An Ontario Superior Court Justice will begin hearing arguments Tuesday on a potentially precedent-setting legal challenge by the union representing Toronto Transit Commission workers over whether employees should be subject to random drug and alcohol testing.

Lawyers on both sides will make their case after an injunction request filed by the Amalgamated Transit Union Local 113 over the TTC's hotly-contested Fitness for Duty policy.

The proceedings come after a meeting of the TTC board meeting in November, in which the agency approved a plan to go ahead with the testing, which would include oral swabbing for illicit drug use and breathalyzer tests for alcohol levels.

"I guess we're sort of a test case here," said the head of the union local. Bob Kinnear, ahead of the hearings, saying virtually no other public transit agency in the country subjects its workers to such testing, with the exception of the one in Windsor, which operates cross-border.

Last December, the TTC provided formal notice to its four unions saying testing would begin Mar. 1, 2017, a move Kinnear slammed as a "feel-good measure." As a result of the injunction request, it agreed to delay the testing until Apr. 1, though whether or not it can proceed will depend on the outcome of the hearings.

'Safety-sensitive industries'

​The union head argues there is no systemic problem of illicit drug use by transit vehicle operators and that going ahead with testing would contravene a 2013 decision by the Supreme Court of Canada that such a measure would have a "severe" impact on employee privacy.

In its ruling, the court said a dangerous workplace is not automatic justification for random testing and that the measure should only be permitted in specific circumstances, such as when an employee returns to work after treatment for substance abuse, or if there are reasonable grounds to believe an employee was impaired while on duty.

Drug and alcohol use continues to be a significant problem for the TTC, a threat to its safe operation and to the safety of the public. - TTC's written submission to the Ontario Superior Court of Justice

A written submission to the Court by the TTC states that "in an employment context, arbitrators and courts, including the Supreme Court of Canada, have recognized an employer's right to implement mandatory alcohol and drug testing programs in safety-sensitive industries."

Since 2010, the TTC has performed drug and alcohol tests in certain circumstances, including for employees who have previously violated its "fit for duty policy" or who have disclosed substance abuse.

In its submission, the transit agency says 11,000 drug and alcohol tests have been conducted since 2010. During that time, TTC spokesperson Brad Ross said in 2016, that there had been 291 incidents of impairment or refusal by TTC employees.

TTC spokesperson Brad Ross says the commission has 'a duty of care' for not only its workers, but for the public as well. (CBC)

"The results of those tests, as well as accidents and other evidence, indicate that drug and alcohol use continues to be a significant problem for the TTC, a threat to its safe operation and to the safety of the public," the submission reads.

"We believe that we have duty of care for both our employees but also for the public," Brad Ross said.

The TTC spokesperson said the TTC isn't concerned with policing what its employees do outside of work and that the measure is the norm in the United States, in Western Europe and in Australia.

'Cautiously optimistic'

Kinnear argues the TTC's numbers include incidents that took place off the job and therefore skew the results in favour of testing.

Union leader Bob Kinnear made his case at a TTC board meeting in November, arguing the testing only serves to give the public a false sense of security. (CBC)

"If one of our members was charged with impaired [driving] on vacation in Saskatchewan, well, they determine that as a violation. Well, it's not a violation at work," he told CBC Toronto.

"I'm not saying it's acceptable in any way. But does it mean someone should lose their job?"

Kinnear maintains swab testing is not scientifically sound and says he is concerned about false positives potentially endangering the livelihoods of TTC workers.

He suggested last year optical scanners measuring drivers' eye reflexes would be a more reliable technology and could also assess lack of sleep — something he has argued poses a greater threat to driver and passenger safety.

For now he says he's "cautiously optimistic" that the courts will recognize that there is no reasonable argument of a systemic problem of drug and alcohol use among his union's workers to warrant random testing.

If it doesn't, he worries the program could have wider-reaching consequences and could be implemented by other transit agencies in Canada.