Implementing a random drug and alcohol testing policy in the workplace has long been fraught with legal difficulty. In 2013, the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper Ltd. (“Irving”), provided some clarity on this uncertain area of the law. A link to our last blog on the issue can be found here: SCC Provides Clarity on Random Drug and Alcohol Tests.
Though Irving clarified the law, courts and arbitrators have continued to struggle with its application. Suncor Energy Inc. v. Unifor Local 707A (“Suncor”), a recent decision of the Alberta Court of Queen’s Bench, may provide further guidance on the legality of random drug and alcohol testing policies.
Suncor involved the employer’s (“Suncor Energy”) application for judicial review of an arbitration panel’s decision to uphold a grievance by the union, Unifor Local 707A (“Unifor”).
Suncor Energy operates oil sands in two (2) locations. Suncor Energy employs roughly 10,000 workers, 3,383 of which are represented by Unifor.
For many years, Suncor Energy had concerns that its employees were working under the influence of drugs and/or alcohol. This issue was of particular importance to Suncor Energy given the dangerous nature of its oil sand operations. As part of an initiative to improve safety, Suncor Energy implemented a policy on random drug and alcohol testing for employees in safety-sensitive positions. Unifor grieved Suncor Energy’s policy.
The arbitration was conducted over 23 days. The arbitration panel heard from 19 witnesses and four (4) experts. Ultimately, two of the arbitrators (the “Majority”), found in favour of Unifor, with only one arbitrator (the “Dissent”), finding in favour of Suncor Energy. Both the Majority and Dissent accepted the principle that a dangerous workplace does not automatically justify random testing. Rather, an arbitrator must determine whether the rule imposed is proportionate to the concern it seeks to address. Although the Majority and Dissent agreed on the approach, they disagreed on how it should be applied.
The Majority was unswayed by Suncor Energy’s claim of a workplace culture affected by alcohol use. Although Suncor Energy provided evidence of “security incidents”, the Majority only considered evidence specific to the bargaining unit. Thus, while Suncor Energy provided evidence of 2,276 alcohol and drug security incidents, the Majority held that such evidence did not indicate whether the incidents involved Unifor members.
The Majority assessed random drug testing differently than random alcohol testing, claiming that a higher standard was needed to justify random drug testing given urinalysis’ inability to demonstrate present impairment. In addition, the Majority rejected Suncor Energy’s claim of an “out-of-control” culture. The Majority also determined that such drug use could not be attributed to “any particular employee”. Thus, similar to random alcohol testing, random drug testing could not be justified.
The Dissent found Suncor Energy’s policy reasonable. Although the Majority concluded Suncor Energy could not show a significant or serious drug and alcohol problem within the bargaining unit, this was not the standard Irving required. Rather, the standard from Irving was whether an employer could show a drug and alcohol problem within its workplace .
In the Dissent’s view, Suncor Energy met the standard in Irving. Suncor Energy’s evidence was clear and compelling; establishing a causal link between drugs and alcohol on the one hand, and safety risks, on the other.
Alberta Court of Queen’s Bench
The Alberta Court of Queen’s Bench disagreed with the Majority for three (3) reasons. First, the Court held that the Majority misapplied the Irving test by imposing more stringent requirements than those contemplated in Irving. The test was not whether there was a “significant or serious” drug or alcohol problem. Rather, the test was whether an employer could adduce evidence of a general problem with drugs and/or alcohol in its workplace.
The Majority asserted that it could only consider evidence pertaining to the bargaining unit. Again, this is not what Irving required. In Irving, the Supreme Court of Canada considered all employees within the workplace. The Majority narrowed this approach and unreasonably elevated the standard Suncor Energy had to meet.
Finally, the Court found that the Majority had ignored or misunderstood the evidence. For instance, the Majority was critical of the alcohol and drug security incidents put forth by Suncor Energy. They claimed these incidents could not be attributed solely to Unifor members. However, as stated earlier, this was not the correct standard. The Majority’s narrow approach on the security incidents made such evidence insignificant. This was an error.
The application for judicial review was granted, the arbitration decision was quashed, and the matter was remitted back before a fresh arbitration panel.
In Canada, there is no legislative regime that governs drug and alcohol testing in the workplace. However, employers must ensure compliance with both human rights and privacy legislation before implementing a testing component as part of their policy. In order to implement a policy which includes a testing component, employers must be able to justify the intrusion on the employee’s right to privacy. Given the complex nature of the issue, employers should obtain appropriate legal advice before acting.