Despite a new decision on the issue from the Alberta Court of
Queen's Bench (the "Court") on May 18,
20161, the answer to this question remains
"maybe." The Court has, however, provided us with a
measure of clarity concerning what degree of evidence of a drug and
alcohol problem in the workplace an employer will have to produce
in order to justify a random testing policy: notably, the threshold
identified by the Court is not as high
as the one identified by a majority of the arbitration board (the
"Majority") in Suncor Energy Inc. and Unifor,
Local 707A (Random Alcohol and Drug Testing
The leading case on this point is Communications,
Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp
& Paper Ltd.3, ("Irving"),
in which the Supreme Court of Canada held that employers must be
able to show "sufficient" evidence of a drug and alcohol
problem in the workplace in order to legally justify randomly
testing workers in safety-sensitive positions. Unfortunately, it
was not clear from the Irving decision what
would actually constitute "sufficient" evidence of a drug
and alcohol problem to justify random testing.
In its approach to this question, the Majority in
the Suncor Arbitration determined that the
threshold test from Irving required employers to
A "serious" or "significant" problem with
drug and alcohol abuse in the workplace; and
A causal connection between the drug and alcohol problem and
workplace safety incidents.
The Majority also chose to exclude evidence involving employees
in the workplace who were not members of the bargaining unit. This
placed a tight restriction on the scope of the
"workplace" for the purposes of assessing the
reasonableness of the random drug and alcohol testing
In its judicial review of the Suncor Arbitration,
the Court determined that the Majority had inappropriately elevated
the threshold required to justify random drug and alcohol testing.
The Court held that modifying the threshold set out
in Irving – which required
"sufficient" evidence of a drug and alcohol problem in
the workplace – to a requirement to prove the existence of a
"serious" or "significant" problem with drug
and alcohol abuse, together with the added requirement of
establishing a causal connection to workplace safety incidents, was
an unreasonable interpretation of the test set out
in Irving. Further, the Court found that excluding
evidence of a problem with drugs or alcohol that involved
non-unionized workers had unreasonably narrowed the scope of the
"workplace." The Court pointed out that "the focus
on the workplace in general rather than more narrowly on members of
the bargaining unit is ... consistent with the obligation that
employers have to ensure the safety of their entire
Ultimately, the Court chose not to exercise its power to
substitute its own judgment for that of the Majority, and instead
referred the matter back to be heard before a fresh arbitration
panel. As the union has advised that it is appealing the
Court's decision to the Alberta Court of Appeal, the
arbitration before a new panel will only occur if the Court of
Appeal upholds the Court's decision and if there is no further
appeal to the Supreme Court of Canada. What this really means is
that we are not likely to have a real answer to our question any
time in the very near future.
Field Law will continue to keep you updated on the appeal of the
Court's decision and other developments relevant to the ability
of employers to legally implement random drug and alcohol
1Suncor Energy Inc. v Unifor Local
707A 2016 ABQB 269.
2 2014 CarswellAlta 457, Alta. Arb., March 18,
3 2013 SCC 31.
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