Random drug and alcohol testing in the workplace was recently
back before the Alberta Court of Appeal. Oil Company Suncor
appealed an injunction against its new proposed drug and alcohol
testing policy. In Communications, Energy and Paperworkers Union,
Local 707 v. Suncor Energy Inc., 2012 ABCA
272 (PDF), the Alberta Court of Appeal issued a split
decision upholding an injunction preventing Suncor from initiating
random testing until an arbitration on the issue is
Following seven fatalities at one of its worksites since 2000
(three of which Suncor attributed to worker drug and alcohol
usage), it introduced a new drug and alcohol policy requiring
employees in "safety sensitive" and "specified"
positions to submit to random drug and alcohol testing. The
policy was set to go into force on October 15, 2012 for employees,
and January 1, 2013 for Contractors. Under the policy,
approximately 85% of Union members working at the Suncor site would
be subject to random testing.The selected employees would need to
provide urine samples.
On July 19, 2012, the Communications, Energy and Paperworkers
Union filed a grievance objecting to the new Policy. They also
applied to court for an injunction preventing Suncor from
implementing its policy until the matter was decided by the
arbitration board. The arbitration hearing was scheduled to
begin December 10, 2012.
Trial Court Grants Injunction
In October 2012, the Alberta Court of Queen's Bench granted
the Union's request for an Injunction (PDF). The Court applied
the standard three part test for an injunction. It looked at
whether there was a serious question to be tried, whether
irreparable harm would occur if an injunction was not granted, and
then applied a "balance of convenience" test.
The Court found in favour of the Union. Despite
acknowledging the validity of Suncor's argument about the
"catastrophic" effect of potential fatalities, the Court
was swayed by the lack of evidence that a delay in implementing the
policy until after the arbitration would make much of a
difference. This was supported by the fact that the
arbitration was set to start in December 2012. This was before
the date that Suncor had set for applying the policy to
Court of Appeal Decision
On November 28, 2012, a split decision of the Court of Appeal
upheld the Union's injunction and dismissed Suncor's
The majority of the Court ruled that the invasion of privacy
required by Suncor's policy was an irreparable harm justifying
the balance falling in the Union's favour. The dissenting
judge disagreed and would have removed the injunction against
Suncor. For him, the inherent risks of working at the Suncor
facility combined with the magnitude of potential loss outweighed
the minor invasion of privacy rights, at least in the interim.
Continuing Debate and Recent Hearing at the Supreme Court of
While the take-away here is that random drug and alcohol testing
in the workplace is not generally allowed in Canada, the issue is
still alive and being vigorously challenged by industry.
A very similar case was heard in early December by the Supreme
Court of Canada, in Communications, Energy and
Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper,
Limited 2011 NBCA 58 (See our Bulletin:
Court Okays Random Alcohol Testing). As in
Suncor, the union plaintiff in Irving is
challenging an employer's policy mandating random alcohol
testing for employees in certain positions. The Supreme Court
has reserved its decision.
The Suncor arbitration hearings are continuing this month. Stay
tuned as we await the Supreme Court decision and the arbitration
decision in Suncor. Both will undoubtedly have a dramatic impact
for many workplaces.
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.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
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.
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