By: Jeff Murray

The Ontario Court of Appeal recently called “strike two” on Imperial Oil’s long-standing effort to conduct random drug testing on its employees.  The court unanimously upheld a decision of an Ontario board of arbitration that struck down Imperial’s policy of random drug testing in a unionized worksite.

Background: Entrop v. Imperial Oil

Imperial is not new to high-profile litigation involving random drug and alcohol testing. In the early 1990s an employee challenged the random testing component of Imperial’s comprehensive drug and alcohol policy.  In the Entrop case the Ontario Court of Appeal held that random breathalyzer testing of employees in safety sensitive positions was reasonable and did not contravene the Ontario Human Rights Code (“the Code”) because breathalyzers can detect impairment in real time.  However, the portion of the policy concerning random urinalysis testing was found to violate the Code, primarily because the technology could not determine impairment at work.  Such tests could only identify past drug use and not impairment.

Following the Entrop decision, Imperial settled on saliva testing as a new way to detect on-the-job impairment. In 2003, Imperial resumed random unannounced drug testing using this new method for employees in safety sensitive positions.

The union grieved.

Imperial Oil v. Communications, Energy & Paperworkers Union of Canada, Local 900

A board of arbitration upheld the company’s policy of conducting tests “for cause” post-incident but held that random testing was only permissible as part of a consensual rehabilitation program.  The board’s analysis weighed employee privacy interests against the company’s obligation to promote workplace safety.  It concluded that the random testing provisions of the policy violated the collective agreement, which required the employer to treat employees with “respect and dignity”.

Imperial sought judicial review in the Ontario Divisional Court and then the Ontario Court of Appeal.  Both courts upheld the board’s decision.  Writing for the Court of Appeal, Justice Cronk affirmed that part of the board’s decision that prohibited random saliva testing because the technology was not able to determine impairment at work, only past drug use.

Lessons for Employers

The scope of an employer’s right to require its employees to submit to drug and alcohol testing has received extensive arbitral and judicial attention over the years. The debate has been whether, and under what circumstances, an employer can demand an employee undergo a random drug test.

Although the Ontario Court of Appeal has twice taken a restrictive view on the subject, courts in other provinces have been more permissive.  In Chiasson v. Kellogg Brown, the Alberta Court of Appeal upheld an employer’s use of random saliva testing notwithstanding the technological limitations.  In doing so the court acknowledged that its approach was not in harmony with the Ontario Court of Appeal’s decision in in Entrop.   Ultimately this debate may need to be resolved by the Supreme Court of Canada.

Until then, employers in Ontario should conform to the restrictive approach adopted by the Ontario Court of Appeal.   This approach will require arbitrators and lower courts to strike down drug testing policies that permit random tests in the absence of just cause or a consensual rehabilitation program.   The law in Ontario will likely remain this way until drug testing technologies become more reliable at detecting impairment at work or the Supreme Court of Canada says otherwise.  

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