It will be standing room only at the Alberta Court of Appeal when the ongoing battle between Suncor and Unifor Local 707A over drug and alcohol testing continues. In the courtroom will be counsel for a host of concerned organizations, including the Mining Association of Canada, Construction Labour Relations, Electrical Contractors Association of Alberta, Enform Canada and the Construction Owners Association of Alberta, all of whom have a serious interest in promoting safety in the workplace, particularly inherently dangerous workplaces such as construction sites and oil and gas operations.
The grievance was originally heard by a panel of 3 labour arbitrators, a majority of whom (the "Majority") found in favour of the Union in Unifor Local 707A v Suncor Energy Inc.1 This case began when Unifor filed a grievance disputing Suncor's right to conduct random drug and alcohol tests. While Suncor presented significant evidence of a real problem with drugs and alcohol at Suncor's inherently dangerous oil sands operation, where a catastrophic incident could occur if a worker was impaired by drugs or alcohol, the Majority did not accept that evidence as establishing a "serious" or "significant" problem at the workplace.
The Queen's Bench Decision
That decision was quashed by Justice Blair Nixon of the Alberta Court of Queen's Bench, who directed that the matter be reheard by a new panel of arbitrators. The Union has appealed Justice Nixon's decision to the Alberta Court of Appeal.
Fundamental to Justice Nixon's decision to send the matter back for a rehearing was the misapplication of the Supreme Court of Canada decision in the Irving Pulp & Paper case2 ("Irving") which held that random testing might be justified if a general problem with drugs and alcohol in the workplace could be demonstrated by the evidence presented by the employer. However, in the Suncor case, the Majority stated the test as requiring evidence of a "serious" or "significant" problem. Not so, held Justice Nixon, finding this standard was an unwarranted elevation of the Irving test. The Majority's reasons at arbitration stated "...the evidence does not demonstrate a culture at the Oil Sands Operations where consumption of alcohol is so pervasive as to be accepted by employees, where employees go together to drink openly and where such activity is either condoned or encouraged by management's practices or inaction."3 In addition, the Majority required evidence of a causal connection to the accident, injury or near miss incidents at the plant. Justice Nixon rejected both thresholds, leading the conclusion that the Irving test had been misapplied.
In addition, the Alberta Court of Queen's Bench rejected the Majority's assertion that it would only consider evidence of issues with drug and alcohol use by the bargaining unit. In Irving, the standard articulated by the Supreme Court was that of a general workplace problem, not one specific to the bargaining unit. The Court also found that the Majority ignored and diminished the evidence relating to the "security incidents" concerning drug and alcohol use by taking an overly narrow, analytical approach to the evidence, such as only considering evidence that could be directly attributed to bargaining unit member and referring to "other, more advanced methods" of drug testing where no such evidence was presented. In the reviewing Court's view, the incorrect elevation of the Irving threshold virtually foreclosed any possibility of random testing, regardless of the circumstances.4
Leave to Appeal
In written reasons released on September 15, 2016, the Alberta Court of Appeal granted permission to these additional parties to present legal arguments to the Court as intervenors with a serious interest in the outcome of this case. They will jointly address the legal threshold concerning the degree of evidence required to establish a workplace problem as well as the issue of the group of employees to be examined if such a problems is identified. These are two of the threshold areas identified by Justice Nixon and relating to his rejection of the Majority decision as unreasonable.
This case continues to be a case to watch in the battle between worker safety and personal privacy. What is the degree and extent to which employers may monitor worker conduct on the job? Will it include random drug testing? Stay tuned.
1 Unifor, Local 707A v Suncor Energy Inc. (Policy Grievance: Random Alcohol and Drug Testing Policy),  AGAA 2014 CanLII 23034.
2 Communications, Energy and Paperworkers Union, Canada, Local 30 v Irving Pulp & Paper Ltd. case: 2013 SCC 34, 2 SCR 458.
3 Suncor decision at para 73.
4 Suncor decision at para 96.
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