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Supreme Court of Canada to hear union's appeal of case concerning random alcohol testing in workplace

In a decision issued on March 20, 2012, the Supreme Court of Canada announced that it would hear the appeal of a case involving an employer's right to conduct random alcohol testing in the workplace

Some key facts concerning the case:

  • The appellant is the Communications, Energy and Paperworkers Union of Canada, Local 30.
  • The employer is Irving Pulp & Paper, Ltd.
  • The workplace is a mill in New Brunswick.
  • As set out in my October 2, 2010 post, the majority of an arbitration board ruled, in November 2009, that the employer's random alcohol policy was not reasonable and thus not enforceable.
  • As also set out in my October 2, 2010 post, the New Brunswick Queens Bench court, on judicial review, quashed the
    arbitration board's ruling in a September 2010 decision.
  • In July 2011, the Court of Appeal of New Brunswick dismissed the union's appeal. See 2011 NBCA 58.
  • A March 22, 2012 Postmedia News newspaper article about the case can be found here.

The Supreme Court of Canada's summary of the case states as follows:

The respondent, Irving Pulp & Paper, operates a kraft paper mill along the banks of the St. John River.  In 2006, Irving unilaterally adopted a workplace policy which included mandatory random alcohol testing, by breathalyser, for employees holding safety sensitive positions. An Irving employee and member of the union occupying a safety sensitive position was randomly tested. The test revealed a blood alcohol level of zero. Nevertheless, the union filed a policy grievance challenging the reasonableness of the policy on the basis of test set out in KVP Co.v. Lumber & Sawmill Workers' Union, Local 2537, [1965] 16 L.A.C. 73, which was referred to an arbitration panel.  Applying a balancing of interests approach, the majority of the arbitration board determined that Irving failed to establish a need for the policy in terms of demonstrating the mill operations posed a sufficient risk of harm that outweighs an employee's right to privacy. Specifically, the majority concluded Irving had not adduced sufficient evidence of prior incidents of alcohol related impaired work performance to justify the policy's adoption.  The majority concluded that, while the mill operation represented a "dangerous work environment", the mill operation did not fall within the "ultra-dangerous" category such as a nuclear plant or an airline, where employers had a lighter burden of justification.

Adopting a reasonableness standard of review, the Court of Queen's Bench allowed the application for judicial review and quashed the arbitration decision, holding it was unreasonable to require evidence demonstrating a history of alcohol abuse in the workplace once the majority of the arbitration board had concluded the paper mill represented a dangerous workplace.  Although the Court of Appeal reversed the applications judge on the issue of the standard of review and applied a correctness standard, the Court of Appeal dismissed the union's appeal.