Court of Appeal Refuses to Support Random Drug Testing at Imperial Oil for the Second Time in a Decade

July 14, 2009

In late May of 2009 Imperial Oil received its second judgment from the Ontario Court of Appeal since the year 2000 failing to support its random drug testing policy of employees at its Nanticoke refinery.

The policy was first found invalid under the Human Rights Code in 2000 because it involved random urinalysis, a process which could not detect actual impairment due to drugs but only that the employee had used drugs at some point in the past.  However breathalyzer testing for alcohol was approved in that case.

This time around Imperial found itself defending a random testing policy based on saliva samples that were sent away to a lab.  While it could not produce instantaneous results the test did supposedly reveal if the employee was actually impaired when the sample was taken. However, even this more relevant testing was struck down by a Board of Arbitration deciding a policy grievance on the issue and that decision was upheld by both the Divisional Court and the Court of Appeal applying standards of review of patent unreasonableness and reasonableness, respectively.

The Board of Arbitration reviewed the existing arbitral caselaw on the topic of drug testing and found that the typical approach in Canada restricts such random testing even in a safety-sensitive environment unless it is specifically negotiated in the collective agreement.

The Board also based its decision on Article 3.02 of the collective agreement which requires Imperial to treat its employees with respect and dignity.  Random drug testing was held to be contrary to this provision.  The bases for this finding were: 1. the drug testing method does not permit immediate detection of impairment, but only after waiting several days 2. Imperial has an obligation to respect an employee’s expectation of privacy unless there is reasonable cause or consent to a drug test and 3. the Court of Appeal’s previous decision did not address Article 3.02 as it was a decision relating to the Human Rights Code.  The Board also held that even without Article 3.02 the policy could not be justified.  Random drug testing without reasonable cause was an unwarranted invasion of employee privacy.

The Court of Appeal in reviewing the decision on the standard of reasonableness (as the standard of patent unreasonableness is no longer in use since the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick) upheld the Board’s decision on the basis of Article 3.02 and declined to consider the question of whether the practice could have been justified if not for the effect or Article 3.02.

It should be understood that the Court of Appeal did not truly venture an opinion on the propriety of random drug testing under the collective agreement.  It only stated that a finding that such a policy violates the employees’ rights of dignity and respect under that agreement was a reasonable finding for a Board of Arbitration to make given the language of Article 3.02.  However this still goes quite far given that the drug testing at issue was designed to detect actual impairment just like a breathalyzer would, albeit with a waiting period to get the results.

It should be noted that the Board of Arbitration did uphold random drug testing if it forms part of the rehabilitation of an employee with a drug problem.

Imperial Oil Limited v. Communications, Energy & Paperworkers Union of Canada, Local 900, 2009 ONCA 420

For more information on this case or for any inquiries relating to employee drug testing, please contact any member of our Labour Department.