Background

Briefly, the facts of this case were as follows. Suncor Energy operates two oil sands facilities in Alberta. At times, these facilities have nearly 10,000 workers, approximately 34 percent of which are Unifor bargaining unit members. Unifor and Suncor agreed that the oil sands operations are dangerous workplaces. Suncor introduced a random drug and alcohol testing policy for employees in safety-sensitive roles in order to deal with what it said was a widespread drug and alcohol problem at its facilities. Unifor grieved the random testing policy.

At arbitration, the majority of the three-member panel found that the random testing policy was unreasonable. The majority relied on its interpretation of the Supreme Court of Canada's decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34 ("Irving"). The majority cited Irving for the proposition that the employer needed to demonstrate a "significant" or "serious" drug and alcohol problem with a causal link to accident history at the workplace, and that the employer needed to present evidence of that problem which specifically related to the bargaining unit. The majority found that Suncor had failed to meet these requirements. Suncor appealed to the Alberta Court of Queen's Bench.

Decision

The Court quashed the majority's decision and remitted the matter to arbitration on the basis that the majority misapprehended and misapplied the Irving test. The Court noted that a dangerous workplace does not in and of itself justify random testing and a balancing of privacy and safety interests on a case-by-case basis is required. In the view of the Court, the majority had imposed more stringent requirements than what is necessary. In addition, the Court noted that the majority failed to take into account the fact that the workplace was integrated between union, non-union and contractor workers and erred in requiring evidence specific to the bargaining unit. The Court found that the extensive evidence in relation to the entire workplace which Suncor adduced should have been considered by the arbitration panel.

This is a helpful decision to clarify the Irving test, which some arbitrators have been interpreting to require a very prevalent drug or alcohol problem. The decision also confirms that arbitrators should use a practical and common-sense approach in considering evidence in relation to the entire integrated workplace rather than just the bargaining unit.

Takeaways for Employers

• Whether random drug or alcohol testing is justifiable in a safety-sensitive workplace is assessed on a case-by-case basis. This sort of testing is not automatically acceptable.
• An employer must at a minimum adduce evidence of a general problem with alcohol and drugs in the workplace, but the problem does not necessarily have to be "serious", "significant" or "egregious".
• There is no requirement to adduce evidence of the problem specifically in relation to the bargaining unit. Evidence from the entire workplace is relevant and helpful. This is a common-sense approach in modern industrial workplaces where union, non-union and contractor workers work, and sometimes live, side by side.
• There is no requirement to demonstrate a causal connection between a drug and alcohol problem and accident or near-miss history at the workplace. This is, however, certainly helpful in demonstrating a problem.

Note: This a reprint of an article by Christopher Munroe of Roper Greyell LLP.