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Suncor Random Drug Testing Decision Overturned

24-May-16

By Dan Bokenfohr

In 2014 we reported on an arbitration decision that struck down the random drug and alcohol testing policy implemented by Suncor at its oil sands operations.

This arbitration decision was appealed by way of judicial review to the Alberta Court of Queen’s Bench. After extensive argument and a lengthy period of deliberation, the Court released its decision – Suncor Energy Inc v Unifor Local 707A (“Suncor”) – on May 18, finding that the majority of the arbitration panel had taken an unreasonable approach to deciding the matter.

The central issue on judicial review was whether the arbitration panel properly applied the legal framework set out by the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. (“Irving”) for assessing whether an employer has demonstrated the requisite safety concerns in the workplace to justify random testing.

In assessing drug and alcohol policies, adjudicators seek to strike a balance between competing interests by evaluating the safety gains to be achieved in the workplace through the testing program against its invasion of employee privacy.

The Irving decision was a 6-3 split decision, but the entire Court agreed that an employer cannot unilaterally introduce a random testing program, even in a highly safety-sensitive workplace, unless it is able to demonstrate the presence of enhanced safety risks, such as a general problem with substance abuse in the workplace, which cannot be combated in some less invasive way.

The minority of the Supreme Court determined, however, that it was improper for arbitrators to hold employers to the higher standard of demonstrating a “significant” or “serious” problem with alcohol abuse in the workplace before they can implement random testing programs. The majority of the Supreme Court, on the other hand, did not address this issue head on. Rather, it simply stated that it agreed with the arbitration panel’s ultimate conclusion that the employer “had not demonstrated the requisite problems with dangerousness or increased safety concerns such as workplace alcohol use that would justify universal random testing.”

In Suncor, the Court determined that the majority of the arbitration panel erred in two main respects when applying the Irving legal framework.

First, the arbitration panel wrongly held Suncor to a higher standard, requiring it to present evidence to demonstrate a “significant” or “serious” substance abuse problem in the workplace. Similarly, the majority of the panel held that in order to demonstrate a requisite substance abuse problem in the workplace, Suncor’s evidence needed to establish a causal connection between substance use and its accident/near-miss history in the workplace. The Court described these requirements as “more rigorous” than those articulated by the Supreme Court in Irving.

Second, the Court found it to be a fundamental flaw for the majority of the arbitration panel to have only taken into account evidence demonstrating a substance abuse problem in the bargaining unit at issue. While the arbitration was only binding on the bargaining unit employees, the Court rightly pointed out that there was no evidence to suggest that drug use in the bargaining unit differed in some meaningful way from that of the broader workforce at Suncor’s workplace. The Court also emphasized that a careful review of Irving supported a broader consideration of evidence relating to the entire workplace population. Finally, the Court noted that a broader view of the “workplace” was consistent with the obligation of employers to ensure the safety of their entire workforce.

As a result, the Court determined that the arbitration decision was unreasonable and should be set aside. The Court refrained from expressing any judgment as to whether Suncor’s policy should ultimately be permitted to stand as striking an appropriate balance between safety concerns and privacy rights in its workplace. Rather, the Court remitted the matter back to arbitration for a fresh determination by a new panel.

While an appeal of the Suncor judicial review decision can surely be expected, it does have the potential to pave the road for future decisions that recognize random alcohol and drug testing as a legitimate means of addressing known substance abuse problems in inherently dangerous workplaces.
If upheld, this decision will leave the fate of the Suncor program up to the opinion of another arbitrator. Perhaps that arbitrator will be steered to uphold the random program by the nudge from this judge that safety should more easily trump privacy.

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