On March 19, 2012, the Supreme Court of Canada (“SCC”) granted leave to the Union to appeal the New Brunswick Court of Appeal decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited 2011 NBCA 58 (“Irving”). This will be the first time that the SCC addresses random alcohol testing in the workplace, or drug and alcohol testing at all. For this reason, the case is a highly anticipated one.
As background, Irving Pulp and Paper brought an application for judicial review of a Labour Arbitration Board’s (“LAB”) decision that allowed the Union’s policy grievance regarding an employee’s random alcohol test. In doing so, it took the position that its workplace was dangerous and it was therefore reasonable to have a policy that allows it to conduct random alcohol testing on employees who work in safety?sensitive positions. The Court of Queen’s Bench (“QB”) agreed and overturned the decision of the LAB. Irving’s application was therefore granted. Its workplace was inherently dangerous, and the policy was minimally intrusive, so it was a reasonable intrusion on employees’ privacy interests.
The Union argued that the reasonableness of the policy is not dependent on whether or not the workplace is dangerous, or the work is safety sensitive, but rather on the history of safety in the workplace. The QB found that a workplace only has to be categorized as inherently dangerous, and not at a higher threshold (i.e. ultra dangerous, like a nuclear plant or airline), for an employer to proactively implement such a policy without a history of accidents. It also concluded that it is not reasonable to require a history of accidents in a dangerous workplace where the potential for catastrophe exists, in order to justify a policy that includes random alcohol testing.
The QB concluded that once the LAB found that the workplace was a dangerous workplace, the only question left for them to answer was whether or not the employer’s policy was a proportionate response to the potential danger. The fact that there was a risk that a catastrophic incident could occur at the workplace made the LAB’s finding that there is little or no advantage to be gained from implementing the policy an unreasonable one.
It also concluded that it is not reasonable to require a history of accidents in a dangerous workplace where the potential for catastrophe exists in order to justify a policy that includes random alcohol testing. The New Brunswick Court of Appeal reversed the application’s judge on the issue of the standard of review and applied a correctness standard instead of a reasonableness one, but also dismissed the union’s appeal. As such, Irving Pulp and Paper was successful.
Now that leave has been granted, it will be very interesting to see what parties will seek leave to intervene. Any guidance from the SCC will be of assistance in navigating the challenging and complex regulatory framework within which drug and alcohol testing takes place. Even if it is only inobiter (i.e. peripheral to the main issues), it would be very helpful if the SCC would also address the issue of drug testing. Stay tuned for more details on this case.