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
24 Nov 2017, Seminar, Toronto, Canada

Blakes is proud to host our New to In-House Series, designed to bring together junior and mid-level in-house counsel for a candid exchange of insights to highlight and address some of the challenges and opportunities facing in-house lawyers in their roles today.

30 Nov 2017, Seminar, Toronto, Canada

This seminar will feature a panel of senior counsel who will discuss a range of current ethical issues that in-house counsel may face. Attendees will be provided with scenarios and encouraged to participate in the discussion.

30 Nov 2017, Seminar, Toronto, Canada

The economic climate of the past three years has seen a marked increase in the number of construction projects that have been terminated, suspended or threatened to be terminated. Please join us as we discuss some of the key issues that can arise from such terminations or potential terminations and practical tips for protecting existing rights and remedies under the project contract.

 
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.