Yesterday the Ontario Court of Appeal affirmed a December 2006 award by an arbitration board chaired by Michel Picher in which he held that Imperial Oil breached its collective agreement with Local 900 of the CEP by implementing random drug testing by buccal swab.
The Court of Appeal’s judgement turns on the standard of review rather than on principle. The Court did not feel it necessary to reconcile the majority’s strong stance against random drug testing with its own affirmation of random alcohol testing in the year 2000 Entrop decision. It simply noted that Mr. Picher had distinguished Entrop because Imperial Oil’s testing method took two days to return a test result. The Court said:
Moreover, the Majority was alert to Imperial’s contention that its random oral fluid drug testing was analogous to the random alcohol breathalyser testing approved in Entrop. As it was entitled to do, the Majority considered, and rejected, this contention on the basis of the evidence before it that oral fluid drug testing in fact did not permit immediate detection of drug impairment on-the-job (paras. 64 and 112-113).
While this might appear to still leave employers with room for implementing random drug testing based on a method that does address current impairment, Mr. Picher did make a very principled attack on random drug testing, suggesting it was unreasonable unless an employer is able to adduce evidence of “extreme circumstances” such as an “out-of-control drug culture.” Mr. Picher’s award does not bind other arbitrators who are charged with interpreting other collective agreements, but it is authoritative, particularly after yesterday’s affirmation.
For my earlier, more comprehensive summary of the case, see here.