Suncor Saga Update: Suncor’s Random Drug and Alcohol Testing Policy will be Sent Back to Arbitration

June 21, 2018 | Jill W. Wilkie, Teri Treiber

In our last update on the ongoing legal saga between Suncor and Unifor, Local 707 (the “Union”), the majority of the Alberta Court of Appeal had upheld an injunction that prevents Suncor from carrying out random drug and alcohol testing at its mine site north of Fort McMurray. The injunction is in place while the issue of whether or not Suncor’s random testing policy was reasonable winds its way through the courts.

The most recent update is the decision of the Supreme Court of Canada to deny leave to appeal to the Union.

By way of background, in 2012, Suncor implemented a random testing policy for workers in safety-sensitive positions at the mine site. The Union grieved. After 23 days of arbitration, the majority of the arbitration panel decided in 2014 that the policy was unreasonable. Basing its decision on the principles outlined in the 2013 Supreme Court of Canada decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd., 2013 SCC 34, (“Irving”), the majority held that Suncor had not demonstrated sufficient safety concerns within the bargaining unit to justify random testing and the infringement upon the privacy rights of employees that goes along with it.

Suncor sought judicial review of the decision. On May 18, 2015, Justice Nixon of the Alberta Court of Queen’s Bench quashed the decision of the majority of the arbitration panel and sent the matter back for a new hearing with a fresh panel. Justice Nixon held that the majority’s decision was unreasonable because it: (i) applied more stringent requirements to justify random testing than those contemplated in Irving; (ii) only considered evidence of substance abuse within the bargaining unit and ignored evidence of the problem in the workplace at large; and (iii) failed to consider all of the relevant evidence that was presented.

The Union appealed Justice Nixon’s decision to the Alberta Court of Appeal and on September 28, 2017, the Court affirmed Justice Nixon’s conclusion that the matter should be sent back for a new arbitration hearing.

The Union then sought leave to appeal the decision to the Supreme Court of Canada. In the meantime, Suncor tried to implement the random testing policy at the mine site, but was prevented from doing so by the injunction that is referred to at the outset of this communique.

On June 14, 2018, the Supreme Court of Canada announced that the Union’s application for leave to appeal the Alberta Court of Appeal’s decision had been denied. The Supreme Court of Canada declined to hear the case, and costs of the application were awarded to Suncor.

This means that the issue of whether Suncor’s random drug and alcohol testing policy is reasonable and justifiable will be brought back before a fresh arbitration panel for consideration. In the meantime, the interim ban on the implementation of the policy will stand.

While it was a win for employers that the Supreme Court of Canada effectively agreed that the original arbitration panel’s decision could not stand, unfortunately, employers will have to continue to wait for further clarity in relation to the issue of when a random testing policy will be justifiable. In the meantime, however, employers with safety-sensitive work sites can rely upon the principles in Irving.

Miller Thomson will continue to monitor and report on the Suncor saga, and is always pleased to assist employers with crafting and implementing drug and alcohol policies.

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