Canada: Alberta Arbitrators Strike Oil Company’s Random Alcohol And Drug Testing Policy

Employers looking to Alberta for a legal precedent to support their random alcohol and drug testing policies will need to keep looking, after Alberta arbitrators deemed Suncor Energy Inc.'s random testing policy to be an unreasonable exercise of Suncor's management rights.

Industry observers had been following Unifor, Local 707A v Suncor Energy Inc closely after the Supreme Court of Canada's decision last year in Irving, which determined that employers must meet a high standard to justify random alcohol testing of employees. Until the Suncor decision, which was released this week, the high Irving threshold had been challenged only once in Canadian law.

In that case (Sarnia), an Ontario arbitrator applied the Irving standards and struck an alcohol and drug policy, because not enough specific evidence was provided to justify testing contractors for alcohol and drugs before allowing them to enter the employer's worksite. (We published articles about Irving and Sarnia last year.)

Historically, Alberta arbitrators and courts have been more tolerant of alcohol and drug testing policies than have their colleagues in other provinces, and given that alcohol and drug use is commonly thought to be prevalent among Alberta's oil patch workers (whether accurate or not), many observers believed the Suncor decision would provide an example of a random alcohol and drug testing policy that is deemed reasonable in Canadian law. As Suncor argued in the arbitration, Suncor has an alcohol and drug problem among its employees at the impugned Alberta workplace that is pervasive, profound and "unparalleled in any other workplace in Canada".

However, two of the three arbitrators (the "Board") in the Suncor case held that the Policy was an unreasonable exercise of Suncor's management rights. The case provides a further precedent to demonstrate how difficult it is for employers to institute random alcohol and drug testing in Canada. It must be noted, however, the decision included a dissent, and Suncor indicated it will seek judicial review.

Employers looking to Alberta for a legal precedent to support their random alcohol and drug testing policies will need to keep looking, after Alberta arbitrators deemed Suncor Energy Inc.'s random testing policy to be an unreasonable exercise of Suncor's management rights.

Industry observers had been following Unifor, Local 707A v Suncor Energy Inc closely after the Supreme Court of Canada's decision last year in Irving1, which determined that employers must meet a high standard to justify random alcohol testing of employees. Until the Suncor decision, which was released this week, the high Irving threshold had been challenged only once in Canadian law.

In that case (Sarnia2), an Ontario arbitrator applied the Irving standards and struck an alcohol and drug policy, because not enough specific evidence was provided to justify testing contractors for alcohol and drugs before allowing them to enter the employer's worksite. (We published articles about Irving and Sarnia last year.)

Historically, Alberta arbitrators and courts have been more tolerant of alcohol and drug testing policies than have their colleagues in other provinces3, and given that alcohol and drug use is commonly thought to be prevalent among Alberta's oil patch workers (whether accurate or not), many observers believed the Suncor decision would provide an example of a random alcohol and drug testing policy that is deemed reasonable in Canadian law. As Suncor argued in the arbitration, Suncor has an alcohol and drug problem among its employees at the impugned Alberta workplace that is pervasive, profound and "unparalleled in any other workplace in Canada"4.

However, two of the three arbitrators (the "Board") in the Suncor case held that the Policy was an unreasonable exercise of Suncor's management rights. The case provides a further precedent to demonstrate how difficult it is for employers to institute random alcohol and drug testing in Canada. It must be noted, however, the decision included a dissent, and Suncor indicated it will seek judicial review.

Background

In June 2012, Suncor announced it was amending its alcohol and drug testing policy for employees in two of its massive oil sands operations in the Fort McMurray, Alberta area. Its existing policy, which provided for post-incident, reasonable grounds, follow-up, post-rehabilitation, and return to work alcohol and drug testing (commonly cited in the jurisprudence as "for cause" testing) was amended to include random alcohol and drug testing of employees deemed to work in "safety sensitive" positions (the "Policy"). Of Suncor's 3,383 unionized employees (as of July 2013), 2,771 (82 percent) of them were deemed to occupy safety-sensitive positions, which was a fact the Union did not challenge.

Of note, prior to making the decision to implement the Policy, Suncor had participated in the development of the Drug and Alcohol Risk Reduction Pilot Project (DARRPP), a two-year trial evaluation project monitoring the introduction of random workplace alcohol and drug testing. However, around the same time DARRPP was announced, Suncor announced it would proceed with its own policy. The Union filed a policy grievance in July 2012, stating the "random testing standard was unreasonable and unjustified".

Suncor intended to implement the Policy on October 15, 2012. On October 12, 2012, the Union applied for and received an injunction to prevent implementation of the Policy, pending the result of the arbitration5. The Court of Appeal upheld the injunction in December 20126. Irving came out in June 2013, setting an uphill road for Suncor to justify the Policy.

The arbitration took 23 days. The parties adduced 19 witnesses, including four experts. A total of 188 pages of written arguments were submitted.

The Union's Position

Relying heavily on Irving, the Union argued that Suncor failed to meet its onus to demonstrate that the benefits to be gained through the implementation of the Policy (a reduction of the safety risk at the workplace) were proportional to the harm that will occur as a result of the implementation (an infringement of the tested employee's privacy)7. In particular, the Union argued:

  • Suncor did not demonstrate a "significant safety concern" at the impugned workplace with respect to the bargaining unit;
  • The Policy is ineffective as a means to reduce safety risks at the impugned workplace; and
  • Suncor had not exhausted less intrusive, effective means to address its drug and alcohol use concerns at the impugned workplace.

Suncor's Position

Suncor stated and adduced evidence that there is an "out-of-control drug culture" in the Fort McMurray area, and that cocaine use was a particular concern8. Suncor also highlighted, among other things:

  • In the nine year period between October 1, 2003 and December 31, 2012, there were 224 positive alcohol and drug tests of Suncor Employees at the impugned worksites, and of the 224 positive tests, 216 were Union employees9;
  • There have been 20 fatalities at the impugned worksites, and alcohol or drugs were factors in three of them (although the last death of a bargaining unit employee occurred in 1994)10;
  • Between 2004 and August 2013, there were 2,276 security incidents involving alcohol and drugs, including the discovery of devices used to defeat urine drug tests, such as whizzinators, bottles of urine and urine testing kits11;
  • In 2009 through 2012 there were 115 positive employee alcohol and drug tests at the impugned workplace compared to only five positive alcohol tests and zero positive drug tests at all of Suncor's other operations in Canada12;
  • Suncor is subject to onerous statutory obligations to ensure a safe workplace, including those imposed by the Alberta Occupational Health and Safety Act and the Criminal Code13;
  • Suncor has tried other methods to address its concerns about alcohol and drug use at the impugned workplace, including the use of sniffer dogs and extensive safety training and education with respect to alcohol and drugs14; and
  • The Union's grievance did not specifically refer to the testing methods and procedures Suncor planned to use to implement the Policy, and, as such, the Board did not have jurisdiction to analyze whether the methods and procedures Suncor planned to use to carry out testing (urinalysis, in particular) were reasonable.

Decision

As set out in Irving, the Board followed a "balancing of interests proportionality approach" to determine whether the Policy's claimed benefits of a reduced safety risk outweighed the harm to employee privacy15.

With regard to Suncor's argument that the Board did not have jurisdiction to determine the reasonableness of the method and procedures Suncor planned to use when it implemented the Policy (because the Union did not include this as part of its grievance), the Board stated, "[b]oth the fact of random testing, and the method used to random test are relevant in the proportionality assessment this Board must undertake16."

In analyzing the procedures and methods of testing, the Board focused on urinalysis testing and Suncor's claim that random urinalysis testing would improve workplace safety. However, the Board highlighted the differences between urinalysis testing in "for cause" testing and in random testing. Whereas a positive "for cause" urinalysis test provides only one piece of evidence to use to build a case against an employee and improve safety at the workplace, the random test is purported to determine if the tested employee is fit for work, but a positive urinalysis drug test does not gauge current impairment. The Board did not find Suncor's evidence persuasive that a positive urinalysis test creates a "red flag" and identifies "high risk employees" who had recently used drugs17." As such, the Board cited the failure of urinalysis drug testing to confirm current impairment as one factor that contributed to the unreasonableness of the Policy.

The Board also noted "for cause" testing only occurs after a triggering incident, but the Policy states a 50 percent minimum of the 2771 bargaining unit members would be randomly tested each year, which was another reason the Board cited to indicate the Policy was not proportional18.

With regard to what constitutes "a problem sufficient to justify random alcohol testing", the Board Majority indicated the Court in Irving had provided "very little guidance" on what is required to justify a privacy infringement19. Nevertheless, the Board stated that Suncor's evidence, which included positive "for cause" testing results, statistics of security incidents and evidence of alcohol and drug problems in the community-at-large and of non-bargaining unit employees, was not specific enough to meet the Irving standard, vague as it is. For example, the Board noted that the reference to three fatalities linked to drugs or alcohol involved contractor employees and not bargaining unit members, and the Board's decision must concern only the employers' relationship with the bargaining unit members. In this manner, with regard to the specificity of evidence required, the Board decision echoed the decision in Sarnia.

The Board also noted the high volume of positive alcohol and drug test results at the impugned workplace compared to other Suncor worksites in Canada neither provided enough details of the testing nor addressed how many Suncor employees worked at the impugned workplace relative to how many Suncor employees worked at other sites in Canada.

The Board also stated Suncor failed to make a causal connection between alcohol/drug problems and accidents, injuries and near misses at the impugned workplace, as required in Irving20.

The Board further noted that the steps Suncor had been taking to improve safety before attempting to implement the Policy were working—the incidence of positive "for cause" tests were decreasing, and the safety record was improving, which found to be was evidence that the Policy was unreasonable21. In particular, the Board noted that the results of positive tests taken from 2012 and 2013 indicated that, statistically, Suncor's incidences of positive tests were fewer than the amount presented in Irving22. In general, the Board felt that the evidence was "simply lacking" that an out-of-control a drug or alcohol culture exists with respect to the impugned bargaining unit members23.

As an aside, the Board endorsed the DARRPP principles with regard to alcohol and drug policies. These principles include a time-limited trial project prior to implementation, measurement of effects and results (including false positives), a dispute resolution mechanism for addressing employee concerns or complaints, a clear and unequivocal "under the influence of alcohol or drugs" prohibition, consistent training, the use of oral fluids as the testing method (which can confirm current impairment for both alcohol and drugs), and regularly scheduled (every six months) re-evaluations with regard to expanding, reducing, maintaining or discontinuing the policy based on clear data indicating results24.

What does the Decision mean?

  • While it remains difficult (but still possible) for employers in Canada to justify random alcohol testing of employees, it is even more difficult to justify random drug testing, particularly random drug testing by urinalysis.
  • To justify the implementation of random testing for alcohol and drugs, employers are required to provide specific evidence of a drug and alcohol problem among the members of the bargaining unit who are subject to the random testing.
  • The evidence of a workplace problem with alcohol and drugs must be causally linked to accidents, injuries or near misses at the workplace.
  • "For cause" testing for alcohol and drugs, even urinalysis drug testing "for cause", is reasonable and does not appear to be controversial when it is only used as one piece of evidence and is not used to decide an issue determinatively.
  • Employers may look to DARRPP principles and possibly apply them if they wish to implement random alcohol and drug testing policies.

Given Suncor's intentions to seek judicial review, it is possible the reviewing court may quash the majority decision. However, the current state of the law indicates employers should read Irving, Sarnia and the Suncor decision carefully before attempting to implement random alcohol and drug testing policies.

Footnotes

1. Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 ("Irving")

2. Mechanical Contractors Association Sarnia (Re) 2013 CanLII 54951 (ONLA) (Sarnia)

3. Sarnia, supra, para 110

4. Para 158

5. CEP, Local 707 v Suncor Energy Inc. 2012 ABQB 627 (Macklin, J)

6. CEP, Local 707 v Suncor Energy Inc. 2012 ABCA 373

7. Paras 136 and 199.

8. Para 179.

9. Para 51

10. Paras 36 to 39

11. Para 53.

12. Para 268.

13. Para 163.

14. Para 168.

15. Para 223.

16. Para 216.

17. Paras 291 and 295.

18. Paras 201 to 206.

19. Para 239.

20. Para 312.

21. Para 250.

22. Pars 252.

23. Para 320.

24. Para 346.

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions