The law in Canada regarding random drug and alcohol testing has been inconsistent for some time, with the Alberta and Ontario Courts of Appeal taking divergent paths.
In Ontario, the Court of Appeal has held that employers may conduct random alcohol testing for employees in safety sensitive positions, provided it is a bone fide occupational requirement. However, the Court of Appeal found that a random drug testing policy violated the Ontario Human Rights Code as it could not measure on-the-job impairment but only past drug use (See Entrop v Imperial Oil (2000), CanLII 16800 (ONCA)).
This is in contrast to the Alberta Court of Appeal’s decision in Kellogg Brown where a pre-employment drug testing policy was found to by a bone fide occupational requirement. The Alberta Court of Appeal relied on the fact that cannabis can sometimes linger in the body for several days. As such, even recreational use outside of the workplace could have an effect on the workplace (Chaisson v Kellogg Brown & Root (Canada) Co (2008), 289 D.L.R. (4th) 95 (Kellogg Brown).
Whether an employer can require employees to submit to a drug test seems to depend on the province where they reside. Eventually the Supreme Court will have to decide this issue.
The Supreme Court recently granted leave to appeal a decision regarding a random alcohol testing policy out of a paper mill near the City of Saint John in New Brunswick. The employer, Irving Pulp & Paper, implemented a workplace safety policy in 2006 that included random alcohol testing for employees in safety sensitive positions (click here to see the New Brunswick Court of Appeal decision). Although this case deals only with alcohol testing, the Supreme Court’s decision may shine a light on the path adjudicators should follow when considering random drug testing as well.
