'Be wary of applying the blanket approach, whether it be to all employees or even a subgroup'
“Random drug and alcohol testing is not the preferred way to go unless it can be demonstrated as the only reasonable [option].”
So says Sharaf Sultan, principal of Sultan Lawyers in Toronto, in reference to the Ontario Superior Court’s quashing of a policy requiring Ottawa airport employees in safety-sensitive positions to submit to random drug and alcohol testing.
“The law on this is that there's pretty much only one circumstance in which you can [implement random testing] – when you can sufficiently prove on a balance of probabilities that there is a chronic, systemic problem in the workplace that would justify that,” says Sultan. “And [the court] did not believe that that was sufficiently demonstrated.”
The Ottawa Macdonald-Cartier International Airport Authority operates the Ottawa International Airport. In 2016, the authority began developing a workplace drug and alcohol policy. It finalized and issued the policy in December 2018, with the policy applying to all bargaining units and non-unionized employees.
The policy provided for drug and alcohol testing in specified circumstances, which included: pre-employment and pre-assignment situations; where there was reasonable cause to believe an employee was impaired at work; following a workplace accident or incident; follow-up post-treatment monitoring for a drug or alcohol-related problem; and unannounced random testing of workers in safety-sensitive positions.
The unannounced random testing for safety-sensitive positions involved a 50-per-cent selection rate for drugs and 10 per cent for alcohol, per year, by urinalysis. Refusals would be treated as failures to comply – which would result in a referral for assessment and possibly treatment, a requirement to attend educational sessions, or discipline up to and including dismissal.
Random testing challenged
The union representing the airport’s aviation firefighters disagreed with the unannounced random testing element of the policy. They made this clear while the policy was in development, but the authority included it anyway.
In March 2019, the authority required a firefighter to submit to a random drug test by urinalysis. The worker filed a grievance and the union filed a policy grievance about the random testing requirement.
An arbitrator found that the nature of airport operations affected the safety of workers and the travelling public, and there was an increased safety risk because of the legalization of marijuana, so the policy of random drug testing for workers in safety-sensitive positions was reasonable. The arbitrator relied on a 2017 decision where the Ontario Superior Court of Justice refused to grant an interlocutory injunction preventing the Toronto Transit Commission (TTC) from imposing random drug and alcohol testing pending the outcome of an arbitration that would determine the TTC’s right to implement the policy under its collective agreement.
However, the arbitrator also found that urinalysis wasn’t an appropriate testing method and a saliva test would be more accurate and less invasive.
The arbitrator dismissed the grievance and upheld the authority’s drug and alcohol testing policy as reasonable, although he didn’t limit the use of urinalysis.
The union appealed on the grounds that the arbitrator’s decision didn’t follow prior decisions from arbitrators and courts on random drug and alcohol testing – which established that evidence of an existing substance abuse problem was necessary to justify random testing.
Blanket application not acceptable
Part of the problem was that although the authority limited random testing to only safety-sensitive positions, it was still a blanket application of the policy because it didn’t deal with people individually, says Sultan.
“It doesn't matter whether it's all employees or a subset of employees – it's still a particular group and you can't really apply random testing to an entire group without there being sufficient evidence that that group or subgroup has a systemic problem,” he says. “It should be treated employee by employee or on an individualized basis.”
The court noted that a unionized employer may unilaterally impose a rule with disciplinary consequences only if the rule is reasonable. In addition, arbitral jurisprudence established that random drug and alcohol testing required a balancing of the employer’s interests in having such a policy with the privacy interests of employees.
It had also been established by the Supreme Court of Canada and arbitrators that random, unannounced testing for all employees in a dangerous workplace is not justified without reasonable cause – such as evidence of “enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace,” the court said.
The Supreme Court decision that the court relied on essentially made random, unannounced drug and alcohol testing “de facto illegal” except for rare circumstances – with one of the circumstances being a systemic problem within the workplace with sufficient evidence that the problem exists, says Sultan.
No evidence of elevated safety risk
The court found that the arbitrator departed from the jurisprudence, as there was no evidence of an elevated safety risk at the Ottawa airport, nor did he explain his reasoning for such a departure other than a broad comment about the safety of workers and the travelling public. The arbitrator also didn’t seem to analyze the privacy interests of employees – particularly since the arbitrator acknowledged that a saliva test was less invasive but didn’t rule that the urinalysis requirement in the policy was unreasonable, said the court.
The court also found that the arbitrator’s reliance on the TTC decision didn’t make sense, because that decision was about the test for granting an interlocutory injunction, not an employer’s authority to implement a random testing policy. The TTC case also involved evidence that there was a problem in the workplace, which wasn’t the case here, said the court.
The court also disagreed with the presumption that the legalization of marijuana increased the safety risk, as there was no evidence supporting it.
The court found that there was no evidence of any arbitral or court case that upheld mandatory random drug and alcohol testing in Canada where an employee could be disciplined for non-compliance without evidence of a workplace problem, and the arbitrator didn’t justify his departure from that trend.
The court determined that the arbitrator’s decision was unreasonable, overturned it, and referred the policy grievance to another arbitrator.
Strict limits on random testing
It's a reminder of the strict limits for when an employer is permitted to implement random drug and alcohol testing across the board, even if testing is limited to safety-sensitive positions, as well as the risk of infringing on the privacy of a group of employees without a good reason, says Sultan.
“Be wary of applying the blanket approach, whether it be to all employees or even a subgroup of employees, unless you can demonstrate that there is a systemic problem that would justify a random testing approach for either the whole group or the subgroup,” he says. “If you are unable to demonstrate that, then courts are going to expect you to deal with it on an individualized basis.”
Sultan adds that the misapplication of previous decisions that weren’t analogous to the current case – both in the authority’s arguments and the arbitrator’s decision – emphasizes that past cases should be used to support a position based on their legal principles, not their individual facts.
“While previous cases can definitely be helpful to interpreting the law, they need to be used for the limits of their purpose – which often does not include an application of the facts of that case unless it meshes with the facts [of the current case],” says Sultan. “Use case law for principles, not their specific facts.”
See Ottawa Airport Professional Aviation Fire Fighters Association v. Ottawa Macdonald-Cartier International Airport Authority, 2022 ONSC 3298.
