Case Report – Drug testing JR application dismissed

On January 29th, a panel of the Ontario Superior Court of Justice (Divisional Court) dismissed a application for review of drug testing arbitration decision in which Imperial Oil was held to have violated a collective agreement by implementing random and unannounced drug testing for cannabis impairment.

The policy challenged at arbitration was the same policy that had been upheld by the Ontario Court of Appeal in 2000 in Entrop. Based on Entrop, and the Court of Appeal’s specific finding that random alcohol testing in safety-sensitive positions did not violate the Human Rights Code, Imperial Oil re-instituted random drug testing for safety-sensitive positions by using a new testing technology that could determine current impairment by way of a saliva test.

In December 2006, the majority of an arbitration board chaired by Arbitrator Michel Picher upheld a grievance which challenged the re-implemented random drug testing policy. The board held that the Union was not barred from challenging random drug testing despite being barred from challenging random alcohol testing (based on an equitable doctrine that bars claims after inordinate delay) because random alcohol testing by breathalyzer and random drug testing by saliva test were qualitatively different tests. A key factor, as Mr. Picher’s wrote, was that the saliva testing processing in use by Imperial Oil did not provide an immediate, on-site reading of impairment. The board also found that sampling by buccal swab was more invasive than sampling by breathalyzer and distinguished Entrop by finding that the Court of Appeal’s decision was made in consideration of rights granted under the Human Rights Code rather than a collective agreement.

The Divisional Court rejected Imperial Oil’s argument that the board erred by amending the collective agreement and by relying on unsupported findings of fact. It also held that the board did not made a patently unreasonable decision given the Court of Appeal’s decision in Entrop. It said:

The Board explained why it found the testing to be an invasion of privacy and an infringement of the rights under the collective agreement. As a result of its interpretation, employees under the parties’ collective agreement receive greater protection than they would have under the Code because of their unionized status. Such an interpretation is not inconsistent with the Code, which provides minimum standards for those covered by it. However, the Code does not provide an exhaustive guide as to the meaning of dignity and respect in the workplace generally.

Based on this reasoning, the Divisional Court held that the board did not err in assessing the policy against the somewhat unique anti-discrimination clause in Imperial Oil’s collective agreement, nor did it err in assessing Imperial Oil’s exercise of management rights.

There are some limited factual bases on which other employers may attempt to distinguish the Imperial Oil arbitration decision. Despite these bases, Mr. Picher’s principled attack on random drug and alcohol testing (now upheld by the Divisional Court) is a feature which makes the decision both significant and problematic for employers.

Imperial Oil Ltd. v. Communications Energy and Paperworkers Union of Canada, Local 990, [2008] O.J. No. 489 (QL) (S.C.J.).