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Recent decision on random drug and alcohol testing
October 18, 2017
Author(s): Nicole Toye

A recent decision of the Alberta Court of Appeal has further clarified the nature of the evidence which must be led by employers seeking to implement random drug and alcohol testing in the workplace.

By way of background, in June 2012, Suncor announced that it would introduce random drug and alcohol testing at certain safety-sensitive worksites near Fort McMurray. Only employees in safety sensitive positions and executive members on site were to be subject to random testing. Unifor, the union representing the affected employees, grieved Suncor’s implementation of random testing and the matter proceeded to arbitration.

The arbitration panel ruled in favour of the union, holding that the employer had not demonstrated sufficient safety concerns within the bargaining unit to justify random testing. Suncor had led evidence of over 2200 incidents at its Fort McMurray operations, but its evidence did not identify which incidents related to the bargaining unit as opposed to non-bargaining unit employees. The majority was critical of this “unparticularized” evidence.

Suncor applied for judicial review of the arbitration decision. The court quashed the arbitration decision as being unreasonable and ordered that the matter be remitted back for a new hearing before a fresh arbitration panel. The reviewing court concluded that the majority misapplied the test for random testing articulated by the Supreme Court of Canada (“SCC”) in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34 (“Irving”) and in particular, the arbitration panel erred by refusing to consider evidence of substance abuse in the workplace outside of the bargaining unit. Unifor then appealed the judicial review decision to the Court of Appeal.

The Court of Appeal agreed with the reviewing judge and found that the arbitration panel’s decision was unreasonable. In particular, it was unreasonable to insist upon evidence specific to Suncor’s unionized employees and unreasonable to disregard Suncor’s relevant evidence about substance abuse problems in the workplace. To do so was a mischaracterization of the test articulated by the SCC in Irving.

In the result, the Court of Appeal dismissed the appeal and reaffirmed the court’s decision to remit the matter back to a new arbitration panel.

For employers, this decision confirms that evidence regarding drug and alcohol abuse in the workplace is both relevant and necessary in order to implement random testing. The evidence led by the employer need not be specific to issues arising in the bargaining unit. While the Court of Appeal identified that there may be good reason to distinguish between unionized and non-unionized employees in some workplaces, that was not the case here, where the employees worked together in integrated jobsites.

A copy of the decision is available here: Suncor Energy Inc. v. Unifor, Local 707A, 2017 ABCA 313.

For further questions regarding this case, please contact Don Jordan, Q.C.