Pubdate: Fri, 5 Jun 2009
Source: Lawyers Weekly, The (Canada)
Copyright: 2009 LexisNexis Canada Inc.
Contact:  http://www.lawyersweekly.ca/
Details: http://www.mapinc.org/media/4556
Author: Cristin Schmitz
Bookmark: http://www.mapinc.org/testing.htm (Drug Testing)

REASONABLE CAUSE NEEDED FOR DRUG TESTS ON UNIONIZED WORKERS

Ontario's top court has ruled that companies cannot, without 
reasonable cause, require random drug tests from their unionized 
workers who perform safety-sensitive jobs.

Labour lawyers say the unanimous May 22 judgment by Ontario Court of 
Appeal Justices Eleanore Cronk, Michael Moldaver and Kathryn Feldman 
will influence arbitrators and courts across Canada on the 
contentious issue of random drug and alcohol testing in the workplace 
- - a subject that has yet to be addressed by the Supreme Court of Canada.

The appeal court ruled that the random drug testing policy launched 
in 2003 by the appellant Imperial Oil Ltd. was not a reasonable 
exercise of the management rights and workplace safety provisions 
contained in the company's 1996 collective agreement with its 
petroleum refinery workers in Nanticoke, Ont.

Writing for the court, Justice Cronk affirmed that the company's 
policy of conducting randomized, mandatory saliva mouth-swab testing 
of employees in safety-sensitive positions was null and void because 
it did not comport with the company's contractual obligation to treat 
its workers with "respect and dignity."

As found by the arbitration board's majority, Imperial's policy of 
random drug testing without reasonable cause was an "unwarranted 
intrusion" on employees' privacy and "an unjustifiable affront to 
their dignity," the appeal court agreed.

The judgment marks the first time a provincial court of appeal has 
pronounced on workplace saliva testing, a newer form of drug testing 
technology, observed Douglas Wray, counsel for the respondent 
Communications, Energy and Paperworkers Union of Canada, Local 900.

Imperial rolled out the saliva testing in 2003 to replace the drug 
testing policy the company jettisoned in 2001 after the Court of 
Appeal ruled in Entrop v. Imperial Oil - a case that involved a 
challenge to urine drug testing by non-unionized workers under 
Ontario's Human Rights Code - that urinalysis doesn't promote the 
legitimate goal of a drug-free, safe workplace because urinalysis 
identifies past drug use, rather than on-the-job impairment: (2000), 
50 O.R. (3d) 18.

Wray told The Lawyers Weekly the appeal court's latest verdict on 
workplace drug testing means that unionized employers in Ontario's 
many safety-conscious industries - such as construction, 
manufacturing, mineral extraction or transportation - will have to 
negotiate explicit authority into their collective agreements if they 
want to conduct random mandatory testing for drugs or alcohol.

"The law for employees who aren't covered by a collective agreement 
may very well be different... [and] it may very well be limited to 
the Human Rights Code protections... [which] may very well be 
narrower," observed Wray of Toronto's CaleyWray.

Wray said Imperial Oil is also important for the court's approach to 
judicial review. He suggested the lesson is that when judges assess 
whether an arbitration board's decision is reasonable, they must 
consider the award as a whole and not take isolated comments out of 
the broader context.

Imperial Oil's counsel, John B. Laskin of Toronto's Torys, referred 
questions to his client. Company spokesperson Pius Rolheiser said 
only that Imperial is evaluating its options, which include seeking 
leave to appeal to the Supreme Court.

Labour law lawyers suggested the Supreme Court's views would be 
helpful given the growing push from employers in safety conscious 
industries for the testing of impairment in the workplace (which can 
include testing for fatigue - a much greater contributor to 
industrial accidents than alcohol or drug abuse).

"The SCC has yet to weigh in on any of the debates regarding drug and 
alcohol testing in Canadian workplaces," noted Leanne Chahley of 
Edmonton's Blair Chahley, who represents unions and workers.

Chahley said an appeal court split on the subject is emerging. She 
pointed to the divergent views of the top courts of Ontario and 
Alberta, with the former commenting favourably in Imperial Oil on 
Entrop, while the latter recently declined to follow Entrop: see 
Chiasson v. Kellogg Brown, 2007 ABCA 426 (leave to appeal refused by 
the Supreme Court).

Remarked Chahley, "the Imperial Oil [majority] arbitration decision 
is an extremely good analysis of all of the last 20 years of arbitral 
jurisprudence across Canada, and the Court of Appeal seems to have 
completely supported the... decisions and conclusions that the 
arbitration board drew in terms of its analysis of that law, so there 
should be no doubt that this case will guide arbitrators across Canada."

Vancouver lawyer David Aaron recently represented the Bargaining 
Council of B.C. Building Trades Unions, a group of 16 construction 
unions statutorily mandated to bargain at one table with the 
Construction Labour Relations Association (B.C.'s unionized 
construction contractors) during the negotiation of a groundbreaking, 
industry-wide substance abuse testing and treatment policy. The 
policy focuses on the parties' common interest in eradicating 
workplace insobriety, Aaron explained.

"The [Entrop and Imperial Oil] decisions from the Ontario Court of 
Appeal are consistent with the prevailing consensus in British 
Columbia's unionized construction industry that the employer has no 
business holding workers accountable for their off-duty conduct, 
where such conduct does not impact on job performance," Aaron 
observed. "We are moving from a technology-based approach to a 
principled approach. Urinalysis once took us into an investigation of 
the worker's metabolic history, akin to chemical McCarthyism. Those 
days are fading fast as collective bargaining partners identify a 
principled approach involving the investigation and elimination of 
on-the-job impairment using emerging oral fluid testing technologies."

Gabriel Somjen of Vancouver's Borden Ladner Gervais, who wrote a 
paper on impairment testing, said the Court of Appeal has made clear 
that "especially where there is a collective agreement with any 
provision that refers to [employees'] privacy or human rights - or 
even if the agreement is silent - that employers still need to be 
cautious about drug testing when it is not suspicion-based" or when 
the testing isn't part of an investigation into an industrial accident.

"If the employee is acting strange, or is a known alcoholic or drug 
addict and is on a program that requires testing, that is generally 
justifiable," Somjen explained.

He predicts that testing for on-the-job impairment (whether due to 
fatigue, illness or drugs or alcohol) will (and should) for the most 
part, supplant drug and alcohol testing of workers in 
safety-sensitive positions. (For example, a forklift operator might 
be required to drive around rubber pylons before his shift. Or a 
worker's ability to track moving objects with his eyes might be 
assessed by a machine that measures minute changes in the iris.)

"Impairment testing tells immediately whether an employee is 
impaired," Somjen noted. Such testing can still be legally attacked, 
but it is minimally invasive and avoids the delays involved in 
awaiting lab results, he observed.

The Court of Appeal upheld last year's unanimous Ontario Divisional 
Court decision that affirmed a 2006 board of arbitration majority 
decision upholding, in part, the union's grievance.

The appeal court approved the arbitration board's 72-page majority 
decision, which summarizes and analyzes the Canadian jurisprudence on 
alcohol and drug testing.

The arbitration board majority noted that Imperial had not provided a 
single substantiated example of one of its refinery employees being 
drug-impaired at work. Nor did the company supply significant 
evidence of workers' drug use off the job, or drug use in the local community.

The appeal court swept away Imperial's four-pronged attack on the 
decisions below. The company argued, among other things, that the 
board's majority amended, or failed to apply, the collective 
agreement by essentially imposing the so-called Canadian arbitral 
model. The "Canadian model" takes a "reasonable cause" approach to 
drug alcohol and drug policies, based on balancing workplace safety 
and worker privacy. This contrasts with the U.S. model of random, 
no-cause testing.

"It was in the context of examining the established Canadian arbitral 
jurisprudence concerning workplace alcohol and drug testing and in 
attempting to summarize the nature of that jurisprudence that the 
majority employed the term 'Canadian model," observed Justice Cronk. 
"There is nothing objectionable in this approach." She concluded "the 
majority's reasons reveal that its rejection of Imperial's random 
drug testing measures, absent reasonable cause, was based on the 
language of the parties' own bargain as embodied in the collective 
agreement, and the evidence adduced before the Board regarding the 
requisite balancing of interests inherent to the examination of a 
random drug testing policy in the workplace."

Reasons: Imperial Oil Limited v. Communications, Energy & 
Paperworkers Union of Canada, Local 900, [2009] O.J. No. 2037.
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MAP posted-by: Richard Lake