The TTC has won its bid to introduce random drug and alcohol testing of employees.

In a decision handed down Monday, April 3, Ontario Superior Court Justice Frank Marrocco rejected the Amalgamated Transit Union Local 113’s application for an injunction to stop implementation of the policy. (A legal precedent involving a botched penis enlargement operation by a well-known plastic surgeon figured into the judge’s decision, but let’s leave that out of this.)

At issue The TTC’s “Fitness For Duty Policy” requiring random drug and alcohol testing of all employees. Up until 2011, the policy only applied to employees in “safety-sensitive positions,” including execs. Under the revamped policy, all employees would be tested at least once every five years.

The ATU’s position The TTC employees union, which called former Ontario information and privacy commissioner Ann Cavoukian as an expert witness, argued that random mandatory drug and alcohol testing “is among the most intrusive forms of personal surveillance.”

The policy, the ATU’s lawyers argued, amounts to an invasion of privacy and is stigmatizing for employees. They also asserted that false positives due to flawed testing or prescription medication could lead to wrongful dismissal.

The Charter argument While it is every employee’s right to be free from unreasonable search and seizure, Marrocco posited that “the interest of the public must be considered.”

“A culture of drug and alcohol use” Mark Russell, a staff sergeant with the Investigative Services Unit charged with investigating allegations of misconduct by TTC employees, stated in his affidavit that “there is a culture of drug and alcohol use at the TTC, particularly in certain large complexes and in TTC yards” where buses, streetcars, subway cars and other vehicles are serviced.

To what extent there’s a problem with TTC drivers in particular is less clear from the court decision.

CEO Andy Byford stated in his affidavit that “there were continuous instances of impairment” at work since the Fitness For Duty policy was implemented in 2010. He cited 116 occasions between 2010 and 2016 in which TTC employees tested positive or refused to be tested for drugs or alcohol – 27 occurring in 2015. During the same period, 187 (or approximately 2.4 per cent) of all external applicants for “safety-sensitive positions” with the TTC returned positive urinalysis tests for drugs.

The judge was satisfied “that there is a demonstrated workplace drug and alcohol problem at the TTC that is currently hard to detect and verify.”

A marijuana problem While the ATU challenged the TTC’s entire drug testing policy, the judge noted that the evidence of workplace safety risks focused largely on marijuana.

On this point, the judge found that the blood levels established by the TTC for impairment under its policy for marijuana (10 nanograms per millilitre) and cocaine (50 ng/mL) are higher than those in other workplace drug testing policies, including the draft Mandatory Guidelines For Federal Workplace Drug Testing Programs by the U.S. Substance Abuse and Mental Health Services Administration, which sets the limit at 8 ng/mL for cocaine. The level established for alcohol in the TTC policy is the same as the legal limit in Ontario, 0.04 per cent blood-alcohol concentration.

The judge rejected the ATU’s contention that a refusal to submit to a random test is considered a violation under the Fitness For Duty Policy and “adds a coercive element.”

Marrocco noted that the procedures “are minimally invasive” and that “employees have some degree of control over the information collected,” including an opportunity to discuss results with a union representative prior to meeting with a medical review officer before any information is turned over to the TTC.

Byford described a situation in December 2015 in which a bus whose driver tested positive for cannabinoids hit a pedestrian. The test result was changed from positive to negative after a medical review officer found that the driver had a prescription for medical marijuana.

The judge awarded the TTC $100,000 in legal costs. Should employees believe they have suffered irreparable harm under the policy, he concluded, they can seek damages from the courts.

enzom@nowtoronto.com | @enzodimatteo