Paul J.J. Cavalluzzo

On an employer's appeal from the dismissal of its appeal from a Board of Inquiry decision, the court considered the legality under the Human Rights Code of a workplace alcohol and drug testing policy for employees in safety-sensitive positions.

The court held that substance abuse, including perceived substance abuse, is a handicap and applied the unified three-step BFOR analysis from Meiorin to assess whether the impugned rules were justified.

Random drug testing, pre-employment drug testing, and mandatory disclosure, reassignment and reinstatement rules were discriminatory and not justified, but random alcohol testing could be justified as a BFOR if sanctions for a positive result were individually tailored.

The court also held that the Board lacked jurisdiction to inquire into the policy's drug-testing provisions, set aside the finding of a s. 13(1) breach, upheld the mental anguish award, and otherwise dismissed the appeal.

The appellant union appealed from the dismissal of an application for judicial review of a labour arbitration award.

The dispute concerned whether an employee’s claim for weekly indemnity benefits under an insurance policy required by a collective agreement fell within the exclusive jurisdiction of a labour arbitrator where the employer had complied with its obligation to provide and pay for the policy.

The court, relying on its reasons in a companion appeal, held that the claim against the insurer was not arbitrable in those circumstances.

Applying curial deference on a patent unreasonableness standard, the court found the arbitrator’s interpretation of the collective agreement was open to him and upheld the dismissal of the grievance.

The appellants challenged amendments to Bill 160 that removed principals and vice-principals from teacher bargaining units, excluded them from the provincial labour relations regime, and ended their statutory membership in teachers' organizations.

They argued the amendments were a reprisal for participation in a province-wide protest against education reform legislation and therefore infringed freedom of expression and freedom of association under ss. 2(b) and 2(d) of the Charter.

The court held that the appellants failed to prove, on a balance of probabilities, that the legislative purpose was punitive rather than corrective, and further held that exclusion from a statutory collective bargaining scheme and removal of mandatory statutory union membership did not violate s. 2(d).

The appeal was dismissed with costs.