By Norm Keith
I had the privilege of representing the Alliance of Manufacturers and Exporters of Canada, as an intervener, in support of the position of the respondent employer, Irving Pulp and Paper Limited. The extensive number of interveners, the quality of legal counsel retained, and the full nine-member panel of the Supreme Court sitting, all indicated the Supreme Court understood that this issue was of critical importance to employers, unions, workers and the Canadian public.
This article does not attempt to fully canvas all of the legal arguments, submissions, precedents and authorities cited in the written and oral submissions before the Supreme Court. However, it does attempt to outline, in a straightforward and succinct manner, the essential arguments made with respect to the substantive issue of whether or not there should be random alcohol testing of persons employed in safety-sensitive positions in workplaces that are generally regarded as dangerous workplaces.
Arguments in favour of random alcohol testing
1. Evidence from the arbitration decision was uncontradicted that Irving Pulp and Paper Limited had a number of safety-sensitive positions, where an incident could result in hazard to workers and even explosions and catastrophic failure. This could result in an explosion, damage to the plant, worker injury and fatalities, as well as serious environmental damage. There was also clear inference — from the proximity of the plant to residential areas of Saint John, NB — the public was also potentially at risk if there was a major incident or explosion at the plant.
2. The arbitration board’s requirement that there needed to be evidence of an “ultra-dangerous” circumstance before random alcohol testing was permitted was unreasonable, given the level of hazard to workers, the plant, the environment and the public residing in Saint John.
3. There was expert testimony at the arbitration hearing, and support in other research, literature and precedents, that the deterrent effect of random alcohol testing was a significant and valid objective of the policy.
4. The implementation of the random alcohol testing program at the pulp and paper plant, in addition to its deterrent effect, would also be able to detect the use of alcohol, either prior to or during a shift, of a worker in a safety-sensitive position in the plant. This combined effect of deterrence and detection would add considerably to the safety culture and priority on prevention of workplace incidents, accidents and fatalities.
5. The dignity and privacy of workers at the dangerous workplace would be minimally affected since the random alcohol testing procedure used a device comparable to that of a roadside breathalyser test, which have been approved by the Supreme Court as being lawful and reasonable, and not in violation of Section 8 or any other provision of the Charter of Rights and Freedoms.
6. The Canadian Mining Association took an even broader position when, in their written material, it said, “The Mining Associations submit that the distinction between alcohol and drug testing, at least in respect of the legality of random testing, is misplaced… The purpose of random testing [of both alcohol and drugs] is not to detect or improve impairment, but to reduce risk through deterrence and detection of safety risks.”
7. I argued on behalf of the CME that the strict legal duty under occupational health and safety regulatory and criminal law on employers to take every reasonable steps for the health and safety of workers included random alcohol testing. Since employers across Canada are now exposed to regulatory and criminal prosecution and penalties, senior executives exposed to fines and jail terms (and unions having no legal responsibility under occupational health and safety or criminal law for the safety of workers), it is incumbent on employers in dangerous workplaces to take every reasonable step available, including random alcohol testing, to ensure workers are safe.
References to the due diligence standard in the Supreme Court decision City of Sault Ste. Marie, and the relatively recent Bill C-45 amendments to the Criminal Code, creating a new crime of occupational health and safety criminal negligence, placed a strict duty on employers to take every reasonable step. Random alcohol testing, to both deter and detect workers who attend at a dangerous workplace under the influence of alcohol, is an important step employers can take to comply with their legal duties.
1. The union argued strenuously that arbitrators and courts across Canada have recognized employees’ rights to privacy, both supported by the Charter of Rights and Freedoms and the common law for unionized workers. Therefore, unionized workers should have the right to not be involuntarily touched, searched or seized as a result of a reasonable expectation of privacy and dignity in the workplace.
2. A unilateral management policy, such as the random alcohol testing policy of Irving Pulp and Paper Limited, is subject to the KVP test — a test to establish the reasonableness of policies and rules that are not negotiated as part of the collective agreement, but rather impose unilaterally under a management rights clause in the collective agreement or the inherent right of management to manage and control its workplace.
3. Even with new testing technology, the union argued that the ability of alcohol or drug testing process to establish impairment at the time of testing does not eliminate the need for an employer to meet the threshold of reasonable cause prior to initiating testing. The union argued that the employer “bears a heavy onus if it wants to justify random, without cause, testing”.
4. In the Power Workers’ Union factum, the union said, “Taking of bodily fluids, in any form, is invasive and engages these rights… This is particularly so for compelled searches of a person’s body.”
5. The Alberta Federation of Labour, in its argument supporting the union, said, “The New Brunswick Court of Appeal’s decision will have a devastating impact on the long-standing test labour arbitrators apply when assessing the reasonableness of an employer’s policy, particularly one that impacts in employees’ privacy, dignity and bodily integrity rights.”
6. The Canadian Civil Liberties Association, in support of the appellant union and opposing random alcohol testing in this case, said, “Requiring individuals to choose between their privacy and their job has a serious impact on the individual’s ability to live a life of dignity… because work is fundamental to a person’s life, ‘the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person’s dignity and self-respect.’”
Health and safety responsibility
Random alcohol testing is neither a cure-all nor a panacea to all problems associated with workers consuming alcohol or drugs in their workplace. However, the importance of the deterrent effect — in addition to detection and acknowledgement of the problem — reasonably supports the position that in safety-sensitive roles, in dangerous workplaces, random alcohol testing (and drug testing as well, given modern oral fluid technology for testing) is not only appropriate, but a reasonable step to protect worker safety. We need only to provide several examples of the importance of preventing alcohol or drug impairment and its devastating effects on workers, their families and members of the public, to illustrate the point.
The argument in the Irving Pulp and Paper case was not that there should be widespread alcohol testing of every employee in every workplace. Simply asking for periodic, unannounced random alcohol testing, through non-invasive means of a breathalyser seems to be a rather small, even trivial intrusion of a worker’s sense of privacy, dignity and self-respect in the workplace.
If workers are that sensitive — when they, in fact, have a serious responsibility for the health, safety and well-being of their fellow workers, the environment and the public — then there are arguments to be made that such a worker’s perception seems disrespectful of their co-workers safety.
The problem of alcohol and drugs in the workplace is not just an occupational risk, but one that affects society in general. The use of alcohol and drugs in universities, and, at times, its glorification in the media and on the streets, clearly impact the attitudes, use and abuse by workers both before they attend workplaces and when they are at work.
There is clearly a need for a broader dialogue on alcohol and drug use in society. The Irving Pulp and Paper case does not seek to impose widespread random alcohol testing on all workers. Such program would likely be deemed excessive by even the most aggressive proponents of workplace alcohol and drug testing.
However, this case does give the Supreme Court the opportunity to provide comment, leadership and a decision with respect to the ability of an employer in a dangerous workplace, and for positions that are objectively determined to be safety-sensitive ones, to take the reasonable step of implementing a comprehensive substance abuse program that, among other important aspects, may include random alcohol testing.
Until the Supreme Court renders its decision, the result in this case remains to be seen.
Norm Keith is a partner at Toronto-based law firm Fasken Martineau DuMoulin LLP. He specializes in occupational health and safety, environmental, workers' compensation, and workplace risk management litigation. He advises and represents clients in regulatory and corporate criminal investigations and charges. Norm received his Canadian Registered Safety Professional (CRSP) designation in 1998, making him the first practising lawyer in Canada to achieve the CRSP designation.
Norm Keith, an OHS lawyer and consultant, is a partner at Fasken in Toronto. He can be reached at (416) 868-7824 or email@example.com
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