In the recent decision of Suncor Energy Inc v Unifor Local 707A, 2016 ABQB 269 [Suncor] the Court of Queen’s Bench found that an arbitration board’s decision was unreasonable and sent it back for rehearing by a fresh panel.

The decision stems from the implementation of a random drug and alcohol testing policy in 2012. Following implementation, the Union grieved and the issue went to arbitration. At arbitration, the Majority of the Board concluded that the safety benefit of the policy was outweighed by the harm to employee privacy rights and rejected the policy. The Company applied to the Court to have the Board’s decision judicially reviewed.

The Court in Suncor identified three main problems with the Board’s decision:

  1. The Board wrongly reasoned that the degree of evidence necessary to establish a workplace problem is that of a “significant problem” rather than a “general problem”;
  2. The Board failed to consider evidence of workplace safety related to non-union members. A dangerous environment must be considered in the context of the safety of all employees, including both union and non-union members; and
  3. The Board’s decision was unreasonable because the Board made a material error by ignoring certain critical evidence. A material error exists where a decision maker ignores or misunderstands evidence in a manner that affects its decision.

At the crux of the issue is the inherent tension between privacy and safety. The Supreme Court of Canada (SCC) has been clear that random drug testing is difficult to justify (see the Communications, Energy and Paperworkers, Local 30 v Irving Pulp and Paper Ltd, 2013 SCC 34 [Irving] decision here). However, this case is evidence of the SCC’s competing proposition that such a policy may well be justified in a dangerous workplace “if it represents a proportionate response in light of both legitimate safety concerns and privacy interest” (Irving  at paragraph 52).

The Union has announced its intention to appeal the Court’s decision.

For a more fulsome discussion of the Suncor decision, please see here.

Written with the assistance of Hannah Buckley, summer student.

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