Alberta Court of Queen’s Bench finds Random Drug and Alcohol Testing Clause to be Enforceable.

Employers will have welcome news from the recent decision of Phillips v Westcan Bulk Transport Ltd., where the Alberta Court of Queen’s Bench (the “Court”) held that random drug and alcohol testing is permissible if there is an express provision in an employment agreement to do so. Further, the Court held that in the absence of such a provision, the employer still would have been justified in unilaterally imposing random drug and alcohol testing because of the dangerous, remote and unsupervised nature of the employee’s work, and the significant incidence of drug and alcohol use in the workplace.

The Facts

Randall Phillips (“Mr. Phillips”) was employed as a Driver of Westcan Bulk Transport Ltd. (“Westcan”). Westcan transports liquid and dry bulk commodities, including dangerous goods.

In October 2015, Mr. Phillips accepted an offer of employment from Westcan, which included an express condition that the “offer is made subject to your compliance with: … our corporate policies …”. The offer also noted that Mr. Phillip’s position was “deemed safety sensitive”. Further, the evidence was that all employee applicants, including Mr. Phillips, signed an “expectation agreement” prior to the commencement of employment that included the following clause:

To help us achieve the highest level of safety, Drivers are expected to understand and abide by the transportation legislation and our policies and procedures including … drug and alcohol policy (including pre-employment, random, post-incident and for cause testing of drivers) …

I have read and have had an opportunity to ask questions about the driver expectations set forth by [Westcan]. I understand by signing this document that should I become a driver with [Westcan] I will be held to these expectations.

In addition, following his acceptance of Westcan’s offer, Mr. Phillips received training on Westcan’s operations policies. He was told “[r]andom drug and alcohol testing will apply to positions deems [sic] safety sensitive.” He also completed a policies and procedures examination, which included a question about whether safety sensitive employees were subject to random drug and alcohol testing. Further, Mr. Phillips had previously been employed by Westcan and undergone similar training and testing in 2013.

Mr. Phillips applied to the Court for an injunction restraining Westcan from randomly testing its employees for drugs and alcohol.

The Decision

Mr. Justice Dunlop reviewed the facts and noted that when Mr. Phillips accepted Westcan’s offer of employment, he expressly agreed to be bound by its policies and he knew those policies included random drug and alcohol testing for drivers. Not only had Mr. Phillips been told this in the expectation agreement he signed, but he had also previously been employed by Westcan and participated in training about the very same random drug and alcohol testing requirements. Based on this, Justice Dunlop concluded it was a term of Mr. Phillip’s employment that he would be subject to random testing.

Turning to the enforceability of the testing clause, Justice Dunlop noted its enforceability does not turn on the reasonableness of the testing program, as it would if it had been introduced by the employer unilaterally. Rather, at common law, an “employer and employee are free to agree to conditions of employment, provided those conditions comply with employment standards and other legislation … and provided those conditions of employment are not otherwise unconscionable”. Justice Dunlop noted the random testing clause had not been challenged on the basis of being contrary to legislation, and it was not otherwise unconscionable for a driver hauling dangerous goods over long distances, without supervision, to be subject to random testing.

In any event, Justice Dunlop also noted that even if there was no random testing clause, Westcan would be justified in unilaterally imposing random testing on its drivers due to the enhanced safety risks of its business. The parties disputed the applicable legal test on this point: Mr. Phillips argued that the criteria outlined by the Supreme Court of Canada in Communications, Energy and Paperworks Union of Canada, Local 30 v Irving Pulp & Paper, Ltd. (“Irving“) was controlling, while WestCan submitted a laxer test was appropriate. Justice Dunlop did not need to decide which test applied, but stated “even if the Irving test applied in this case, it would be met in the case of Westcan’s drivers, (sic) because of the work, the workplace and the workforce.”

In the result, Justice Dunlop dismissed Mr. Phillip’s application for an injunction.

Takeaways for Employers

Every case will turn on its own facts and context, but the Phillips decision is a reminder for employers that the common law provides them with wide latitude in making agreements with employees, provided they are not contrary to legislation or are otherwise unconscionable. The ability to impose drug and alcohol testing in a variety of circumstances (pre-employment, pre-access, post-incident, reasonable cause, and random) by including a clause in an employment agreement or offer letter should be enticing to many employers who are reluctant to introduce random drug and alcohol testing following the Irving decision (which found a random testing policy in a unionized workplace was unreasonable in the absence of a demonstrated problem with alcohol and drug use in the workplace).

As a good practice, employers are well advised to have employment agreements and offer letters that contain a “catch all” provision that requires employees to comply with all the employer’s applicable policies, as may be introduced or amended from time to time. However, prudent employers should seek to include in an agreement, and specifically draw an employee’s attention to, significant terms or conditions that might otherwise be viewed as unusual, harsh and/or onerous.