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Author:
Kelsey Orth

Date:
2018.06.15

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THE EMPLOYERS' EDGE

Random Drug Testing, A Suncor Update: Common Sense Prevails (For Now) As Supreme Court Of Canada Denies Unifor’s Application For Leave To Appeal

Practice Areas: Labour Relations

You may recall that on October 19, 2017 we reported on the Alberta Court of Appeal’s decision in Suncor Energy Inc. and Unifor Local 707A (“Suncor”), a case about random drug testing in the workplace.  While it had long been established that a dangerous or safety-sensitive workplace alone does not justify random drug testing, Suncor had relied on the “general problem of substance abuse” in its workplace as justification for its comprehensive random testing policy. Suncor argued that its approach and the random drug testing policy in question was in keeping with the Supreme Court of Canada’s 2013 decision in CEP v. Irving Pulp and Paper (“Irving”).

Although the original arbitration panel ruled against Suncor, the Alberta Court of Appeal quashed that decision on the basis that the panel made an improper and arbitrary distinction between the workplace as a whole and the specific bargaining unit that grieved the random testing. The arbitration panel had ruled that Suncor’s evidence of a problem with substance use in its workplace more generally was not relevant.  The panel went on to find that Suncor had failed to demonstrate a significant or serious problem with alcohol use or a causal connection between the accidents/injuries/near misses occurring at its facility and alcohol use within the specific bargaining unit that was the subject of the grievance.  The Court of Appeal reaffirmed that random drug testing was permissible where the employer could establish the workplace was dangerous and there was a general problem with drug or alcohol use at the workplace.

Having quashed the arbitration panel decision, the Court of Appeal referred the matter back to a fresh arbitration panel for adjudication.  While Unifor sought leave to appeal that decision to the Supreme Court of Canada, it also obtained an injunction preventing Suncor from implementing its policy until the grievance was freshly heard.

Fast forward to yesterday, when the Supreme Court of Canada denied Unifor leave to appeal, thereby confirming the Alberta Court of Appeal’s decision in Suncor.  While we will monitor the case as it heads back to arbitration, we are pleased that the general, common-sense test set out in Irving, as affirmed by Suncor, will continue to apply to allow employers to be proactive in their efforts to maintain safe workplaces where the workplace is safety-sensitive and they are aware of issues with substance abuse.  If you have any questions about drug and alcohol testing, or any other health and safety issues, please don’t hesitate to contact our team at CCPartners.

Click here to access CCPartners’ “Lawyers for Employers” podcasts on important workplace issues and developments in labour and employment law.

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