The Supreme Court of Canada has granted the union leave to appeal in the Irving Pulp & Paper case, in which the New Brunswick Court of Appeal decided that an employer can conduct random alcohol testing of employees in safety sensitive positions in an inherently dangerous workplace, without having to show a pre-existing alcohol problem.
The facts of the case are as follows:
the employer adopted a policy of mandatory alcohol testing for employees in safety sensitive positions;
the workplace in question used hazardous materials, including a pressure boiler that could potentially explode, and was located in a city and near water bodies;
a computer randomly selected employees in safety sensitive positions to be tested by breathalyser;
the testing was mandatory, unannounced and positive results could result in sanctions;
an employee who did not drink for religious reasons was selected for testing and subsequently grieved the alcohol testing policy.
The majority of the arbitration board applied a balancing of interests approach, taking into account the employer’s right to make workplace rules and an employee’s right to privacy. In order to justify the testing, the employer was required to either provide evidence of alcohol problems in the workplace or show that the workplace was “ultra dangerous”. Because neither was established, the grievance was upheld. The New Brunswick Court of Queen’s Bench overturned the arbitration board’s decision, rejected the “ultra dangerous” requirement (finding that “dangerous is dangerous”), and held that the potential for a catastrophic accident justified the employer’s alcohol testing policy.
The Court of Appeal upheld the Court of Queen’s Bench decision, also rejecting the “ultra dangerous” requirement. More importantly, the Court of Appeal questioned the balancing of interests approach in the context of random alcohol testing in inherently dangerous workplaces. The Court of Appeal held that random alcohol testing for employees in safety sensitive positions is justified in an inherently dangerous workplace, and that evidence of an existing alcohol problem in the workplace is not required.
This is the first case in which the Supreme Court of Canada will directly address alcohol testing in the workplace. We are interested to see whether the Supreme Court of Canada will also question the balancing of interests approach, which has been regularly followed by arbitrators in similar cases. Of equal interest is whether the Supreme Court will restrict its decision to the facts of the case or whether it will take the opportunity to clarify the state of the law on workplace alcohol and drug testing in Canada.