17 Oct Testing the Limit: Suncor v Unifor
By Kevin Stenner and Sarah Barker
Alberta employers considering random drug and alcohol testing in unionized and safety sensitive environments have been waiting for the Alberta Court of Appeal’s (“ABCA”) decision in Suncor Energy Inc. v Unifor Local 707A (“Suncor”).
Don’t get too excited now that the decision has been released… there is more waiting to come.
While the decision may seem like a victory for employers seeking to impose random drug and alcohol testing, the ABCA has not substantively clarified the law about when random testing will be appropriate. Instead, it simply orders for the matter to be re-heard by a new arbitral panel.
For those less familiar with the decision, or who simply need a refresher, in 2012, Suncor implemented random drug and alcohol testing for employees in safety-sensitive positions at some of its sites in the Fort McMurray area. These sites had unionized and non-unionized employees as well as contractors.
Unifor, the union representing Suncor’s unionized employees, grieved the testing; alleging that it infringed the privacy rights of the unionized workers. At arbitration, the majority of the panel ruled in favour of Unifor, finding that the privacy implications of random drug and alcohol testing outweighed the potential safety benefits.
Suncor then applied for judicial review of the arbitration decision to the Alberta Court of Queen’s Bench (“ABQB”).
The ABQB found that the decision of the panel was unreasonable because it: i) misapplied the Supreme Court of Canada’s (“SCC”) balancing exercise from Irving; ii) only considered evidence about substance abuse problems among unionized employees; and iii) failed to consider all relevant evidence (including evidence about substance abuse problems in the worksite as a whole). The ABQB ordered for a new panel to hear the matter.
Unifor then appealed that order to the ABCA, which brings us almost up to speed.
Like the ABQB, the ABCA found that the panel’s decision was unreasonable.
In reaching their decision, the ABCA looked to Irving. In Irving, the SCC found that a workplace being dangerous was not enough to justify random drug and alcohol testing on unionized employees. Instead, the SCC held that random testing will be appropriate where “there [is] evidence of a general problem of substance abuse within a workplace”.
The ABCA stressed that in Irving the SCC “defined the balancing process in terms of workplace safety and workplace substance abuse problems – not bargaining unit safety and bargaining unit substance abuse problems [emphasis added].”
Accordingly, the ABCA found that the panel had misapplied this test and acted unreasonably by giving no weight to instances of substance abuse in non-unionized employees, or to instances where the evidence did not particularize if unionized or non-unionized employees were involved, and ordered for a new panel to hear the matter.
The dispute about whether random drug and alcohol testing is permissible by Suncor will now either be appealed to the SCC or returned for a new arbitrator to hear.
So at the end of the day, what should you take away from the ABCA’s decision in Suncor?
We suggest the following:
- The Courts did not make a decision allowing or prohibiting the random drug and alcohol testing of unionized employees in dangerous workplaces.
- The ABCA’s heavy reliance on the SCC’s decision in Irving, means it is unlikely that the SCC would grant leave for Unifor to appeal this decision.
- The ABCA has embraced Irving to mean that the whole of a workplace must be assessed when determining if random testing should be permitted. Accordingly, where a substance abuse problem exists at a workplace, it will be difficult for individual unions to argue that their members should be exempt from testing.