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by Cedric Hughes, Barrister & Solicitor with regular weekly contributions from Leslie McGuffin, LL.B.   

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Drug and Alcohol Testing of Pilots, Bus Drivers, and Subway Operators

Article Number: 
718

When Sunwing Airlines pilot (we’ll call him “Pilot M. G”), 37, reported late on December 31, 2016 to fly a Boeing 737 aircraft with 99 passengers aboard and six flight crew from Calgary International Airport to Cancun, Mexico, his pilot’s pin was upside down, he was unable to hang up his uniform jacket, he stumbled into the cockpit, and then passed out.

Two hours later police testing indicated his impairment by alcohol at over three times the .08 legal limit.  On January 5th, 2017 “Pilot M. G” pleaded guilty to having care and control of an aircraft while impaired, and he is in custody now until his sentencing on April 3.

This story raised many issues, including the state of the law in Canada concerning random drug and alcohol testing in unionized workplaces.  Many Canadians may be surprised to learn that there are reports that preventing or at least minimizing such behavior are generally not allowed or is so difficult to implement in unionized workplaces as to be effectively disallowed.

This issue has re-surfaced in connection with notice given by the Toronto Transit Commission [the TTC] that starting March 1, 2017 it would be implementing random drug testing of “all employees in “safety-sensitive positions,” including bus, streetcar and subway operators.”

In response, the union filed an injunction to block the program (now delayed until April 1 pending the court decision) arguing that accusations of systemic drug and alcohol use were unfounded, and that the proposed testing methods—oral swabbing for illicit drugs and breathalyzer tests for alcohol detection—violated employees’ Charter rights.

Aware of the need to establish evidence of a substance abuse problem in its workplace, the TTC filed court documents citing over 100 positive employee drug and alcohol tests—presumably not conducted randomly—between 2012 and 2016.

The TTC filing also cited numerous criminal incidents: employees purchasing a drug referred to as crystal meth, during breaks, consuming cocaine in workplace bathrooms, and a TTC crane operator reportedly trafficking OxyContin and methadone.  One investigation report characterized these incidents as indicative of a “culture of drug and alcohol abuse at the TTC.”

The TTC employs over 10,000 workers in “safety sensitive” positions.  Transit workers in New York, London, England and Sydney, Australia are, we are told, all subject to random testing.  And yet a noted expert on Canadian labour law predicts that, while this should be the next logical step in dealing with this problem in Toronto, the union position may prevail.

Howard Levitt, in the National Post newspaper on March 11, 2017 explains that “the real issue standing in the TTC’s way … is a series of decisions written predominantly by Human Rights Tribunal members and arbitrators in human rights cases” based on rules in The Ontario Human Rights Code regarding drug and alcohol addiction as a disability entitling sufferers to protection against the discrimination inherent in the mere act of random testing.

Mr. Levitt says in his article that he hopes the courts will see the issue through the eyes of public transit passengers, but the gist of his commentary is that political philosophy is likely to prevail.

Cedric Hughes

huges & company law corporation vancouver

 

As Seen In

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