Ruling could make random alcohol testing tougher

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Weighing in on the question of alcohol testing in the workplace for the first time, the Supreme Court of Canada issued a ruling Friday that could make it harder for employers to unilaterally impose random Breathalyzer tests on unionized workers in the name of safety.

In a split 6-3 decision released on Friday, the Supreme Court ruled it was reasonable for a New Brunswick labour arbitration board to strike down a policy at an Irving Pulp & Paper Ltd. mill that forced all workers in "safety-sensitive positions" to undergo random alcohol tests, with about 10 per cent of the work force tested a year.

The Saint John mill's union challenged the 2006 policy as a violation of worker privacy and dignity after a mill employee, who does not drink for religious reasons, tested negative.

A labour arbitration board sided with the union, and New Brunswick's Court of Appeal the overturned that decision. The Supreme Court has now sided with the original labour arbitration board ruling, which said Irving had failed to produce enough evidence – citing just eight alcohol-related incidents in 15 years – to demonstrate a serious enough problem to warrant an invasion of worker privacy without union consent.

The case has been watched closely by employers across the country. Increasingly, they have been seeking to impose new alcohol and drug testing regimes, particularly in Alberta, where courts have generally been more receptive the idea and where many U.S. oil companies, used to rules south of the border that allow such testing, operate.

Suncor Energy Inc. is battling with another branch of the same union in the Irving case, the Communication Energy and Paperworkers Union of Canada, in a high-profile labour arbitration over random drug-and-alcohol testing for workers in the oil patch, where concerns over substance abuse issues have made headlines.

Irving had no comment on the decision. Daniel Leger, a Fredericton lawyer acting for the Communications, Energy and Paperworkers Union of Canada Local 30, which launched the Irving case, said the decision sends a message to employers that they need good reasons to unilaterally infringe on privacy rights.

"It is confirmation that the privacy rights that we enjoy don't end when we enter our workplace," Mr. Leger said, pointing out that the union only objected to random testing, and did not object to alcohol testing with "just cause," or after an incident.

In the Supreme Court's dissenting opinion, Chief Justice Beverley McLachlin, Justice Marshall Rothstein and Justice Michael Moldaver argued that the labour board's original decision to strike down the testing policy was "unreasonable," and wrongly imposes a higher burden on employers to justify a random alcohol-testing policy, demanding they show a "significant" or "serious" problem at a workplace, rather than merely evidence of a problem.

Lawyers who act for employers said the majority decision reaffirms that random drug-and-alcohol testing is lawful in certain circumstances. But they say unions may now have more success challenging some of these policies, and employers seeking to impose them may need better evidence of workplace problems to bolster their case.

Peter Gall, a lawyer with Heenan Blaikie LLP who acted for the Mining Association of Canada – an intervenor in the Supreme Court case – foresees more high-profile court fights before Canada follows other countries and more freely allows random testing at dangerous workplaces: "It's an issue that will continue to generate a lot of litigation over the next few years as this gets sorted out."