In Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078, Amalgamated Transit Union, Local 113 (ATU) unsuccessfully argued that the implementation of the random drug and alcohol testing of its members should be withheld until the conclusion of the main arbitration hearing addressing the validity of the new drug and alcohol testing policy instituted by the Toronto Transit Commission (TTC).

The TTC implemented a “Fitness for Duty Policy” (Policy) in October 2010, which called for drug and alcohol testing in certain situations to ensure that TTC employees and management are mentally and physically fit to perform their duties.  At the time that it was implemented, the Policy did not allow for random drug and alcohol testing; rather it was limited to situations where there was reasonable cause or where there was a full investigation into a workplace incident.  In response to the Policy, ATU filed a grievance under its Collective Agreement, which was referred to arbitration.  Despite commencing on March 2011, the arbitration is still ongoing.  On October 19, 2011, the TTC amended its Policy to include random drug and alcohol testing.  This present motion for an interlocutory injunction was brought in response to the random testing amendment.

The Decision

With an emphasis on how random drug and alcohol testing would advance public safety in the City of Toronto, Justice Marrocco was satisfied that random testing would either increase the probability that employees using drugs or alcohol at work will be detected, or deter employees from using drugs or alcohol at a time too close to work.  Considering the complex circumstances surrounding the TTC’s decision to institute random drug and alcohol testing in the workplace, Justice Marrocco articulated a several noteworthy conclusions.  First, since potential employees are required to pass a pre-employment urinalysis test for drug use, it is reasonable to expect that they would be required to continue to test negatively in order to maintain their employment.  Second, given that TTC management and employees facilitate approximately 1.8 million transit rides daily, it is reasonable to expect that efforts will be taken to ensure employees in safety positions are fit for duty.  Third, the risk of false positives is combated by proper testing procedures and certified laboratories, and can ultimately be compensated by damages.

Early Observations from the Decision

On May 8, 2017, the day the random drug and alcohol testing policy was introduced, the very first TTC worker tested failed an alcohol breathalyser test.  Later that same day, a second employee tested positive for an undisclosed drug.  By the end of the month, two more had tested positive, bringing the total number of employees caught under the new random drug and alcohol policy to four.

As the main arbitration between ATU and the TTC continues to unfold, it will be interesting to see if the results of these and any subsequent random drug and alcohol tests ultimately have an impact on the central litigation between the two parties.

Written with the assistance of Neil Rosen, summer student.