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LEGAL REPORT/Labour & Employment individual workers believed to be using drugs or alcohol, or of employees returning to work after treatment for substance abuse, but not mandatory, random testing without apparent cause. Dan Leger, a labour specialist with Pink Larkin in Fredericton, N.B., who represented the union throughout the litigation, says the Supreme Court's response to these facts was to uphold the status quo — as defined, he says, by 25 years of consistent arbitration jurisprudence — that employers can't impose random testing without sufficient cause. "The employer said, we've got eight incidents we've documented over the past 15 years, therefore the policy is justified," says Leger. "Irving had expert reports saying, we know statistically there are a percentage of employees with alcohol problems, and this is one mechanism to help. So they implemented a policy to fix a global problem. But the arbitrator said [and the Supreme Court agreed] you can only implement a random testing program to address a specific problem, not a global social ill." The take-away for labour lawyers, says Leger, is not random testing in the workplace is unlawful per se, but it can only be used as a last resort, a response to drug or alcohol-related safety concerns that can't be reasonably solved through other means. "An employer being vigilant about these types of problems will, faced with a problem, implement a basic drug and alcohol policy first," says Leger. "If that doesn't address the problem, maybe take next steps [toward random testing]. But there must be evidence somewhere in the negotiation history that they've consulted with the union about it, Ball Professional Corporation Excellence in Employment & Labour Law Employment Law Human Rights Post Employment Competition Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province in Canada and is used in law schools throughout Canada. Civil Litigation Appellate Advocacy Disability Referrals on behalf of employees and employers respected Contact Stacey Ball at (416) 921-7997 ext. 225 or srball@82scollard.com web: www.staceyball.com all_CL_Mar_12.indd 1 www.CANADIAN ORDER# 804218-62303 $365 804218-62303 2 volume looseleaf supplements per year Supplements invoiced separately 0-88804-218-3 CD-ROM or Internet version available separately Prices start at $4 AVAILABLE RISK-FREE FOR 30 DAYS 82 Scollard Street, Toronto, Canada, M5R 1G2 2013 STACEY REGINALD BALL Canadian Employment Law is a one-stop reference that provides a thorough survey of the law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. Wrongful Dismissal September CANADIAN EMPLOYMENT LAW MORE THAN 6,145 CASES CITED • Counsel in Leading Cases • • Author of Leading Treatise • 52 and they believe it's a problem they're trying to address incrementally. I think that comes [out] loud and clear in the decision." He adds: "I think the advice to unions and employers is: instead of putting themselves in a position of litigation, they're way better off to negotiate these things." Litigation battles over random testing are now underway with two other large-scale Canadian employers. The same union that won the Irving case is also fighting Suncor Energy Inc. over a drug and alcohol testing program at the company's oilsands facilities in Alberta, where the courts have granted an injunction suspending the testing until the dispute is settled in arbitration. Meanwhile Teck Coal Ltd. successfully fended off an injunction attempt in early 2013, by the United Steelworkers union, whose members contested a random drug and alcohol testing program at Teck's mines in British Columbia. The company said it will continue its random tests, in spite of the Supreme Court's Irving decision, until ordered to do otherwise by an arbitrator. Gall, who represents Teck in the dispute, calls it "unfortunate" Irving was the first such case to come before the Supreme Court, because the facts in Irving were too narrow to allow the court to speak with greater finality on random testing. He says Irving's disputed policy was out of place with the times, and nothing like those in other dangerous workplaces. "The more modern random testing policies, like the Teck policy, don't punish for a positive test. They send people for assessment, and they treat them if they've got Order online at www.ca .c Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. CANADA LAW BOOK® L a w ye r m a g . c o m 12-03-13 2:27 PM arswell-26372_CL_Feb_13.indd 1 13-01-15 10:02 AM

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