'Highly intrusive': Court quashes mandatory drug testing of airport firefighters
Saskatoon StarPhoenix
An Ontario court has struck down the Ottawa airport’s plan to conduct unannounced, random drug tests on its firefighters, citing a lack of evidence the group has a substance-abuse problem that would justify such a “highly intrusive” invasion of privacy.
The Divisional Court also dismissed the airport’s suggestion that Canada’s legalization of cannabis had made it any more likely firefighters would show up at work impaired.
The ruling is the latest in a string of cases on the thorny issue of workplace drug screening, and underscores the contrast between Canada’s approach and American law that generally gives employers much more leeway to demand tests.

“It’s almost universally referred to as the Canadian model,” said lawyer Sean McGee, who represented the fire crew’s union. “In the U.S., they’ve struck a different balance … Even if you have no problems in the workplace, in many situations an employer will be able to say ‘Pee into a cup or provide some other kind of sample.’”

A three-judge panel of the court overturned an arbitrator’s ruling that had upheld the airport’s policy; the panel said the earlier adjudicator ignored case law that severely restricts random drug testing of employees, even in safety-sensitive occupations.

The Ottawa Macdonald-Cartier International Airport Authority and its lawyer in the case could not be reached by deadline.

The authority implemented its testing policy in December 2018, with the firefighters’ unions agreeing to provisions that called for testing of employees suspected of being impaired, after an accident or following an addiction treatment program. But they opposed the requirement for random, unannounced urine screens being applied to all the firefighters. The policy also affected other airport employees in safety-sensitive jobs.When the airport tried to conduct its first test on a firefighter, that person and the union filed grievances.

The arbitrator ruled in favour of the authority, citing a 2017 decision involving employees of the Toronto Transit Commission (TTC).

The Ontario Superior Court in that case rejected a union request to impose a temporary injunction on the TTC’s new random drug-testing policy. The judge noted in part that there was evidence of a chronic drug and alcohol problem among a minority of the transit agency’s workers.

But the Divisional Court said the arbitrator in the Ottawa airport dispute was wrong to rely on the TTC case, where the judge ruled on an injunction request, not the policy itself.

He should instead have looked to the Supreme Court of Canada’s “Irving” decision in 2013, which set out guidelines for when random, unannounced tests can be justified, said the latest decision.

The high court said random testing had been “overwhelmingly” rejected by arbitrators as “an unjustified affront to the dignity and privacy” of employees in safety-sensitive jobs, except when there was reasonable cause. That could mean a widespread drug or alcohol problem — what one of the Supreme Court judges called an “out-of-control drug culture.”

The workers’ privacy rights also have to be weighed against safety concerns, the court said in that case.

In the Ottawa airport situation, there was “no evidence… of an elevated safety risk because of a problem of employee drug use… nor was there any real analysis of the significant privacy interests of employees,” said the Divisional Court.

Yet the urine sample required under the Ottawa policy is “highly intrusive,” said the judges.

“The arbitrator also assumed that there was an increased safety risk of drug use because of the legalization of marijuana,” added the court. “Again, he had no evidence to that effect, unlike the court in TTC, which had evidence about a problem in the particular workplace.”

By comparison in the United States, some federal regulations actually require employers in the aviation and other industries to conduct random testing, specifying the minimum percentage of employees who must be covered each year

McGee said the union — the Ottawa Airport Professional Aviation Fire Fighters Association — worked closely with the airport to develop the “vast majority” of the testing policy, but drew the line at random screening.

“You can’t just impose random testing because it might be an interesting idea. It has to be a response to something,” said the lawyer. “And there isn’t that kind of problem here.”


<back to Headlines