Case update - drug and alcohol testing 

publication 

May 2012

Employment and Labour Bulletin

Mandatory random drug and alcohol testing has been at the centre of a litigious tug-of-war at arbitration boards and courts across Canada. However, the relevant legal principles may soon be clarified as the Communications, Energy and Paperworkers Union of Canada, Local 30 (the "Union") has been granted leave to appeal to the Supreme Court of Canada, a decision of the New Brunswick Court of Appeal which upheld Irving Pulp & Paper Limited's ("Irving") policy on mandatory random alcohol testing on "inherently dangerous" work sites.

Irving operates a kraft paper mill which is considered an inherently dangerous work site. Irving instituted a mandatory random alcohol testing program for employees holding "safety sensitive" positions. At arbitration, the Union successfully argued against the random alcohol testing of its members. Irving subsequently appealed to the New Brunswick Court of Queen's Bench where the Arbitration Board's decision was quashed. The Union then appealed to the New Brunswick Court of Appeal where the Court of Queen's Bench Appeal was upheld, justifying Irving's policy on mandatory random alcohol testing.

The Union sought leave to appeal the New Brunswick Court of Appeal decision and leave was granted on March 23, 2012. It is expected that the decision of the Supreme Court of Canada will provide much-needed clarification regarding drug and alcohol testing of employees, and will almost surely have an impact on the adoption and administration of drug and alcohol testing policies in the future.

by Jennifer Bond

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2012