In Suncor Energy Inc v Unifor Local 707A, 2017 ABCA 313 (“Suncor”), the Court of Appeal of Alberta considered random drug and alcohol testing that had been introduced by Suncor in 2012 for its employees in safety-sensitive positions. Unifor grieved the alleged infringement of its members’ privacy rights. The majority of an arbitration panel ruled in favour of Unifor. Suncor applied for judicial review of the arbitration decision. The reviewing court held that the arbitration decision was unreasonable and sent the matter back for reconsideration by a new arbitration panel. Unifor appealed the judicial review decision.
The Court of Appeal relied on the leading Supreme Court of Canada decision of Irving Pulp & Paper Ltd. v CEP, Local 30, 2013 SCC 34, in which the Supreme Court held that a dangerous worksite, in and of itself, is not sufficient to justify random drug or alcohol testing in a workplace given the privacy concerns inherent in same. What is additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.
In Suncor, the parties disputed the extent to which drugs and alcohol were a problem at the workplace. The arbitration decision held that the employer had not demonstrated sufficient safety concerns within the bargaining unit to justify random testing.
On judicial review, the reviewing court determined that the arbitration decision was unreasonable on several grounds. On appeal of the judicial review, the Court of Appeal focused on one ground, and determined that the majority of the arbitration panel unreasonably narrowed the inquiry into whether a drug and alcohol problem existed, by focusing on the bargaining unit rather than the overall workplace. It was unreasonable for the arbitration panel to insist upon “particularized “evidence specific to unionized employees. This set the evidentiary bar too high.
The key takeaway for employers is that whether random drug and alcohol testing is justified in a safety sensitive workplace is an issue that will be assessed on a case-by-case basis. To justify such testing, an employer must be able to establish evidence of a general problem with alcohol and drugs in the workplace, or some other specific safety risk. However, the employer will not necessarily be required to adduce evidence of the problem specifically in relation to the bargaining unit.