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Random drug and alcohol testing might be allowed

Alberta Court of Appeal rules in favour of Suncor
Suncor refinery
A Suncor refinery is seen in Sherwood Park, Alta. on Nov. 13, 2016. REUTERS/Chris Helgren

A decision, helpful to employers, was released by the Alberta Court of Appeal on Sept. 28. It represents the next chapter in the years-long battle between Suncor and Unifor, Local 707A over whether random drug and alcohol testing at Suncor’s oilsands operations in Alberta is a reasonable safety measure.

In a unanimous decision, the Alberta Court of Appeal reversed an arbitration board’s decision that struck down Suncor’s random drug and alcohol testing policy. This decision has important implications, not only for Alberta’s employers, but for employers across Canada with legitimate needs to randomly test workers in safety‑sensitive positions and/or workplaces.

In 2012, Suncor began random-testing its workers in safety-sensitive jobs. Unifor grieved Suncor’s policy, arguing that it unreasonably infringed workers’ privacy rights. Suncor maintained that there was a pervasive issue with drug and alcohol use at its sites and that the purpose of the policy was ultimately to ensure safety.

Nearly two years later, an arbitration board struck down Suncor’s policy. Simply put, the board decided that the benefits gained from random-testing did not outweigh the harm caused by breaching the right to privacy. The board’s decision was a difficult one for employers across Canada because it applied a very strict legal test to determine whether random testing was justified — one that, had it stood, would have been very difficult for employers to pass.

Suncor sought judicial review of the arbitration decision. The Court of Queen’s Bench of Alberta overturned the board’s decision in May of 2016 and sent the matter back to arbitration to be heard again. The court decided that the arbitration board made errors when it:

•required evidence of a “significant” or “serious” problem with drugs and alcohol in the workplace, instead of evidence of a “general problem” — an unwarranted elevation of the test set out by the Supreme Court in Communications, Energy and Paperworkers’ Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., in 2013

•limited its consideration of drug and alcohol incidents to members of the involved bargaining unit. The board should have considered evidence about alcohol and drug incidents involving all workers at the workplace, not just union members

•ignored or misunderstood the evidence in a manner that affected its decisions. This included ignoring more than 2,200 security incidents and taking an inconsistent approach in analyzing the merits of specific drug and alcohol testing methods.

The Court of Appeal decision does not endorse random drug and alcohol testing at Suncor or elsewhere. Rather, the Court of Appeal confirmed that the decision-making process used by the board of arbitration was flawed. The principal error in the arbitration decision was the application of a legal test that was too stringent and unreasonably narrowed the evidence of a drug and alcohol problem at Suncor’s workplace. Ultimately, the Queen’s Bench decision was upheld. The issue of whether Suncor’s random testing program is permissible, as a reasonable safety measure, was sent back to be heard again by a different arbitration panel.

It is unclear how long it will be before a new decision on Suncor’s testing program is made. That decision could be delayed if Unifor appeals further and another appeal appears possible. Unifor has already indicated that it may pursue this case at the Supreme Court of Canada and, in reacting to the Court of Appeal decision, has publicly maintained that Suncor’s policy violates the fundamental rights of workers.

In our view, yesterday’s decision reinforces the Supreme Court’s guidance that random testing may be a justified safety measure where there is evidence of a general problem with drugs and alcohol in the workplace. To some, the Suncor arbitration decision appeared to slam the door shut against random testing. However, the Alberta Court of Queen’s Bench and now the Court of Appeal appear to have confirmed that the door may still be open — not wide open but open. This is important given that random testing may become an even more important tool for employers with the legalization of recreational marijuana on the horizon.

Loretta Bouwmeester

Loretta Bouwmeester is a partner in Mathews Dinsdale & Clark’s occupational health and safety and workers’ compensation practice in Calgary. She has close to 15 years of experience representing employers in British Columbia, Alberta and the Northwest Territories. She can be reached at (403) 538-5042 or lbouwmeester@mathewsdinsdale.com, or visit www.mathewsdinsdale.com for more information.
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