Suncor wins this round in the battle over random drug testing, but the battle is not over

The Alberta Court of Queen’s Bench recently granted Suncor Energy Inc.’s application for judicial review¹ and quashed an arbitration award about Suncor’s decision to institute a random drug and alcohol testing policy for certain employees.² The court directed that the matter be remitted for rehearing before a fresh panel; however, the union (Unifor) has also announced its intention to appeal the court’s decision.
 

Background

In 2012, Suncor introduced a random alcohol and drug testing policy for all employees in safety-sensitive positions at its oil sands operations in Alberta. The union grieved and successfully sought an interim injunction preventing the implementation of random testing pending the outcome of arbitration. The injunction was upheld by the Alberta Court of Appeal.

The Suncor arbitration was the first case in Alberta to consider the issue of random drug and alcohol testing since the Supreme Court of Canada issued its decision in Communications, Energy and Paperworkers, Local 30 v Irving Pulp & Paper Ltd, 2013 SCC 34 (Irving). In Irving, the Supreme Court held that a dangerous workplace does not automatically justify random testing. Rather, in determining whether random testing is justified, courts and arbitral tribunals must balance competing interests and determine whether the testing imposed by the employer is proportionate to the concern it seeks to address.

The majority of the Arbitration Board (the Majority) held that Suncor’s random testing policy was not justified, and the harm to employee privacy rights due to the random testing policy outweighed the safety benefit to be gained by the employer. For a summary of that decision, please see here.

The judicial review application was heard in October 2014.
 

The judicial review decision

In making its decision, the court focused on three issues:
 

• Did the Majority elevate to an unwarranted threshold the Irving test concerning the degree of evidence necessary to establish a problem?
• Was it inappropriate for the Majority to consider only evidence that demonstrated an alcohol and drug problem within the bargaining unit?
• Did the Majority fail to properly consider the evidence?

Did the Majority elevate to an unwarranted threshold the Irving test concerning the degree of evidence necessary to establish a problem?

The Majority stated that for the random testing policy to be justified, Suncor was required to adduce evidence of a “significant” or “serious” problem with drugs and alcohol in the workplace. However, the court noted the test set out in Irving is inherently flexible and only requires evidence of a demonstrated or general problem with drugs or alcohol in a dangerous workplace, not a significant or serious problem.

The Majority also found Suncor needed to demonstrate a causal connection between the drug and alcohol problem and the accident, injury and near-miss history at the workplace. However, the court held that Irving does not impose such a threshold requirement, and noted the majority judgment in Irving makes no reference to any obligation to show a causal connection. Rather, the employer must demonstrate that the particular random testing policy in question appropriately balances competing interests and is proportional to the harm to employee privacy.

Accordingly, the court held the Majority misconstrued the Irving test by applying more rigorous requirements than those articulated by the Supreme Court of Canada.

Was it inappropriate for the Majority to consider only evidence that demonstrated an alcohol and drug problem within the bargaining unit?

The Majority asserted it could only consider evidence demonstrating a drug and alcohol problem within the bargaining unit. However, the court held this was a misapprehension of the Irving test. The Irving test requires evidence of a general “workplace” problem with drugs and alcohol, and the court noted the Supreme Court had used the term “workplace” rather than “bargaining unit” throughout the Irving decision. The court held that workplace safety is an aggregate concept, particularly in dangerous environments, and a broader focus on the workplace, as opposed to a narrow focus on the bargaining unit, is consistent with an employer’s obligation to ensure the safety of its entire worksite. While the arbitration decision was only binding upon members of the bargaining unit, it did not necessarily follow that the board could only consider evidence tied directly to that bargaining unit.

The court did leave open the possibility that a narrow approach focusing solely on evidence of alcohol and drug use within a bargaining unit may be justified where evidence suggests alcohol and drug use within the bargaining unit differs in a meaningful way from that in the broader workforce.

Did the Majority fail to properly consider the evidence?

The court held that the Majority ignored and misunderstood the evidence in a manner that affected its decision. First, the Majority “effectively ignored” the evidence about the high number of security incidents at the relevant worksites:

While the Majority acknowledged that there were a large number of security incidents, it then went on to parse the information by subjecting it to a flawed approach that narrowed the scope of the enquiry from the workplace focus to a bargaining unit focus […] The relevance of that “security incident” evidence was lost because it was taken out of context as a result of the overly narrow analytical approach applied by the Majority.

By focusing exclusively on the bargaining unit, the Majority “ignored evidence pertaining to some two-thirds of the individuals working in the Oil Sands Operations.”

The court also expressed concern that the Majority engaged in unwarranted and unreasonable speculation. The court was particularly concerned about the Majority’s conclusion that “it could well be” that junior employees are more likely to be at risk for drug and alcohol use affecting the workplace without any evidentiary basis for that conclusion, as well as the Majority’s reference to “other, more advanced” methods of drug testing when the record indicated the union did not provide the board with any evidence of effective alternative testing measures to urinalysis.

Finally, the court found the Majority’s reasoning regarding the merits of urinalysis was internally inconsistent.
While noting that in some judicial review applications the court can substitute its own decision, the court ordered the matter be remitted before a fresh panel.

Hours after the release of the court’s decision, Unifor announced its intention to appeal, leaving employers waiting on the next round in this battle over random drug testing.

Although this decision was rendered in Alberta, it is of significant importance for enterprises operating in safety-sensitive contexts all across Canada. It is true that labour arbitration panels and judicial tribunals will be tempted to interpret the principles elaborated in Irving narrowly, in the name of employee privacy rights. However, employers must bear in mind that given the right circumstances, it will be possible to impose random drug and alcohol testing and have their serious safety concerns prevail over employee privacy rights.

The author wishes to thank articling student Sarah Ivany for her help in preparing this Legal update.
 

Footnotes

1 Suncor Energy Inc v Unifor Local 707A, 2016 ABQB 269.
2 Unifor, Local 707A v Suncor Energy Inc Oil Sands (Random Testing Grievance), [2014] 242 LAC (4th) 1 (Hodges).