The decision stems from the implementation of a random drug and
alcohol testing policy in 2012. Following implementation, the Union
grieved and the issue went to arbitration. At arbitration, the
Majority of the Board concluded that the safety benefit of the
policy was outweighed by the harm to employee privacy rights and
rejected the policy. The Company applied to the Court to have the
Board's decision judicially reviewed.
The Court in Suncor identified three main problems with
the Board's decision:
The Board wrongly reasoned that the
degree of evidence necessary to establish a workplace problem is
that of a "significant problem" rather than a
The Board failed to consider evidence
of workplace safety related to non-union members. A dangerous
environment must be considered in the context of the safety of all
employees, including both union and non-union members; and
The Board's decision was
unreasonable because the Board made a material error by ignoring
certain critical evidence. A material error exists where a decision
maker ignores or misunderstands evidence in a manner that affects
At the crux of the issue is the inherent tension between privacy
and safety. The Supreme Court of Canada (SCC) has been clear that
random drug testing is difficult to justify (see the
Communications, Energy and Paperworkers, Local 30 vIrving Pulp and Paper Ltd, 2013 SCC 34 [Irving]
decision here). However, this case is evidence of the
SCC's competing proposition that such a policy may well be
justified in a dangerous workplace "if it represents a
proportionate response in light of both legitimate safety concerns
and privacy interest" (Irving at paragraph 52).
The Union has announced its intention to appeal the Court's
For a more fulsome discussion of the Suncor decision,
Written with the assistance of Hannah Buckley, summer
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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