The test that got him fired? An arbitrator ruled it never should have happened
A random drug test cost a bus operator his job. An arbitrator has now handed it back, ruling the test itself was an unreasonable search that breached his privacy and could not be used to prove he was ever unfit to drive.
Arbitrator Laura Trachuk released her award on July 13, 2026, allowing a grievance the Amalgamated Transit Union, Local 113 brought against the Toronto Transit Commission over the firing of a bus operator. Trachuk ordered the worker reinstated without loss of seniority and compensated for his losses. The parties agreed to handle the amount of compensation and any further damages separately.
The worker, hired in 2009 into a safety-sensitive role, was randomly selected for alcohol and drug testing on Aug. 17, 2017, under the TTC's Fit for Duty Policy. The breathalyzer came back negative right away. The oral fluid drug test did not, and he kept working his shifts. Days later, the TTC learned the sample was non-compliant for cannabis.
He was suspended with pay, then terminated after a meeting at the end of August. According to the termination memo, the worker said he used marijuana to help him sleep for an undiagnosed condition he had not reported to the employer. The memo stated he had attended work unfit for duty and breached the policy.
Why the drug test could not be used
In a companion policy ruling issued the same day, Trachuk found the random testing program breached section 8 of the Canadian Charter of Rights and Freedoms and was an unreasonable exercise of management rights that contravened the collective agreement. The employer, she found, had subjected the worker to an unreasonable search without showing a general drug or alcohol problem in the workplace.
That left the question of what to do with the test result. Trachuk noted the employer had no other proof the worker was impaired on the job: "No incident occurred that day and he was not showing any signs of impairment." She weighed the public's interest in safe transit against the worker's privacy.
Trachuk decided the result had to be excluded, consistent with arbitral cases that keep out evidence gathered through an unjustified invasion of privacy. Taking a bodily sample without reasonable cause, she found, reached into the worker's most personal information and was then used to end his job.
The outcome and the open questions
Even if the result had been allowed in, Trachuk noted it would not have been the end of the matter. In her policy award she found a positive oral fluid test at the TTC's cutoff levels is not, on its own, proof that an employee is unfit for duty, given how much cannabis impairment and THC detection vary from person to person.
With the test set aside, the TTC was left without evidence of impairment. Trachuk found it could not show on a balance of probabilities that the worker was unfit for duty, and so had no just cause to fire him. She allowed the grievance and ordered reinstatement, concluding that in these circumstances "his privacy interest outweighs the safety interests of the TTC and the public."
Compensation remains open. The union may seek further damages, the parties have agreed to split those issues off, and Trachuk has kept a hand on the file to resolve anything they cannot work out during implementation.
See Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2026 CanLII 72134 (ON LA)
