A judge has upheld the TTC’s plan to randomly test its employees for drug and alcohol use, ruling that the need to protect public safety outweighs the risk of infringing on transit employees’ privacy.

In a 23-page ruling released Monday, Associate Chief Justice of the Superior Court Frank Marrocco dismissed an application from the TTC workers’ union for an injunction against the policy, which was to have gone into effect Mar. 1.

The TTC said it now plans to begin random testing later this month.

In a statement the secretary-treasurer of Amalgamated Transit Union Local 113, which represents more than 10,000 TTC workers, said employees were “disappointed” with the court’s decision. Kevin Morton alleged the policy “violates basic human rights” and is “an abuse of employer power against the hardworking women and men who safely move this city.”

However, in his ruling Justice Marrocco agreed with TTC management “that there is a demonstrated workplace drug and alcohol problem at the TTC, which is currently hard to detect and verify.”

He found that random testing would increase the chance that an employee who is prone to abusing drugs or alcohol at work would either be detected or deterred, which, in turn, would increase public safety.

The judge wrote that the nature of the TTC’s operations gave the safety argument considerable importance. The agency’s workplace “is literally the City of Toronto” he wrote, and “all the people who move about the city. . . have an interest in the TTC safely taking its passengers from one place to another.”

The judge also ordered the union to pay the TTC’s costs in the case, which were set at $100,000.

Local 113 has vigorously opposed the introduction of the testing policy and has been pursuing a grievance against the TTC over it for the past six years through labour arbitration. The union argues the policy violates the terms of its collective agreement with the transit agency as well as the Ontario Human Rights Code.

Morton said in his statement that in the wake of Monday’s ruling the union was “more energized than ever” to continue the arbitration fight.

Despite dismissing Local 113’s application, Justice Marrocco ruled that should the arbitration eventually find in favour of the union, the TTC could compensate employees affected by the policy by paying them damages.

The TTC approved random drug testing in October 2011, one month after a bus driver who was involved in a fatal collision was found with cannabis in his possession. (He wasn’t determined to have been impaired at the time of the crash.)

According to the transit agency’s court filings, between October 2010 and December 2016 there were 291 incidents in which employees’ actions raised safety concerns, and in almost half of those the TTC either confirmed or suspected substance abuse was a factor.

A TTC investigator swore an affidavit alleging there was “culture of drug and alcohol use” in the workforce that could put the public at risk.

In a press release Monday, the TTC said it had hoped to wait for the outcome of the arbitration process before enacting random testing, but the agency “felt it could wait no longer, given the increasing number of positive workplace test results and test refusals it has seen, thereby potentially compromising employee and public safety.”

The agency “has a duty of care to its employees and the public,” the statement said.

Under current policies, the TTC can test employees for alcohol or drug use only under specific circumstances, including following a work-related incident, when a worker returns from substance abuse treatment, or when there is “reasonable cause” to believe an employee is impaired.

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The new policy will allow the agency to randomly test employees in safety-sensitive positions, as well as certain management and executive positions, including the CEO. The test for alcohol will be administered by a breathalyzer, while workers’ saliva will be tested for drugs using a swab.

The TTC estimates about 10,000 of its 14,000 employees are eligible for testing, and 20 per cent of its workforce will be tested each year.