On September 28, 2017, the Alberta Court of Appeal released its decision in Suncor Energy Inc v Unifor Local 707A, 2017 ABCA 313. The long-anticipated decision is the Court's first ruling on random drug and alcohol testing since the Supreme Court of Canada's landmark decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd,2013 SCC 34 ("Irving Pulp & Paper"), and is a significant step towards understanding when an employer can justify random testing in a workplace.
Summary
In 2012, Suncor implemented a random testing policy at its Oil Sands sites in the Fort McMurray region. The policy required employees in safety sensitive positions (as well as executive members on site) to undergo random testing. The policy was implemented in response to a concern that a pervasive drug and alcohol problem at these sites persisted despite attempts to address the problem through other measures (e.g. employee assistance programs, reasonable cause and post-incident testing and sniffer dogs).
Unifor grieved the implementation of this policy. It alleged that there was insufficient evidence of a pervasive problem with drug and alcohol use among employees within its bargaining unit, and that the policy violated its members' privacy rights. That grievance proceeded to arbitration over 23 days in 2013. During the arbitration, Suncor called a number of witnesses, including experts, to testify regarding its justification for the policy. Notwithstanding abundant evidence establishing significant safety concerns at the sites and the pervasive nature of drug and alcohol problems impacting the workplace, the majority of the arbitration panel allowed the grievance. It found that there was insufficient evidence put forward by Suncor to demonstrate a serious enough problem specifically related to employees within the Unifor bargaining unit.
Suncor applied for judicial review of the decision, and was successful in that application. The Court of Queen's Bench Justice found that the decision was unreasonable, and ordered that the grievance be reheard by a new arbitration panel. Unifor appealed that decision to the Court of Appeal.
In a unanimous decision, the Court of Appeal denied the appeal and sent the grievance back for a new arbitration hearing. While the Court was critical of several aspects of the arbitration decision, it focused in large part on the panel's choice to only consider whether there was evidence of a pervasive drug and alcohol problem within the bargaining unit. The Court found it unreasonable for the panel to ignore the "logically relevant evidence" put forward by Suncor regarding workplace-wide drug and alcohol problems, simply because that evidence didn't distinguish between in-scope and other workers. The Court of Appeal endorsed what it referred to as, "a broader, workplace focused analysis", rather than the narrower approach put forward by Unifor.
Employer Takeaways
This decision is significant for employers, in particular those operating safety sensitive workplaces, as it provides much needed clarification regarding what kind of evidence is required to support implementing a random testing policy. Since Irving Pulp & Paper, employers across Canada have faced hurdles justifying these sorts of policies, with little guidance regarding the kind of evidence needed to support random testing. While the Court of Appeal's decision doesn't go so far as to say that Suncor provided enough evidence in the circumstances, it does establish that the evidence it put forward is relevant and ought to have been considered.
In addition, the decision is indicative of a possible trend towards increased support for random testing. Earlier this year, the Ontario Superior Court of Justice denied an application for an injunction by the Amalgamated Transit Union to block the Toronto Transit Commission's implementation of a random testing policy. The Court in that case again did not rule on the legality of the policy, but did (as in this case) make a number of statements which demonstrated a more positive outlook towards random testing. If this trend continues, it may trickle down into arbitral decisions, and could in turn lead to more positive outcomes in grievances involving these sorts of policies.
As with all significant updates in Labour & Employment Law, we will continue to keep a watchful eye for our clients on emerging law in this area.