Canada: Suncor Clears Important Hurdle In Implementation Of Random Alcohol And Drug Testing In Alberta

Employers seeking to introduce random alcohol and drug testing in hazardous work environments have reason to be optimistic following the recently released decision in Suncor Energy Inc. v. Unifor Local 707A. Justice D.B. Nixon held that the decision of the three-member arbitration panel (Panel) to reject Suncor Energy Inc.'s (Suncor) proposed implementation of random alcohol and drug testing in its operations in the Regional Municipality of Wood Buffalo was unreasonable and cannot stand. As a result, the Panel's decision has been quashed and the matter has been directed to be reconsidered by a new arbitration panel.

BACKGROUND

In June 2012, following a prolonged period of concern regarding the safety hazards posed by alcohol and drug use in the workplace, Suncor informed the union that it would be introducing random alcohol and drug testing for employees in safety-sensitive and specified positions at its operations in the Regional Municipality of Wood Buffalo. Random alcohol testing would be conducted by breathalyzer and random drug testing by urinalysis (consistent with Suncor's post-incident, reasonable cause, follow-up and return to work testing practices).

In July 2012, the union filed a grievance challenging the random testing program scheduled for October 2012. The union subsequently obtained an interim injunction delaying the implementation of the program pending the outcome of the grievance arbitration. The injunction was upheld by the Alberta Court of Appeal.

The majority of the Panel were in favour of the union on the basis that: the harm to employee privacy rights from random testing outweighed the safety benefit to be gained by Suncor; and the imposition of random testing was not warranted because Suncor failed to show sufficient evidence of a problem with alcohol and drugs in its workplace.

In a strongly worded dissent, Panel member David Laird, Q.C., criticized numerous aspects of the Panel majority decision. In particular, he argued that the majority misconstrued and misapplied the test for imposition of random testing as enunciated in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. (Irving). Further, he observed that the evidence adduced by Suncor regarding the detection of alcohol and drug use in the workplace was "profound" and "significantly more compelling than the evidence in any other decision in Canada considering random alcohol and drug testing." Mr. Laird's dissent was positively and frequently cited by Justice Nixon in his quashing of the Panel majority decision.

COURT OF QUEEN'S BENCH DECISION

Justice Nixon identified three main issues where the Panel majority got it wrong.

Issue 1: Inappropriately raised evidentiary threshold required to establish a workplace alcohol and drug problem

In Irving, the Supreme Court of Canada (SCC) held that random drug testing in a hazardous workplace environment may be justified where there is "evidence of a general problem with substance abuse in the workplace." The Panel majority's decision, however, incorrectly raised the threshold from evidence of a general problem to evidence of a significant, extreme or serious problem. For Justice Nixon, this amounted to an unwarranted elevation of the Irving test, as noted by the Panel dissent: "In none of the cases which we are aware...have we seen language requiring evidence of a 'significant' or 'serious' problem. Rather, the standard has been that evidence of a problem."

For further information on the Supreme Court of Canada's decision in Irving, please see our June 2013 Blakes Bulletin: Sober Second Thought: Supreme Court Rules on Random Drug and Alcohol Testing.

Justice Nixon also rejected the Panel majority's requirement that Suncor establish a causal link between alcohol and drug use and incidents in the workplace:

Again, the Court does not read Irving as imposing such a causal connection. Indeed, the majority judgment in Irving makes no reference to such a causal connection. Rather, both the majority and dissent in Irving referred to a balancing exercise to be undertaken on a case-by-case basis.

Accordingly, Justice Nixon found that the Panel majority misconstrued the Irving test by applying more rigorous requirements than those articulated by the SCC.

Issue 2: Erred in considering only evidence within the bargaining unit

Justice Nixon found that the Panel majority erred in its decision to only consider evidence concerning alcohol and drug problems within the union bargaining unit. While the Panel majority was correct to point out that its decision would only be binding upon members of the union, it was not appropriate to only consider evidence directly tied to such workers. Rather, the Panel majority should have considered evidence relating to the entire workplace, including Suncor's union, non-union and contract workers.

This approach is consistent with Irving where the SCC directed that the test is whether there is a general workplace problem with alcohol and drugs, not a bargaining unit problem. By reducing the scope of the analysis, the Panel majority failed to consider Suncor's statutory obligations under Alberta's Occupational Health and Safety Act and the Criminal Code to ensure a safe workplace for all of its employees, not just those in the bargaining unit. "Safety," Justice Nixon wrote, "is an aggregate concept, especially in a dangerous work environment."

Justice Nixon also stressed two additional factors that called for the broader admission of evidence. First, there was nothing to suggest that alcohol and drug use within the bargaining unit differed in some meaningful way from the rest of Suncor's workforce. Second, the only "workplace[s]" relevant to the case are the locations of Suncor's oil sands operations in the Regional Municipality of Wood Buffalo that are well defined and by their nature dangerous. Further, the random testing program applied only to workers in safety sensitive positions working within those locations.

Issue 3: Failed to properly consider all of the evidence before it

The failure to consider all of the relevant evidence Suncor presented was a major shortcoming of the Panel majority's decision. Indeed, Justice Nixon explicitly acknowledged that he reviewed the record before him, stating at paragraph 88: "After considering the evidence carefully, the Court finds that it has a reasoned belief that the Majority ignored or misunderstood the evidence in a manner that affected its decision."

By way of example, the Panel majority's decision to consider only evidence within the bargaining unit resulted in the exclusion of all but 12 of the 2,276 security incidents reported between 2004 and August 2013, on the basis that they were not directly attributable to bargaining unit employees. According to Justice Nixon:

The relevance of that "security incident" evidence was lost because it was taken out of context as a result of the overly narrow analytical approach applied by the Majority. For example, the Majority ignored the fact that the camp at Firebag is within the security perimeter of the operating environment, and thereby eliminated the security incidents that had been identified within that camp.

Justice Nixon went on to hold that the Panel majority's "wholesale dismissal" of Suncor's evidence regarding security incidents further affected the reasonableness of its decision. The Panel majority's sidelining of relevant evidence was also a major theme in the Panel dissent, where Laird characterized the evidence of problems with alcohol and drugs as "overwhelming." He went on to note that Suncor had almost 250 "for cause" positive tests since the introduction of alcohol and drug testing in 2003, the bulk of those positive tests being union members.

Justice Nixon further highlighted the internal inconsistencies in the Panel majority's decision. For example, the Panel majority emphasized "other, more advanced methods" of drug testing, even though the union failed to provide evidence of a single alternative to urinalysis. Moreover, also with respect to urinalysis, Justice Nixon pointed out that the Panel majority appeared to irreconcilably embrace and reject the use of breathalyzers. On the one hand, the Panel majority suggested that oral fluid testing for drug use was better than urinalysis, being "closely aligned to the long accepted breathalyzer." On the other hand, the Panel majority seemed to simultaneously reject the use of breathalyzers for alcohol testing, which it characterized as a "significant inroad" on privacy. These logical inconsistencies further undermined the reasonableness of the Panel majority decision.

CONCLUSION

Justice Nixon found that the door to random testing is still open in Canada. Part of the reason the Panel majority decision was quashed and found to be unreasonable was because it "virtually foreclose[d] any possibility of random testing, regardless of circumstances." This outcome is plainly not what the SCC intended in Irving: "If it represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified." We note that this decision may also call into question other decisions that have cited or considered the Panel decision.

Interestingly, Justice Nixon also directed at paragraph 101 that "[t]o avoid any apprehension of bias, the matter should be considered by a fresh panel." The acknowledgment of potential bias suggests that perhaps Justice Nixon detected an inappropriate degree of partiality by the Panel majority. Justice Nixon also appears to have gone to considerable lengths to protect the decision upon appeal by providing a thorough judicial review analysis. The union has already stated it intends to appeal the decision but, given Justice Nixon's reasons, it may have an uphill battle on that front.

Ultimately, this decision is encouraging for Suncor and other employers who strive to improve and ensure the safety of their employees in dangerous workplaces. Pending the outcome of any appeal by the union, a newly appointed arbitration panel will be required to apply the Irving test in a more balanced way without improperly elevating thresholds or overlooking relevant evidence. This matter will continue to generate considerable media coverage.

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
Events from this Firm
23 Nov 2018, Other, Toronto, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

28 Nov 2018, Speaking Engagement, Toronto, Canada

Arbitration has a number of advantages and some disadvantages for the resolution of domestic and international commercial disputes.

 
In association with
Related Topics
 
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