By April Cunningham, Associate Editor
Two Toronto Transit Commission workers failed random drug tests on the first day of agency’s new policy, but that doesn’t necessarily justify it, says Toronto employment lawyer Doug MacLeod.
Although an Ontario Superior Court judge recently refused the union’s request for an injunction preventing the TTC from introducing random drug tests, that doesn’t mean the testing is reasonable or violates privacy, says MacLeod, principal of MacLeod Law Firm.
“This issue has been before an arbitrator for six years without a decision on whether this policy is reasonable or not,” MacLeod tells AdvocateDaily.com. “There’s an expression: labour relations delayed is labour relations denied. It is difficult to understand why the arbitration has not concluded yet.”
According to the Toronto Star, one TTC worker failed a breathalyzer, while a second tested positive for an undisclosed drug. They were two of eight employees “arbitrarily selected” for testing, the article says, and are now suspended with pay.
MacLeod says the Supreme Court of Canada (SCC) already provided direction that makes it difficult to conduct random drug testing of workers.
While the recent injunction ruling allows the TTC to test, the court only considered three questions, MacLeod says.
“They had to decide three issues and onus is on the union to prove them,” he says. First, the union had to prove there was a serious issue to be tried, which was satisfied.
The second question was whether there was irreparable harm, says MacLeod.
“The court concluded refusing the injunction would not result in irreparable harm because if people’s privacy rights were violated, they could be compensated with damages.”
The court also said that if people are terminated as a result of a drug test, and the drug test was improper, they would be entitled to wrongful dismissal damages, MacLeod says.
“The court didn’t rule on the reasonableness of the policy or whether it violates people’s privacy, but concluded that if employee rights were violated they can get damages,” he says. “So the union did not get an injunction.”
MacLeod says this leaves the issue, and workers’ rights, in limbo.
“I don’t think we’ve heard the end of it,” he says. “A decision from the arbitrator is long overdue.”
He notes the judge highlighted the TTC’s workplace is much different from the company in the Supreme Court decision, in that the public faces greater risk if drivers are impaired. In addition, there was more evidence of drug abuse in the TCC case compared to the earlier SCC case.
Still, companies that want to introduce a drug test will face an uphill battle, MacLeod says.
“The Supreme Court of Canada test makes it really difficult to justify random drug and alcohol testing. So, if an employer wants to introduce them, and plans to fire someone for failing a test, the employer should assume a human rights complaint or a grievance (if it is a unionized employee) is coming.”