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Supreme Court to rule on random alcohol testing

It's a fight that began with one pulp-and-paper mill worker in Saint John, and a "zero" reading on a breath-analysis alcohol test six years ago. Now, it is headed to Canada's highest court.

The case, which pits the Communications Energy and Paperworkers Union of Canada Local 30 against Irving Pulp & Paper Ltd., is being watched closely by employment lawyers across Canada, who say it could have broad implications.

At issue is whether mandatory, random alcohol tests are reasonable impositions on unionized workers in so-called "safety-sensitive" jobs, even in workplaces with no demonstrated problem with drunkenness.

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It's a question that pits the privacy of workers against an employer's obligation to provide a safe workplace – and it is a dilemma that has twisted courts and labour tribunals into knots.

Legal experts say the Irving case could be pivotal for the growing number of employers with similar testing policies, as the Supreme Court weighs in on a murky area of the law that has developed differently across the country.

Unions, civil rights groups, business and employers' associations are all expected to seek intervenor status to have their say on the case, which the Supreme Court announced recently that it would take up. It is not expected to be heard until December.

The case before the court dates back to 2006, when Irving Pulp & Paper imposed mandatory random alcohol testing for 334 employees whose jobs were deemed "safety sensitive." In any given year, 10 per cent of the employees would be tested.

But the union at the kraft paper mill, which sits on the banks of the Saint John River, opposed the move, saying the policy was unreasonable, or essentially overkill, because the mill did not have a documented problem with alcohol abuse.

In March, 2006, the union launched a grievance of the policy after an employee, who does not drink for religious reasons, tested negative.

A labour arbitration board agreed with the union, ruling that Irving had failed to show why the policy was required. But the company appealed this ruling to a judge, who tossed it out.

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The union then took the case to the New Brunswick Court of Appeal, which sided with Irving. The appeal court declared that the pulp and paper mill was a "dangerous workplace" and because of that alone, the company did not need to show a history of alcohol incidents or an "out of control" culture of substance abuse in order to bring in random testing.

The mill, the N.B. appeal court said, has a "$350-million pressure boiler with a 'high potential' for explosion," makes use of hazardous substances and could be the source of a "major catastrophe" such as a chemical spill.

The union's lawyer on the Supreme Court case, Joël Michaud of Pink Larkin in Fredericton says simply establishing that the workplace is dangerous is not enough to justify the intrusion.

Employers, he said, must have a real reason to bring in testing, such as an incident, or a "near-miss." Or the tests must only apply to employees returning to the workplace from rehab.

If the case goes his way, he said, it could encourage other unions to challenge alcohol testing policies on similar grounds, he said.

"This issue has been floating around since the early '90s," Mr. Michaud said. "There's a number of cases out there that support our approach, in that an employer was able to demonstrate a culture of alcohol or drug abuse in the workplace."

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Irving has hired Neil Finkelstein of McCarthy Tétrault LLP. A spokeswoman for the law firm said he declined to comment.

Employment lawyers who act for big companies will be watching the case closely. Barbara Johnston of Fraser Milner Casgrain LLP in Calgary, who has acted for oil companies and others in disputes over drug and alcohol testing, says it is a question of risk management.

"I don't think employers should have to wait for a catastrophic incident prior to taking reasonable steps to mitigate risk in a safety-sensitive work environment," she said.

The use of drug and alcohol testing has been inconsistent across Canada, with courts and labour tribunals generally more friendly toward the concept in the West than in the East.

In Alberta, testing has become common in the oil patch, where many U.S. firms, more accustomed to testing workers, operate. In some cases, employees face tests before they even get on a worksite, or are offered a job.

Toronto lawyer Richard Charney, the leader of Norton Rose's global employment law practice, said Canadian workplaces have been moving toward allowing drug and alcohol testing for safety-sensitive jobs, and didn't expect that evolution to stop.

"What's making decision-makers more tolerant of testing in Canada than 15 years ago is the emphasis on workplace safety," Mr. Charney said. "It's that tension between human rights and workplace safety, and how do you resolve it."

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About the Author
Toronto City Hall Reporter

Jeff Gray is The Globe and Mail’s Toronto City Hall reporter. He has worked at The Globe since 1998. From 2010 to 2016, he was the law reporter in Report on Business, covering Bay Street law firms and white-collar crime. He won an honourable mention at the National Magazine Awards for investigative journalism in 2010. More

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