A labour arbitration board hearing began early this month over Suncor's intention to commence random drug and alcohol testing of its oil sands employees. The hearing is the latest in a battle that has been going on since Suncor announced in July of 2012 that, in focusing on workplace safety, it would soon implement random testing policy for workers in safety-sensitive positions. The outcome will likely have a significant impact on the legal and practical landscape of employee drug testing in Alberta, and the case is being closely watched by practitioners across the country.
When announced, the Communications, Energy and Paperworkers Union (CEP) Local 707 filed a grievance over the drug testing policy. The CEP then obtained an injunction in the Court of Queen's Bench to prevent the policy from being implemented prior to a decision being rendered by the arbitration board. The Alberta Court of Appeal upheld the temporary injunction in November, after earlier rejecting Suncor's bid to stay the injunction pending the November appeal.
The lower court had called Suncor's operations "an inherently dangerous workplace" where "the risk of injury or death is high", and recognized drugs and alcohol as a factor in a significant proportion of injuries and deaths occurring there in preceding years. On the other hand, the court also cited the "general recognition in the jurisprudence that drug and alcohol testing of employees can constitute a significant infringement of their personal privacy, dignity and bodily integrity".
The Court of Appeal rendered a split decision on the appeal. The majority called Suncor's testing plans "a significant breach of workers' rights". It remains to be seen whether the so-called breach is ultimately held to be acceptable in the context of safety concerns in Suncor's oil sands operations.
The courts noted that Suncor had already put in place other measures over time to decrease the risk of drug and alcohol-related accidents. In light of this, the courts were not convinced that the incremental decrease in risk that might come from random testing was sufficient to justify the infringement on workers' rights in the short term, before the arbitration board renders its decision.
According to court submissions, Suncor's plan would randomly test a minimum of 50% of employees in specified positions annually, and of the 3,400 workers represented by CEP at Suncor's oil sands operations, 85% would be candidates for the without-cause testing. CEP has invoked common law, the Canadian Charter of Rights and Freedoms, Alberta's Personal Information Protection Act, and the Alberta Human Rights Act in arguing against the policy.
Suncor, for its part, is involved in a broader campaign. It has also announced that it is participating, along with other Alberta industry stakeholders, in the Drug and Alcohol Risk Reduction Pilot Project (" DARRPP"), described as "a two-year initiative to evaluate and report on the effectiveness of comprehensive workplace alcohol and drug programs that will include random workplace testing". In spite of CEP's grievance against Suncor, DARRPP does have some union buy-in. The outcome of the arbitration board hearing will undoubtedly have a significant bearing on DAARRP's ability to pursue its mandate.
Canada's highest court is also tackling this issue. In July of 2011, the New Brunswick Court of Appeal issued a ruling in a case involving a dispute over random drug and alcohol testing between Irving Pulp & Paper, Limited and CEP Local 30. The New Brunswick court decided that since the paper mill at issue in that case had been identified as "inherently dangerous" by the labour arbitrator, the employer was at liberty to implement random drug and alcohol testing without needing to demonstrate a history of related problems at the work site. The appeal of that decision has been heard by the Supreme Court of Canada, which has yet to issue a ruling.
In Alberta and across Canada, eyes remain on the Suncor and Irving cases for their upcoming rulings and the implications for random drug and alcohol testing of employees working in dangerous environments.
The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.
© Copyright 2013 McMillan LLP
