Canada: A Sniff Too Far? Arbitrator Rules Employer Cannot Conduct Random Drug Searches Using Drug Sniffing Dogs

United Steelworkers Local 7552 v. Agrium Vanscoy Potash Operations (Grievance 16-10, Random Drug Searches/Interviews) [2015] S.L.A.A. No. 1. January 5, 2015

A Saskatchewan labour arbitrator, Ken Norman, was required to determine whether Agrium Vanscoy Potash Operations ("Agrium") could require employees to submit to a search from a drug sniffing dog before they could enter the potash mine.  The policy was introduced in 2010 after two items of drug paraphernalia were found in common areas of the mine frequented by unionized employees and independent contractors.

Agrium introduced a random drug search/interview process in the fall of 2010. Since that time, employees and contractors had to submit to a sniff from a drug sniffing dog prior to entering the mine site on randomly selected days each month. In order to perform the search, the dog does not need to touch the employee or the belongings. At most, the dog takes six seconds to complete the search.

The dogs were accurate and effective. They could detect traces of various illegal drugs, such as marijuana, heroin, and meth, with a high degree of accuracy and "would be able to detect marijuana on an individual who had simply been around others who smoked." The accuracy of the testing by the dogs was not at issue.

If the dog detected the presence of an illegal drug, the employee was invited to a private room for an interview with a manager. The employee would be asked to explain the positive finding.

The United Steelworkers Local 7552 (the "Union") grieved against this policy. The Union alleged that requiring all employees to submit to the random search/interview process was "an unjustifiable violation of employees' fundamental right of 'privacy'."

Agrium also used the dogs to sniff personal lockers and tool boxes left in the mine site. The Union did not object to these searches in the grievance.

The Union relied on the Supreme Court of Canada's 2012 decision in R. v. Cole. The issue in that case was the constitutionality of a search by police without a warrant of a high school teacher's workplace laptop which was also used for personal use. The Supreme Court found that the personal use the teacher made of the laptop created information which was "meaningful, intimate, and organically connected to his biographical core" and that this information was protected from unreasonable search and seizure by section 8 of the Charter.

The Union argued the search by the drug sniffing dog was "an intrusion on the individual's reasonable expectation of 'informational privacy' concerning one's 'biographical core'" due to the scope of the search and interview process. The Union provided the hypothetical example of an employee who was exposed to marijuana smoke while attending a concert on the weekend, subjected to a sniff on the Monday, and then asked to explain the positive finding. This employee would be required to disclose intimate information about his lifestyle which was unrelated to his employment.

The Arbitrator noted that this was not your typical drug testing case as there was no seizure or testing of any bodily fluid. He also noted that no labour arbitrator has been asked to consider the propriety of searches by drug sniffing dogs.

The arbitrator also noted that one of the primary concerns with drug testing, as opposed to alcohol testing, is that it can capture recent use which would not impair or affect an employee's on site performance. Alcohol testing, on the other hand, does not detect alcohol consumed days earlier.

The arbitrator had to decide two issues. First, he had to decide whether the sniffs were an unreasonable search due to the invasion of an employee's privacy. The arbitrator concluded that a sniff by a drug sniffing dog is a search that could interfere with an employee's informational privacy.

Next, the arbitrator had to consider whether Agrium had reasonable grounds to invade the privacy of its employees though the search/interview process. Agrium was required to establish sufficient evidence of enhanced safety risks, such as evidence of a general problem of substance abuse in the workplace, to justify invading the privacy of its employees. The arbitrator relied on the test set out by the Supreme Court of Canada in its 2013 decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper Ltd.

As evidence of a substance abuse issue, Agrium relied on the drug paraphernalia found in the mine and on the positive findings from a surface swipe test of surfaces in the mine conducted a few weeks before the hearing. The surface swipe found traces of cannabis, amphetamines, cocaine and opiates. Agrium also provided evidence from an expert who opined that the traces of illegal substances found in the swipe test indicated that there "was an elevated risk that employees have been using drugs" and that this "elevates the risk of impairment during a work shift." Agrium did not have evidence of safety incidents, risks, or near misses that were attributable to illegal drugs.

In response, the Union produced an expert opinion from a professor in the College of Medicine/Pharmacology at the University of Saskatchewan. Dr. Richardson opined that finding traces of drugs at the mine in the swipe test was a reflection of the fact the drugs are common, and was not an indication that the employees at the mine were using illegal drugs.

With respect to the drug paraphernalia, the arbitrator noted that there was no evidence that bargaining unit employees had brought it into the mine and that, in any event, this would have been insufficient to justify the use of drug sniffing dogs.

The arbitrator also found that the positive swipe test was insufficient evidence to establish that there was a substance abuse problem in its workforce. As such, Agrium did not have reasonable grounds to invade the informational privacy of its employees through the drug sniff/interview process.

The arbitrator's decision is consistent with prior jurisprudence and the case law which places a very high evidentiary bar on employee drug testing. Employers will need specific evidence of a substance abuse problem before they can require employees to submit to drug searches or testing, even minimally invasive searches by drug sniffing dogs.

About BLG

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.

Similar Articles
Relevancy Powered by MondaqAI
Roper Greyell LLP – Employment and Labour Lawyers
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Roper Greyell LLP – Employment and Labour Lawyers
Related Articles
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
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 (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

To Use 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.


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.


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