Toronto Transit Commission can keep randomly testing employees for drugs and alcohol rules judge

Published: April 4, 2017

Updated: July 24, 2018

Author: Luke Jones

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The Toronto Transit Commission (TTC) will be able to continue to randomly test employees every year for drug and alcohol use. In a ruling on Monday, Mr. Justice Frank Marrocco denied an application for an injunction to stop the testing, which randomly tests 20% of the TTC workforce annually.

Marrocco said that the commission could still find itself on the hook for damages to employees if a labour arbitrator finds the Fitness for Duty Policy contravenes either the Ontario Human Rights Code, or its Collective Agreement with Local 113 of the Amalgamated Transit Union, and violates human rights.

The arbitration against the Fitness for Duty Policy is set to move ahead. However, the court injunction application has been denied as judge Marrocco believes the testing is in the best interest of Toronto citizens.

“If random testing proceeds, it will increase the likelihood that an employee in a safety critical position, who is prone to using drugs or alcohol too close in time to coming to work, will either be ultimately detected when the test result is known or deterred by the prospect of being randomly tested,” Justice Marrocco wrote.

The TTC’s workplace “is literally the City of Toronto and as a result all the people who move about in the City, whether or not they are passengers on the TTC, have an interest in the TTC safely taking its passengers from one place to another.”

As part of its testing, the TTC says “an alcohol test result of .04 blood alcohol concentration (BAC) or higher is classified as a positive alcohol test and constitutes a violation of the Policy,” Justice Marrocco wrote. “So, does a positive oral fluid drug test.”

The Fitness for Duty Policy was implemented in 2010, but only tested employees who were deemed to be subject to reasonable cause for testing. The random tests were introduced and in March 2016 the commission said it would use an independent third party to carry out the tests.

“Annually, 20% of the eligible employees will be tested,” Marrocco added. “It is impossible to predict how long the arbitration will take. There appears to be no end in sight. So, it is safe to assume that a significant number of eligible employees will be tested before the arbitration is finally completed.”