Can a court calculate damages for wrongfully obtaining breath or fluid samples from an employee?
Ontario, Canada
The following excerpt is from Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078 (CanLII):
I am satisfied that the considerations in awarding damages outlined in Jones v. Tsige at paragraph 87 can be adapted to this situation so that a court can calculate damages for wrongfully obtaining breath or fluid samples from employees, should that be the result of the arbitration. Specifically: • the nature, incidence and location of the act will be known; • the effect of the taking of the samples on the health, welfare, social, fine or financial position of employees can be determined; • the relationship between the parties is known; • any distress, annoyance or embarrassment suffered by the employees can be described in evidence; and finally • the conduct of the respondent leading up to and including the taking of the sample is easily described.
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