Workplace alcohol testing decision to come from top court

A grievance by a unionized Irving Pulp and Paper Ltd. worker over the company's practice of random alcohol testing made it all the way to Canada's highest court on Friday.

The challenge, which began in 2006, is being viewed as a national test case for how far an employer can go, when it comes to making intrusions on a worker's right to privacy.

The grievance was filed by the Communications, Energy and Paperworkers Union of Canada (CEP), Local 30, but has attracted numerous interveners, including the Canadian Civil Liberties Association, the Canadian National Railway Company, Via Rail Canada, the Canadian Mining Association and the Alliance of Manufacturers and Exporters of Canada.

The Supreme Court of Canada reserved decision after hearing arguments from lawyers on both sides of the issue Friday in Ottawa. No date has been set for a ruling.

Fredericton-based lawyer David Mombourquette, who is representing the CEP, argued a breathalyzer is an involuntary submission of bodily fluids and amounts to a high level of random personal intrusion.

'The plant has a potential for catastrophic failure and a high potential for explosion. There is no dispute that these employees are in safety sensitive positions.' —Neil Finkelstein, Irving lawyer

"A unilateral employer policy must be reasonable," he said.

Mombourquette contends the invasion is unnecessary when the union and the company agree on some middle ground.

"It permits post-incident testing. It permits testing on reasonable cause, if somebody smells of alcohol or is slurring their speech, or appears to be shaky. That creates reasonable cause for other testing," he said.

But the company's lead counsel, Neil Finkelstein, argued the policy is justified.

"The workplace is situated right in Saint John, New Brunswick.… The plant has a potential for catastrophic failure and a high potential for explosion," he said. "There is no dispute that these employees are in safety sensitive positions."

The mill is full of hazardous chemicals, flammable substances, heavy rotating equipment, a 13,000-volt electrical system and a $350-million high-pressure boiler, said Finkelstein.

In addition, the mill had a history of drinking being a problem, he said, citing eight documented incidents between 1991 and 2006, when the random testing policy was implemented.

Five of the cases involved employees showing up at the mill while under the influence of alcohol, two involved employees consuming alcohol on company premises, and one involved an employee being seen at a liquor store during work hours.

'Attack on workers'

CEP's national president, David Coles, said unions want a safe workplace and don't tolerate impairment.

Although he believes society has a problem with addictions, he doesn't think random testing is the right tool for the job.

"We are not accepting that, the argument that you can improve the occupational safety of the mill by random drug testing. And a number of right wing and corporate groups have jumped on the bandwagon," Coles said.

"This is about control, in our view. It's another attack on workers."

CEP recently won an injunction in Alberta to stop Suncor energy from randomly testing thousands of oilsands workers. The company wanted to implement testing after three on-site fatalities involving drugs or alcohol.

Dates back to 2006

Irving, which operates a paper mill in Saint John, N.B., unilaterally adopted a policy of mandatory random alcohol testing for employees in safety sensitive positions in 2006.

In March of that year, millwright Perley Dey's name was randomly selected by a computer program to take a breathalyzer test.

The 34-year says he took the test because he was afraid of losing his job. The test showed a blood alcohol level of zero.

But Dey, who describes himself as a religious man who doesn't drink, said the test was humiliating and unfair.

CEP Local 30 filed a grievance challenging the reasonableness of the policy.

An arbitration board ruled Irving had failed to establish a need for the policy. The company did not show sufficient evidence of prior incidents involving impaired work performance, or that the mill operation was sufficiently dangerous to justify the invasion of an employee's right to privacy, the board said.

But a New Brunswick Court of Queen's Bench judge reversed that decision, which the union appealed.

In July 2011, the New Brunswick Court of Appeal dismissed the grievance, ruling the mill qualifies as an inherently dangerous workplace.

The union appealed that decision to the Supreme Court of Canada.