There has been significant discussion in recent weeks concerning the recent Alberta Court of Appeal decision on random workplace drug testing. Suncor Energy Inc. v Unifor Local 707A, 2017 ABCA 313 saw the appellate court reject Unifor’s complaint that random testing on Suncor’s Fort McMurray area oil sands sites was too intrusive. Random drug testing is, as a rule, only permissible when there is a demonstrable substance abuse problem in the workplace.

Suncor implemented random drug testing at both facilities it operates in Fort McMurray on October 15, 2012. The policy covered all employees working in “safety-sensitive positions”, including senior management on site. Suncor supported its decision on the basis of over 2,200 incidents spanning several years involving drug and alcohol use. The incidents ranged from the relatively minor (new employees arriving at the “dry” worksite with alcohol in their possession) to at least three workplace fatalities linked to drugs or alcohol.

In 2014, an arbitration panel found the Suncor random drug testing plan was not enforceable against the Unifor bargaining unit. The panel held Suncor lacked jurisdiction over any non-unionized workers on the work site and, as a result, its evidence in support of the policy was not sufficiently particularized to show a problem within the Unifor bargaining unit.

The Alberta Court of Queen’s Bench overturned the arbitral decision1, finding the panel was wrong to consider only the evidence of substance abuse within any particular bargaining unit or employee group. Rather, such random testing policies must be viewed in the context of the workplace as a whole. It ordered the question be remitted to the arbitration panel for reconsideration. That finding was upheld by the Court of Appeal.

Potential implications for random workplace drug testing

First, on a substantive level, it is sufficient for an employer to show what the Supreme Court of Canada described as “…evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace2 [emphasis added]. The Court of Appeal found the evidence presented by Suncor was sufficient to meet the threshold required, even though it did not necessarily show a problem within the Unifor bargaining unit.

The Court of Appeal did not rule out circumstances that might open the door to a more specific worker group by worker group analysis. Here, the Court noted union and non-union employees at Suncor’s facility worked side by side in a fully integrated workforce. This made the more general evidence adduced by Suncor acceptable. The Court also suggested that a more specific analysis might be appropriate if there is evidence to show a material difference in substance use between particular employee groups.

Second, we can anticipate this decision may open the door to more active judicial intervention in arbitral decisions going forward. The Court did not change the existing rules about when labour arbitral awards will be quashed, but it has clarified that the “significant deference” given to labour arbitrators is a barrier to review. The Appeal Court found courts are not bound to accept the “arbitrator’s reasons and conclusions”. The Court described its role as “respectful attention” to the findings made, rather than “submission”. Because the arbitral panel’s original ruling centred on the lack of particularized evidence about the Unifor bargaining unit, which the Appeal Court found to be unreasonable, it was open to the courts to reverse the panel.