HUMAN Capital - Winter 2017 - 22

ARTICLE

WHAT EVIDENCE
IS REQUIRED?
BY TAYLOR WOOLSEY, LLP
On September 28, 2017, the Alberta Court of Appeal issued its decision
on Suncor Energy Inc. v. Unifor Local 707A, which considered the degree of
evidence required to justify a random alcohol and drug testing policy. By way
of background, this case considered Suncor's implementation of a random
drug and alcohol testing policy for safety-sensitive employees at oil sands
facilities in the Fort McMurray area. In 2014, the Union successfully brought
a policy grievance before an arbitration panel on the basis that the policy
infringed on workers' privacy rights.1 Suncor applied for judicial review of
the decision. In 2016, the Alberta Court of Queen's Bench held that the
arbitration decision was unreasonable and sent the matter back to a new
arbitration panel for reconsideration. The Union appealed the decision
to the Alberta Court of Appeal.
The Court of Appeal held that the arbitration decision was to be reviewed
on a standard of reasonableness, which "[...] did not preclude the
reviewing justice from assessing the means by which the majority of
the panel reached their decision". The Court of Appeal considered
the evidence of a workplace drug and alcohol problem required to
justify a random testing policy.
Suncor's evidence before the arbitration panel related to the
entirety of the workplace (2,200 "incidents" at its Fort McMurray
operations involved drugs or alcohol) and did not distinguish
between unionized employees, non-unionized employees, and
contractors. In allowing the grievance, the majority of the arbitration panel held the evidence of a drug and alcohol problem
at Suncor's sites was non-specific and "unparticularized." The
majority of the arbitration panel further held that it should only
consider evidence demonstrating a drug or alcohol problem
within the bargaining unit.
The Court of Appeal held that a "broader, workplace-focused
analysis" was appropriate when considering the balancing of
workplace safety and privacy issues:

©ISTOCKPHOTO.COM/DNY59

22 | CPHRab.ca

[46] It was unreasonable for the tribunal majority to insist upon "particularized" evidence specific to Suncor's
unionized employees. This sets the
evidentiary bar too high. Irving
defined the balancing process in
terms of workplace safety and
workplace substance abuse
problems - not bargaining


http://www.ISTOCKPHOTO.COM/DNY59 http://www.CPHRab.ca

Table of Contents for the Digital Edition of HUMAN Capital - Winter 2017

Leadership Matters
Prepare for Policy Revision
What You Need to Know About Bill 17 and Your Benefit Plans
Federally Regulated Employers Be Cautious – Important Change in Law Issued by Supreme Court of Canada
What Evidence is Required?
Policy Corner
Index of Advertisers/ Advertisers.com
HUMAN Capital - Winter 2017 - Intro
HUMAN Capital - Winter 2017 - bellyband1
HUMAN Capital - Winter 2017 - bellyband2
HUMAN Capital - Winter 2017 - cover1
HUMAN Capital - Winter 2017 - cover2
HUMAN Capital - Winter 2017 - 3
HUMAN Capital - Winter 2017 - 4
HUMAN Capital - Winter 2017 - 5
HUMAN Capital - Winter 2017 - Leadership Matters
HUMAN Capital - Winter 2017 - 7
HUMAN Capital - Winter 2017 - 8
HUMAN Capital - Winter 2017 - 9
HUMAN Capital - Winter 2017 - 10
HUMAN Capital - Winter 2017 - 11
HUMAN Capital - Winter 2017 - 12
HUMAN Capital - Winter 2017 - 13
HUMAN Capital - Winter 2017 - Prepare for Policy Revision
HUMAN Capital - Winter 2017 - 15
HUMAN Capital - Winter 2017 - 16
HUMAN Capital - Winter 2017 - 17
HUMAN Capital - Winter 2017 - What You Need to Know About Bill 17 and Your Benefit Plans
HUMAN Capital - Winter 2017 - 19
HUMAN Capital - Winter 2017 - Federally Regulated Employers Be Cautious – Important Change in Law Issued by Supreme Court of Canada
HUMAN Capital - Winter 2017 - 21
HUMAN Capital - Winter 2017 - What Evidence is Required?
HUMAN Capital - Winter 2017 - 23
HUMAN Capital - Winter 2017 - Policy Corner
HUMAN Capital - Winter 2017 - 25
HUMAN Capital - Winter 2017 - Index of Advertisers/ Advertisers.com
HUMAN Capital - Winter 2017 - cover3
HUMAN Capital - Winter 2017 - cover4
HUMAN Capital - Winter 2017 - outsert1
HUMAN Capital - Winter 2017 - outsert2
HUMAN Capital - Winter 2017 - 31
HUMAN Capital - Winter 2017 - 32
HUMAN Capital - Winter 2017 - 33
HUMAN Capital - Winter 2017 - 34
HUMAN Capital - Winter 2017 - 35
HUMAN Capital - Winter 2017 - 36
HUMAN Capital - Winter 2017 - 37
HUMAN Capital - Winter 2017 - 38
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