The ability of employers to implement random drug and alcohol testing in the workplace, an issue generally contested by trade unions, suffered a setback earlier this month in a long-running Alberta case that could have important consequences nationally. Our previous postings on this saga are here: (October 24, 2017) (January 2, 2013)
Suncor Energy Inc. moved to institute random drug and alcohol testing at one of its work sites in northern Alberta in 2012, citing workplace safety as a primary consideration. Unifor, Local 707 filed a grievance in response. Unifor also concurrently applied to the Alberta Court of Queen’s Bench for an injunction prohibiting Suncor from conducting random drug and alcohol testing until a decision was made regarding the grievance. In 2013, a three member arbitration panel found in favour of Unifor. In September 2017, the Alberta Court of Appeal determined that the issue would be considered again by a new arbitration panel. This was widely viewed as progress for employers wishing to implement random testing in the workplace. Unifor has appealed the Court of Appeal’s decision to the Supreme Court of Canada.
Earlier this month, Unifor applied for and successfully obtained an interim injunction preventing Suncor from implementing its testing policy pending the outcome of the new arbitration. The Court of Queen’s Bench held that, if Unifor was successful in the new arbitration, irreparable harm would be suffered by the workers who would be subjected to random testing in the interim. Specifically, the Court held that workers subjected to random testing in the interim period would suffer irreparable harm to their privacy and dignity:
[P]rivacy rights of workers are as important as safety concerns. In particular, the taking of bodily samples from anyone engages important constitutional issues.
If the Union is ultimately successful in the arbitration process, I do not accept that the impact on the privacy and dignity of the workers could be remedied.
The Court went on to conclude that the balance of convenience favoured granting the injunction to Unifor. Suncor, the Court reasoned, had drug and alcohol policies in place already, and therefore the injunction would not create an unsafe work environment. Further, the status quo would be maintained – an important consideration in the injunction analysis. In reaching its decision, the Court also referred to the 2013 decision of the Supreme Court of Canada in Irving concerning random testing, noting that the majority of the Court in that case found that, even in the context of a dangerous workplace, it is still necessary to balance safety and privacy interests, and that an employer may be able to impose random testing where it can be justified on a balancing of safety and privacy interests. The Court did not comment on the merits of the case to be arbitrated.
While this most recent decision could be viewed a setback for employers wishing to implement random drug testing, it may be a temporary one. The issue of random testing is scheduled to be considered by a new panel in the coming months and, given Suncor’s evidence of significant on-site drug and alcohol incidents in a highly safety-sensitive work environment, we are hopeful that the new arbitration panel will follow in the footsteps of recent decisions that have prioritized workplace safety over individual privacy rights. That being said, Unifor has, as noted above, sought appeal to the Supreme Court of Canada of the Court of Appeal’s earlier decision quashing the 2014 arbitration result that was in its favour. The Supreme Court of Canada is expected to decide in early 2018 whether or not it will hear the appeal. We will continue to keep our subscribers up-to-date on this important case.