In A Flash

Suncor Wins Latest Round in Fight on Right to Random Test – But No Testing to Start Yet

June 24, 2016

Suncor Wins Latest Round in Fight on Right to Random Test – But No Testing to Start Yet

In the recent decision of Suncor Energy Inc. v Unifor Local 707A, 2016 ABQB 269 the Alberta Court of Queen’s bench decided that the arbitration board, which said Suncor’s random testing program for drugs and alcohol could not go forward, was wrong.  The effect of the decision is that a new arbitration board will re-hear the arbitration unless one or both of the parties gives up their respective positions.  In doing so, the new arbitration board is to take note of the three key errors that the majority of the first board made.  These are:

1.  The Board applied the wrong legal test to determine whether there is sufficient evidence to support the random testing policy.

(a)  The authoritative test was previously set out by the Supreme Court of Canada in Communications, Energy and Paperworkers’ Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34 (“Irving”).  To justify random drug and alcohol testing, an employer must adduce evidence “of a general problem with alcohol and drugs in the workplace.”

(b)  At arbitration, the Board stated that this test required evidence of a “significant” or “serious” problem with alcohol and drugs in the workplace.

(c)  The Court held that the Board’s way of setting out the test was “an unwarranted elevation of the Irving test which was not endorsed by the Supreme Court” (para. 69; see also para. 77).

2.  The Board misapplied the legal test in a second way when it said that “it could only consider evidence demonstrating an alcohol and drug problem within the bargaining unit” (emphasis added) instead of the workplace generally as long as there is not an overly broad approach to doing that.
3.  The Board “ignored or misunderstood the evidence in a manner that affected its decisions” (para. 88).

(a)  Specifically, the Board effectively ignored the 2,276 alcohol and drug “security incidents” that were recorded between September 2004 and August 2013 (para. 89).

(b)  The Board had been critical of these security incidents for a number of reasons.  Particularly, the Board found that the evidence did not indicate whether these incidents involved union members, or other Suncor employees or contractor employees.

(c)  The Court, however, noted that the Irving test is not limited to the bargaining unit employees.  As such, the Board had applied an overly-narrow analytical approach when focusing only on the security incidents that could be directly attributed to bargaining unit employees (para. 91).

Before the decision was made by the Board in the first place, the union was successful in getting an injunction (which is a court order) that stopped Suncor from random testing until the arbitration was decided.  That injunction remains in effect.  If Suncor wants to challenge the order continuing, it can do so.  It will be interesting to see if that is the choice that Suncor will make.  It took about two years for the first arbitration decision to be made and then just over a year and a half for the Court of Queen’s Bench to make its decision.  Having the issue re-considered by a new arbitration board could also take a significant amount of time.
The union is reportedly not happy with the outcome, which was so soundly in Suncor’s favour and has publically stated that it will appeal the decision.  Stay tuned for yet another round…
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