The Grievor’s urine tested positive for cannabis metabolites following an incident. The Employer required him to attend an examination with an employer-selected physician, submit to a year of random drug tests, and suspended him for 10 days. The Arbitrator held that none of the Employer’s actions were justified and ordered that the Grievor be made whole, including by awarding $15,000 in privacy damages.
Vancouver Shipyards Co. Ltd. v CMAW, Local 506 Marine and Shipbuilders, 2022 CanLII 51909 (BC LA)
The Union grieved the Employer’s decision to order the Grievor to undergo post-incident drug and alcohol testing.
The arbitrator held that the drug and alcohol testing was not justified in the circumstances and was a violation of the Grievor’s privacy and bodily integrity rights.
The incident, in which the Grievor accidentally caused a large aerial work platform to contact another machine at low speed, did not rise to the level of a “significant event" as defined in the Employer’s policy and the jurisprudence. There was no significant damage and there were no injuries. The Employer’s speculations that someone could have been injured or there could have been significant damage to property of the Company were very remote possibilities and worst-case scenarios. During the investigation, there was nothing in the Grievor’s responses that would have rationally led to the conclusion that impairment played any role in the incident.
The arbitrator held that testing cannot be used when the only justification is ruling out the possibility of impairment. The Grievor was awarded $1000 in damages.
CMAW, Local 506 Marine and Shipbuilders v. Vancouver Shipyards Co. Ltd (“P.Q.” Grievance), 2021 CanLII 138047
The Union grieved the imposition of a 10-day suspension for refusing a drug and alcohol test and the requirement to attend an IME.
The arbitrator held that in the circumstances, including the Employer’s automatic imposition of a 10-day suspension in every case of a positive test or refusal to test, a 6-day suspension was appropriate. On the IME issue, the Arbitrator emphasized that such exams are “extremely invasive” and before initiating one, an employer must inquire into less intrusive methods of obtaining information, and must only seek information that is reasonably necessary, which it had not done here. The Grievor was awarded $5000 in privacy damages.
College of Midwives of British Columbia v. MaryMoon, 2020 BCCA 224
In College of Midwives of British Columbia v. MaryMoon, 2020 BCCA 224, the BC Court of Appeal upheld a prohibition on the use of occupational titles reserved to members of health professions colleges to describe a person’s work as a justified limitation on freedom of expression.
Lindsay Waddell and Daniel McBain of Moore Edgar Lyster LLP represented the intervenor, the College of Speech and Hearing Health Professionals of British Columbia (“CSHBC”). CSHBC argued that the prohibition was necessary to enable members of the public to identify who is, and who is not, a regulated professional, and that this was particularly important to newly regulated professions that do not have the benefit of widespread public recognition. Without a restriction on title usage, newly regulated professions would not be able to build the necessary public awareness and health care consumers would be vulnerable to unqualified and unregulated individuals.
Read the decision here.