Articles & Media

Random Testing Gets New Life


By Hugh McPhail, Q.C.

On September 28th, the Alberta Court of Appeal issued its long-awaited decision in the Unifor challenge to the Suncor random alcohol and drug testing program. The remarkable timeline of the case is the following:

  • Planned introduction of testing: October 15, 2012.
  • Implementation enjoined by the Court of Queen’s Bench with decision upheld by Alberta Court of Appeal.
  • Arbitration heard over 23 days of hearing between January and November of 2013.
  • Arbitration decision of Arbitrator Tom Hodges (for the majority) issued on March 18, 2014.
  • Hodges’ decision was overturned by the Court of Queen’s Bench on May 18, 2015.
  • The appeal by Unifor against that decision heard on November 7, 2016 by a three person panel of the Alberta Court of Appeal. Hugh McPhail of McLennan Ross represented 5 interveners in support of the position of Suncor in that appeal.
  • Court of Appeal decision issued on September 28, 2017.

The Court of Appeal upheld the Queen’s Bench decision and therefore the arbitration decision stands quashed. But it does not bring an end to anything. The entire case was remitted by the Court to be heard all over again by a new different arbitration panel.

The original arbitration decision, in shocking disregard of the evidence about a serious problem with alcohol and drugs at the worksite, stopped the testing. One can only hope that matters will now proceed more quickly. Owners and employers are optimistic that, this time around, safety will be given more importance than privacy, and that the testing will be allowed to proceed.

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