The Supreme Court of Canada (in Irving Pulp & Paper, Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30) and the Alberta Court of Appeal (in Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc.) have recently heard cases concerning random drug and alcohol testing in the workplace¹. Both cases involved a union grievance against an employer seeking to implement a random drug and/or alcohol testing policy for safety-sensitive employees.  The cases highlight the uncertainty that exists in the law in this area, and in each instance the final decision remains pending: the Supreme Court has reserved judgment in Irving Pulp & Paper, while in Suncor Energy the Alberta Court of Appeal upheld an interim injunction preventing Suncor from implementing its drug and alcohol policy pending a hearing before an arbitration board to determine its enforceability.

Once decided, these cases should provide guidance regarding the balance between an employers' right to ensure health and safety in the workplace through random drug and alcohol testing, and an employee's right to be free from intrusions into their private life by the employer.

Random Drug and Alcohol Testing in Alberta

In June 2012, Suncor informed its employees about the implementation of a random drug and alcohol testing policy.  Under its previous policy, Suncor required a reasonable basis to impose testing.  With the new policy, employees in specified or safety-sensitive positions would be subject to random drug and alcohol testing when selected by a computer program, with a minimum of 50% of qualifying employees being tested each year.  The Communications, Energy and Paperworkers Union (the "Union") sought an interim injunction to prevent the implementation of this policy until an arbitration board has ruled on its legality.

The Alberta Court of Queen's Bench considered the Unions' application for an injunction and applied the standard test for an interim injunction, namely: (i) is there a serious issue to be tried; (ii) will irreparable harm arise if the injunction is not granted; and (iii) does the balance of convenience favour the applicant?  The Court found that each of these factors was satisfied and granted the interim injunction.  In particular, the Court held that the loss of dignity faced by Union employees who would be randomly tested in the interim period prior to the arbitration board's decision was a stronger consideration than the inconvenience and risk to health and safety faced by Suncor as a result of the delay in implementing its program.

Suncor appealed the injunction to the Alberta Court of Appeal.  In a split decision, the majority of the Court of Appeal concluded there was insufficient evidence to establish any immediate peril or risk of loss from wide ranging drug or alcohol use at the Suncor worksite.  As a result, the majority concluded that Union employees faced irreparable harm if the injunction was not granted pending the arbitrator's decision, and that the balance of convenience favoured the Union.  Simply brandishing the concern of an accident, or mention of the word safety, even in the context of this mining operation, is not enough to support the conclusion that such balance must favour the immediate implementation of such intrusive testing (on an interlocutory basis prior to the arbitration), on such a large number of Suncor's employees.

With the interim injunction in place, the case will now be heard by an arbitration board beginning in January this year, to determine the legality of Suncor's random testing program.

Random Alcohol Testing in New Brunswick

In Irving Pulp & Paper, the operator of a paper mill in New Brunswick adopted a policy of random alcohol testing for employees in safety-sensitive positions (the question of random drug testing was not at issue in that case).  A grievance was filed by the Union based on a complaint from a Union member that the testing was humiliating and lacked reasonable grounds.

At first instance, the arbitration board hearing the case concluded that a satisfactory reason for this type of policy had not been established by the employer, and that the mill was not ultra-dangerous.  As a result, there was no justification for such a significant invasion into employee privacy. The New Brunswick Court of Queen's Bench reversed the arbitration board's decision and dismissed the Union's grievance, on the basis that the mill was sufficiently dangerous to justify safe work practices including random alcohol testing of safety-sensitive employees, and that the policy was a proportionate response to the danger of impairment from the use of alcohol.

The New Brunswick Court of Appeal agreed with the Queen's Bench decision, and found that because the mill dealt with chemicals, there was a potential for explosions that made it inherently dangerous.  The Court of Appeal held that once a workplace is found to be inherently dangerous, there is no need for the employer to establish the existence of a particular alcohol problem in the workplace in order to require testing of employees in safety-sensitive positions. The Court of Appeal also disagreed with the ultra-dangerous distinction proposed by the arbitrator, and concluded that the only question to be answered is whether the workplace is inherently dangerous.

Leave to appeal to the Supreme Court of Canada was granted and the appeal heard on December 7, 2012, but the decision of the Court has not yet been released.

Competing Interests

These cases involve the balancing of two competing interests: the privacy rights of employees and the rights and responsibilities of employers to ensure adequate health and safety in the workplace.  In determining how this balance should be struck, the questions to be considered include:

• the degree to which random testing infringes upon human dignity and privacy;
• whether random drug testing provides proof of impairment on the job;
• whether random drug and alcohol testing improves workplace safety;
• whether a workplace is sufficiently dangerous to justify random testing;
• whether employees in safety-sensitive positions are subject to increased testing; and
• what positions should be considered safety-sensitive.

Future Implications

The decisions in Irving Pulp & Paper and Suncor Energy could have significant ramifications for employers and employees in Canada.  In particular, the decision in Irving Pulp & Paper will be the first ruling by the Supreme Court of Canada on the legality of random drug or alcohol testing in the workplace, and will provide much needed guidance to employers who are considering establishing or enhancing their drug and alcohol testing policies.  It will be interesting to see if the Supreme Court agrees with the New Brunswick Court of Appeal decision in Irving Pulp & Paper that random alcohol testing of employees in safety-sensitive positions is permissible.

With respect to Suncor Energy, it is important to note that the decision of the Alberta Court of Appeal dealt only with the issue of an interim injunction “ the enforceability of Suncor's random testing policy must still be decided by an arbitration board. That said, it is significant that a majority of the Court of Appeal considered alcohol and drug testing of Union members on an interim basis (pending the arbitration board's decision) to constitute irreparable harm, and that the harm was not outweighed by the risk to health and safety of not testing during that period.

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