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a problem, and they put them on monitoring agreements. It's all designed to get people to stop using illegal substances, or misusing alcohol. There'll be much different factual contexts in the cases, like Teck and Suncor, that are going to come up before the courts." Gall also says Irving failed to bring before the courts a large body of expert evidence about the deterrent effect of random testing. In its Irving decision, the Supreme Court emphasized the critical need for proof of alcohol or drug abuse in the workplace before random tests can be introduced. "I don't think anything turns on whether there is a present problem," he says. "The whole point of random testing is not to wait until you have a fatality. It's to make sure you don't have a fatality." Bussiere says she, too, was disappointed Irving didn't say more about the safety benefits of random testing — not only for the health of workers but for the environment as well, in terms of oil spills and other industrial disasters. She also says it's unclear from the decision how far it applies to non-unionized workers. But in a unionized environment, she believes the court left the door open to the possibility of random testing under certain conditions: a dangerous workplace, convincing evidence of a substance abuse problem, and a collective agreement recognizing the need to trade certain privacy rights for health and safety. "There's a small opening," she says, "but it's still going to be a tough thing to defend." Leger agrees the facts in Irving were highly specific. As a result, he says the court was careful to keep the door open to random Let us testing in different circumstances — and to lay out the process by which employers can institute a random testing program if they choose. "It's about how we deal with violating rights, in the context of proportionality," he says. "When you're applying a Charter right, you don't jump to a violation of that right without some evidence of the problem you're trying to address. Show proof of the problem, show that you tried to deal with it in incremental ways, and in demonstrating all of that you will likely demonstrate the validity of your policy." Professional Directory VISUAL INVESTIGATIONS Expert Witness, Public Speaker, Investigator, Educator: Investment Advisory Misconduct and Malpractice. Forensic investment analysis Expert on industry regulatory regimes and practices. Larry Elford, CFP, CIM, FCSI, Associate Portfolio Manager, retired Visual Investigations visualinvestigations@shaw.ca Background: http://www.speakersalberta.com/_Elford.html Supreme Court of 13-08-13 Canada Counsel and Agency Services sualInvestigations_CL_Sep_13.indd 1 open Henry S. Brown, QC 10:57 AM D. Lynne Watt Graham Ragan Guy Régimbald Matthew Estabrooks the right door With the assistance of: Brian A. Crane, QC for you Eduard J. Van Bemmel, Law Clerk 160 Elgin Street Suite 2600 Ottawa Ontario K1P 1C3 T 613-233-1781 montréal We specialize in Employment and Labour Law in Canada Kuretzky Vassos Henderson is a leading employment and labour law firm situated in the heart of Toronto. We are comprised of ten lawyers, all of whom specialize in the area of employment and labour law. We act for many prominent public and private sector employers as well as for individuals. Kuretzky Vassos Henderson LLP ottawa toronto hamilton waterloo region ntitled-2 1 moscow london MEDICAL MALPRACTICE PERSONAL INJURY The experts you need, The quality you deserve. TESTIFYING OR CONSULTING PLAINTIFF OR DEFENCE www.CANADIAN u beijing Case Merit Service: An invaluable early assessment13-01-14 of case facts, issues, players and strength CLASS ACTION www.kuretzkyvassos.com • 416.865.0504 vancouver Announcing CanLNC Experts Our work includes extensive experience in the areas of: Wrongful dismissal • Human rights • Labour relations/Labour law/Collective barganing • Workplace health and safety • Sexual harassment • Employment standards • Employment contracts • Canada Labour Code • Class actions • Mediation/arbitration/ADR calgary www.CanLNCExperts.ca 855-278-9273 (toll free) Experts@CanLNCExperts.ca L a w ye r m a g . c o m September 2013 53 2:30 PM

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