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HUMAN RIGHTS AND PRIVACY ISSUES - Right to privacy - Alcohol and drug testing

Friday, October 13, 2017 @ 8:34 AM  


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Appeal by the union, Unifor, from an order allowing the employer’s application for judicial review of an arbitration panel’s decision finding that the employer’s drug and alcohol testing policy violated workers’ privacy rights. In 2012, the respondent employer, Suncor, implemented random drug and alcohol testing for workers in safety-sensitive positions at some of its sites in the Athabasca oil sands. Prior to implementing the random testing, the employer had taken extensive measures to address drug and alcohol concerns at its worksites, including employee education and training, post-incident and return to work testing, an employee assistance program, a substance abuse treatment program, a drug interdiction procedure, sniffer dogs and an alcohol-free camp policy. The union grieved the implementation of the policy, alleging it infringed unionized workers’ privacy rights. The majority of the arbitration panel found in favour of the union, holding that the employer had not demonstrated sufficient safety concerns within the bargaining unit to justify random testing. The employer applied for judicial review of the decision. The reviewing justice found that the decision of the majority was unreasonable for the following reasons: it misapplied the balancing exercise outlined in the Irving case by imposing more stringent requirements than those contemplated by the Supreme Court of Canada; it only considered the evidence that demonstrated substance abuse problems within the bargaining unit and ignored the evidence of substance abuse problems within the broader workplace; and it failed to consider all the relevant evidence. The union appealed, arguing that the reviewing judge properly identified reasonableness as the standard of review, but erred by effectively applying the correctness standard. The union further argued that the majority’s evidentiary findings were reasonable and therefore entitled to deference.

HELD: Appeal dismissed. The majority conflated the issue of its jurisdiction to decide only those matters arising under the collective agreement with the issue of what evidence was relevant to whether there was a general problem of substance abuse in the workplace. The fact that the tribunal lacked jurisdiction to impose or endorse drug and alcohol testing of non-unionized employees did not mean that Suncor's overall experience with substance abuse in its Fort McMurray operations had no bearing on the question before the tribunal. While it was reasonable for the tribunal to conclude that the employer’s desire to expand random drug and alcohol testing to contractor employees should not influence how the tribunal balanced unionized employees’ privacy against worksite safety, it was unreasonable for it to find that those jurisdictional considerations required the tribunal to blind itself to relevant evidence. It was unreasonable for the majority to insist upon particularized evidence specific to the employer’s unionized employees. The Irving case defined the balancing process in terms of workplace safety and workplace substance abuse problems, not bargaining unit safety and bargaining unit substance abuse problems. As unionized employees, non-unionized employees and contractor employees all worked side-by-side, there was no justification for drawing a distinction between the evidence of substance abuse problems in the workplace as a whole and evidence of substance abuse problems specific to the unionized employees. There was sufficient evidence of a substance abuse problem in the employer’s operations to justify random drug and alcohol testing.

Suncor Energy Inc. v. Unifor Local 707A, [2017] A.J. No. 998, Alberta Court of Appeal, J.D.B. McDonald, B.L. Veldhuis and F.L. Schutz JJ.A., September 28, 2017. Digest No. TLD-October92017011