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.

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