Canada: Alberta Court Quashes Decision Of Alberta Labour Board Panel Rejecting Random Drug Testing At Oil Sands Site

Justice D. Blair Nixon of the Alberta Court of Queen's Bench has quashed the majority decision of the arbitration board (the "Majority") in the case surrounding Suncor's proposed random drug and alcohol testing program and sent the case back for a new hearing before a newly constituted panel. In finding that the decision of the Majority was unreasonable, the Court was not, however, prepared to substitute its own view for that of the panel, finding that it could only be done in cases where the facts of the case permit only one reasonable result and remitting the case back for a new hearing "would serve no useful purpose". Early comments from the Union indicate that it will appeal the decision.

Background Facts

Suncor conducts operations in the Athabasca oil sands near Fort McMurray, Alberta. The workplaces are inherently dangerous, involving such hazards as working with or around heavy equipment, including heavy haul trucks, cable and hydraulic shovels, high voltage power lines, radiation, chemicals, explosives, high temperature steam, high pressure piping, high pressure, flammable liquids and gases, and in blast zones. At its two worksites, Suncor employs up to 10,000 workers, 3,383 of which are represented by Unifor Local 707A.

Suncor has, over the years, adopted and modified its drug and alcohol policies to address the impact impairment due to drugs and alcohol can have on the safety of its workers and its operations. The policies and programs adopted by Suncor over the years have been extensive, including employee and supervisor education and training, post-incident, reasonable cause and return to work testing programs, counselling and support programs for workers and their families to address dependency issues, detection programs and the like.

In furtherance of its safety program, on June 20, 2012, Suncor announced that it was introducing a Random Testing Standard as part of a new Canada-wide drug and alcohol policy. The new testing protocol provided for random drug and alcohol testing for its employees holding safety sensitive positions. On July 19, 2012, Unifor Local 707A filed a grievance objecting to the random testing standard. In defence of the random testing protocol, Suncor took the position that there was a pervasive problem with drug and alcohol use at its sites that is unparalleled. The Union, however, rejected the evidence presented as being "unparticularized and unrefined" and took significant issue with the fact that the evidence did not distinguish between contractors, union and non-union workers.

Arbitration Decision

The grievance was heard by a panel of 3 arbitrators over the course of 23 hearing days, where 19 witnesses, including 4 experts, gave testimony. The evidence included technical evidence on drug and alcohol testing methodologies and results. The decision included a lengthy Majority decision and a detailed dissent. Both the Majority and dissent referred to the Supreme Court of Canada decision in the Communications, Energy and Paperworkers Union, Canada, Local 30 v Irving Pulp & Paper Ltd. case: 2013 SCC 34, 2 SCR 458 ("Irving") and agreed that the fact that a workplace is dangerous does not automatically justify a random testing program. The Majority and dissent accepted that a balancing of interests is required as per the decision in Re Lumber & Sawmill Workers' Union, Local 2537, and KVP Co (1965) 16 LAC 73 ("KVP"). In this case, the competing interests are the privacy rights of the worker versus safety in the workplace.

In making his assessment and quashing the Majority decision, Mr. Justice Nixon found that the reasonableness standard of review applied to this case. A review on the basis of reasonableness, applying the standard from the Supreme Court of Canada decision in Dunsmuir v New Brunswick, 2008 SCC 9 ("Dunsmuir"), means that the decision must fall "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law."1 The decision of the reviewing court is not to substitute its own view: "However, as long as the process and outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome."2 That being said, the Court confirmed that if the wrong legal test is applied or if the correct legal test is misapplied, that will result in the decision being found to be unreasonable.3

Decision of the Alberta Court of Queen's Bench

The Court, in its review of the Majority decision, focused on three issues:

  1. Did the Majority elevate the Irving test, concerning the degree of evidence necessary to establish a problem, to an unwarranted threshold?
  2. Was it appropriate for the Majority to only consider evidence of issues with drug and alcohol use within the bargaining unit?
  3. Did the Majority fail to properly consider the evidence presented at the arbitration?

In quashing the Majority decision, the Court decided the three issues as follows:

  1. Yes. The Court held that the Majority misapplied the Irving test. In Irving, the Supreme Court of Canada held that random testing might be justified if a general problem with drugs and alcohol in the workplace could be demonstrated by the evidence adduced by the employer. The Majority, however, stated the test as requiring evidence of a "serious" or "significant" problem. The Court found that this was an unwarranted elevation of the Irving test. The Majority at arbitration found "...the evidence does not demonstrate a culture at the Oil Sands Operations where consumption of alcohol is so pervasive as to be accepted by employees, where employees go together to drink openly and where such activity is either condoned or encouraged by management's practices or inaction."4 The Majority also required evidence of a causal connection to the accident, injury or near miss incidents at the plant, both of which are not thresholds required in Irving, leading the Court to the conclusion that the Irving test had been misapplied.
  2. No. The Court rejected the Majority's assertion that it would only consider evidence of issues with drug and alcohol use by the bargaining unit. The standard articulated by the Supreme Court in Irving was that of a general workplace problem, not one specific to the bargaining unit. The Court , in review, found that worker safety applied throughout the Suncor operations, to all workers at its two sites, however only workers in safety sensitive positions were affected by the Random Testing Standard. Therefore the Court was satisfied that considering the "workplace" in general, within this context, does not result in an overbroad analysis.
  3. Yes. A failure to discuss a relevant factor will not necessarily result in the Majority decision being unreasonable, however, "[a]n omission is a material error only if it gives rise to the reasoned belief that the Majority ignored or misunderstood the evidence in a manner that affected its decision."5 In reviewing the Majority decision, the Court found that the Majority did ignore and diminish the evidence relating to the "security incidents" concerning drug and alcohol use by taking an overly narrow, analytical approach to the evidence. Some examples included the Majority attempts to narrow the evidence to evidence that could be directly attributed to bargaining unit members only, by speculating on the meaning of the evidence where the evidence did not permit such conclusions, and in referring to "other, more advanced methods" of drug testing where no such evidence was presented. In doing so, "the Court finds that the Majority's "threshold" approach to Irving and its incorrect elevation of that threshold forecloses virtually any possibility of random testing, regardless of the circumstances."6 Based on the Majority's assessment of the evidence, the Court found that the Majority's evidentiary analysis, and thus, its decision, was unreasonable.

In quashing the decision and remitting the matter to a new panel for rehearing, the Court found that it could not substitute its own view for that of the Majority, holding: "This, however, is appropriate only where the facts before the administrative decision maker permit only one reasonable result and remitting the matter for re-arbitration would serve no useful purpose. In the view of this Court, that is not the case here."7

This will continue to be a case to watch, as the early indications from Unifor are that it intends to appeal this decision to the Alberta Court of Appeal.

Footnotes

1 Dunsmuir at para 47.

2 Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59.

3 Suncor decision at para 64.

4 Suncor decision at para 73.

5 Suncor decision at para 87.

6 Suncor decision at para 96.

7 Suncor decision at para 100.

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 Mondaq.com.

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

Authors
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
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