Recently the Alberta Court of Appeal released its decision in Suncor Energy Inc. v Unifor Local 707A, 2017 ABCA 313, in which it dismissed an appeal by Unifor and rejected a decision from an arbitration tribunal that had found that Suncor had not demonstrated sufficient safety concerns to justify random drug and alcohol testing at its oil sands operations outside of Fort McMurray, Alta. The Court of Appeal found that Suncor could rely on evidence of substance abuse in the workplace generally, not just within the ranks of its unionized employees, to justify random testing.
Decision of the Tribunal
The initial grievance concerned the random drug and alcohol testing of Suncor's employees engaged in safety-sensitive positions at its oil sands operations. The arbitration hearing lasted 23 days, at which Suncor led extensive evidence about employee substance abuse at its Fort McMurray operations. Suncor introduced evidence about positive drug and alcohol tests that took place after safety incidents or "near misses", with the records indicating that over 95% of the positive tests had involved unionized employees. However, most of Suncor's evidence related to the workplace as a whole and it did not distinguish between unionized employees, non-unionized employees and contractors. Unifor was fighting for privacy rights to prevail in terms of rejecting random testing, while Suncor argued that safety concerns supported the need for testing.
On March 18, 2014, the board released its decision: Unifor, Local 707A v Suncor Energy Inc. Oil Sands, 242 LAC (4th) 1,  AGAA No 6. The majority ruled in favour of Unifor, holding that Suncor had not demonstrated sufficient safety concerns within the unionized employee population to justify random drug and alcohol testing. The majority of the tribunal held that because the tribunal lacked jurisdiction to impose or endorse the drug and alcohol testing of non-unionized employees, the board could only take account of evidence tied directly to that bargaining unit (the unionized employees) and it was foreclosed from even considering Suncor's experience with substance abuse problems of non-unionized employees.
One panel member dissented, taking issue with the majority on its analysis and interpretation of Suncor's alcohol and drug testing data and expert testimony. The dissent criticized the majority's findings on this evidence, holding that it was wrongly or incorrectly interpreted. It challenged the majority findings on its statements regarding oral fluid testing as neither the Union nor Suncor provided any evidence on oral fluid testing at the hearing, nor did either party address oral fluid testing in argument. Therefore, the dissenting member held that the majority improperly considered evidence not before the panel or improperly or wrongly considered the evidence as presented.
Decision of the Court of Queen's Bench
Suncor applied to the Court of Queen's Bench of Alberta for judicial review of the arbitration decision. On May 18, 2016, the Court of Queen's Bench of Alberta released its decision in Suncor Energy Inc. v Unifor Local 707A, 2016 ABQB 269. Justice Blair Nixon for the Court of Queen's Bench quashed the decision and ordered the matter be sent back for a fresh hearing by a new panel. Justice Nixon found that that the majority's decision was unreasonable as the arbitration tribunal had misapplied the Supreme Court of Canada's (SCC) decision in the case of Communications, Energy and Paperworkers Union, Canada, Local 30 v Irving Pulp & Paper Ltd., 2013 SCC 34, 2 SCR 458 ("Irving"), when the tribunal concluded that there must be evidence of a "significant" or "serious" problem before random testing might be justifiable. Further, Justice Nixon concluded that the majority of the arbitration tribunal had erred by only considering the evidence of substance abuse of union employees and it had ignored the evidence of substance abuse in the broader workplace. Finally, Justice Nixon found that the majority had failed to consider all of the relevant evidence.
Decision from the Alberta Court of Appeal
On appeal, the Alberta Court of Appeal considered the dispute resolution process used in labour law and at what point the reviewing court (in this case, the Alberta Court of Queen's Bench) should interfere with the decision of a panel of professional arbitrators with particular experience and training in labour law. The Alberta Court of Appeal considered the deference to be given to such an experienced panel and the difference between "'submission' to the underlying decision and 'respectful attention'"1 finding that the power to intervene properly exercised allows the reviewing court to address errors even an expert tribunal may make.
In addressing the appeal, the Alberta Court of Appeal stated that it was only necessary to address one of the issues identified by Justice Nixon, being the majority panel's "suggestion" that only evidence of drug and alcohol problems within the bargaining unit should be considered. Review the Irving case, the Alberta Court of Appeal noted that while a dangerous worksite is not, in itself, enough to justify imposing random drug or alcohol testing on unionized employees, evidence of a general problem with substance abuse in the workplace as a whole may justify the testing.
While the arbitration panel had found that it lacked jurisdiction to impose or endorse drug and alcohol testing on non-unionized employees and therefore could not consider the evidence related to the non-unionized employees, the Alberta Court of Appeal found that this had no bearing on the question before the tribunal. The Court of Appeal found that the tribunal majority's insistence upon evidence particular to Suncor's unionized employees was unreasonable and set the evidentiary bar too high.
The Court of Appeal held "[t]he key question in this arbitration was whether there was sufficient evidence of a substance abuse problem in Suncor's Fort McMurray operations to justify random drug and alcohol testing, given the privacy concerns inherent in such random testing. Rather than considering whether there was evidence of a problem in the workplace, the majority asked only whether there was evidence of such a problem specific to bargaining unit employees. By unreasonably narrowing the evidence that it considered when deciding this issue, the tribunal majority effectively asked the wrong question, and therefore applied the wrong legal test."2
Unifor's appeal was dismissed. The decision of Mr. Justice Nixon referring the matter back for a new arbitration to be heard by a fresh panel as affirmed.
This case clarifies the legal test and the evidence that is to be considered in determining whether an employer is justified in imposing a program of random drug and alcohol testing on its employees. While it should not be assumed that evidence of substance abuse problems throughout the workplace as a whole will always be accepted to justify a program of random drug and alcohol testing on distinct groups of employees (union and non-union) and contractors, where the workplace functions as an integrated whole, the broader evidence pertaining to the integrated workplace can be relied upon by the employer in support of such a testing program.