TTC ordered to stop random drug testing ‘immediately’ for apparent Charter rights violations: arbitrator

A Toronto Transit Commission sign is shown at a downtown Toronto subway stop Tuesday, Jan. 31, 2023. THE CANADIAN PRESS/Graeme Roy

A labour arbitrator has ordered the TTC to stop its random drug testing of employees “immediately,” ruling that the policy is “unreasonable” and likely violates their Charter rights.

“The TTC has an interest in public and workplace safety and enhancing that safety is a reasonable goal. However, randomly testing employees for drugs and alcohol without cause is not a reasonable measure to achieve that goal,” Laura Trachuk wrote in her sweeping, 389-page decision released Monday.

The Amalgamated Transit Union, Local 113, represents roughly 12,000 public transit workers and has been fighting the policy since 2010, arguing that it relied on “junk science” to test and dismiss hundreds of workers since it came into effect.

The TTC first introduced its Fit for Duty Policy three years after an incident in 2007, when a subway track worker was killed and two others were injured while conducting overnight work in a subway tunnel.

Trachuk pointed out that the coroner determined the worker who was killed had THC in his system, the primary psychoactive compound found in cannabis. While it was determined at the time that the presence of THC in the worker’s system did not cause the accident, the incident led to the introduction of the policy, she said.

The policy started with drug and alcohol testing for reasonable causes, post-incident analysis, and certifications, but was expanded in 2017 to include random tests. The union sought, and failed to receive, an injunction to that expansion.

In her ruling, Trachuk said the TTC has not demonstrated that there is a “general problem” with drugs and alcohol in the workplace, and that any deterrent benefits from random testing are outweighed by the “intrusion” on the employees’ rights.

Beyond those findings, Trachuk also took issue with the way the tests are carried out. She said that while a breathalyzer is “reliable evidence” that an employee may not be fit for duty, oral fluid testing (OFT) for cannabis and cocaine are both “less reliable.”

“Many people who test positive for cannabis will be feeling the effects of THC but some will not be. Likewise, a positive OFT for cocaine is less reliable evidence that an employee is unfit for duty than a positive breathalyzer.”

Union applauds ruling

In a statement, Local 113 welcomed the decision, but pointed out that millions of tax-payer dollars had been poured into a program that was unreasonable, a breach of workers’ rights, and “did not work.” The ruling does not spell out the cost of carrying out random drug tests.

“Apart from the loss of privacy and the lives ruined by this misguided program, the public has suffered,” union president Marvin Alfred said, adding the policy has been a “tragedy” for workers who have been dismissed. “Public dollars that could have been used for real and effective safety initiatives were instead wasted.”

For the TTC’s part, a spokesperson for the transit agency said it is reviewing the ruling and weighing its options, which could include requesting a judicial review.

“We maintain that in a safety-critical industry such as transit, random testing is the best way to ensure we are providing the safest service possible for our staff, customers, and the public,” Stuart Green wrote.

“In that regard, this decision is extremely disappointing.”

It’s unclear if any of the employees who have been dismissed under the policy will be reinstated.