An Alberta Board of Arbitration has concluded that an
employer's random alcohol and drug testing policy does not
stand up to the legal test set by the Supreme Court of Canada in
last year's Irving decision. This is a
significant early use of the Irving decision and provides
insight into the problems an employer must face – and prove
– before justifying random testing.
On March 18, 2014, a three-person arbitration board released the
long awaited decision in the random alcohol and drug testing policy
grievance filed by Unifor, Local 707 (the "Union")
against Suncor Energy Inc. ("Suncor").
On July 19, 2012, the Union (initially Communications, Energy
and Paperworkers Union, Local 707, which later merged to create
Unifor, Local 707) filed a grievance objecting to Suncor's
proposed random alcohol and drug testing policy on the basis that
it is "unjustifiable, unreasonable, and violates
employees' privacy rights, human dignity, and human
rights" and that its "sanctions unreasonable and
unjustifiable searches of employees' persons."
Suncor's proposed policy included random alcohol (by
breathalyser) and drug (by urinalysis) testing with respect to
Union members working in "safety sensitive" or
"specified" positions. Computer-based random
selection assured that a minimum of 50% policy participants were
tested per year.
On October 12, 2012, the Union applied for an injunction halting
Suncor's proposed policy in its Alberta oilsands operations.
The Alberta Court of Queen's Bench granted the injunction
prohibiting Suncor from implementing the policy pending an
arbitration decision on the Union's grievance. The injunctive
relief was upheld by the Alberta Court of Appeal on November 28,
The arbitration was conducted over 23 days with significant
evidence, including four experts and 19 witnesses. It
resulted in a 106 page majority decision and a 67 page dissent.
The arbitration board considered the most recent Supreme Court
of Canada decision in Communications, Energy and Paperworkers
Union, Local 30 v. Irving Pulp and Paper Ltd. 2013 SCC 34
("Irving") relating to random testing which held
that there must be "evidence of a problem with alcohol and
drugs" in the workplace in order for random testing to be
warranted. Suncor presented evidence with respect to positive
"for cause" testing, security incidents, dependency
assessments and drug and alcohol use in the community of Fort
McMurray. However, Suncor's evidence did not sway the
majority of the arbitration board (Chair and Union Nominee) which
14 positive alcohol tests over a 9 year period in a workforce
the size of Suncor does not establish that there is a significant
problem or a legitimate safety risk;
Suncor's evidence did not establish an
"out-of-control" drug or alcohol culture in Fort
Urinalysis (as opposed to oral) testing is unable to provide an
employer with specific information regarding impairment or
influence by drugs at the time the test is taken;
The policy was proposed without any time limits for reviewing
its efficacy, was not targeted as narrowly as possible and does not
use the least intrusive or most accurate testing methods.
This is the first arbitral decision in Alberta to consider
Irving. It demonstrates that employers must offer powerful
and compelling evidence of a problem with alcohol and drugs at the
particular worksite in order to meet the burden of proof placed
upon them and successfully implement random testing in the
It should be noted, however, that this is not the final say on
the matter. Suncor has stated it will be seeking judicial review of
this decision and it is likely that many of the points discussed in
this decision's dissent will be raised upon review, including
the existence of compelling evidence of an alcohol and drug problem
in Fort McMurray and at Suncor's operations.
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.
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