Earlier in February, Arbitrator Graham J. Clarke found that Toronto Terminals Railway (TTR) Company lacked just cause to discipline an employee who tested positive for THC metabolites, as it did not establish actual workplace impairment. The ruling demonstrated that a positive urine test alone is insufficient to support discipline.
The incident took place in September 2023, when signal maintainer DiMaria was involved in a workplace vehicle accident after mistakenly pressing the accelerator instead of the brake, causing property damage. Subsequently, post-incident testing showed negative breathalyzer and oral fluid results, but a urine test indicated 33 ng/ml of THC metabolites, which TTR cited as a breach of its drug and cannabis policies. Later that month, the company imposed a 30-day unpaid suspension and required a substance abuse assessment and random testing as conditions of continued employment.
DiMaria stated that he had used a small amount of cannabis two or three days before the incident. In turn, the arbitrator relied on established case law distinguishing presence from impairment and placed significant weight on the negative oral fluid test. The company’s own report noted only nervousness, which was considered unsurprising after an accident, and recorded no observable signs of impairment.
“Unfortunately, accidents happen and can warrant discipline. But they do not, by themselves, support a finding of impairment,” wrote Arbitrator Clarke in his decision. Although TTR argued that the employee’s conduct and positive urine test showed residual impairment, the arbitrator found the evidence insufficient to meet the required threshold and rescinded the suspension along with all related conditions.
“The arbitrator therefore rescinds all the discipline. TTR shall provide full compensation for the 30-day suspension. TTR shall also compensate Mr. DiMaria for the time he spent doing assessments and attending drug testing,” reads the arbitrator’s order. “[It] is not enough to show that a urine test indicates an employee may have traces of marijuana in his/her system. Those results do not demonstrate impairment at the material times,” reads the previous decision in CROA&DR 4524, which Clarke had relied upon.
