UPDATE: Random Drug & Alcohol Testing by Employers in Canada

February 23, 2021

An Alberta judge’s ruling in December 2020 in favour of a motor carrier has once again reinforced the legitimacy of random testing for truck drivers as a matter of policy.

Justice Dunlop, of the Court of Queen’s Bench of Alberta, dismissed ‎an application in its entirety against Westcan Bulk Transport by a former employee over a complaint about random drug and alcohol testing. The judge ruled in favour of the carrier to conduct the tests and refused to issue a temporary injunction or to order any compensatory damages to the plaintiff.

Citing the bona fide operational requirement (BFOR) standard set in the landmark “Entrop” case in Ontario, the judge stated that a driver can’t complain “after the fact” about a company’s drug testing policy and refuse to be part of the program. (The plaintiff understood random testing would be a condition of his employment when he returned to the carrier in 2015 even though it wasn’t explicitly stated in the employment contact.)

Even more noteworthy, perhaps, the ruling goes on to say that such a policy would be equally legitimate if it were introduced post-employment as part of a company’s safety obligations under either the Ontario Court of Appeal Entrop test (for non-union employees) or the stricter Irving Supreme Court of Canada test (for unionized ‎employees subject to a collective bargaining agreement).

While many companies already have such programs spelled out in employment/safety policies, observers of the case tell the Canadian Trucking Alliance that the latest ruling provides helpful direction to a company with similar safety-related work that wants to move into random testing.

Observers tell CTA that, although there might have been some risk with the court taking a very strict interpretation, employment contacts must expressly state random testing to be enforceable. This latest ruling—combined with a similar case (Milazzo v. Autocar Connaisseur Inc.) before the Canadian Human Rights Tribunal, which stated that drivers can all be covered with a random program no matter where they operate—further bolsters carriers’ rights to enforce, as well as implement, random testing for drivers as BFOR.

Read the full ruling of the case here.

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