Canada: It's High Time They Went (Away): Unifor Drops Legal Challenge To Suncor's Random Drug Testing

Last Updated: December 18 2018
Article by Kelsey Orth

As you no doubt noticed on our Twitter feed last week, in a few short weeks Suncor Energy will begin random drug testing of employees at its various sites in and around Fort McMurray, Alberta.  This comes almost 7 years after Suncor first tried to introduce a random drug testing policy for safety-sensitive positions at various operations in Alberta.  The complex litigation in which Suncor has been engaged over that time (as chronicled extensively in this space) has typified the experience of employers in Canada over the last decade – unions' and employees' objections on the basis of privacy concerns have seemed to trump legitimate safety concerns for adjudicators in almost every instance that doesn't fit a narrow set of prescribed circumstances.

In that regard, the general guideline with respect to drug testing has been that employers could only test after an incident or a "near-miss", and only then if there was reason to believe that drugs could be involved.  Despite some efforts by a handful of adjudicators to give some recognition to the need for preventative measures, the deterrent of random drug testing has generally failed to meet the threshold necessary to justify the necessary intrusion on the privacy of the individual.

That is not to say that all of a sudden the tide has changed, at least from a legal perspective.  Instead, Suncor is able to finally move forward (without objection) with its random drug testing policy because the bargaining agent representing the affected employees, Unifor, has decided to abandon its legal challenges – after being denied leave to appeal a previous decision to the Supreme Court of Canada – rather than undertake a new arbitration as had been ordered by the Alberta Court of Appeal.

Regardless, this marks a watershed moment for occupational health and safety in the high-risk oilsands industry, and for similar industries throughout this country.  As Suncor's spokesperson, Sneh Seetal said to Global News in the article we tweeted:

"For Suncor, this has always been about safety," Suncor spokesperson Sneh Seetal told Global News in an email. "The driver to add random testing to our already comprehensive safety program was so that people went home to their loved ones at the end of their shifts."

This sentiment is common amongst Canadian employers, and has been for years: in almost all cases employers are not concerned about punishing employees but rather about preventing injury and death.  What has changed now, and what we have noticed in recent seminar and conference discussions we have led, is that in the wake of the legalization of cannabis, the issue of workplace safety has become more complicated; not because people have the right to use cannabis at work – they don't, subject to specific accommodation – but because there is a legitimate concern from employers about misperceptions that may exist concerning what is allowed, meaning that employers are left to deal with the consequences.  Add to that the particular difficulty that currently exists with respect to accurate and timely detection/testing methods for impairment and employers are left in a difficult position.

However, as detection methods improve, and now that Unifor has given up the ghost with respect to its battle against testing at Suncor, employers can hope that other unions (and more importantly, adjudicators) take a more progressive approach to safety.  Regardless, the team at CCPartners will continue to keenly monitor not just the situation at Suncor but the state of drug testing case law throughout Canada, and we stand ready to assist you with any concerns in that regard.

Click here to access CCPartners' "Lawyers for Employers" podcasts on important workplace issues and developments in labour and employment law.

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.

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