Earlier this fall, the Alberta Court of Appeal provided the latest in the ongoing random testing saga from Alberta's oilsands. However, observers who had been anticipating some substantive guidance from the Court of Appeal may have to wait for another day.
The story began back in 2012 when Suncor Energy Inc. ("Suncor") announced that it would be implementing a random drug and alcohol testing program at some of its sites near Fort McMurray, Alberta. The bargaining agent for many of the affected workers on site, Unifor Local 707A ("Unifor"), launched a grievance arguing, among other things, that the policy violated the privacy rights of the workers. Over 23 days of arbitration in 2013, the parties called extensive and complex evidence regarding the pervasiveness of drug and alcohol use as well as the nature of the dangerous work conducted on site. The following year, a majority of the arbitration panel ruled in favour of the union. The majority, basing its decision on the principles described by the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd., 2013 SCC 34, ("Irving"), held that Suncor had not demonstrated sufficient safety concerns within the bargaining unit to justify random testing. The dissenting arbitrator concluded, however, that there was overwhelming evidence of safety issues in the workplace and would have denied the grievance.
Recall that in Irving, the Supreme Court of Canada wrote that to justify a random testing policy, it was not enough that the employer proved that it was an inherently dangerous workplace. The employer must also show that there is a serious problem with drugs and alcohol. A careful balancing exercise must then take place considering the risk to safety on the one hand with privacy interests of the employees on the other before determining whether the random testing policy is a proportionate response to drug and alcohol abuse in a dangerous workplace. The majority and dissent in the arbitration clearly differed on the application of these principles to the case at bar.
Suncor sought judicial review of the initial decision. On May 18, 2015, Justice Nixon quashed the majority's decision and sent the matter back for a new hearing with a fresh panel. Justice Nixon found the majority's decision unreasonable for three reasons:
- the majority misapplied the balancing exercise described in Irving by applying more stringent requirements;
- the majority erred by only considering evidence of a substance abuse problem within the bargaining unit and ignored evidence of a substance abuse problem in a more general sense; and
- the majority of the arbitration panel failed to consider all of the relevant evidence.
Unifor appealed Justice Nixon's decision to the Court of Appeal. On September 28, 2017, the Court of Appeal confirmed Justice Nixon's decision and sent the matter back for a rehearing with a new arbitration panel. Basing almost the entirety of its reasons on the second ground articulated by Justice Nixon, the Court of Appeal declined to comment on the other errors in the majority's decision at arbitration. Suncor had argued before the Court of Appeal, among other things, that the majority had erred by failing to identify and weigh relevant factors when balancing workplace safety against privacy rights and had failed to adopt an appropriately contextual approach in applying the balancing test required by Irving. Many observers were hopeful that the Court of Appeal would take this opportunity to provide further guidance for the application of the Irving test and lend some clarity in a controversial and murky area of the law.
What Does This Mean For Employers?
It is unlikely that this is the final chapter in this story. Suncor recently gave notice that it intends to reinstate its random testing policy at its sites in Fort McMurray. Earlier in these proceedings, Unifor successfully obtained an injunction prohibiting the implementation of the random testing policy until the conclusion of the grievance. It is likely that Unifor will be taking steps to seek the continuation of this injunction (or the granting of a new one) while it contemplates seeking leave to appeal to the Supreme Court of Canada. Employers may have to wait for the rehearing of this arbitration or a decision from the Supreme Court of Canada for further direction. What seems clear for now is that to justify random testing, an employer will have to supply compelling evidence of a drug and alcohol abuse problem in a dangerous workplace. This evidence may not need to be restricted to members of the bargaining unit where unionized employees are integrated and work side by side with other non-union employees and contractors.
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