Update on Random Alcohol and Drug Testing

In 2013 in Communications, Energy and Paper Workers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd (“Irving”), the Supreme Court of Canada confirmed a company may conduct random alcohol testing for a safety-sensitive position where the company can establish it operates a dangerous workplace and there is a general problem with alcohol abuse in the workplace. This test is a very high obstacle to overcome. 

In Irving, the Supreme Court set out three specific instances, even in safety-sensitive industries where testing may occur:

(i)     there is reasonable cause to believe that the employee is impaired while on duty,
(ii)      the employee has been directly involved in a workplace accident or significant incident, 
or
(iii)      the employee is returning to work after treatment for substance abuse.

This year the Ontario Superior Court gave some insight into the analysis a court may undertake when assessing random testing. See Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078 discussed in our April 2017 newsletter.

A recent decision of the Court of Appeal of Alberta in Suncor Energy Inc. v. Unifor Local 707A (*1) provides additional guidance on alcohol and drug testing.

In 2012, Suncor implemented random drug and alcohol testing for workers in safety-sensitive positions at some of its sites in the Fort McMurray area. Unifor grieved the alleged infringement of unionized workers’ privacy rights. The majority of the arbitration panel ruled in favour of Unifor. The majority of the panel held that the employer had not demonstrated sufficient safety concerns within the bargaining unit to justify random testing. The dissent concluded that there was overwhelming evidence of safety issues within the workplace, including substance abuse issues, and would have upheld the employer’s random testing scheme.

Suncorp appealed to Court of Queen’s Bench for judicial review. The arbitration decision was quashed by the reviewing justice, who ordered that the matter be sent back for a fresh hearing by a new panel. The judge found that the majority’s decision to be unreasonable for three main reasons. First, he held that the tribunal’s majority misapplied the balancing exercise outlined in Irving by imposing more stringent requirements than those contemplated by the Supreme Court of Canada. Second, he concluded that the majority erred by only considering the evidence that demonstrated substance abuse problems within the bargaining unit, and ignoring the evidence of substance abuse problems within the broader workplace. [At the site there were both unionized and non-union personnel.]  Finally, he concluded that the majority had failed to consider all of the relevant evidence.

The Union appealed to the Court of Appeal for Alberta. The Court of Appeal considered only one ground of the appeal: the arbitration panel majority’s suggestion that it should only consider evidence demonstrating a drug or alcohol problem within the bargaining unit.

The Court of Appeal noted that in Irving, Abella J explained how a dangerous worksite is not, in itself, enough to justify management imposing random drug or alcohol testing on its unionized employees. She defined the test in terms of whether there are special safety risks, and in particular, whether there was evidence of a general problem of substance abuse within a workplace (at para 31, emphasis added):

[T]he dangerousness of a workplace — whether described as dangerous, inherently dangerous, or highly safety sensitive — is, while clearly and highly relevant, only the beginning of the inquiry. It has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences. What has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.

The Court also noted that in an attempt to satisfy this test from Irving, Suncor led extensive evidence about employee substance abuse problems at its Fort McMurray operations. Some of this evidence directly implicated its unionized employees. Suncor introduced evidence about positive drug and alcohol tests that took place after safety incidents or “near misses,” with these records indicating that over 95% of the positive tests had involved unionized employees. However, much of Suncor’s evidence related to the workplace as a whole, and did not distinguish between unionized employees, non-unionized employees, and contractors’ employees. Suncor introduced evidence of over 2,200 “incidents” at its Fort McMurray operations that involved drugs or alcohol, but did not provide a breakdown of how many of these incidents involved unionized employees versus non-unionized employees or contactor employees.

The Court of Appeal held that it was unreasonable for the tribunal majority to insist upon “particularized” evidence specific to Suncor’s unionized employees. At paragraphs 46 and 47 it held that:

This sets the evidentiary bar too high. Irving defined the balancing process in terms of workplace safety and workplace substance abuse problems – not bargaining unit safety and bargaining unit substance abuse problems. Irving calls for a more holistic inquiry into drug and alcohol problems within the workplace generally, instead of demanding evidence unique to the workers who will be directly affected by the arbitration decision. A broader, workplace-focused analysis appears consistent with how both the Supreme Court and the arbitration panel in Irving approached the balancing process. In the Irving arbitration decision, the arbitrator mentioned how some of the evidence did not distinguish between the “groups of employees” involved in alcohol-related incidents, but also specifically considered evidence about alcohol testing within the overall workplace, including plant employees outside the bargaining unit

The appeal was dismissed.

The takeaway for employers: employers must be cautious when implementing a random alcohol and drug testing policy. Only a general problem with substance abuse (in a safety sensitive industry) needs to be demonstrated, rather than a “significant problem” (and a reasonable likelihood of risk to heal and safety due to substance abuse) being required in order to justify testing.

Endnotes

(*1) 2017 ABCA 313

Doing Business in Canada – Part 1(*1) – The Canadian Legal System

Canada is a federal state with a constitution. Canada has an elected parliamentary system of government. In addition to the federal government it has ten provincial governments, three territorial governments. At the federal level Canadians elect the prime minister and at the provincial levels, the premier. The Constitution Act, 1867 sets out the powers assigned to the federal government and the powers assigned to the provincial and territorial governments. English common law is applied in nine provinces and three territories. French civil law is applied in the province of Quebec.

Federal jurisdiction was designed to encompass decisions that affect all Canadians across the vast country – matters of national significance. The federal government has powers that include national defence, foreign affairs, employment insurance, banking, federal taxes, the post office, federal taxes, fisheries, shipping, railways, telephone, pipelines, indigenous lands and rights and criminal law. Provincial and territorial jurisdiction includes direct taxes, hospitals, prisons, education, marriage, property and civil rights. Agriculture and immigration is shared. Certain aspects of provincial powers are delegated to municipal governments, which enact their own bylaws. Legislative jurisdiction is subject to limits provided by the Canadian Charter of Rights and Freedoms, which forms part of the Consitution Act, 1982.

Depending on the business, it may be subject to either federal or provincial regulation. For example, an airline may be subject to federal law, such as the federal labour code, for matters dealing with labour and employment but be also subject to provincial laws dealing with real property.

The division of powers is further complicated by the “opting” out by provinces from federal programs. For example, Quebec administers its own provincial pension plan. It operates separately from the Canada Pension Plan.

In addition, unique arrangements have been developed for Aboriginal peoples in different regions of Canada. Aboriginal groups may have a range of rights and powers over certain lands under the Indian Act and pursuant to historic and treaty rights.

The federal and provincial and territorial governments are all responsible for the judicial system in Canada. (*2) Canada’s judiciary is completely independent from other branches of government and all government action is subject to judicial scrutiny. Canadian judges are appointed for life. Canadian judges are fair and well-respected.

Only the federal government can appoint and pay judges of the superior, or upper-level, courts in the provinces. Parliament can also establish a general court of appeal and other courts. It has created the Supreme Court of Canada, the Federal Court and the Federal Court of Appeal, as well as the Tax Court. 

Parliament also has exclusive authority over the procedure in courts that try criminal cases. Federal authority for criminal law and procedure ensures fair and consistent treatment of criminal behaviour across the country. 

The provinces administer justice in their jurisdictions. This includes organizing and maintaining the civil and criminal provincial courts and civil procedure in those courts.

The graphic below is an outline of Canada’s Court System (*3).

The Supreme Court of Canada is Canada’s final court of appeal. Its nine judges represent the four major regions of the country. Three of them must be from Quebec to adequately represent the civil law system.

The Federal Court specializes in areas such as intellectual property, maritime law, immigration law, federal-provincial disputes and civil cases related to terrorism.

The Provincial and Territorial level courts are roughly the same across Canada. Each province has three levels: lower courts, superior courts and appeal courts. Nunavut is the exception. It has a single-level trial court.

Administrative boards and tribunals deal with certain types of disputes over the interpretation and application of laws and regulations. Examples are human rights, entitlement to employment insurance or disability benefits and refugee claims. Decisions of administrative tribunals may be reviewed by a court to ensure fairness and proper legal process.

Canadian courts may look to foreign judicial decisions for guidance, and both the federal and provincial legislatures frequently adopt foreign legislative models: for example, the Personal Property Security Act in force in Ontario is essentially the same as Article 9 of the U.S. Uniform Commercial Code. 

Arbitration clauses in agreements are generally enforced by courts and arbitration is extensively used. Canadian courts will generally recognize arbitration decisions, including foreign awards.

Canada also hosts a number of mediations with many former judges and senior lawyers available to mediate complex commercial disputes.

Canada provides an attractive climate for foreign businesses. It has stable political and economic systems. It has abundant natural and human resources.

Endnotes

(*1)     This article is part 1 of 17 parts dedicated to a review of doing business in Canada. Subsequent articles will include: Foreign Investment, Business Structures, Securities Regulation, Canadian Immigration, Employment Laws, Directors and Officers, International Trade, Competition, Sale of Goods, Intellectual Property, Privacy, Real Property, Environmental Laws, Taxation, Insolvency, Litigation and ADR.

(*2) see http://www.justice.gc.ca/eng/csj-sjc/just/07.html

(*3) Ibid