Supreme Court says Irving pulp mill’s random testing policy has ‘severe’ impact on privacy

The Supreme Court of Canada has overturned a company’s right to impose mandatory, random alcohol testing on its unionized workers in a dangerous workplace.

In a 6-3 decision released on Friday, the court ruled the policy unilaterally adopted by Irving Pulp and Paper Ltd. in Saint John in 2006 for employees in safety sensitive positions is unreasonable.

The Supreme Court of Canada says random alcohol testing by an employer is only justified in certain circumstances.

A dangerous workplace is not automatic justification for random testing, the court ruled in the case, which dealt narrowly with unionized workers and management’s ability to balance privacy rights with the need for safety in dangerous workplaces.

The decision says dangerousness of a workplace only justifies testing particular employees in certain circumstances:

• Where there are reasonable grounds to believe an employee was impaired while on duty.
• Where an employee was directly involved in a workplace accident or significant incident.
• Where the employee returns to work after treatment for substance abuse.

“It has never, to my knowledge, been held to justify random testing, even in the case of ‘highly safety sensitive’ or ‘inherently dangerous’ workplaces like railways (Canadian National) and chemical plants (DuPont Canada Inc. and C.E.P., Loc. 28-0 (Re)(2002), 105 L.A.C. (4th) 399), or even in workplaces that pose a risk of explosion (ADM Agri-Industries), in the absence of a demonstrated problem with alcohol use in that workplace.”

The case stems from a 2006 grievance filed by Local 30 of the Communications, Energy and Paperworkers Union of Canada (CEP), at the Irving mill.

“We respect the decision,” Irving spokeswoman Mary Keith said in a brief emailed statement.

“We will be reviewing the decision and have no further comment at this time,” she said.

“Our focus has and continues to be the safety of our co-workers and communities where we have operations.”

Could affect Alberta Suncor case

David Coles, the national president of CEP, said the ruling is “very clear” and believes it will help resolve a similar dispute in Alberta.

Suncor Energy is trying to bring in a random drug and alcohol testing program for employees and contractors at its oilsands operations in Fort McMurray.

“As clear as it is written… if someone was to have random drug testing, they would have a fairly high bar to cross before they would be able to, I believe, get it past the judiciary because there just isn’t any evidence at all that it affects the outcome at work,” said Coles.

“The fundamental issue here is there’s absolutely no evidence presented here or anywhere else that random drug testing increases the safety in any operation,” he said.

“So it turns out to be nothing more than an invasion of ones’ privacy with no net gain for the consequence of safety.”

Coles said the union is opposed to anyone using any kind of alcohol or drug at work, but contends substance abuse is a societal issue that must be dealt with, not a workplace issue to be legislated.

“Stop spending so much money trying to beat on blue collar workers and get to the problem,” he said. “You don’t see random drug testing in downtown Toronto in the big white towers… And please don’t tell me that the incidence of drug and alcohol abuse is any different in Fort McMurray than it is on Bay Street.”

The Alberta Federation of Labour, which was an intervener in the Irving case, also believes the decision could influence the Suncor arbitration, said president Gil McGowan.

“Employers simply have to demonstrate there’s a problem with drug abuse or alcohol abuse in the workplace before they can move ahead with these kind of arbitrary random drug testing regimes, but it’s clear the employer didn’t prove that and we would argue that they haven’t been able to prove that in Suncor either. So we’re very pleased with the decision.”

The court found the Irving policy had been properly rejected by a labour arbitration board.

“In this case, the expected safety gains to the employer were found by the board to range from uncertain to minimal, while the impact on employee privacy was severe,” the decision states.

Irving “exceeded the scope of its management rights under a collective agreement by imposing random alcohol testing in the absence of evidence of a workplace problem with alcohol use.”

The court awarded “costs throughout” to CEP.

Daniel Leger, a lawyer representing the union, declined to discuss the amount involved, citing attorney-client privilege.

But he said the judgment will allow the union to recoup some of its legal costs in the seven-year dispute.

Broad implications

The decision from the top court could have broad implications. It is considered a national test case for how far an employer can go when it comes to a worker’s right to privacy.

It attracted numerous interveners, including the Canadian Civil Liberties Association, the Canadian National Railway Company, Via Rail Canada, the Canadian Mining Association, and the Canadian Manufacturers and Exporters (CME), which describes itself as the largest industry and trade association.

Ian Howcroft, vice-president for the Ontario division of the CME, said it’s “unfortunate” the Supreme Court did not uphold a company’s right to do random testing.

But “it’s encouraging the judgment did not close the door completely and companies may still be able to do some testing in certain circumstances,” Howcroft said.

He maintains companies should have everything at their disposal to ensure the workplace is free of hazards.

Lawyer argues reasonable cause needed for testing

Irving Pulp and Paper Mill in Saint John had unilaterally adopted a policy of mandatory random alcohol testing for employees in safety-sensitive positions in 2006.

The Supreme Court heard arguments last December, but reserved its decision.

Fredericton-based lawyer David Mombourquette, who was representing the CEP, had argued a breathalyzer is an involuntary submission of bodily fluids and amounts to a high level of random personal intrusion.

Testing should only be permitted when there is reasonable cause, such as slurred speech or the smell of alcohol, he had said.

But the Irving company’s lead counsel, Neil Finkelstein, had argued the policy is justified because the mill is full of hazardous chemicals, flammable substances, heavy rotating equipment, a 13,000-volt electrical system and a $350-million high-pressure boiler.

In addition, the mill had a history of drinking being a problem, he had said, citing eight documented incidents between 1991 and 2006, when the random testing policy was implemented.

In March of that year, millwright Perley Dey’s name was randomly selected by a computer program to take a breathalyzer test.

Dey said he took the test because he was afraid of losing his job. The test showed a blood alcohol level of zero.

But Dey, who describes himself as a religious man who doesn’t drink, said the test was humiliating and unfair.

An arbitration board allowed the grievance, ruling Irving had failed to establish a need for the policy. But a New Brunswick Court of Queen’s Bench judge reversed that decision, which the union appealed.

The New Brunswick Court of Appeal dismissed the grievance in 2011, ruling the mill qualifies as an inherently dangerous workplace. The union appealed that decision to the Supreme Court of Canada.

CBC News, Friday, June 14, 2013