The Alberta Court of Appeal has once again weighed in on the
controversial issue of random drug and alcohol testing, in a
decision that balanced employee privacy rights against workplace
health and safety. In Communications, Energy and Paperworkers Union,
Local 707 v. Suncor Energy Inc., the majority upheld an
injunction prohibiting Suncor from imposing a new policy of random
drug and alcohol testing on some 2,890 union members in
"safety-sensitive" or "specified"
In reaching its decision, the Court observed that the
non-consensual taking of bodily fluids was a "substantial
affront to an individual's privacy rights" and that the
new policy cast a wide net, in that it captured employees whose
work may not involve a real risk of accident. The Court noted that
Suncor had experienced "only" seven fatalities at its
workplace in the oil sands over the twelve-year period from 2000 to
2012, with "just" three of those killed having been under
the influence of drugs and/or alcohol at the time of their
Finally, the Court held that the evidence failed to demonstrate
that the new policy would have any immediate effect on accident
prevention, or that it would do so more effectively than the
current policy, which was narrowly tailored to permit testing only
where evidence of drug or alcohol abuse is present. Accordingly,
the injunction against Suncor has been upheld until the grievance
arbitration evaluating the merits of the new policy is
decided. We will continue to monitor this case as it
In related news, the Supreme Court of Canada is expected to
provide guidance on the issue of random alcohol testing in
Communications, Energy and Paperworkers Union of Canada, Local
30 v. Irving Pulp & Paper, Limited. The case was heard on
December 7, 2012 and a decision is expected in the New Year.
This case serves to remind employers that while the law on drug
and alcohol testing in the workplace continues to evolve, any
policy sought to be implemented must be limited to the purposes and
circumstances permitted by existing case law, and carefully
balanced against the privacy and human rights of its employees.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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