Canada: Dazed And Confused: Alberta Arbitration Board Disagrees On How To Apply Top Court Ruling On Alcohol And Drug Testing

The Alberta Arbitration Board's (Board) decision on random alcohol and drug testing in Unifor, Local 707A v. Suncor Energy Inc., Oil Sands has attracted significant media attention and commentary, following in the wake of the Supreme Court of Canada's ruling on random alcohol testing last year. A majority of the Board held that Suncor Energy's proposed implementation of random alcohol and drug testing in its operations in the Regional Municipality of Wood Buffalo was an unreasonable exercise of Suncor's management rights. However, the attention paid to this decision to date has largely failed to consider the flaws in the majority's decision that were highlighted by panel member David Laird, Q.C., in his strongly worded dissent.

BACKGROUND

In early summer 2012, Suncor advised the union that it would be introducing random alcohol and drug testing for employees in safety-sensitive and specified positions at its operations in the Regional Municipality of Wood Buffalo, to take effect in October of that year under Suncor's Random Testing Standard. Random alcohol testing would be conducted by breathalyzer and random drug testing by urinalysis, consistent with the practices in place at Suncor since 2003 for post-incident, reasonable cause, follow-up and return to work testing (collectively referred to as "for cause" testing).

The union filed a grievance in July 2012 with respect to Suncor's decision to institute the Random Testing Standard. The union successfully sought an interim injunction against the implementation of random testing pending the outcome of the arbitration proceedings. The injunction was upheld by the Alberta Court of Appeal.

In ruling on the Suncor grievance, the majority of the Alberta Arbitration Board purported to follow the 2013 decision of the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., holding that, on a balancing of interests approach, the harm to employee privacy rights from random testing outweighed the safety benefit to be gained by the employer. The Board held that Suncor had failed to lead sufficient evidence of a problem with alcohol and drugs in its workplace to justify the imposition of random testing.

In regards to random alcohol testing, the Board found that the record of positive "for cause" alcohol test results relied upon by Suncor could not justify the imposition of random testing. The Board further held that evidence with respect to alcohol and drug security incidents, site bans and substance dependency assessment results did not establish an alcohol or drug problem amongst unionized employees in the bargaining unit. Three recorded fatalities in the last seven years involving alcohol and/or drug use were dismissed as involving contractor workers and not bargaining unit employees.

With respect to random drug testing, the Board stressed that urinalysis testing cannot determine current impairment. The Board said at paragraph 312: "Given this evidentiary limitation, evidence of positive ['for cause'] tests, without more, does not allow us to conclude that drug use by Suncor employees in the bargaining unit poses a safety risk of such a magnitude that would justify the imposition of random testing for safety sensitive positions." The Board further reiterated that evidence of alcohol and drug security incidents did not demonstrate a serious drug issue among employees in the bargaining unit. The Board also held that Suncor had not established a causal connection between drug use or abuse and accident, injury and near miss incidents in the workplace.

FLAWS IN THE MAJORITY DECISION IDENTIFIED BY THE DISSENT

Majority Misconstrued and Misapplied Test in Irving

Chief among the concerns raised by dissenting panel member Mr. Laird is his statement that the majority misconstrued and misapplied the test to be met for the imposition of random testing as enunciated in Irving. He said at paragraph 63 of his opinion: "The Majority erred in elevating the onus in Irving to require an extreme problem with alcohol and drugs, a causal link between alcohol and drugs and incidents as well as a significant problem with the bargaining unit specifically." (emphasis added)

In order to implement random testing, Irving requires an employer to establish that its workplace is dangerous and lead "evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace" (Irving, paragraph 31). The majority of the Board in the Suncor grievance departed from this statement of the law in requiring that evidence of an alcohol or drug problem in the workplace be particularized to the bargaining unit, rather than assessing the existence of a "general problem" in the workplace. The majority held that it lacked jurisdiction to consider Suncor's integrated experience of its union, non-union and contractor workers; however, consideration of such integrated experience is essential where, as Mr. Laird pointed out, Suncor's union, non-union and contractor workers frequently work side by side, and the actions of one category of workers impact the others. As stated by Justice E.F. Macklin of the Alberta Court of Queen's Bench in ruling on the union's application for an interim injunction, "Drug and alcohol use by all workers, Union members or contractors, is a legitimate concern for Suncor" (paragraph 22).

Nor does the ruling in Irving require a causal link between alcohol and drug use and incidents in the workplace. Contrary to the assertions of the majority of the Board in the Suncor grievance, the fact that the Supreme Court of Canada upheld the reasonableness of the arbitration decision in Irving does not constitute approval of all facets of that decision, including the requirement for a causal connection between alcohol and drug use and workplace incidents (see paragraphs 236 and 248 of the Suncor grievance). The court in Irving affirmed the reasonableness of the arbitration board's conclusion that the employer had exceeded the scope of its management rights by imposing random alcohol testing, and expressly declined to engage in a "line-by-line treasure hunt for error" (Irving, paragraph 54).

For further information on the Supreme Court of Canada's decision in Irving, please see our previous Blakes Bulletin: Sober Second Thought: Supreme Court Rules on Random Drug and Alcohol Testing.

Had the appropriate test been applied by the majority of the Board in the Suncor grievance, it may have resulted in a different outcome. As noted by Mr. Laird at paragraph 186 of his dissent: "The evidence of a problem adduced by Suncor is profound and is significantly more compelling than the evidence in any other decision in Canada considering random alcohol and drug testing." In particular, as set out in the dissent, Suncor has had almost 250 "for cause" positive tests since the introduction of alcohol and drug testing in 2003. The majority of those positive tests were of union members. Almost 150 of those positive tests were post-incident where there was no credible explanation for the incident and alcohol and drugs could not be ruled out as a factor. There were 2,276 reported security incidents related to alcohol and drugs from 2004 to August 2013. Since 2009, alcohol, drugs and drug paraphernalia have been found within Suncor's operating footprint at least 83 times. The majority of the Board failed to properly consider much of this relevant evidence.

Majority Exceeded Its Jurisdiction

Mr. Laird took issue with the decision of the majority of the Board on the basis that it "exceeded its jurisdiction by amending and expanding the scope of the Grievance" (paragraph 28) to include not just the site-specific Random Testing Standard, but all of Suncor's alcohol and drug-related policies and supporting standards.

Further, the Board had no jurisdiction to consider the use of urinalysis. As indicated above, urinalysis had been in use at Suncor since 2003. As a result, the union was out of time to grieve the use of urinalysis. The majority held that the union should not be taken to have acquiesced to the use of urinalysis in the context of random drug testing, as opposed to the "for cause" types of drug testing previously in effect at Suncor. However, the majority failed to address why its concerns with respect to urinalysis, namely the extent to which urinalysis can measure current impairment, should be specific to random testing, so as to render use of urinalysis in that context markedly different from its use in "for cause" testing. Mr. Laird also pointed out that the "technicalities" of testing were addressed and approved by Arbitrator Elliott in the context of a 2003 grievance on alcohol and drug testing, and that as a result, method and manner of testing were foreclosed from further challenge.

Failure to Consider Statutory Obligations and Other Evidence

Mr. Laird highlighted the majority's failure to consider Suncor's statutory obligations to ensure a safe workplace under Alberta's Occupational Health and Safety Act and the Criminal Code, which, as he pointed out, are not limited to employees in the bargaining unit. These statutory obligations, in addition to those pertaining to environmental protection, were noted in the majority's summary of Suncor's position, but were not given further attention in its reasoning.

The majority similarly failed to give appropriate consideration to the measures Suncor has taken to protect privacy rights, including extensive privacy policies and new testing trailers designed to ensure the privacy of employees undergoing testing, or to the availability of the Employee and Family Assistance Program and substance abuse treatment paid for by Suncor.

The majority wrongly concluded that it lacked jurisdiction to consider Suncor's integrated experience of an alcohol and drug problem amongst its union, non-union and contractor workers, as well as in the surrounding community of Fort McMurray, which is a relevant consideration after the decision of Arbitrator Michel Picher in Imperial Oil Ltd. v. CEP, Local 900. This decision was described by the Supreme Court of Canada in Irving as "[t]he blueprint for dealing with dangerous workplaces" (paragraph 32). Finally, the majority considered evidence not before the Board, including the chair's own Internet research.

CONCLUSION

Mr. Laird identified a number of concerns with the majority's decision in the Suncor grievance that are worthy of consideration in the event the matter proceeds to judicial review, and for other employers looking to the Suncor grievance for guidance in developing and implementing their own alcohol and drug testing policies. Any subsequent review or consideration of the Suncor grievance arbitration decision should be closely watched, as it will likely shape the development of the law in Canada with respect to random alcohol and drug testing.

Blakes was not counsel to Suncor on this matter.

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