In the June 2013 decision, CEP Local 30 v. Irving Pulp and Paper, the majority of the Supreme Court of Canada, in an opinion authored by Abella J., allowed the appeal from the New Brunswick Court of Appeal’s decision, but did so in a way that may limit the application of this decision to unionized workplaces only, leaving ambiguity for non-unionized workplaces.
The majority reasoned that the New Brunswick Court of Appeal had not been sufficiently deferential to the labour arbitrator who made the initial ruling, or to the fact that the labour relations community generally had developed a consistent body of jurisprudence on the issue of drug and alcohol testing in unionized workplaces. In short, the labour relations community, primarily via the decisions of arbitrators, has consistently ruled against random testing policies in virtually all circumstances.
In the majority’s view, the fact that the policy at issue in this case was put forward by the employer under the “management rights” clause of a collective agreement was centrally important. The Supreme Court ruled that it was an error for the New Brunswick Court of Appeal to issue a decision in the case which did not make the appropriate distinctions between unionized and non-unionized workplaces. It concluded that the New Brunswick Court of Appeal erred in not viewing this issue through the lens of collective bargaining, and not giving enough deference to the arbitrator.
The majority held, echoing the views of most labour arbitrators, that a unilaterally imposed policy of mandatory random testing for employees in a dangerous workplace is an unjustified affront to the dignity and privacy of employees. Such testing may only be permissible where there is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace. On the facts in the Irving case, there had only been a handful of alcohol incidents over the past 15 years, and as such it was reasonable for the Arbitration Board to conclude that a random testing program was not justifiable as a BFOR.
The minority, including Chief Justice McLachlan, accepted that the essential framework for this issue was the collective agreement and the labour relations regime. The minority however, would not have allowed the appeal. In obiter, the minority also explicitly questioned the wisdom of entrusting the determination of fundamental rules of workplace safety, such as alcohol testing, to unions, employers, and labour arbitrators as a question of collective agreement interpretation.
In finding that the Board of Arbitration had not met the required reasonableness standard, the minority of the Supreme Court accepted that arbitral jurisprudence had consistently ruled against random testing, unless the workplace was inherently dangerous, and unless there was some evidence of an alcohol problem in the workplace. Where the minority parted company with the Board of Arbitration was on the question of whether the workplace alcohol problem needed to be a “significant” problem or a “serious” problem. In requiring proof of a “significant” problem, as opposed to merely a “problem,” the Board of Arbitration strayed too far from the arbitral consensus, and its decision was therefore unreasonable.
The Supreme Court’s decision in Irving appears to be limited to unionized workplaces. It does not clarify the conflicting appellate jurisprudence regarding non-unionized workplaces, and does not address drug testing whatsoever – only alcohol testing.
Regarding unionized workplaces, this decision clarifies the law regarding alcohol testing, but not drug testing. The Court has confirmed that random alcohol testing may be permitted only in certain inherently dangerous workplaces, where there is a “significant” or “serious” problem with alcohol use. In general, this decision curtails the ability of employers to rely on the management rights clause to implement safety measures without the agreement of the bargaining agent.