The Supreme Court of Canada dismissed an application for leave to appeal in Suncor Energy Inc v Unifor Local 707A, 2017 ABCA 313. This might sound like a non-event to some, but even when our highest court dismisses an application, it makes a statement about the law.
In this case, employers should take note because in dismissing the application, the SCC essentially affirmed the Alberta Court of Appeal’s application of the test for when an employer is justified in implementing random drug testing.
When can an employer implement a policy of random drug testing?
The leading case on random drug testing in Canadian workplaces is CEP, Local 30 v Irving Pulp and Paper, 2013 SCC 34. In that case, the SCC determined that a dangerous workplace does not automatically justify a policy of random drug testing; in addition, an employer considering such a policy must also have evidence of “enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace” (paragraph 31).
Alberta Court of Appeal clarifies the meaning of “general problem” with substance abuse
In 2012, Suncor implemented random drug and alcohol testing for employees at some of its work sites in Fort McMurray, Alberta. It is, of course, common knowledge that the Alberta oil sands are a safety-sensitive environment. However, the Union challenged this policy on the grounds that Suncor did not have evidence of a general problem with substance abuse in the bargaining unit and therefore this policy constituted an invasion of employee privacy.
The arbitration board agreed with the Union. It found that, although Suncor had introduced evidence of over 2,200 drug and alcohol-related incidents at its Fort McMurray worksites, it had not provided a breakdown of how many of these incidents involved bargaining unit employees, and had therefore failed to demonstrate a “serious” problem with substance abuse in the bargaining unit.
The matter was appealed and came before the Alberta Court of Appeal which found that, in requiring evidence of a serious problem with substance abuse within the bargaining unit, the arbitration board had asked the wrong question, ignoring Suncor’s evidence and improperly narrowing the SCC’s meaning of a “general problem with substance abuse in the workplace”. The Court of Appeal confirmed that the test for whether random testing is justified remains the two-step test articulated by the SCC in CEP, Local 30 v Irving Pulp and Paper:
- Is the workplace dangerous (whether described as “dangerous”, “inherently dangerous” or “highly safety-sensitive”)?
- Is there evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace?
Key takeaways for employers across Canada
As Canadian employers prepare for the legalization of cannabis, the Alberta Court of Appeal’s decision in Suncor Energy Inc v Unifor Local 707A provides a timely reminder of the issues around random drug testing for workplace safety purposes. The biggest takeaway is that an employer can demonstrate a general problem with substance abuse regardless of whether the incidents occur with respect to bargaining unit employees or non-bargaining unit employees. In other words, a general problem with substance means just that: a general problem.