On Friday June 14, 2013, the Supreme Court of Canada released its eagerly-awaited decision, Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, a case concerning random alcohol testing at a paper mill operation in  Saint John, New Brunswick. A majority of the Court upheld the decision  of the labour arbitration board that mandatory random alcohol testing by breathalyzer was not permitted even though it was limited to employees  in safety-sensitive positions.

The Court unanimously agreed that, in a unionized setting, any rule  or policy unilaterally adopted by an employer and not subsequently  agreed to by a union must be consistent with the collective agreement  and be reasonable. For random alcohol testing, the Court similarly  agreed that the employer must first establish that there is a substance  abuse problem in a safety sensitive work environment to justify such  testing as reasonable.

Writing for the majority, Madam Justice Abella found that the  unilateral imposition of the random alcohol testing policy by the  employer was not justified because there was insufficient evidence of a  substance abuse problem in the workplace. While the Court did not take  issue with the finding that certain positions in the paper mill were  safety sensitive, the majority found that the employer’s evidence, which amounted to seven instances over fifteen years where employees were  under the influence of alcohol, consuming alcohol, or in the possession  of alcohol on company premises as well as testimony by a former  superintendent of a pervasive alcohol abuse problem at the mill, did not demonstrate a significant problem with workplace alcohol use which  could justify the imposition of random alcohol testing. The majority  noted that random testing, be it by blood, urine, or breathalyzer,  amounted to a significant infringement of employees’ privacy rights.

For employers in a unionized setting, the decision confirms that  random alcohol testing for safety sensitive positions will only be
permitted where there is evidence of a substance abuse problem in the  workplace or where testing is agreed-to by the union through the  collective bargaining process. An “inherently dangerous” or “safety  sensitive” work environment is not, in and of itself, sufficient to  justify the imposition of random drug or alcohol testing. The  evidentiary standard required to justify random testing appears to be
something more than a half-dozen recorded instances of alcohol abuse  and, based on the reasons of the dissenting judges including the Chief  Justice, it is likely that a higher standard is required to justify  random drug testing than random alcohol testing. The decision does,  however, confirm that alcohol and drug testing is permitted where there  is reasonable cause to suspect impairment or following an accident in  the workplace, or where an employee returns to work after treatment for  substance abuse.