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SCC Rules on Random Alcohol Testing at Pulp and Paper Mill

On June 14, 2013, the Supreme Court of Canada released its highly anticipated decision in Communications, Energy and Paperworkers Union of Canada, Local 30, v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (http://www.canlii.org/en/ca/scc/doc/2013/2013scc34/2013scc34.pdf). In its decision, the Supreme Court of Canada signaled for the first time that employers in safety-sensitive work environments may be justified in implementing random alcohol testing when there is a safety risk in the workplace due to alcohol, such as evidence of a general problem with substance abuse in the workplace.

Facts:

In 2006, Irving Pulp and Paper (“Irving”) adopted a new policy on alcohol and drug use at its kraft paper mill in Saint John, New Brunswick. The mill is acknowledged to be a dangerous workplace with malfunctions carrying the potential for “catastrophic failures”. As part of the new workplace policy, Irving instituted a random alcohol testing program whereby 10% of the employees in safety sensitive positions were to be randomly selected for unannounced breathalyzer testing over the course of a year. In the 15 years which preceded the introduction of this policy, there were only eight documented incidents of alcohol consumption or impairment at the mill. Moreover, there were no accidents, injuries or near misses connected to alcohol.

On March 13, 2006, mill employee Perley Day, was randomly selected to submit to a breathalyzer test. As Mr. Day does not consume alcohol, his test returned a blood alcohol level of zero. Shortly thereafter, the Union filed a policy grievance alleging that the random alcohol testing component of the new alcohol and drug policy was unreasonable; the Union did not challenge the other aspects of the policy.

The arbitration board found that although random alcohol testing may be reasonable in some circumstances, there was not sufficient evidence in this case of an existing problem with alcohol use in the workplace. On judicial review, the Court of Queen’s Bench of New Brunswick set aside the arbitration decision. The New Brunswick Court of Appeal dismissed the appeal.

The SCC’s Decision:

While there was no debate about the safety-sensitive nature of the workplace, the majority held that the dangerousness of a workplace is only the beginning of the inquiry, “[w]hat has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.” That said, Justice Abella, on behalf of the majority, went on to say that “[t]his is not to say that an employer can never impose random testing in a dangerous workplace. If it represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified.” Considering the particular facts before them in this case, the Court found that random alcohol testing was not justified in the context of the Irving paper mill in Saint John, New Brunswick.

The three judges in dissent noted that an employer should not be required to wait for a serious incident of loss to take proactive steps to mitigate risk.

Barbara B. Johnston and April Kosten represented the Construction Owners Association of Alberta, Construction Labour Relations – An Alberta Association and Enform at the Supreme Court of Canada. Please feel free to contact Barbara or April directly if you would like to discuss the implications of this decision.

SCC Rules on Random Alcohol Testing at Pulp and Paper Mill

Reviewing Ontario’s Workplace Violence and Harassment Law

In this article, Andy Pushalik reviews employer’s duties as they relate to workplace violence and harassment in Ontario.

On June 15, 2010, Ontario’s workplace violence and workplace harassment law came into effect. With this implementation deadline looming, employers rushed to take the necessary steps to ensure their compliance.

Reprinted by permission of Carswell, a division of Thomson Reuters Canada Limited.

To read the full article as published in Legal Alert, Vol. 31, No. 2, May 2012, click here.

Reviewing Ontario’s Workplace Violence and Harassment Law

The Heat is Definitely On

Southern Ontario’s summer is off to a scorching start. With temperatures expected to top 36 degrees today and the humidex approaching mid-40s, Toronto’s Chief Medical Officer has extended its Extreme Heat Alert.

In conditions like these, the Ontario Ministry of Labour advises that employers must ensure that they are taking proper precautions to protect their workers from suffering heat-induced illnesses. To help employers, Ontario’s Ministry of Labour has published a Heat Stress Guideline which includes a number of tips on how to stay safe and cool during these hot summer months. In addition, Ontario’s Workplace Safety and Insurance Board has also made available on its website a number of resources about the dangers of heat exposure and how to prevent it.

Ministry of Labour – Heat Stress Guideline: http://www.labour.gov.on.ca/english/hs/pubs/gl_heat.php

WSIB – Prevent Heat Stress: http://www.wsib.on.ca/en/community/WSIB/230/ArticleDetail/24338?vgnextoid=f062e35c819d7210VgnVCM100000449c710aRCRD.

The Heat is Definitely On