As a new year begins, the already bleak outlook for Canadian
employer's trying to enforce random alcohol and drug testing
policies in unionized workplaces appears even darker after a recent
arbitration decision in Alberta quashed another employer's
We have written about these decisions and have provided advice
for employers in the past, with our most recent article available
In the latest decision, Teck Coal Ltd. and UMWA, Local 1656
(Drug and Alcohol Policy), Re, 2015 CarswellAlta 2237
("Teck Coal"), arbitrator
Alexander-Smith weighed the evidence of 16 witnesses, including
five experts, in determining that the employer did not prove an
alcohol and drug problem existed at the workplace that was
sufficient to justify the impugned policy. In particular, the
arbitrator cited, both, a lack of evidence that alcohol and drug
use was connected to safety incidents at the employer's
workplace, and a lack of evidence connecting a decreased safety
risk due to the implementation of the impugned policy.
The first important sign of trouble for the employer in the
Teck Coal case arose in June 2013, when the Supreme Court
of Canada released its decision in CEP Local 30 v Irving Pulp
& Paper Ltd, 2013 SCC 34 ("Irving
Pulp"), the seminal decision with regard to alcohol and
drug testing policies.
The employer in Teck Coal had implemented random
alcohol and drug testing policies prior to the release of the
decision in Irving Pulp. At arbitration, the employer in
Teck Coal characterized Irving Pulp as a standard
of review decision that has little or no application to its case.
However, arbitrator Alexander-Smith rejected this argument, stating
that she was bound to apply the principles set out in Irving
Pulp, and, in doing so, assess the reasonableness of the
Teck Coal policy using a proportionality assessment
approach, in which the imposition of safety measures are weighed
against the attendant intrusions on privacy rights (paras 314 and
The Court in Irving Pulp stated that circumstances may
exist to justify an employer's random alcohol and drug testing
policy in a unionized setting in Canada, but the subsequent
Canadian jurisprudence is making it clear that such circumstances
Employers are looking to the results of the long awaited Alberta
Court of Queen's Bench judicial review of Suncor Energy
Inc. and Unifor, Local 707A (Random Alcohol and Drug Testing
Policy), Re, 242 L.A.C. (4th) 1 ("Suncor")
as a possible case in which an employer's random alcohol and
drug testing policy will be deemed reasonable. The Alberta
court's decision is expected in 2016.
Regardless of the upcoming Suncor judicial review
results, employers wanting to implement random alcohol and drug
testing policies at a unionized worksite in Canada will need to
support the decision with comprehensive evidence of an alcohol and
drug problem among the affected bargaining unit employees that is
connected to a safety risk in the workplace. Further, the employer
implementing the policy should try other methods short of random
testing in an attempt to reduce the risk before implementation of
the policy, and, if the decision to implement the policy is made,
the policy should be applied as narrowly as possible.
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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