In 2012, Suncor Inc., a large energy company with substantial operations in the Alberta Oil Sands, introduced a random drug and alcohol testing policy at its operations in Northeastern Alberta. Employees at Suncor’s sites generally worked twelve (12) hour shifts, and operated some of the most complex, expensive and largest heavy resource extraction equipment in the world. All of Suncor’s Northeastern Alberta sites were located close to environmentally sensitive areas and densely populated communities of workers and local residents. An accident at one of Suncor’s sites, involving one of its heavy machines or industrial tools, could result in significant human risk or environmental disaster.
Suncor had previously undertaken significant measures to address its workplace concerns, including establishing open communication with employees suffering from drug / alcohol dependencies, providing extensive education and training to employees, and introducing drug detection measures such as sniffer dogs. Despite these efforts, incidents continued to occur, and employees continued to report to work intoxicated.
According to Suncor, its workplace drug and alcohol concerns were “unparalleled” in Canada. Suncor’s evidence indicated that more than 95% of employees tested following health and safety incidents (accidents or near misses) at the workplace had either drugs or alcohol in their systems. It was Suncor’s position that random testing of employees in safety-sensitive and executive management positions was needed.
UNIFOR, the union which represents the employees working at Suncor’s sites, took the position that there was a lack of evidence of a widespread problem justifying random drug and alcohol testing. While there had been incidents at other Suncor sites, the Union argued that there was a lack of evidence of a widespread problem at the Northeastern Alberta sites. UNIFOR relied upon these and other assertions when it referred this matter to grievance arbitration.
1. First Instance – Arbitral Panel
A panel of arbitrators, considering the above facts, ruled in favour of UNIFOR, primarily because Suncor’s evidence of workplace drug and alcohol concerns related to its workplace as a whole (which included unionized and non-unionized employees, and contractors) as opposed to the specific job sites where the UNIFOR employees were working. This, according to the panel, was fatal to Suncor’s claim that random drug testing was justified.
2. Judicial Review – Alberta Court of Queen’s Bench
Suncor applied for Judicial Review of the Arbitral panel’s decision. The Court overturned the panel’s decision and agreed with Suncor’s assessment of its business needs. In rendering its decision, the Court of Queen’s Bench applied relevant tests and legal considerations set out in the Supreme Court’s leading authority on the issue of random drug testing in the workplace, CEP Local 30 v Irving Pulp & Paper Ltd,  SCC 34 (“Irving”).
In Irving, the employer, one of the largest industrial employers in New Brunswick, instituted a highly contentious random alcohol testing program. As justification for this measure, the employer referred to eight (8) documented instances of employees coming to work impaired over the course of fifteen (15) years. The union, the Communications, Energy and Paperworkers Union of Canada (the “CEP”), filed a grievance asserting that the employer’s mandatory alcohol testing was overly broad, and infringed upon individual privacy and bodily integrity rights without valid justification.
After moving through the arbitral and Court systems, the CEP’s case was eventually appealed to the Supreme Court. The Supreme Court ruled that, to justify a mandatory random drug and alcohol testing program, the employer was required to show actual evidence of a serious workplace safety problem. Given the circumstances, a balancing of competing interests (i.e. human rights versus workplace safety) would be required to determine whether the rule imposed by the employer was proportionate to the workplace concern.
In Irving, particularly due to the relatively sporadic instances referred to by the employer, the Court ruled that individual privacy rights trumped the proactive measures instituted by the employer. As a result, the Supreme Court found in favour of the CEP.
Returning to the Suncor case, by contrast to the circumstances in Irving, the Court of Queen’s Bench was presented with evidence of a much more pervasive problem by the employer. As a result, the Court found that, although the mandatory drug and alcohol testing program instituted by Suncor was invasive and infringed upon its employees’ legal rights, the program was a bona fide requirement to ensure the safety of the workplace. Said differently, it was necessary for the employer to directly address and prevent from continuing a long-standing, pervasive problem at a safety sensitive workplace.
Further, the Court of Queen’s Bench ruled that it was unreasonable for the Arbitral panel to require Suncor to lead evidence of safety concerns specific to Suncor’s unionized employees in order to justify the imposition of its mandatory drug and alcohol testing program. In the Court’s view, such a requirement set Suncor’s evidentiary bar too high.
The Court of Queen’s Bench overturned the decision of the Arbitral panel, ruling in favour of Suncor. Unsurprisingly, UNIFOR appealed the Court’s decision to the Alberta Court of Appeal.
3. Civil Appeal – Alberta Court of Appeal
On appeal to the Alberta Court of Appeal, the judicial panel began by analyzing the Court of Queen’s Bench’s application of Irving. The Court of Appeal upheld the ruling of the Court of Queen’s Bench, finding that the Arbitral panel’s approach was far narrower than the approach adopted by the Supreme Court in Irving. The Court confirmed that it was unreasonable for the arbitral panel to require an employer to provide very specific evidence of health and safety concerns relating only to unionized employees at a specific job site, in order to justify randomized drug testing. In any event, the Court confirmed that there was no evidence to suggest that drug and alcohol use differed in any meaningful way between Suncor’s unionized and non-union employees. The Court acknowledged that Suncor’s evidence validated the existence of a pervasive, potentially life-threatening problem that applied across the board.
4. Supreme Court of Canada
After the Court of Appeal’s decision, UNIFOR immediately obtained an interim injunction prohibiting Suncor from implementing its drug and alcohol testing program. UNIFOR once again appealed the Court of Appeal’s decision, this time seeking a hearing before the Supreme Court of Canada.
UNIFOR was unsuccessful in obtaining leave to appeal to the Supreme Court. UNIFOR’s appeal was dismissed on June 14, 2018, without a hearing and without any written reasons from the Supreme Court. In essence, the Supreme Court saw no reason to overrule the Alberta Court of Appeal’s prior determination.
In the result, the Union’s grievance was remitted for a fresh arbitration hearing, to be heard by a differently constituted Arbitral panel.
5. Key Takeaways for Employers
In relevant sum, in order to justify random drug and alcohol testing, an employer must be able to prove that:
a) There is a bona fide, serious concern at the workplace which requires random testing (the more widespread and frequent the incidents / occurrences at issue, the easier it will be to justify this type of approach); and
b) The policy or random drug testing program represents a “proportional” approach to curb the problem of substance abuse in the workplace.
Employers should tread very carefully when considering whether to implement a mandatory drug testing policy. Both the Supreme Court in Irving and the Alberta Court of Appeal in Suncor have ruled that random drug and alcohol testing is not automatically justified simply because a workplace can be classified as dangerous. It does not follow, based on the rulings of both Courts, that any person in a safety-sensitive role ought to be subject to random drug and alcohol testing. Employers should be careful to resort to this measure only in circumstances where there is reliable evidence of a serious, pervasive problem.
Even if reliable evidence of a serious, pervasive workplace problem exists, employers should be aware that any efforts to bolster workplace safety via the imposition of a random drug and alcohol testing problem are likely to be challenged, particularly if the workplace in question is unionized.
That being said, and while Irving remains good law in Canada, the Alberta Court of Appeal’s decision in Suncor stands as the most significant instance in which the application of the Irving balancing of interests analysis has yielded a favourable result for an employer seeking to implement random drug testing in its workplace. Suncor demonstrates that an employer can justify a random drug testing policy and serves as an example of the type of evidence required to meet the Supreme Court’s definition of a serious workplace problem, as described in Irving.
We will continue to track the Suncor case as and when a fresh Arbitration panel is convened. Stay tuned!
A full copy of the Alberta Court of Appeal’s decision can be found here: Suncor Energy Inc v Unifor Local 707A, 2017 ABCA 313 (CanLII)
Written by Tushar Anandasagar. Research by Lucas Hendsbee.
Tushar Anandasagar is an Associate Lawyer at LeClair and Associates P.C. He works in all areas of Labour and Employment law, with a particular focus on Workplace Health and Safety compliance and related issues. For further information or discussion, please contact Tushar by email at Tushar@leclairandassociates.ca.
Lucas Hendsbee is a Research Assistant at LeClair and Associates P.C. He provides research and analysis regarding all areas of the law, with a focus on regulatory compliance, policy analysis and emerging legal issues. For further information or discussion, please contact Lucas by email at Lucas@leclairandassociates.ca.