Random drug and alcohol testing for most Toronto Transit Commission (TTC) employees can proceed following a decision of Justice Marrocco denying the ATU Local 113’s application for an injunction earlier this week. The ruling permits the TTC to test 10,000 of its 14,000 employees, including those deemed to be in “safety-sensitive” jobs, as well as those in designated management positions and all executives (including CEO Andy Byford) under the TTC’s Fitness for Duty Policy (the Policy).

The TTC put forward evidence of three incidents in 2015 alone in which transit vehicles involved in collisions were being operated by people who subsequently tested positive for drugs. One of the drivers had indications of opiates, another cannabis related to the use of medical marijuana, and for the third, evidence of cocaine.

In finding in favour of the TTC, Justice Marrocco wrote, “I am satisfied that, if random testing proceeds, it will increase the likelihood that an employee in a safety critical position, who is prone to using drugs or alcohol too close in time to coming to work, will either be ultimately detected when the test result is known or deterred by the prospect of being randomly tested. This will increase public safety.”

The TTC implemented the Policy after spending more than six years in arbitration after the Policy was first put forward in 2011. With no decision in sight from Arbitrator Maureen K. Saltman, the TTC stated that it “felt that 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.”

A breathalyzer will be used to test for alcohol and an oral swab will be used to test for drugs and prohibited substances like marijuana or cocaine.

This decision is likely to resonate in the transportation industry and other public facing, safety-sensitive commercial enterprises. It’s foreseeable that other employers engaged in transporting the public, such as school bus operators, taxi, and tour bus operators, may follow suit with random testing of their employees.