Alberta Court Of Appeal Confirms That Evidence Of A General Problem With Substance Abuse In The Workplace May Justify Random Testing

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, [2014] 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...