testing, which had been viewed as presenting a high hurdle for employers following the Supreme Court of Canada’s 2013 decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. (Irving).

In Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, Associate Chief Justice F.N. Marrocco held that the applicant union would not suffer irreparable harm if testing goes ahead, pending the outcome of an arbitration over the issue, and therefore dismissed the union’s application for an injunction.

Blakes, together with Filion Wakely Thorup Angeletti LLP, acted as counsel for the TTC.

BACKGROUND

The TTC is the third largest public transit system in North America, providing an average of 1.8 million journeys every weekday, on subways, buses, streetcars, light rail and Wheel-Trans (paratransit). In September 2008, the TTC approved the adoption of a “Fitness for Duty Policy” (Policy), which requires TTC employees and senior management to report to work “fit for duty”, free from any effects of drugs or alcohol. The Policy introduced pre-employment drug testing via urinalysis, “for-cause” and “post-incident” drug testing via oral fluid swab, and alcohol testing via breathalyzer. Under the Policy, employees who test positive are subject to discipline. Employees who are found to suffer from disabilities due to substance-related issues are accommodated. The Policy reserved the TTC’s right to introduce random testing.

Amalgamated Transit Union, Local 113 (ATU), the union representing approximately 10,000 TTC employees including bus, streetcar and subway operators, fare collectors, cleaning staff and maintenance workers, grieved the Policy when it was implemented in 2010. The ATU asserted that the TTC could not impose the Policy as a management right and claimed breaches of the Human Rights Code and the Canadian Charter of Rights and Freedoms (Charter).

The policy grievance arbitration began in March 2011 and will likely take several more years to complete. In 2016, the TTC announced it would be moving forward with implementing random testing in early 2017.

The ATU sought an injunction to prevent implementation of random testing until the conclusion of the arbitration, arguing (among other things) that it was a violation of its members’ section 8 Charter rights to be free from unreasonable search and seizure and that there would be irreparable harm to their privacy and reputation if the testing was allowed to proceed. At the time of the injunction hearing, the parties were in the sixth year of the arbitration.

DECISION

To obtain an interlocutory injunction an applicant must establish that:

1. There is a serious issue to be tried
2. The party seeking the injunction will suffer irreparable harm (i.e., harm that cannot adequately be compensated in damages) if the injunction is not granted
3. The balance of convenience, taking into account the public interest, favours granting the relief

Justice Marrocco held that the ATU failed to satisfy the second and third branches of the test and dismissed the application. Justice Marrocco’s findings may have implications for the merits of the case and the instituting of random testing more widely.

First, in finding that there would be no irreparable harm to employees, Justice Marrocco held that TTC employees have a diminished expectation of privacy concerning drug and alcohol consumption. This is due to the safety-sensitive nature of the workplace, the safety concerns inherent in the operation of a mass transit system and the fact that pre-employment drug and alcohol testing was already in place at the TTC. Justice Marrocco found that the proposed testing via breathalyser and oral fluid testing with relatively high cut-off rates was “minimally invasive”. Justice Marrocco also noted that the Policy contains a treatment component for employees who test positive or voluntarily declare a substance abuse problem through substance abuse professionals, retained by the TTC, who specialize in addiction medicine.

Justice Marrocco rejected the ATU’s complaint regarding the risk of false positives, noting that the evidence did not support any risk due to exposure to second-hand smoke, that a certified laboratory would analyze the samples and that there were adequate procedural protections to ensure against false positives. He found the possibility of embarrassment and humiliation from the testing was speculative. Justice Marrocco further held that employees could be compensated in damages for breaches of privacy and, if need be, for wrongful dismissal.

Second, Justice Marrocco found that the balance of convenience weighed in favour of denying the injunction. He accepted evidence of a workplace drug and alcohol problem at the TTC that is hard to detect and verify, and accepted that the deterrent effect of random testing could have an impact on safety. Justice Marrocco held that “if random testing proceeds, [it] 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 result is known or deterred by the prospect of being randomly tested”. This, he concluded, will increase public safety. Justice Marrocco also rejected the ATU’s argument that the oral fluid testing was not correlated with impairment and therefore could not improve the safety of the TTC. He found that appropriately chosen oral fluid cut-off levels for positive tests, such as the TTC’s, can be used to identify those posing an increased safety risk.

IMPLICATIONS

This decision provides an example of the kind of evidence an employer may need to show in order to justify the test set out in Irving. Here, the TTC was able to demonstrate a drug and alcohol problem in the workplace such that random testing was necessary. It also provides support for the use of oral fluid testing, with appropriate cut-offs to establish a likelihood of impairment. The decision also clarifies that alleged harms to privacy and alleged breaches of section 8 of the Charter, resulting from random drug and alcohol testing are not “irreparable” for the purpose of requiring an injunction. Employers of safety-sensitive, unionized operations considering implementing a random drug and alcohol testing program should take some comfort from the court’s finding that employee privacy rights will not automatically trump the public’s interest in safety.

Paul Schabas and Kaley Pulfer of Blakes were co-counsel to the TTC on the case, together with Roy Filion and Bonnea Channe of Filion Wakely Thorup Angeletti LLP.

We wish to acknowledge the contribution of Paul Schabas to this publication.