Random Testing For Reasonableness

The decision of the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 addressed the issue of random alcohol testing by employers in the context of a collective bargaining relationship. The facts and the holding of the majority in this case are well summarized in a Davis LLP employment bulletin. This blog entry will focus on the dissenting judgment, and examine whether a better balance might have been struck between the competing interests in this case.

The arbitral jurisprudence of labour relations has developed a balancing test that deals with the unilateral imposition of workplace rules by an employer, in the context of a collective bargaining agreement. Specifically, with respect to alcohol testing, the interest of the employer in safety must be balanced with the privacy interest of the employee. Leaving aside the obvious difficulties presented by the characterization of