Canada: 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 findings on its statements regarding oral fluid testing as neither the Union nor Suncor provided any evidence on oral fluid testing at the hearing, nor did either party address oral fluid testing in argument. Therefore, the dissenting member held that the majority improperly considered evidence not before the panel or improperly or wrongly considered the evidence as presented.

Decision of the Court of Queen's Bench

Suncor applied to the Court of Queen's Bench of Alberta for judicial review of the arbitration decision.  On May 18, 2016, the Court of Queen's Bench of Alberta released its decision in Suncor Energy Inc. v Unifor Local 707A, 2016 ABQB 269.  Justice Blair Nixon for the Court of Queen's Bench quashed the decision and ordered the matter be sent back for a fresh hearing by a new panel.  Justice Nixon found that that the majority's decision was unreasonable as the arbitration tribunal had misapplied the Supreme Court of Canada's (SCC) decision in the case of Communications, Energy and Paperworkers Union, Canada, Local 30 v Irving Pulp & Paper Ltd., 2013 SCC 34, 2 SCR 458 ("Irving"), when the tribunal concluded that there must be evidence of a "significant" or "serious" problem before random testing might be justifiable.  Further, Justice Nixon concluded that the majority of the arbitration tribunal had erred by only considering the evidence of substance abuse of union employees and it had ignored the evidence of substance abuse in the broader workplace.  Finally, Justice Nixon found that the majority had failed to consider all of the relevant evidence.

Decision from the Alberta Court of Appeal

On appeal, the Alberta Court of Appeal considered the dispute resolution process used in labour law and at what point the reviewing court (in this case, the Alberta Court of Queen's Bench) should interfere with the decision of a panel of professional arbitrators with particular experience and training in labour law.  The Alberta Court of Appeal considered the deference to be given to such an experienced panel and the difference between "'submission' to the underlying decision and 'respectful attention'"1 finding that the power to intervene properly exercised allows the reviewing court to address errors even an expert tribunal may make.

In addressing the appeal, the Alberta Court of Appeal stated that it was only necessary to address one of the issues identified by Justice Nixon, being the majority panel's "suggestion" that only evidence of drug and alcohol problems within the bargaining unit should be considered.  Review the Irving case, the Alberta Court of Appeal noted that while a dangerous worksite is not, in itself, enough to justify imposing random drug or alcohol testing on unionized employees, evidence of a general problem with substance abuse in the workplace as a whole may justify the testing.

While the arbitration panel had found that it lacked jurisdiction to impose or endorse drug and alcohol testing on non-unionized employees and therefore could not consider the evidence related to the non-unionized employees, the Alberta Court of Appeal found that this had no bearing on the question before the tribunal.  The Court of Appeal found that the tribunal majority's insistence upon evidence particular to Suncor's unionized employees was unreasonable and set the evidentiary bar too high.

The Court of Appeal held "[t]he key question in this arbitration was whether there was sufficient evidence of a substance abuse problem in Suncor's Fort McMurray operations to justify random drug and alcohol testing, given the privacy concerns inherent in such random testing. Rather than considering whether there was evidence of a problem in the workplace, the majority asked only whether there was evidence of such a problem specific to bargaining unit employees.  By unreasonably narrowing the evidence that it considered when deciding this issue, the tribunal majority effectively asked the wrong question, and therefore applied the wrong legal test."2

Unifor's appeal was dismissed.  The decision of Mr. Justice Nixon referring the matter back for a new arbitration to be heard by a fresh panel as affirmed.


This case clarifies the legal test and the evidence that is to be considered in determining whether an employer is justified in imposing a program of random drug and alcohol testing on its employees.  While it should not be assumed that evidence of substance abuse problems throughout the workplace as a whole will always be accepted to justify a program of random drug and alcohol testing on distinct groups of employees (union and non-union) and contractors, where the workplace functions as an integrated whole, the broader evidence pertaining to the integrated workplace can be relied upon by the employer in support of such a testing program.


1 Suncor Energy Inc. v Unifor Local 707A, 2017 ABCA 313, at para 37 ("Suncor ABCA")

2 Suncor ABCA, para 49

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions