Ontario Court Ruling: Can’t Randomly Test Firefighters For Cannabis  – Cannabis | Weed | Marijuana

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A recent Ontario court ruling sided with firefighters regarding random drug tests for cannabis.

In December 2018, Ottawa Macdonald-Cartier International Airport Authority updated its policies to demand random drug testing.

They were concerned that Canada’s legalization of cannabis (which had only occurred) would make it more likely firefighters would show up to work high.

The Ontario Divisional Court has dismissed that claim.

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The Ottawa airport wanted to conduct unannounced, random drug tests of firefighters. But the Division Court cited a lack of evidence that firefighters have a cannabis abuse problem that would justify such a “high intrusive” invasion of their privacy.

The Ottawa airport authority initially had the firefighters’ union on their side, as the provisions called for drug testing for employees suspected of being impaired or after an accident that may or may not is caused by drug impairment.

But firefighters balked at the decision requiring unannounced urine tests. Requiring drug screening for all firefighters for no apparent reason was one step too far. 

The policy also applied to other airport employees considered in safety-sensitive jobs.

What Happened? 

The airport tried to conduct its first random drug test on firefighters for cannabis. But the person in question and their union filed grievances.

An arbitrator upheld the airport’s random drug testing policy. They cited a 2017 decision involving the Toronto Transit Commission (TTC) employees.

But an Ontario three-judge panel overturned this ruling. The judges said the adjudicator ignored Canadian case law that restricts random drug testing of employees.

The Ontario Superior Court rejected an injunction on the TTC’s random drug-testing policy. But they did so because of overwhelming evidence of TTC workers’ chronic drug and alcohol problems.

The Divisional Court, in this case, said the Ottawa airport arbitrator was wrong to apply the TTC ruling to the firefighters. For starters, the Ontario Superior Court judge was ruling on an injunction request, not the policy itself.

The Ontario Divisional Court cited the Supreme Court of Canada’s 2013 Irving decision. This decision set a precedent for how employers can justify random, unannounced drug testing.

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In the Irving decision, the Supreme Court called random drug testing “an unjustified affront to the dignity and privacy” of employees.

Random drug testing can be justified only when there is a reasonable cause. An “out-of-control drug culture,” to quote the Supreme Court judges.

The court also weighed workers’ privacy rights.

Back at the Ottawa airport, the Divisional Court ruled that the arbitrator had not “satisfactorily explained his departure from the arbitral jurisprudence, as described in Irving.”

Further, “there was no evidence before him of an elevated safety risk because of a problem of employee drug use at the Ottawa airport, nor was there any real analysis of the significant privacy interests of employees.”

The Ottawa airport arbitrator said that not randomly drug-testing firefighters for cannabis was a safety risk to the airport and the public.

In response, the Divisional Court ruled: “The arbitrator’s reasons are not easy to follow. He does not begin, for example, with a discussion of the established principles respecting random drug and alcohol testing policies.”

Continuing, “there is no systematic discussion of “legitimate safety concerns” related to drug use at the airport, nor is there any careful consideration of employees’ privacy interests from testing, whether by urinalysis or some other method.”

Requiring urine samples was, according to the judges, “highly intrusive.”

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

Precedent Set for Future Cases?

While the Divisional Court ruling favoured cannabis in Canada, it was expected.

In the United States, random drug screening in the workplace is common. But in Canada, the Supreme Court has explicitly outlined random drug screening requirements. Namely, what barriers need to be met before one can justify unannounced, random urine tests.

The Ottawa airport authority did not meet these requirements. For there is no evidence that the airport’s firefighters routinely smoke cannabis and show up high on the job.

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