Canada: What Evidence Is Required To Implement Random Drug And Alcohol Testing Policies In Safety Sensitive Workplaces?

On September 28, 2017, the Alberta Court of Appeal issued its decision on Suncor Energy Inc v Unifor Local 707A, which considered the degree of evidence required to justify a random alcohol and drug testing policy. By way of background, this case considered Suncor's implementation of a random drug and alcohol testing policy for safety-sensitive employees at oil sands facilities in the Fort McMurray area. In 2014, the Union successfully brought a policy grievance before an arbitration panel on the basis that the policy infringed on workers' privacy rights.¹ Suncor applied for judicial review of the decision. In 2016, the Alberta Court of Queen's Bench held that the arbitration decision was unreasonable and sent the matter back to a new arbitration panel for reconsideration. The Union appealed the decision to the Alberta Court of Appeal. (For additional background, please see our article on previous decisions in this case.)

The Court of Appeal held that the arbitration decision was to be reviewed on a standard of reasonableness, which "[...] did not preclude the reviewing justice from assessing the means by which the majority of the panel reached their decision". The Court of Appeal considered the evidence of a workplace drug and alcohol problem required to justify a random testing policy.

Suncor's evidence before the arbitration panel related to the entirety of the workplace (2,200 "incidents" at its Fort McMurray operations involved drugs or alcohol) and did not distinguish between unionized employees, non-unionized employees, and contractors. In allowing the grievance, the majority of the arbitration panel held the evidence of a drug and alcohol problem at Suncor's sites was non-specific and "unparticularized". The majority of the arbitration panel further held that it should only consider evidence demonstrating a drug or alcohol problem within the bargaining unit.

The Court of Appeal held that a "broader, workplace-focused analysis" was appropriate when considering the balancing of workplace safety and privacy issues:

The Court of Appeal concluded that the arbitration panel unreasonably narrowed the evidence, such that it effectively asked the wrong question and applied the wrong legal test. Ultimately, the Court of Appeal dismissed the appeal and affirmed the Court of Queen's Bench's decision to remit the matter for a new arbitration.

This decision affirms that evidence specific to unionized employees is not necessary to implement random alcohol and drug testing policies – such a requirement would set the evidentiary bar too high. Rather, employers can take a more holistic inquiry into drug and alcohol problems within the workplace generally. That said, the Court of Appeal clearly stated that there may be cases in which it is appropriate to distinguish between the evidence of substance abuse by unionized and non-unionized employees. Presumably, such an occasion would arise where there was evidence that suggested drug and alcohol use within the bargaining unit was significantly different than that in the broader workforce.

Although this development may be seen as a widening of the door regarding random drug and alcohol testing, extreme care and caution should always be exercised in implementing such a program. While the upcoming changes to Canada's regulations of cannabis may lead some employers to lean towards random testing, this decision makes it clear that such an approach must still be based on evidence of a problem and of a need to correct it. (For more information, please see our previous article on changes to Canada's regulation of cannabis and the possible effects to the workplace.)

Field Law will continue to keep you updated on the new arbitration and other developments relevant to the ability of employers to legally implement random drug and alcohol testing.

Footnote

1. See: Suncor Energy Inc v Unifor Local 707A, 2014 Carswell 457, Alta. Arb., March 18, 2014.

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