Recently the Law Firm of Caley/Wray defended a decision of a Board of Arbitration with respect to the issue of random drug testing. The Arbitration case, argued successfully by M. Church, was appealed by the Company (Imperial Oil) by way of a Judicial Review to the Ontario Court of Appeal.
The Law Firm of Caley/Wray, by way of Doug Wray and Mike Church, successfully defended against the application of Imperial Oil.
The following is taken from “The Lawyers Weekly” and relates directly to the success achieved by Caley/Wray;
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On May 22nd, the Ontario Court of Appeal issued a unanimous judgement on the contentious issue of random drug and alcohol testing in the work place that will influence Arbitrators and Courts across Canada.
The Appeal Court ruled that the random drug testing policy launched in 2003 by the appellant Imperial Oil Ltd. was not a reasonable exercise of the management rights and workplace safety provision contained in the company’s 1996 collective agreement.
The Court affirmed that the Company’s policy of conducting randomized, mandatory saliva mouth swab testing of employees in safety-sensitive positions was null and void BECAUSE IT DID NOT COMPORT WITH THE COMPANY’S CONTRACTUAL OBLIGATION TO TREAT ITS WORKERS WITH “RESPECT AND DIGNITY”.
As found by the arbitration board’s majority, Imperial’s policy of random drug testing without reasonable cause was an “unwarranted intrusion” on employees’ privacy and “an unjustifiable affront to their dignity,” THE APPEAL COURT AGREED”.
Imperial rolled out the saliva testing in 2003 to replace the drug testing policy the company jettisoned in 2001 after the Court of Appeal ruled in “Entrop v. Imperial Oil” - a case that involved a challenge to urine drug testing by non-unionized workers under Ontario’s “Human Rights Code” - that urinalysis doesn’t promote the legitimate goal of drug-free, safe workplace because urinalysis identifies drug use, rather than on-the job impairment.
One law firm which wrote a paper on impairment testing, said the Court of Appeal has made clear that “especially where there is a collective agreement with any provision that refers (employees) privacy or human rights - or even if the agreement is silent – that employers still need to cautious about drug testing when it is not suspicion-based” or when the testing isn’t part of an investigation into an industrial accident.
The majority’s reasons reveal that its rejection of Imperial’s random drug testing measure, absent reasonable cause, was based on the language of the parties’ own bargain as embodied in the collective agreement, and the evidence adduced before the Board regarding the requisite balancing of interests inherent to the examination of a random drug testing policy in the workplace.
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NOTE: The CTY Collective Agreements at CN Rail have a provision which requires CN Rail to exercise its rights reasonably without harassment or intimidation of the Membership.
Rex Beatty
