Arbitrator upholds sniffer dog search grievance

On January 5th, Arbitrator Norman of Saskatchewan held that an employer breached its collective agreement by periodically deploying drug detection dogs to screen people entering its mine.

Arbitrator Norman held that the process intruded on a reasonable expectation of privacy based on evidence that the dogs would likely identify off-duty drug use. Though Arbitrator Norman characterized the search invited by a dog sniff as minimally intrusive (and less intrusive than the sampling of bodily substances), he nonetheless held that the employer’s safety-related process was unreasonable. He drew heavily from the Supreme Court of Canada’s Irving Pulp and Paper decision, stating:

The prior threshold stage in the justificatory argument limiting rights under the Charter sets the bar very high; calling for proof of a pressing and substantial objective demonstrably justifiable in a free and democratic society, for the challenged measure. Under ‘Charter values’ analysis, I take the threshold bar to have been set by Irving as “… evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.”

While many might agree with the outcome, this reasoning is questionable. The resolution of privacy issues call for a highly contextual balancing of interests. Irving speaks to a particular balance that relates to universal random drug and alcohol testing, a process Arbitrator Norman reasons is relatively intrusive; Irving establishes no “bar” to meet in implementing other safety measures in the workplace whether or not they are related to drug and alcohol use. Moreover, the reference above to the Oakes test is flawed; under a Charter analysis (if such analysis is necessary), the question of whether a search is an “unreasonable search” is distinct from the question of justification under section 1 and Oakes.

USW, Local 7552 and Agrium Vanscoy Potash Operations (5 January 2015, Norman).

NBCA Says Pre-Existing Alcohol Problem Not a Prerequisite to Random Alcohol Testing

Last Thursday the New Brunswick Court of Appeal issued a rather remarkable decision in which it held that employers who manage “inherently dangerous” workplaces do not require evidence of a pre-existing alcohol problem to justify random alcohol testing.

The decision is most remarkable for its approach. Specifically, Justice Robertson held that a great need for policy guidance, especially in light of conflicting arbitral jurisprudence, justified review on the correctness standard:

Certainly, the Supreme Court has yet to accord deference to an administrative tribunal with respect to questions of law umbilically tied to human rights issues: see Jones and de Villars, Principles of Administrative Law, 5th ed. (Toronto: Carswell, 2009) at 553. Similarly, the Supreme Court has held various privacy commissioners do not have greater expertise about the meaning of certain concepts found in their respective statutes which limit or define their authority: see Jones and De Villars at 553, note 223. Accepting that no analogy is perfect, I see no reason why this Court should depart from those precedents. Indeed, if one looks to the arbitral jurisprudence, one is struck by the reliance on judicial opinions touching on the matter. The overlap reflects the general importance of the issues in the law and of the need to promote consistency and, hence, certainty, in the jurisprudence. Finally, I am struck by the fact that there comes a point where administrative decision makers are unable to reach a consensus on a particular point of law, but the parties seek a solution which promotes certainty in the law, freed from the tenets of the deference doctrine. In the present case, it is evident that the arbitral jurisprudence is not consistent when it comes to providing an answer to the central question raised on this appeal. Hence, it falls on this Court to provide a definitive answer so far as New Brunswick is concerned. This is why I am prepared to apply the review standard of correctness. But this is not to suggest that I am about to ignore the arbitral jurisprudence which has evolved over the last two decades. Let me explain.

Justice Robertson’s “let me explain” line leads to a full analysis of the cross-Canada arbitral jurisprudence in an attempt to derive a principle for the justification of random alcohol testing respectful of arbitral efforts. In the end, he says:

As matter of policy, this Court must decide whether an employer is under an obligation to demonstrate sufficient evidence of an alcohol problem in the workplace before adopting a policy requiring mandatory random alcohol testing. In my view, the balancing of interests approach which has developed in the arbitral jurisprudence and which is being applied in the context of mandatory random alcohol testing warrants approbation. Evidence of an existing alcohol problem in the workplace is unnecessary once the employer’s work environment is classified as inherently dangerous. Not only is the object and effect of such a testing policy to protect the safety interests of those workers whose performance may be impaired by alcohol, but also the safety interests of their co-workers and the greater public. Potential damage to the employer’s property and that of the public and the environment adds yet a further dimension to the problem and the justification for random testing. As is evident, the true question is whether the employer’s workplace falls within the category of inherently dangerous. It is to that issue I now turn.

On the facts, Justice Robertson held that Irving’s kraft mill met the “inherently dangerous” criterion, a finding made somewhat easy by the arbitration board’s finding that Irving’s workplace was “dangerous,” but not dangerous enough to justify random alcohol testing without evidence of a workplace substance abuse problem.

Syndicat canadien des communications, de l’énergie et du papier, section locale 30 c. Les Pâtes et Papier Irving, Limitée, 2011 NBCA 58 (CanLII).

Case Report – Arbitrator allows challenge to random alcohol testing

On November 16, 2009, Arbitrator Veniot allowed a grievance that challenged the use of random alcohol testing for safety sensitive positions at a New Brunswick pulp mill. He found neither the Ontario Court of Appeal’s blessing of random alcohol testing in Entrop nor Arbitrator Picher’s broad denouncement of random alcohol testing in his 2006 Imperial Oil decision to be governing. Rather, he stressed that each case must be decided in its context, with Picher’s “Canadian Model” operating except where the evidence indicates otherwise.

On the facts, Arbitrator Veniot held the employer had only proven gains likely to “run from uncertain to exist at all to minimal at best.” He therefore upheld the grievance, declared the random testing provision of the employer’s drug and alcohol policy to be unreasonable and ordered it to be set aside.

Re Irving Pulp and Paper, Ltd. and Communications, Energy and Paperworkers Union, Local 30 (Day), [2009] N.B.L.A.A. No. 28 (QL) (Veniot).