In 2013, the Supreme Court of Canada confirmed that, before employees in safety sensitive positions can be subjected to random drug and alcohol testing, it must be established that there is a general problem of substance abuse in the workplace (see our article summarizing that decision here). But what evidence is relevant to this inquiry? Should the employer consider its entire industry, its particular worksites, or just the employees in a particular bargaining unit?
A recent Alberta Court of Appeal decision confirms that evidence of substance-related safety risks across an employer’s workforce (including both union and non-union workers) may be taken into account when assessing the permissibility of random testing of unionized workers. Whether such evidence will be relevant will depend on the workplace at issue.
In Suncor Energy Inc v Unifor Local 707A, 2017 ABCA 313, the Court upheld the lower court’s finding that an arbitration board erred in rejecting much of the employer’s evidence of safety incidents and risks on the basis that the evidence was either related to non-union employees or not particularized to bargaining unit employees. The Court agreed with the lower court that a fresh arbitration panel should determine whether the employer should be allowed to randomly test its unionized workers.
Suncor employs union and non-union workers at its facilities in the Athabasca oil sands. Onsite work is also carried out by workers employed by contractors. The facilities operate 24-hours a day. Employees typically work 12-hour shifts and use complex mining and industrial equipment. Both the union and Suncor agreed that safety protocols were critical to preventing workplace accidents that could result in human or environmental disaster.
Suncor introduced random drug and alcohol testing in 2012. Suncor had previously relied on less intrusive measures such as extensive training, education, employee treatment programs, and post-incident testing. The random testing applied to all employees in safety-sensitive positions and to on-site management, including the CEO.
History of Decision
Arbitration Hearing: The union grieved the implementation of random testing. At arbitration, the union contested that substance use was a pervasive problem within the bargaining unit. The majority of the arbitration panel agreed with the union and found that Suncor had provided insufficient evidence to demonstrate safety concerns within the bargaining unit that would justify random testing. The dissent disagreed and would have upheld Suncor’s random testing policy.
Court of Queen’s Bench: The reviewing justice found that the arbitration panel applied stricter requirements on the employer than required at law when balancing safety and privacy concerns. He also found that the arbitration panel erred in considering evidence of substance use in the bargaining unit only, and did not consider all of the relevant evidence put forward by Suncor. As a result, he held that the arbitration decision was unreasonable and sent the issue back for a fresh hearing.
Court of Appeal: The Court dismissed the union’s appeal and affirmed the reviewing justice’s decision. In particular, the Court found that the arbitration panel’s focus on evidence of substance abuse among unionized workers only, rather than in the workplace generally, was an unjust error. Although the arbitration decision is only binding on members of the bargaining unit, a more holistic analysis of substance abuse issues should be considered by the decision maker where unionized employees, non-unionized employees and contractor employees work side-by-side in integrated workforces.
The Suncor case illustrates that substance-related safety risks across the employer’s workforce may be considered by decision makers in assessing the permissibility of random testing of bargaining unit workers. However, as noted by the Court, there may be some workplaces where there is good reason to distinguish between the evidence of substance abuse by union and non-union employees.
The Suncor decision follows the Ontario Superior Court of Justice’s decision to allow the Toronto Transit Commission to continue its random drug and alcohol testing, as discussed in our recent blog post. However, this area of law is far from settled. Future decisions, including the hearing in the Suncor case, should provide more clarity for employers seeking to institute similar policies in safety-sensitive workplaces. In the meantime, employers contemplating random testing should proceed with caution. Such decisions are complex and should always be made in consultation with safety experts and legal advisors.
With thanks to Megan Paterson for her assistance with this article.