Canada: Alberta Court Of Appeal Weighs In On Random Drug And Alcohol Testing

Employers in Alberta are likely to have greater latitude in terms of the evidence they can rely upon to justify a policy of random drug or alcohol testing in the workplace, following the decision of the Alberta Court of Appeal in Suncor Energy Inc. v Unifor Local 707A, 2017 ABCA 313 [Suncor CA].

Although this is good news for employers, it remains to be seen whether the evidence presented in Suncor CA (when it is returned to a new arbitration panel for consideration) is sufficient to demonstrate a generalized problem with alcohol or drug misuse in the workplace, such that random testing of Suncor's safety-sensitive employees is justified.

Random Drug and Alcohol Testing in Canada

The Suncor CA decision, and the earlier decisions in Suncor by the initial arbitration panel and the Alberta Court of Queen's Bench (on judicial review), are the first decisions in Alberta to consider the issue of random drug and alcohol testing since the Supreme Court of Canada rendered its decision in Communications, Energy and Paperworkers, Local 30 v Irving Pulp & Paper Ltd., 2013 SCC 34 [Irving], which imposed greater limits on an employer's right to conduct random alcohol testing. In particular, the majority of the Supreme Court in Irving found that, absent extraordinary circumstances, an employer may not unilaterally impose random alcohol testing of employees, including safety-sensitive employees, even where the workplace is inherently dangerous. For extraordinary circumstances to be found, the Supreme Court held that it will usually be necessary for the employer to produce evidence of a general problem with alcohol misuse in the workplace. While the Irving case dealt only with random alcohol testing of employees, the reasoning in that case is likely to be applied to drug testing as well.

Alberta Arbitration Panel Considers Suncor's Workplace Testing Policy

In 2012, Suncor Energy Inc. (Suncor) implemented a drug and alcohol testing program that included random testing for certain individuals employed at its oil sands operations near Fort McMurray (Testing Policy). The worksite in question was made up of union and non-union employees, as well as independent contractors. The Testing Policy applied to employees in safety-sensitive positions, including on-site executive members of Suncor's management team, such as the CEO.

Prior to introducing the Testing Policy, Suncor gathered evidence of alcohol and drug misuse at its oil sands operations, as well as anecdotal evidence about drug and alcohol abuse in the Fort McMurray area generally. After the Suncor Testing Policy was introduced, Unifor Local 707A (Unifor) grieved the policy under its collective agreement with Suncor. After a lengthy arbitration hearing, the majority of the arbitration panel ruled in favour of Unifor, holding that Suncor had not demonstrated a sufficient safety concern with respect to alcohol or drug misuse in the bargaining unit to warrant random drug and alcohol testing which, by its nature, is highly intrusive (see Unifor, Local 707A v Suncor Energy Inc., Oil Sands, 242 LAC (4th) 1, [2014] AGAA No 6 [Suncor Arbitration]).

Judicial Review of the Arbitration Panel's Decision

Suncor brought an application for Judicial Review of the arbitration panel's decision. In Suncor Energy Inc v Unifor Local 707A, 2016 ABQB 269 [Suncor JR], Justice Nixon granted Suncor's application and remitted the matter back to a fresh arbitration panel to be heard again. In reaching this decision, Justice Nixon concluded that the majority of the arbitration panel had misapplied the Irving test, and erred in its decision, by:

  1. Imposing a more stringent legal standard (a "significant problem" with alcohol or drug misuse in the workplace rather than "a problem") than required by Irving.
  2. Requiring Suncor to produce evidence specific to unionized employees only.
  3. Rejecting, without sufficient written reasons, Suncor's expert witnesses.

Unifor appealed Justice Nixon's decision to the Alberta Court of Appeal.

Decision of the Alberta Court of Appeal

The Alberta Court of Appeal has now unanimously dismissed Unifor's appeal. In its reasons, the Court of Appeal focused on the evidentiary issue identified by Justice Nixon in Suncor JR, and concluded that the majority of the Suncor arbitration panel failed to consider relevant evidence of drug and alcohol misuse in the workplace from non-unionized employees and contractors. By requiring that Suncor produce evidence of substance abuse by unionized employees only at its oil sands operations, the majority of the arbitration panel had "set the evidentiary bar too high" and incorrectly applied the decision of the Supreme Court of Canada in Irving, which focused on workplace safety and workplace substance abuse problems generally (Suncor CA at paras 46–47).

In reaching its decision, the Court of Appeal noted there may be situations where it is reasonable to distinguish between evidence of substance abuse by unionized and non-unionized workers, in order to assess whether there is a general problem with substance abuse in the workplace. However, the uncontradicted evidence in Suncor was that workers at the company's oil sands operations perform their duties in an integrated work environment, on integrated jobsites (Suncor CA at para 48).

The Court of Appeal also agreed with Justice Nixon's decision to remit the matter for re-hearing by a new arbitration panel that would re-consider the evidence in light of the judicial guidance provided by the Court in Suncor JR and Suncor CA.

Takeaways for Employers

Employers must be extremely cautious when implementing a drug and alcohol policy that includes random testing of employees. Such testing can only be justified in an inherently dangerous workplace, in relation to safety-sensitive employees, where a generalized problem with alcohol or drug abuse exists. While Suncor CA does not decide what evidence exactly is required to prove that a general problem with substance abuse exists sufficient to justify random testing, it does stand for the proposition that employers in Alberta can rely upon a relatively broad spectrum of evidence to meet this test. The helpful elements of Suncor JR that were not addressed by the Court of Appeal can also be relied upon by employers, including the finding that (pursuant to the decision of the Supreme Court in Irving) only a general problem with substance abuse need be demonstrated, rather than a "significant problem", and the finding that only a reasonable likelihood of risk to health and safety due to substance abuse is required in order to justify random drug or alcohol testing.

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
Borden Ladner Gervais LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
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