In 2010, the Toronto Transit Commission (the “TTC”) implemented a “Fitness for Duty Policy” (the “Policy”) that provided for drug and alcohol testing of employees in positions that had been identified as “safety-sensitive”, as well as certain management and executive positions. In 2011, the Policy was amended to provide for random drug and alcohol testing for employees in safety-sensitive positions. The TTC sought to implement random testing in 2016.
The Amalgamated Transit Union, Local 113’s (the “Union”) filed a grievance in 2010 alleging that the Policy violated the Collective Agreement, the Ontario Human Rights Code, and the Canadian Charter of Rights and Freedoms. When the TTC notified the Union in 2016 that random testing would be implemented, the Union filed an application with the Court for an interlocutory injunction to prohibit the TTC from implementing random testing pending the resolution of the arbitration hearing. By 2016, the grievance arbitration was in its sixth year of hearing, with no end in sight.
The Union argued that random drug and alcohol testing would cause psychological harm and reputational damage, and that it would permanently damage the relationship between employees and management. However, the Court found that the Union had failed to demonstrate that bargaining unit members would suffer “irreparable harm” in respect of their privacy rights if the injunction was not granted. In support of this finding, the Court concluded that:
1. bargaining unit members’ expectation of privacy concerning drug and alcohol consumption was reasonably diminished, as they would expect that steps would be taken to ensure that individuals in safety-sensitive positions were fit for duty;
2. the procedures and methods the TTC had chosen to randomly test for drugs and alcohol were both minimally invasive and reliable, relative to other available methods of testing;
3. the Policy was reasonably tailored to achieve its stated health and safety purpose; and
4. any contraventions of the Collective Agreement or the Human Rights Code pursuant to the Policy could be remedied by the payment of monetary damages to affected employees.
The Court also found that the “balance of convenience” favoured refusing the injunction. In assessing the “balance of convenience”, a court must determine which of the two parties will suffer the greater harm from the granting or refusal of the injunction. After reviewing the evidence, including extensive expert evidence regarding the efficacy of the proposed alcohol and drug testing methods, the Court found that random testing would enhance public safety by increasing the likelihood that employees in safety-sensitive positions prone to drug or alcohol use would either be detected or deterred by the prospect of being randomly tested. Weighing this benefit against the potential invasion of employees’ reasonable expectation of privacy, the Court concluded that the balance of convenience favoured the TTC.
The injunction was dismissed and the Union’s challenge to the TTC’s Policy will continue to proceed at arbitration.