Last week we told you about the recent decision in Irving Pulp & Paper where the Supreme Court of Canada severely limited an employer’s right to perform random alcohol and drug testing in the workplace. The implications of the Irving decision will undoubtedly be far-reaching, including on two prominent cases currently being heard by arbitrators in Alberta and British Columbia that deal with random drug testing–Suncor Energy and Teck (Coal).
Suncor Energy case
Suncor signed on to a “pilot project” intended to allow for random drug and alcohol testing of oil sands workers in safety-sensitive positions. In July 2012, the CEP, the union representing affected workers, filed a grievance challenging Suncor’s plans to implement random drug testing.
When Suncor subsequently advised that it intended to proceed with the testing in the face of the grievance, the union headed off to court to obtain a temporary injunction. The union was successful in getting its injunction, which Suncor appealed.
On appeal, the Alberta Court of Appeal ruled against Suncor. In upholding the injunction, the Alberta Court noted that just three of the seven fatalities at Suncor’s operations in Alberta since 2000 involved workers under the influence of drugs and/or alcohol. In addition, only six percent of employees who were tested post-incident had turned up positive for drugs or alcohol.
The arbitration hearing dealing with the merits of the union’s grievance began the first week in January and is continuing.
Teck (Coal) case
In 2012, Teck implemented a new drug and alcohol testing policy applying to workers at its mines located in the Elk Valley in southeast British Columbia. It provided for random drug testing in addition to the testing regime Teck already had in place.
The Steelworkers, the union that represents affected workers, initially responded by filing a grievance. However, when the union couldn’t persuade Teck to hold off on implementation of random drug testing until the outcome of the arbitration process, it took further action including applying to the arbitrator for an interim order prohibiting Teck from continuing to implement the testing.
The arbitrator rendered his decision in the matter on May 9, 2013, ruling in favor of Teck. In his decision, after finding that both parties had established irreparable harm, the arbitrator turned to balancing the degrees of irreparable harm. He concluded based on the evidence presented that the interest with the greatest degree of irreparable harm was Teck’s interest in safety. Both sides presented expert evidence at the hearing pertaining to the issue of the effectiveness of random drug and alcohol testing on the prevention of industrial accidents. While not factoring into the arbitrator’s decision, Teck also submitted that over the past five years there were approximately 50 post-incident tests that came back positive for drugs, which the union argued was low in the context of the number of post-incident tests overall.
The arbitration hearing into the merits of the grievance has yet to begin.
Implications of the Irving Pulp & Paper case
The Supreme Court of Canada in the Irving Pulp & Paper case indicated that a Canadian employer will normally need to demonstrate evidence of an enhanced safety risk in the workplace such as evidence of a general workplace problem as it relates to drugs and/or alcohol before it can implement a policy of random testing.
While there was no discussion of the level of evidence needed to tip the scales in favor of random testing, the court sided with the decision of the arbitrator where the evidence was that there was only a small number of alcohol-related incidents at the mill in the 15 years prior.
As a result, the employers in the Suncor Energy and Teck (Coal) cases may find themselves needing to gather better evidence than they currently have to bolster their cases. Otherwise, they will be required to show that, despite the absence of a demonstrated problem with drug or alcohol use in the workplace, random testing nevertheless represents a proportionate response in the circumstances of the case taking into account both safety and privacy interests. In the wake of Irving Pulp & Paper, this may be difficult.
Clayton Jones is a partner in the Labour, Employment & Human Rights Group. He advises employers on all aspects of the employment relationship, providing practical and cost-effective solutions. Clayton represents clients before the BC Labour Relations Board, BC Human Rights Tribunal, BC Employment Standards Branch, BC Supreme Court, BC Court of Appeal and Canada Industrial Relations Board. He has also acted as counsel in labour arbitrations and mediations for clients in a variety of industries including manufacturing, retail, forestry/pulp, hospitality, and construction/building products.