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A judge has okayed random drug testing by the TTC on its employees

Kevin Van Paassen/The Globe and Mail

A judge has cleared the way for random testing of most Toronto Transit Commission employees, accepting evidence that "there is a demonstrated workplace drug and alcohol problem at the TTC which is currently hard to detect and verify."

In a decision handed down Monday, Ontario Superior Court Judge Frank Marrocco refused a union application for an injunction that would have stopped the testing.

"The workplace is literally the City of Toronto and as a result all the people who move about in the City, whether or not they are passengers on the TTC, have an interest in the TTC safely taking its passengers from one place to another," Judge Marrocco wrote.

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The TTC said they plan to start the random testing for drugs and alcohol later this month. The agency employs about 14,000 people and 10,000 of them – those deemed to be in "safety-sensitive" jobs, as well as those in designated management positions and all executives – will be subject to periodic breathalyzers and drug tests.

These employees will have a one in five chance of being tested each year. Penalties for failing a test, or refusing to take one, will range up to and including dismissal.

In its argument, the TTC cited three incidents in 2015 alone in which transit vehicles involved in collisions were being operated by people who subsequently tested positive for drugs.

One of the operators showed signs of opiates, another turned up cannabinoids, related to the use of medical marijuana, and the test for the third, who it transpired "had a disability relating to substance use," showed evidence of cocaine.

"The TTC felt it could wait no longer, given the increasing number of positive workplace test results and test refusals it has seen, thereby potentially compromising employee and public safety," the agency said in a statement, explaining why it pushed for random testing even as an earlier testing regimen was undergoing a slow arbitration process.

In their own statement, ATU local 113's secretary-treasurer Kevin Morton said they were "disappointed" with the judge's decision and that they were "more energized than ever" to keep fighting the policy at arbitration.

"Starting tomorrow, we'll be back at arbitration to overturn a bad policy that is nothing more than an abuse of employer power against the hardworking women and men who safely move this city," the union statement concluded.

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What the TTC called "fitness for duty" testing began in 2010. This included testing people in limited circumstances, including if there was reasonable cause to believe they were impaired. But the union pushed back hard against making the program random, arguing that there was a stigma to being tested, the tests were unreliable and they could harm the employee-management relationship.

The judge was dismissive of many of the union arguments and came down in favour of the tests improving public safety.

He cited "continuous" issues of impairment at the TTC, noting the agency's statistic that 2.4 per cent of applicants for specific jobs – for which they knew they would be tested – had failed those drug and alcohol tests.

"I am satisfied that, if random testing proceeds, I 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 test result is known or deterred by the prospect of being randomly tested," Judge Marrocco wrote.

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