Canadian Lawyer

LEGAL REPORT/Labour & Employment A head scratcher The Supreme Court ruling in CEP v. Irving declared the paper company's random alcohol testing unlawful but its wider implications are wholly unclear. By Richard Foot utmost caution. "Early in the life of the Canadian Charter of Rights and Freedoms, this Court recognized that the 'use of a person's body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity.'" Abella also clearly rebuked the New Brunswick reviewing and appeal courts for failing to show sufficient deference to the factual findings and the legal framework established by the arbitration board in the Irving case. Aside from those two reminders, however, does Irving offer any new wisdom or general guidance on random drug and alcohol testing at dangerous worksites? In 2006, Irving unilaterally imposed universal, random alcohol testing on workwww.CANADIAN ers in safety-sensitive positions at its Saint John, N.B., pulp and paper mill. There were no negotiations on the policy with the union, nor any specific allowance for it in the collective agreement, aside from a broadly worded management rights clause. A positive test would lead to significant discipline, including possible firing. Refusing the test was also grounds for dismissal. In the 15 years prior to 2006, the company documented eight cases of alcohol use or impairment at the workplace — one of which was a worker simply purchasing alcohol at noon hour — and there were no injuries or other safety incidents related to those cases. Irving had no previous alcohol policy at its mill until 2006, when it announced its random tests, among other measures. The union accepted testing of L a w ye r m a g . c o m September 2013 51 Matthew Billington I t was one of the most anticipated labour law decisions in years, the first time the Supreme Court of Canada had addressed the issue of random alcohol testing in the workplace. For the past 10 years, legal questions about employees and drugs and alcohol had been growing more complex and thorny around the world. In Canada, unions, employers, and their counsel — including those litigating at least two other high-profile random-testing cases — were waiting eagerly to hear what the Supremes might say. Yet when the decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper Ltd. finally arrived in June, it left many practitioners scratching their heads: What, if anything, does the ruling mean for us and our clients? The 6-3 decision, declaring Irving's policy unlawful, spoke plainly enough for the two sides in the case. But its wider implications have been harder for legal experts to measure. "The decision left a lot of questions wide open," says Natalie Bussiere, a labour and employment lawyer with Blake Cassels & Graydon LLP in Montreal. "This is not going to end all questions pertaining to random drug and alcohol testing in either union or non-union environments." Peter Gall, of Heenan Blaikie in Vancouver who represented the intervenor Mining Association of Canada, echoes that opinion: "This is not the final word. The final word is yet to come, and it's going to come on the basis of a much different set of facts." Irving did make two things clear: first, privacy rights, in the age of the Charter, are not to be trifled with. Justice Rosalie Abella, writing for the majority, described as "unassailable" the notion that random breathalyzer testing is a coercive workplace measure that needs to be treated with the

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