Canada: Alberta Oil Sands And Construction Employers Ramp Up Drug And Alcohol Testing

On June 20, 2012, major oil sands industry employers and labour providers announced their participation in the Drug and Alcohol Risk Reduction Pilot Project (DARRPP), sparking debate about the permissibility of the two-year pilot project under human rights law. DARRPP provides for a comprehensive regime of employee drug and alcohol testing, including random testing. The purpose of the pilot project is to investigate the effectiveness of a co-ordinated, industry-wide approach to reduce safety risks associated with employee drug and alcohol use.

Unions in the affected industries have expressed their opposition to DARRPP, asserting that it constitutes an impermissible intrusion on the rights, privacy and dignity of employees. Such resistance suggests that a challenge to the pilot project may be forthcoming.

Current Legal Landscape for Drug and Alcohol Testing

The question of whether drug and alcohol testing policies discriminate against employees on the basis of either an actual or perceived disability has been a controversial subject in Canadian jurisdictions, with courts in Western Canada adopting a broader approach to testing than courts in Central and Eastern Canada. In Entrop v. Imperial Oil Ltd. (Entrop), the Ontario Court of Appeal found random drug and alcohol testing of employees in safety-sensitive positions to be prima facie discriminatory. However, the court held that random alcohol testing could be justified as a bona fide occupational requirement (BFOR) for safety-sensitive positions, provided that sanctions were tailored to an employee's individual circumstances. The court drew a sharp distinction between alcohol testing, which was found to be an effective indicator of actual impairment, and drug testing, which was found to indicate past drug use as opposed to current or likely future impairment.

The governing authority in Alberta is the Court of Appeal's decision in Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company(Chiasson). In Chiasson, the court upheld a zero-tolerance drug testing policy applicable to the post-offer/pre-employment stage for prospective employees involved in the expansion of an oil sands facility. Significantly, the court upheld the testing policy without recourse to the BFOR analysis, finding that the policy was aimed at actual effects experienced by recreational drug users and not perceived effects experienced by addicts. Key to this finding was the court's acceptance of expert evidence indicating that the effects of marijuana linger for several days after use. The court concluded, "In this case [the employer's] policy does not perceive Chiasson to be an addict. Rather it perceives that persons who use drugs at all are a safety risk in an already dangerous workplace." (para. 34).

This disparate approach to drug and alcohol testing has created an uncertain legal environment for employers seeking to implement testing policies. It is anticipated that the Supreme Court of Canada's upcoming decision in the New Brunswick case of Irving Pulp & Paper Limited v. Communications Energy and Paperworkers Union of Canada, Local 30 will rectify the regional divide and clarify the legal parameters for drug and alcohol testing in Canada. At issue in Irving is the question of whether employers are required to adduce sufficient evidence of alcohol-related incidents in the workplace to justify instituting a testing policy.

DARRPP and Human Rights Law

DARRPP relies on the ruling in Chiasson, as well as the following statement made by the Alberta Human Rights Commission in its March 2012 information sheet on Drug and Alcohol Dependencies in Alberta Workplaces: "... it is not the testing that triggers the protection of human rights law. It is how the employer treats employees who are dependent on drugs or alcohol."

To promote compliance with human rights and privacy protections, DARRPP requires participating organizations to adhere to the following:

  • Have a mechanism in place for assessment by a third party of individuals who test positive for alcohol or drug use, to determine whether any individual suffers an addiction (disability).
  • Offer rehabilitation and accommodation for at least those who are diagnosed with an addiction (disability).
  • Have controls in place that ensure protection of privacy and personal information of workers who are tested.

In the event of a challenge under human rights law, the best argument for participating employers would be to say that DARRPP avoids violating human rights protections by requiring third party assessment of employees with positive test results, as well as accommodation and rehabilitation support for employees found to be experiencing drug or alcohol addiction. This scheme clearly distinguishes between the treatment of recreational users and employees with substance dependency issues and, as a result, may avoid the problem identified in Entrop of treating all employees with positive test results as having a disability, actual or perceived. The Alberta Human Rights Commission has made it clear that recreational drug users are not protected by human rights legislation.

DARRPP could also be upheld as an aggressive but justified approach to unprecedented safety issues faced by employers in the construction and operation of oil sands facilities. Participating employers have commented that current drug and alcohol testing programs are not sufficient to protect workplace safety in this environment. As well, there has been significant public outcry against the number of drug- and alcohol-related fatalities on the "Highway of Death" between the oil sands and Edmonton. The Alberta Court of Appeal said in Chiasson: "Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic." (para. 36). Relying on this statement, it could be argued that DARRPP is either non-discriminatory at the prima facie stage of analysis or reasonably necessary to achieve safety objectives and therefore justified as a BFOR.

The greatest challenge for participating employers is the limited nature of the ruling in Chiasson, which dealt specifically with marijuana and relied on expert evidence regarding the lingering effects of this drug. Such evidence was key to the court's acceptance of drug testing as an effective indicator of current impairment. Unless participating employers can successfully argue that the reasoning in Chiasson extends to other drugs, DARRPP may not survive scrutiny under human rights law.


Employers considering DARRPP, or independent implementation of a drug and alcohol testing policy, should assess the nature of their workplace operations to determine whether testing is reasonably necessary to achieve their safety objectives. Once the decision has been made to proceed with testing, employers should draft and maintain a policy that is accessible for employees, clear in its goals and methods for limiting impairment in the workplace, and that provides for flexibility in accommodating those employees found to be experiencing drug or alcohol addiction.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
27 Oct 2016, Seminar, Toronto, Canada

Please join members of the Blakes Commercial Real Estate group as they discuss five key provisions of a commercial real estate purchase agreement that are often the subject of much negotiation but are sometimes misunderstood.

1 Nov 2016, Seminar, Toronto, Canada

What is the emotional culture of your organization?

Every organization and workplace has an emotional culture that can have an impact on everything from employee performance to customer or client satisfaction.

3 Nov 2016, Seminar, Toronto, Canada

Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.