An arbitration panel has denied a union’s request for wage loss damages on behalf of three Edmonton Transit Service (ETS) drivers who were removed from work following cognitive screening tests imposed by the City of Edmonton. Although the tests were later deemed an unreasonable breach of privacy, the panel ruled that the employer acted appropriately in addressing safety concerns once it became aware of the drivers’ medical conditions.
In 2017, the City of Edmonton unilaterally implemented a new Driver Safety Policy requiring ETS drivers to undergo not only a road test but also cognitive screening to detect any impairments that might affect their ability to drive safely. The Amalgamated Transit Union, Local No. 569 (the Union), filed a grievance challenging the imposition of this policy.
‘Speculative’ health and safety gains
The majority of the arbitration board found that the employer “had no reasonable cause to unilaterally impose cognitive testing.” The board concluded that the “speculative health and safety gains associated with the cognitive testing required under the Policy did not justify the significant invasion of employee privacy.” As a result, the policy was deemed “unreasonable and a breach of the Collective Agreement,” and the grievance was upheld with the board reserving jurisdiction on remedy.
Between the filing of the grievance and the board’s decision, all ETS drivers underwent the mandated cognitive screening. Based on the results, the City required a subset of drivers to undergo further medical evaluation. While most of these drivers returned to work, three drivers (the Affected Drivers) were required to stay off work pending additional medical assessment. During this period, they accessed short- and long-term disability (LTD) benefits, which are self-funded by union members through payroll deductions.
Settlement agreement
Following the decision on the merits, the City and the Union entered into a settlement agreement regarding general damages for the breach of privacy. However, one remedial issue remained unresolved. The Union sought compensation for the Affected Drivers’ entire lost wages during their time off work, proposing that the drivers would then repay the LTD fund any amounts received, thereby making the fund whole.
The City opposed this claim on two grounds. First, it argued that the Union did not advance a claim for wage loss at the arbitration hearing, so such a claim was not covered by the board’s reservation of jurisdiction on remedy. Second, the City contended that the evidence did not support awarding damages for the drivers’ lost wages during the period they were off work.
The arbitration panel found that the claim for wage loss was included in its reservation of jurisdiction on remedy. The grievance explicitly stated that the Union sought “to have all affected members made whole in every respect, included [sic] general, aggravated and punitive damages.” Additionally, during the arbitration, the Union had expressed a desire “to make the Long-Term Disability Fund whole,” indicating that wage loss was contemplated.
Three reasons for not awarding wage loss damages
Despite this, the panel declined to award damages for wage loss, providing three primary reasons for its decision.
First, the panel was unable to conclude that the Affected Drivers’ medical conditions would not have been discovered but for the testing under the policy. The decision noted that “the nature of the symptoms associated with them, the Affected Drivers’ medical conditions may well have come to the Employer’s attention regardless of the testing under the Policy.” One driver had been involved in four driving incidents; another was suffering from mild attention deficits, anxiety, and depression; and the third was assessed as having possible mild cognitive impairment.
Second, even though the policy was found to be an unreasonable breach of privacy, the employer had a duty to act upon the medical information once it became aware of it. The panel agreed with the City’s argument that, given potential safety risks to passengers, the public, and the drivers themselves, it could not “simply turn a blind eye to the medical conditions identified.” The panel referenced previous cases where improperly obtained evidence was excluded but distinguished them based on context and the nature of the grievance.
The panel preferred an approach that considers whether excluding the evidence would adversely affect the employer’s health and safety obligations. Citing a similar arbitration decision, the panel stated: “Once the Employer learned of medical restrictions posing a potential threat to the health and safety of passengers and the public, the Employer had no choice but to address the potential safety risk.”
Given the safety-sensitive nature of the work and the fact that the City had received a mandate letter from the provincial transportation regulator expressing concerns about safety compliance following two pedestrian fatalities involving ETS buses, the panel found that the employer was obliged to act. “Given this factual background, whether the testing here was justified or not, once the Employer learned of medical restrictions posing a potential threat… it had no choice but to address the potential safety risk,” the panel wrote.
Third, the panel found insufficient evidence to assess what portion, if any, of the Affected Drivers’ wage loss resulted directly from the breach of the collective agreement. The decision noted that while the drivers were off work following the cognitive testing, significant evidence suggested that other events and conditions contributed to their absence. The panel stated it was “unable to find that the Affected Drivers should have remained on active duty the entire time that their medical conditions were under investigation.”
Moreover, the panel lacked sufficient information to determine whether the drivers could have returned to active duty sooner or been accommodated in another manner. For example, one driver with depression and anxiety had limited information presented about his condition and recovery trajectory. Another driver remained off work due to an unrelated issue. “In sum, while the Board heard some evidence that the Affected Drivers were off work for a time following the impugned cognitive testing, the evidence before the Board also supported a finding that other events and conditions contributed to the Affected Drivers’ absence from work,” the panel concluded.
In dismissing the Union’s claim for additional damages, the panel emphasized that it was “not satisfied that an award of damages is appropriate in this case.” The decision was unanimous, and the panel thanked the parties for their “detailed and thoughtful submissions.”
The arbitration panel consisted of Mark Asbell, K.C. (Chair), Roger Hofer, K.C. (Nominee for the City), and Gary Davidson (Nominee for the Union).
