Management Lawyers

Random Drug Testing Debate - National Perspective?

Published on October 16, 2012

Stringer LLP Admin

In April, we blogged that the Supreme Court of Canada had granted leave to appeal a decision regarding the random alcohol testing policy of a paper mill near the City of Saint John in New Brunswick. The employer, Irving Pulp & Paper, implemented a workplace safety policy in 2006 that included random alcohol testing for employees in safety sensitive positions (click here to see the New Brunswick Court of Appeal decision). 

On September 28, the Supreme Court granted motions to intervene by the Construction Owners Association of Alberta, Construction Labour Relations - an Alberta Association and Enform, the Canadian National Railway Company, Canadian Pacific Railway Company and Via Rail Canada Inc., the Alberta Federation of Labour, the Communications, Energy and Paperworkers Union of Canada, Local 707, the Canadian Civil Liberties Association, the Alliance of Manufacturers & Exporters of Canada, carrying on business as Canadian Manufacturers & Exporters, the Canadian Mining Association, Mining Association of British Columbia, Mining Association of Manitoba Inc., Quebec Mining Association, Ontario Mining Association and Saskatchewan Mining Association and the Power Workers' Union.  These eight organizations have been directed to file their factums by November 9.

We suggested in our last blog that although the Irving case deals only with alcohol testing, the Supreme Court’s decision may shine a light on the path adjudicators should follow when considering random drug testing as well.  Although random drug testing in safety sensitive positions has, historically, been upheld more often in Alberta than in Ontario, the Edmonton Sun reported that the Alberta Court of Queen’s Bench just granted workers at Suncor's Fort McMurray facility a temporary injunction preventing the company from implementing random drug testing this week.

That the Supreme Court has granted the interventions in the Irving case, from organizations that span the country, suggests strongly it intends to provide guidance on a national scale.  In our view, that guidance is sorely needed. We often provide advice to employers with national operations on issues related to random and post-incident drug and alcohol testing.  Employers are often surprised and frustrated that the law varies so widely across provincial lines. 

We will keep you updated as the case unfolds.

human rights,  occupational health and safety