Written by John Gilmore and Tom Richards
The Alberta Court of Queen's Bench has recently issued a decision that provides guidance regarding the contractual right of a non-unionized employer to implement randomized drug and alcohol testing.
In Phillips v Westcan, 2020 ABQB 764, the Alberta Court of Queen's Bench upheld a non-unionized employer's use of random drug and alcohol testing in Alberta for safety sensitive positions.
The employee, Mr. Phillips, was employed as a long haul truck driver to transport dangerous goods. The nature of Mr. Phillips' duties meant that he usually worked remotely and without supervision.
Mr. Phillips had been first employed by Westcan in 2013 when the drug and alcohol testing policy had been in place. Mr. Phillips' left and returned to employment with Westcan in 2015. Upon returning to Westcan, Mr. Phillips objected to being subjected to random drug and alcohol testing and sought a permanent injunction against his employer to cease testing him.
In order for the injunction to be granted Mr. Phillips was required to establish that he had an enforceable right to not be subject to random drug and alcohol testing. The Court noted that Phillips' application turned on the following three issues:
- Is it a term of Mr. Phillips' contract of employment that Westcan would randomly test its employees, including Mr. Philips, for drugs and alcohol?
- If so, is that term of the contract enforceable?
- If no, is Westcan entitled to impose random testing on Mr. Phillips?
The Court's findings regarding these three issues are reviewed below.
Testing Was a Term of the Employment Contract
The Court found that Mr. Phillip's had agreed that random testing formed part of his contract. In short, the Court based its conclusion on the fact that Mr. Phillips had acknowledged in an expectation agreement and his employment contract that he was in a safety-sensitive position and that he was required to comply with Westcan's policies. Mr. Phillips had also completed training regarding the testing policy.
When Mr. Phillips accepted Westcan's offer of employment, he expressly agreed to be bound by Westcan's policies and he knew that those policies included random drug and alcohol testing for drivers.
Testing Was an Enforceable Term of the Contract
Mr. Philips' primary argument relied on case law regarding the enforceability of random testing policies that were unilaterally, and not contractually, imposed by an employer.
The Court considered Communications, Energy and Paperworks Union of Canada, Local 30 v Irving Pulp & Paper Ltd., 2013 SCC 34 [Irving], which held that in a unionized workplace unilaterally-imposed random testing will only be justified if there is "evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace".
In the non-unionized context, the Court considered the Supreme Court of Canada's reasoning in Entrop v Imperial Oil Ltd. et al., 2000 CanLii 16800 (ONCA) [Entrop], which held that an employer could justify a prima facie discriminatory workplace rule or standard by meeting the following three step test:
- that the employer adopted the standard for a purpose rationally connected to the performance of the job;
- that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
- that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
The Court found that Irving and Entrop were of limited application to the circumstances at hand. Neither decision addressed the enforceability of an express contractual provision permitting an employer to randomly test an employee for drugs and alcohol.
Given the limited assistance that was provided by Irving and Entrop, the Court focused its analysis on the enforceability of the testing policy pursuant to standard contractual and employment standards principles. To that end, the Court noted that Mr. Phillips had not argued that the policy contravened legislation and that, as a general rule, the parties were thus bound to the terms of the employment contract.
Mr. Philips also suggested that the testing policy was unconscionable and that the Court should render it unenforceable on that basis. The ability of a Court to void a contractual term on the basis of unconscionability is strict, and is usually founded in some misconduct or sharp practice at the formation of the contract, often when there is an imbalance in bargaining power.
The Court found that the testing policy was not unconscionable and further, that random drug and alcohol testing for safety sensitive position that worked with dangerous goods in remote parts of Canada was "not at all divergent form community standards of commercial morality".
Unilateral Testing Was Appropriate
The Court's analysis was complete as a result of having found that the testing policy was an enforceable term of Mr. Phillips' employment contract. However, in something of an aside for the sake of "completeness", the Court also considered the potential application of the principle from Irving to the circumstances at hand.
In doing so, the Court cautioned that it was not clear what test a non-unionized employer would have to meet if they were to implement unilateral testing (i.e., without a contractual basis with which to implement testing). The Court found that Westcan would have been able to satisfy the test from Irving.
Conclusion and Takeaways
The Court emphasized that its analysis was context specific. However, this decision provides some general guidance as to when an employer has a contractual right to enforce random drug and alcohol testing for safety sensitive positions. Employers should make sure that employees are clearly made aware of contractual drug and alcohol testing policies during the onboarding process.
Drug and alcohol testing is a complex area of the law which engages a number of issues. Employers who are considered implementing drug and alcohol testing, or who have questions about the enforceability of current policy more generally, are advised to contact a member of the Bennett Jones Employment Services group.