The Ontario Superior Court of Justice recently issued a decision with significant implications for employers seeking to implement random drug and alcohol testing. In Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (“Amalgamated Transit”), the court dismissed the union’s application for an injunction prohibiting random drug and alcohol testing, holding that the union would not suffer irreparable harm if testing proceeds before the arbitration over the issue concludes.
Amalgamated Transit adds another chapter to the ongoing dispute over random drug and alcohol testing between the Amalgamated Transit Union, Local 113 (“ATU”) and the Toronto Transit Commission (“TTC”) and, in doing so, provides employers with guidance regarding the evidence required to support random drug and alcohol testing 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 October 2010, the TTC implemented a “Fitness for Duty Policy” (the “Policy”), which requires TTC employees and management to report to work free from impairment by drugs or alcohol. The Policy introduced drug and alcohol testing in specific situations, including as a pre-employment condition for appointment to a safety-sensitive position, and as part of a full investigation into a significant work-related accident or incident. Under the Policy, employees who are found to suffer from disabilities due to substance-related issues are accommodated. When the Policy was introduced, the TTC advised the ATU that it reserved its right to introduce random testing.
The Policy was amended by the TTC in October 2011 to require random drug and alcohol testing of employees in safety-sensitive and specified management positions; however, implementation of random drug and alcohol testing was delayed. In March 2016, the TTC announced that it would begin random testing in early 2017.
ATU 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 Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. At arbitration, the ATU is seeking an order prohibiting the TTC from continuing the implementation of the Policy, and damages for breach of its right to be free from discrimination, among other things.
Following the TTC’s announcement regarding implementing random testing, the ATU sought an injunction to prevent implementation of random testing until the conclusion of the arbitration (which has been ongoing since 2011 with no apparent end in sight). The ATU argued 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.
In accordance with the criteria established by the Supreme Court in RJR-MacDonald Inc. v. Canada (Attorney General), in order to obtain an interlocutory injunction, an applicant must establish three things:
- There is a serious issue to be tried;
- 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; and
- The balance of convenience, taking into account the public interest, favours granting the relief.
While the court had no problem finding that there was a serious issue to be tried, it held that the ATU failed to satisfy the second branch of the test and dismissed the application on that basis. However, the court extended its analysis to the third branch of the test, finding that the balance of convenience did not favour granting relief.
In considering irreparable harm, the court observed that the guarantee of security from unreasonable search and seizure only protects a reasonable expectation of privacy, the determination of which required considering the circumstances around the decision to institute random drug and alcohol testing. Relevant circumstances included the fact that new applicants for safety-sensitive positions are tested for drugs and alcohol, which suggests that a reasonable person would assume that they are required to test negatively in order to maintain a safety-sensitive job; the nature of the workplace (i.e. the entire city of Toronto); and the reasonableness of the procedure and methodology for testing, which the court found to be “minimally invasive” due in part to the fact that the cut-off levels chosen by the TTC for a positive test are set high enough to screen out positive results that are unlikely to indicate impairment. Significantly, the court also found that, given the current state of the law of damages with respect to breaches of privacy, employees could be compensated for a privacy breach or wrongful dismissal.
For certainty, the court extended its analysis to the third branch of the test, considering the balance of convenience. The court accepted evidence of a workplace drug and alcohol problem at the TTC. A Staff Sergeant with the Investigative Services Unit at the TTC provided affidavit evidence (which was not challenged through cross-examination) regarding a culture of drug and alcohol use at the TTC and the difficulty of detecting employees who are unfit for duty. The court accepted the deterrent effect of random testing given the decrease in combined positive and refusal test results since drug and alcohol testing was introduced in 2010, and also accepted that the effects of drugs and alcohol can negatively affect performance. The court 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 and that, given the fact that the workplace is the city of Toronto, this will increase public safety. Accordingly, the court concluded that the balance of convenience favoured the TTC.
The consensus view of the Supreme Court of Canada in Irving was that, in a dangerous workplace, employers are generally entitled to test employees who occupy safety-sensitive positions without having to show that alternative measures have been exhausted in three circumstances:
- Where there is reasonable cause to believe that the employee is impaired while on duty (reasonable cause testing);
- Where the employee has been directly involved in a workplace accident or significant incident (post-incident testing);
- Where the employee is returning to work after treatment for substance abuse (post-treatment testing).
While this was positive for employers, Irving also established that employers seeking to implement universal random testing are required to demonstrate the existence of a safety risk (i.e. a dangerous workplace) and a general problem with drug or alcohol abuse.
Amalgamated Transit provides useful guidance to employers regarding the evidence required to justify random drug and alcohol testing. In this case, the TTC was able to demonstrate a drug and alcohol problem in the workplace and, therefore, the necessity of random testing. This decision also provides support for the use of oral fluid testing, with appropriate cut-offs, to establish a likelihood of impairment. Further, the decision 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.
While this guidance is significant for employers, the decision should be approached with some caution given the unique nature of the workplace (i.e. the city of Toronto), the evidence of a demonstrated workplace drug and alcohol problem at TTC that is hard to detect and verify, and the far-reaching potential public health and safety consequences of TTC employees performing their job duties while impaired, all of which, combined, militated in favour of the TTC.
 It was reported that, on the first day of the random drug and alcohol testing that was the subject of this decision, two TTC workers were found to be impaired. One employee who was given a breathalyzer blew over the limit. The results of a drug test for a second employee came back positive two days later. Both employees were suspended with pay. Neither of the employees is a driver or operator, but both hold positions that the TTC deems safety-sensitive.
TTC CEO Andy Byford reportedly said that the failed tests are “concerning” but show the transit agency’s decision to implement the controversial testing policy “is both justified and vindicated.”