An arbitrator has upheld the Toronto Transit Commission’s (TTC) decision to administer a drug and alcohol test to a bus operator who was found asleep in his bus while parked in an unauthorized location. The arbitrator concluded that the TTC had reasonable cause for the test under its Fitness for Duty Policy, emphasizing the importance of safety in a safety-sensitive workplace.
On June 19, 2019, A.C., assigned to route #51 Leslie on a night shift, parked his bus on Berwick Avenue, a residential street adjacent to Eglinton station — contrary to TTC rules. The bus’s lights were off, the window shade was pulled down, the driver’s seat was fully reclined, and A.C. was asleep with his uniform dishevelled.
J.P., then Chief Mobile Supervisor, discovered A.C. asleep around 11:30 p.m. Noting that A.C. appeared dishevelled, sweaty and clammy, J.P.observed that he was yawning excessively and appeared groggy. “Operator discovered in a nested position in operator’s seat on Berwick west of Yonge St. Operator awoken by writer and operator was then groggy and operator appeared fatigued. Medical offered and declined,” J.P. wrote in his report.
J.P. questioned A.C. about why he was sleeping and why he had parked on Berwick Avenue. A.C. explained that he was instructed by a manager not to wait in the layover area with his bus in reverse — a claim J.P. found unconvincing. According to J.P., A.C. did not provide straight answers and appeared evasive.
T.M., Night Weekend Assistant Manager, arrived after being contacted by J.P. After speaking with A.C., T.M. observed that he appeared slow and confused, with red and glossy eyes, and was yawning. Both supervisors completed the Reasonable Cause Testing Documentation form, citing indicators such as confusion, inability to focus on work, weariness, fatigue, deteriorating physical appearance and careless performance of job.
A.C. was transported to Wilson station, where he underwent a breathalyzer test and provided a saliva sample. The test results, received on July 24, 2019, were positive for cannabis. Subsequently, A.C.’s employment was terminated, and a grievance was filed by the union on July 30, 2019.
The union argued that while A.C. may have been sleeping on the job, there was no reasonable cause to subject him to a drug and alcohol test. They contended that signs of fatigue do not establish reasonable grounds for such testing and that the appropriate response should have been disciplinary action under the Operating Excellence Memorandum of Agreement, which prescribes penalties for nesting and sleeping on duty.
Moreover, the union highlighted that after the testing was completed, A.C. was allowed to drive himself home, which they argued contradicted the TTC’s own policies if they truly believed he was impaired. “How could it be… that management—believing that one of their operators may be impaired—brought him in for drug and alcohol testing, and then let him drive home?” the union submitted.
The TTC maintained that there was reasonable cause for the test, emphasizing that A.C. was in a safety-sensitive position and that his actions and appearance raised concerns about possible impairment. They pointed out that A.C. failed to provide a credible explanation for his conduct and that deference should be given to the supervisors’ judgment, made in good faith based on their observations.
In his decision, arbitrator William Kaplan noted that determining reasonable cause is fact-driven and that some deference must be given to supervisors who exercise their judgment in good faith. “The actions, appearance or conduct of the grievor, while on duty, were indicative of the use of drugs or alcohol, as the check-offs on the Reasonable Cause Testing Documentation form establish,” he wrote.
While acknowledging that the decision to allow A.C. to drive himself home was “very hard to understand” and contrary to the TTC’s policies, the arbitrator concluded that this did not negate the reasonable cause for the test. “The actual assessment of reasonable cause… must be made on the factual context when that decision was made,” he stated.
The arbitrator found that there were sufficient reasons to believe that A.C. might be impaired, given his dishevelled appearance, unconvincing explanations and the observations of the supervisors. “They did not have to be correct that there was impairment; all they needed was a reasonable basis for concluding that there might be,” he concluded.
For more information, see TTC v ATU, Local 113, 2024 CanLII 106159 (ON LA).
