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.