Random drug testing: Ontario Court denies application for injunction

In Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078, the Ontario Superior Court of Justice recently denied a union’s application for an interlocutory injunction to restrain the implementation of a random drug and alcohol testing policy.

The employer, Toronto Transit Commission, implemented a “Fitness for Duty Policy” in 2010. The Policy provides for drug and alcohol testing of employees in safety sensitive and specified management positions. The Policy requires testing in various situations, including:

  • where there is reasonable cause to believe alcohol or drug use resulted in the employee being unfit for duty;
  • following a significant work-related accident;
  • where an employee is returning to duty after treatment for drug or alcohol abuse; and,
  • as a final condition of appointment to a safety sensitive position.

Prior to the Policy taking effect, the union filed a grievance alleging that the entire Policy was contrary to the collective agreement and the Ontario Human Rights Code. The grievance was referred to arbitration and the hearing commenced on March 8, 2011. To date, the hearing has not concluded. The union has not even completed its case.

Initially, the Policy had not provided for random drug and alcohol testing. However, in 2011, the employer amended the Policy to provide for random testing, but delayed its implementation. When an announcement was made several years later that random testing would proceed, the union brought a motion in Court for an interlocutory injunction to restrain the employer from implementing random testing until the arbitration hearing could be concluded.

The Court considered the traditional criteria for an injunction: 1) is there a serious issue to be tried; 2) will the party seeking the interim relief suffer irreparable harm if the relief is not granted; and 3) does the balance of convenience, taking into account the public interest, favour granting the interim relief.

On the first issue, the Court easily found that there were serious issues to be tried in the arbitration. On the second issue, however, the Court was not satisfied that the applicants would suffer irreparable harm unless an injunction was issued. The Court noted that money damages could compensate employees whose privacy had been “wrongfully” infringed by random testing. The Court also commented that the balance of convenience favoured the employer, as random testing could increase public safety. In the result, the Court refused to grant the injunction.

Employers in safety sensitive industries will want to carefully watch the outcome of this proceeding. At this stage, however, it is important to remember that this case does not represent judicial approval of random testing. Instead, this case focuses on the legal test for an injunction, and not whether the testing policy will ultimately be upheld at arbitration.

Questions about the content of this article may be directed to Chris Leenheer.