April 7, 2017

Ontario Superior Court Upholds TTC Random Drug and Alcohol Testing Policy

In a decision dated April 3, 2017, the Ontario Superior Court of Justice declined to grant the Amalgamated Transit Union a temporary injunction restraining the Toronto Transit Commission (“TTC”) from implementing its random drug and alcohol testing policy.
The TTC first approved its “Fitness for Duty Policy” in October 2010, but prior to the policy taking effect, the Union filed a grievance challenging the policy’s legitimacy. The TTC then amended the policy to include random drug and alcohol testing but delayed the implementation of the policy for several years, due to ongoing litigation surrounding the issues.
In March 2016, the TTC approved the implementation of its random drug and alcohol testing policy with the goal of ensuring the health and safety of TTC employees, customers, and members of the public. The random testing applied to employees in safety-sensitive, specified management, senior management and designated executive positions, and involved an alcohol breathalyzer test and an oral fluid drug test. Qualified technicians from a third party carried out the administration of breathalyzer tests and the collection of oral fluid samples.
Either a positive breathalyzer test result or a positive oral fluid drug test result over certain established thresholds would constitute a violation of the policy. An employee’s failure to submit to a random test was also considered a violation.
When the TTC approved the implementation of the policy, the Union brought a motion in court for a temporary injunction to block the TTC from implementing its policy until the arbitration could be completed. In determining the appropriateness of granting the motion, the court considered the circumstances surrounding the TTC’s decision to institute random testing in order to determine a TTC employee’s reasonable expectation of privacy, including:

• The fact that external candidates interested in working for the TTC had to pass a pre-employment urinalysis test for drug use;
• The negative attitude of the TTC employees towards working with individuals who tested positive for alcohol or drugs;
• The nature of the workplace;
• The minimally intrusive procedure for and method of testing;
• The disciplinary and remedial nature of the TTC’s testing policy; and
• The state of the law of damages with respect to breaches of privacy.

Ultimately, the court was not satisfied that TTC employees would suffer irreparable harm unless an injunction was granted, and further concluded that if the TTC’s random testing were allowed to proceed, public safety would be increased.  The Union’s motion for temporary relief was dismissed and the TTC was awarded $100,000 in costs.
Although this case only involved the denial of a request for temporary relief from the application of the TTC’s policy, the court’s ruling presents a refreshing development in the law surrounding random drug testing in safety-sensitive industries.
If you have any questions about this topic or any other topics relating to workplace law, please contact a Mathews Dinsdale lawyer.
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