In a recent decision, the Honourable Justice Marrocco of the Ontario Superior Court of Justice denied the request of the Amalgamated Transit Union Local 113 and Robert Kinnear (the “Applicants”) to restrain the TTC from conducting the random drug and alcohol testing of its employees.

The random testing applies to TTC employees who work in safety sensitive, specified management, senior management and designated executive positions, including the TTC’s CEO. The TTC expects to test 20% of its eligible employees per year, which means that statistically, each eligible employee has the chance of being tested once every five years. If selected, employees will be required to take an alcohol breathalyzer test and an oral fluid drug test. A failure to submit to a random test will be a violation of company policy, and employees who test positive will be considered unfit for duty.

The TTC first introduced random testing to its Fitness for Duty Policy in 2011 and the parties have since been involved in an ongoing arbitration on the same issue, which “has no end in sight”. The TTC approved the implementation of the random testing on March 23, 2016. Shortly thereafter, the Applicants applied to the Court for an injunction to stop the testing until the completion of the arbitration hearing.

The Applicants argued that random drug and alcohol testing would cause employees “irreparable harm” by infringing on the employees’ right to be free from unreasonable search and seizure. The Applicants also stated that the random testing: increased the likelihood of psychological harm to the employees, could damage the relationship between employees and management, and raised the risk of false-positive results.

In rejecting the Applicants’ arguments, the Court determined that TTC employees in safety-sensitive positions have a reasonably diminished expectation of privacy concerning their drug and alcohol consumption. In particular the Court noted that:

• The employees’ duties, which include helping people make approximately 1.8 million journeys on the TTC’s system every day, as well as the TTC’s atypical workplace, which is “genuinely Toronto itself”, reasonably diminish the employees’ expectation of privacy concerning drug and alcohol consumption;

• The TTC has chosen minimally invasive methods to conduct the random testing, which are superior to other methods available on the market;

• The nature of the Fitness for Duty Policy is both disciplinary and remedial. Employees have the opportunity to challenge any positive results and have some degree of control over the information collected and generated in the testing process; and

• Employees whose privacy has been “wrongfully infringed” by random testing have the opportunity to claim, and receive, monetary damages.

As such, the Court concluded that the TTC’s random drug and alcohol testing is an appropriate tool, which “will increase public safety”, as follows:

“After considering all the evidence, including the evidence to which I have referred, I am satisfied that, if random testing proceeds, [it] will increase the likelihood that an employee in a safety critical position, who is prone to using drugs or alcohol too close in time to coming to work, will either be ultimately detected when the test result is known or deterred by the prospect of being randomly tested.”

While the decision provides important insight on how the Court will approach the exercise of balancing employee privacy rights with the needs of a safety-sensitive workplace, it must also be remembered that this was an injunction application to prohibit the introduction of the Policy pending the arbitration, not a decision on the merits of the TTC’s Policy, which will be determined at arbitration. That said, the TTC has announced that the random drug and alcohol testing of its employees will begin this month (see the TTC’s press release here). The Court’s decision will likely encourage other employers in Ontario, particularly those in similarly-situated safety-sensitive workplaces, to follow suit.

A copy of the full decision can be found here: Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078

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