A Broader View: Court of Appeal Confirms Holistic Approach for Random Drug and Alcohol Testing in Alberta
Alberta’s highest court has clarified the parameters of the law on random drug and alcohol testing and emphasized that courts and arbitrators alike should take a holistic approach to safety when examining the enforceability of such practices.
In Suncor Energy Inc. v. Unifor Local 707A, the Alberta Court of Appeal (Court of Appeal) held that an employer seeking to justify random drug and alcohol testing for unionized employees may present evidence of substance abuse problems in the broader workplace as a means of supporting the need for such testing. In doing so, the Court of Appeal has continued a recent trend of favourable decisions to employers in the drug and alcohol context and provided further justification for employers to insist on robust policies and procedures to address the enhanced safety risks associated with drugs and alcohol in the workplace.
This case centered on Suncor Energy Inc.’s (Suncor) operations in the Regional Municipality of Wood Buffalo in Alberta. At the time of this dispute, Suncor had approximately 10,000 contractors, non-unionized employees and unionized employees on site in this region at any given time. Approximately one-third of these workers were unionized and represented by Unifor Local 707A (Union).
Suncor took extensive measures to combat drug and alcohol problems amongst its workforce at these sites. In 2012, Suncor decided to introduce additional measures and moved to implement random drug and alcohol testing for workers occupying safety sensitive positions in this region to further combat issues of substance abuse.
The Union grieved Suncor’s implementation of this testing. In particular, the Union disputed that there was sufficient evidence of substance abuse within the bargaining unit to justify random drug and alcohol testing.
The Union’s grievance was upheld by the arbitral panel, but the majority of the arbitral panel’s decision was quashed on appeal to the Alberta Court of Queen’s Bench. The Union appealed the decision.
For further information on the Alberta Court of Queen’s Bench decision, please see our May 2016 Blakes Bulletin: Suncor Clears Important Hurdle in Implementation of Random Alcohol and Drug Testing in Alberta.
COURT OF APPEAL DECISION
The Union’s appeal was dismissed.
In its decision, the Court of Appeal upheld the reasoning set out by the Alberta Court of Queen’s Bench, agreeing that it was unreasonable for the arbitral panel to reject evidence of substance abuse in the workplace on the whole and only focus on evidence particularized to the Union.
The Court of Appeal stressed that the panel’s interpretation would raise the evidentiary bar too high. Even if members of a union would be the only ones directly impacted by an arbitration decision, it does not mean decision makers should limit their inquiry to evidence tied directly to those unionized employees. Further, the Court of Appeal clarified that the analytical process set out by the Supreme Court of Canada in Communications, Energy and Paperworks Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. (Irving) called for a broader inquiry into drug and alcohol problems within the workplace generally. If evidence of broader problems beyond the union context exists, the Court of Appeal emphasized that it should be considered.
The Court of Appeal acknowledged that there may be workplaces where there is a good reason to distinguish between evidence of substance abuse by non-unionized and unionized employees, but it would not be reasonable to make such an arbitrary distinction in cases with highly integrated workforces (such as the current circumstances).
By drawing such a distinction in this case, the Court of Appeal held that the arbitral panel unreasonably narrowed the scope of evidence it considered and therefore applied the wrong legal test. The Court of Appeal held that the matter should be sent back for a new hearing, to be heard by a fresh panel, as the majority of the arbitral panel’s unreasonable assessment of the substance abuse evidence may have influenced its other conclusions about how to properly balance employee privacy against safety.
This decision stands as an important addition to the complex and contentious law surrounding drug and alcohol testing in the workplace and is in line with other recent decisions that have emphasized the importance of safety in work environments, such as the Ontario Superior Court of Justice’s decision in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (see our April 2017 Blakes Bulletin: Ontario Court Allows Workplace Random Drug and Alcohol Testing to Proceed). That being said, perhaps the most significant feature of the decision is its rejection of the artificial narrowing of evidence and misinterpretation of the law that had begun to develop in the case law post-Irving.
The heart of the Irving analysis is the balance of worker safety against privacy. Random testing is not limited to the most egregious of circumstances. The Supreme Court of Canada in Irving concluded that cases involving a dangerous workplace and evidence of enhanced safety risk, such as a general problem with substance abuse in the workplace, will be sufficient to reach the threshold needed to implement such testing. This case strongly affirms that broad evidence relevant to the workplace on these points must be considered by the decision maker, even if it relates to individuals outside of a specific bargaining unit.
The holistic approach to safety underlying this decision will be greatly encouraging for many employers throughout Canada. The simple reality is that many industrial operations throughout Alberta and the country on the whole are staffed by workforces comprising contractors and both unionized and non-unionized employees. Such individuals work side-by-side and, regardless of their unionized or non-unionized status, have an impact on the health and safety of all workers working in their vicinity. If a functional distinction does not exist within these integrated workforces from a safety perspective, it makes good sense that no such distinction should exist for evidentiary purposes when considering the suitability of random drug and alcohol testing for employees in safety-sensitive positions, and this is precisely what the Court of Appeal has affirmed.
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