Written by John C. Batzel, Laura Inglis, Michael S. Sestito and Matthew J. Macdonald
Employers in Alberta are likely to have greater latitude in terms of the evidence they can rely upon to justify a policy of random drug or alcohol testing in the workplace, following the decision of the Alberta Court of Appeal in Suncor Energy Inc. v Unifor Local 707A, 2017 ABCA 313 [Suncor CA].
Although this is good news for employers, it remains to be seen whether the evidence presented in Suncor CA (when it is returned to a new arbitration panel for consideration) is sufficient to demonstrate a generalized problem with alcohol or drug misuse in the workplace, such that random testing of Suncor’s safety-sensitive employees is justified.
Random Drug and Alcohol Testing in Canada
The Suncor CA decision, and the earlier decisions in Suncor by the initial arbitration panel and the Alberta Court of Queen’s Bench (on judicial review), are the first decisions in Alberta to consider the issue of random drug and alcohol testing since the Supreme Court of Canada rendered its decision in Communications, Energy and Paperworkers, Local 30 v Irving Pulp & Paper Ltd., 2013 SCC 34 [Irving], which imposed greater limits on an employer's right to conduct random alcohol testing. In particular, the majority of the Supreme Court in Irving found that, absent extraordinary circumstances, an employer may not unilaterally impose random alcohol testing of employees, including safety-sensitive employees, even where the workplace is inherently dangerous. For extraordinary circumstances to be found, the Supreme Court held that it will usually be necessary for the employer to produce evidence of a general problem with alcohol misuse in the workplace. While the Irving case dealt only with random alcohol testing of employees, the reasoning in that case is likely to be applied to drug testing as well.
Alberta Arbitration Panel Considers Suncor's Workplace Testing Policy
In 2012, Suncor Energy Inc. (Suncor) implemented a drug and alcohol testing program that included random testing for certain individuals employed at its oil sands operations near Fort McMurray (Testing Policy). The worksite in question was made up of union and non-union employees, as well as independent contractors. The Testing Policy applied to employees in safety-sensitive positions, including on-site executive members of Suncor's management team, such as the CEO.
Prior to introducing the Testing Policy, Suncor gathered evidence of alcohol and drug misuse at its oil sands operations, as well as anecdotal evidence about drug and alcohol abuse in the Fort McMurray area generally. After the Suncor Testing Policy was introduced, Unifor Local 707A (Unifor) grieved the policy under its collective agreement with Suncor. After a lengthy arbitration hearing, the majority of the arbitration panel ruled in favour of Unifor, holding that Suncor had not demonstrated a sufficient safety concern with respect to alcohol or drug misuse in the bargaining unit to warrant random drug and alcohol testing which, by its nature, is highly intrusive (see Unifor, Local 707A v Suncor Energy Inc., Oil Sands, 242 LAC (4th) 1,  AGAA No 6 [Suncor Arbitration]).
Judicial Review of the Arbitration Panel’s Decision
Suncor brought an application for Judicial Review of the arbitration panel’s decision. In Suncor Energy Inc v Unifor Local 707A, 2016 ABQB 269 [Suncor JR], Justice Nixon granted Suncor's application and remitted the matter back to a fresh arbitration panel to be heard again. In reaching this decision, Justice Nixon concluded that the majority of the arbitration panel had misapplied the Irving test, and erred in its decision, by:
- Imposing a more stringent legal standard (a "significant problem" with alcohol or drug misuse in the workplace rather than “a problem”) than required by Irving.
- Requiring Suncor to produce evidence specific to unionized employees only.
- Rejecting, without sufficient written reasons, Suncor’s expert witnesses.
Unifor appealed Justice Nixon's decision to the Alberta Court of Appeal.
Decision of the Alberta Court of Appeal
The Alberta Court of Appeal has now unanimously dismissed Unifor's appeal. In its reasons, the Court of Appeal focused on the evidentiary issue identified by Justice Nixon in Suncor JR, and concluded that the majority of the Suncor arbitration panel failed to consider relevant evidence of drug and alcohol misuse in the workplace from non-unionized employees and contractors. By requiring that Suncor produce evidence of substance abuse by unionized employees only at its oil sands operations, the majority of the arbitration panel had "set the evidentiary bar too high" and incorrectly applied the decision of the Supreme Court of Canada in Irving, which focused on workplace safety and workplace substance abuse problems generally (Suncor CA at paras 46–47).
In reaching its decision, the Court of Appeal noted there may be situations where it is reasonable to distinguish between evidence of substance abuse by unionized and non-unionized workers, in order to assess whether there is a general problem with substance abuse in the workplace. However, the uncontradicted evidence in Suncor was that workers at the company’s oil sands operations perform their duties in an integrated work environment, on integrated jobsites (Suncor CA at para 48).
The Court of Appeal also agreed with Justice Nixon's decision to remit the matter for re-hearing by a new arbitration panel that would re-consider the evidence in light of the judicial guidance provided by the Court in Suncor JR and Suncor CA.
Takeaways for Employers
Employers must be extremely cautious when implementing a drug and alcohol policy that includes random testing of employees. Such testing can only be justified in an inherently dangerous workplace, in relation to safety-sensitive employees, where a generalized problem with alcohol or drug abuse exists. While Suncor CA does not decide what evidence exactly is required to prove that a general problem with substance abuse exists sufficient to justify random testing, it does stand for the proposition that employers in Alberta can rely upon a relatively broad spectrum of evidence to meet this test. The helpful elements of Suncor JR that were not addressed by the Court of Appeal can also be relied upon by employers, including the finding that (pursuant to the decision of the Supreme Court in Irving) only a general problem with substance abuse need be demonstrated, rather than a "significant problem", and the finding that only a reasonable likelihood of risk to health and safety due to substance abuse is required in order to justify random drug or alcohol testing.