Canada: Alberta Court Of Appeal Confirms And Clarifies Requirements For Random Drug Testing

This article focuses on the Alberta Court of Appeal's recent decision in Suncor Energy Inc. v. Unifor, Local 707A, 2017 ABCA 313.  The Court unanimously upheld a judicial review decision rejecting the majority decision of an arbitration panel which had found Suncor Energy Inc.'s random drug and alcohol testing policy to be unenforceable.  The appeal decision focused on the fact that limited evidence was considered at arbitration and evidence of substance abuse issues in the workplace outside the bargaining unit was not considered.

The facts of the grievance and its treatment at arbitration and before the lower court were as follows.

In 2012, Suncor implemented random drug and alcohol testing for workers holding safety-sensitive positions at some of its work sites in Fort McMurray. Unifor, Local 707A grieved the policy on the basis that it infringed the privacy rights of workers.  The focus of the grievance was on whether the random drug and alcohol testing was an appropriate part of safety procedures at the employer as both parties recognized that proper safety procedures were required.

At arbitration, the majority ruled in favour of the Union, holding that Suncor did not demonstrate sufficient safety concerns within the bargaining unit to justify random testing. The dissent found that there was significant evidence of workplace safety issues, including substance abuse issues, and would have enforced Suncor's testing policy.

On judicial review, in the decision of Suncor Energy Inc. v. Unifor, Local 707A, 2016 ABQB 269, the Alberta Court of Queen's Bench quashed the majority's decision and remitted the matter to arbitration, finding that the majority could have considered evidence of workplace substance abuse issues outside the bargaining unit.  The decision was appealed.

Decision

The Court of Appeal considered whether the majority of the arbitration panel was unreasonable in choosing to disregard evidence of substance abuse problems in the broader workplace – i.e. beyond just unionized employees. The Court agreed with the reviewing judge below that the decision of the majority was unreasonable, relying on the Supreme Court of Canada's decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34 ("Irving").  The Court reviewed Madam Justice Abella's formulation of the test for imposition of random drug or alcohol testing on unionized employees, holding that the test is defined in terms of whether there are special safety risks in a workplace and considers in particular evidence of a general problem of substance abuse within a workplace.

The Court clarified that the Irving test sets out a balancing test to be applied with respect to safety and substance abuse problems in the workplace in general rather than safety and substance abuse problems in the bargaining unit.  The test calls for a more "holistic" inquiry into such problems in the workplace instead of requiring evidence unique to workers who will be directly affected by the arbitration decision.

The Court found that in justifying its policy, Suncor could properly have relied on evidence of substance abuse in the workplace generally rather than just within the bargaining unit.

The Court did acknowledge that there may be some workplaces where it would be reasonable to distinguish between evidence of substance abuse by unionized and non-unionized employees. However, the nature of the workplace in this case was one where the workforce was strongly integrated between unionized employees, non-unionized employees and contractors.  There was no reason to draw an arbitrary distinction between the workers in this case.

Takeaways for Employers

The Court of Appeal's decision helps to clarify the law with respect to how an employer can justify a random drug and alcohol testing policy in a safety-sensitive environment. The analysis will likely include a review of evidence of overall workplace drug and alcohol issues, allowing an employer to introduce evidence with respect to such issues even outside the bargaining unit or employee group to which the policy applies.  This case gives an employer the flexibility to rely on a wider array of evidence to justify its imposition of a random drug and alcohol policy.  It clarifies that the Irving test will be applied on a generalized rather than specific basis, at least in workplaces that are integrated between unionized and non-unionized employees.

Previously printed in the LexisNexis Labour Notes Newsletter.

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
Julia Bell
Events from this Firm
18 Oct 2018, Seminar, Vancouver, Canada

Recognizing and managing mental health issues in the workplace can be one of the most challenging human resources issues facing employers.

25 Oct 2018, Seminar, Vancouver, Canada

New privacy requirements come into force on November 1, 2018. Organizations that are subject to the federal Personal Information and Protection of Privacy Act will be required to comply with a new mandatory breach reporting regime.

6 Nov 2018, Webinar, Vancouver, Canada

This always-popular webinar is our annual update of some of the key arbitration decisions issued in the previous year.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
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