Publications

: Client Update - Supreme Court of Canada will hear random alcohol testing case

March 22, 2012

The Supreme Court of Canada announced today, March 22, 2012, that it will hear the appeal of the Communications, Energy and Paperworkers Union of Canada regarding random alcohol testing of employees holding safety-sensitive positions in inherently dangerous workplaces.

The union has asked the Supreme Court of Canada if an employer is required to establish reasonable cause before it can impose a policy of random alcohol testing in an inherently dangerous unionized workplace.

On July 7, 2011, the New Brunswick Court of Appeal released its decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited, 2011 NBCA 58, in which it concluded that it is not necessary for employers to show that there was a pre-existing alcohol problem in an inherently dangerous workplace in order to justify random alcohol testing of safety-sensitive employees. This decision arose out of a grievance arbitration in which the majority of the arbitration board concluded that to establish the reasonableness of such a policy, the employer had to adduce sufficient evidence of a pre-existing alcohol problem in the workplace, unless the industry in question fell within the category of "ultra-dangerous" or "ultra-hazardous". The majority of the board concluded that the employer's operation (a kraft pulp mill) was, in fact, a "dangerous work environment", but did not accept that the mill fell within the "ultra-dangerous" category. The majority of the board concluded, among other things, that the evidence relating to a pre-existing alcohol problem in the employer's workplace failed to establish "any significant degree of incremental safety risk attributable to employee alcohol use", and found that the random alcohol testing provisions of the employer's policy were unreasonable.

The Court of Queen's Bench set aside the decision of the majority of the arbitration board and dismissed the grievance. The Court of Appeal agreed, noting that:

  • unlike drug testing, alcohol testing is able to detect on-the-job impairment and minimize the risk of impaired performance;
  • alcohol testing by breathalyser has always been regarded as minimally intrusive;
  • while random drug testing has met with resistance to date, random alcohol testing gained early acceptance if testing was performed by breathalyser and was restricted to employees holding safety-sensitive positions.

The Court of Appeal concluded that due to the inherent danger (i.e., not "ultra dangerous", as such a classification does not exist) of the employer's operation, the employer did not have to adduce evidence of an existing alcohol problem in the workplace in order to justify imposing the random alcohol testing policy.

While it will be many months before the Supreme Court of Canada hears this appeal and renders its decision, employers across the country are hopeful that the Court will provide further clarity with respect to the circumstances under which random alcohol testing may be employed.

The employer in this case is represented by William B. Goss, Q.C. of our Saint John office and Melissa M. Everett Withers of our Fredericton office.

The foregoing is intended for general information only. If you have any questions, or for a detailed list and background of our Labour & Employment practice group, please visit www.stewartmckelvey.com


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