Canada: A Broader View: Court Of Appeal Confirms Holistic Approach For Random Drug And Alcohol Testing In Alberta

Alberta's highest court has clarified the parameters of the law on random drug and alcohol testing and emphasized that courts and arbitrators alike should take a holistic approach to safety when examining the enforceability of such practices.

In Suncor Energy Inc. v. Unifor Local 707A, the Alberta Court of Appeal (Court of Appeal) held that an employer seeking to justify random drug and alcohol testing for unionized employees may present evidence of substance abuse problems in the broader workplace as a means of supporting the need for such testing. In doing so, the Court of Appeal has continued a recent trend of favourable decisions to employers in the drug and alcohol context and provided further justification for employers to insist on robust policies and procedures to address the enhanced safety risks associated with drugs and alcohol in the workplace.

BACKGROUND

This case centered on Suncor Energy Inc.'s (Suncor) operations in the Regional Municipality of Wood Buffalo in Alberta. At the time of this dispute, Suncor had approximately 10,000 contractors, non-unionized employees and unionized employees on site in this region at any given time. Approximately one-third of these workers were unionized and represented by Unifor Local 707A (Union).

Suncor took extensive measures to combat drug and alcohol problems amongst its workforce at these sites. In 2012, Suncor decided to introduce additional measures and moved to implement random drug and alcohol testing for workers occupying safety sensitive positions in this region to further combat issues of substance abuse.

The Union grieved Suncor's implementation of this testing. In particular, the Union disputed that there was sufficient evidence of substance abuse within the bargaining unit to justify random drug and alcohol testing.

The Union's grievance was upheld by the arbitral panel, but the majority of the arbitral panel's decision was quashed on appeal to the Alberta Court of Queen's Bench. The Union appealed the decision.

For further information on the Alberta Court of Queen's Bench decision, please see our May 2016 Blakes Bulletin: Suncor Clears Important Hurdle in Implementation of Random Alcohol and Drug Testing in Alberta.

COURT OF APPEAL DECISION

The Union's appeal was dismissed.

In its decision, the Court of Appeal upheld the reasoning set out by the Alberta Court of Queen's Bench, agreeing that it was unreasonable for the arbitral panel to reject evidence of substance abuse in the workplace on the whole and only focus on evidence particularized to the Union.

The Court of Appeal stressed that the panel's interpretation would raise the evidentiary bar too high. Even if members of a union would be the only ones directly impacted by an arbitration decision, it does not mean decision makers should limit their inquiry to evidence tied directly to those unionized employees. Further, the Court of Appeal clarified that the analytical process set out by the Supreme Court of Canada in Communications, Energy and Paperworks Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. (Irving) called for a broader inquiry into drug and alcohol problems within the workplace generally. If evidence of broader problems beyond the union context exists, the Court of Appeal emphasized that it should be considered.

The Court of Appeal acknowledged that there may be workplaces where there is a good reason to distinguish between evidence of substance abuse by non-unionized and unionized employees, but it would not be reasonable to make such an arbitrary distinction in cases with highly integrated workforces (such as the current circumstances).

By drawing such a distinction in this case, the Court of Appeal held that the arbitral panel unreasonably narrowed the scope of evidence it considered and therefore applied the wrong legal test. The Court of Appeal held that the matter should be sent back for a new hearing, to be heard by a fresh panel, as the majority of the arbitral panel's unreasonable assessment of the substance abuse evidence may have influenced its other conclusions about how to properly balance employee privacy against safety.

TAKEAWAYS

This decision stands as an important addition to the complex and contentious law surrounding drug and alcohol testing in the workplace and is in line with other recent decisions that have emphasized the importance of safety in work environments, such as the Ontario Superior Court of Justice's decision in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (see our April 2017 Blakes Bulletin: Ontario Court Allows Workplace Random Drug and Alcohol Testing to Proceed). That being said, perhaps the most significant feature of the decision is its rejection of the artificial narrowing of evidence and misinterpretation of the law that had begun to develop in the case law post-Irving.

The heart of the Irving analysis is the balance of worker safety against privacy. Random testing is not limited to the most egregious of circumstances. The Supreme Court of Canada in Irving concluded that cases involving a dangerous workplace and evidence of enhanced safety risk, such as a general problem with substance abuse in the workplace, will be sufficient to reach the threshold needed to implement such testing. This case strongly affirms that broad evidence relevant to the workplace on these points must be considered by the decision maker, even if it relates to individuals outside of a specific bargaining unit.

The holistic approach to safety underlying this decision will be greatly encouraging for many employers throughout Canada. The simple reality is that many industrial operations throughout Alberta and the country on the whole are staffed by workforces comprising contractors and both unionized and non-unionized employees. Such individuals work side-by-side and, regardless of their unionized or non-unionized status, have an impact on the health and safety of all workers working in their vicinity. If a functional distinction does not exist within these integrated workforces from a safety perspective, it makes good sense that no such distinction should exist for evidentiary purposes when considering the suitability of random drug and alcohol testing for employees in safety-sensitive positions, and this is precisely what the Court of Appeal has affirmed.

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.

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