Policy concerning the imposition of random drug testing: Employer's burden of proof
The Irving decision is a leading case of the Supreme Court of Canada on the issue of random alcohol and drug-testing in the workplace. The case decided that mandatory random testing is tantamount to a violation of the right to privacy of employees. This test may, however, be justified in a safety-sensitive environment where there is evidence of enhanced safety risks, such as a general problem with substance abuse in the workplace.
This criterion of a “general problem with substance abuse in the workplace” was recently reviewed by the Alberta Court of Appeal.
In 2012, Suncor adopted a policy requiring employees who worked in safety-sensitive job positions to undergo random drug and alcohol testing. The Union challenged this policy by filing a grievance. In order to prove the necessity of imposing mandatory tests on these employees, Suncor adduced evidence of the existence of a problem of substance abuse in the workplace, demonstrating that more than 2,200 recent accidents could be traced to substance abuse. The Union replied that this evidence was insufficient to demonstrate a pervasive workplace problem that could justify violation of the right to privacy of members of its bargaining unit
Although the intent of Suncor was to impose random testing upon all of its employees, the arbitration board was of the view that it should solely have assessed whether or not there was an enhanced safety risk for employees of the bargaining unit governed by the grievance. The evidence of the employer drew no distinction between accidents involving employees within the bargaining unit and other groups of employees. The board thus set aside a large body of the evidence and ruled that there did not appear to be a pervasive problem or enhanced safety risk related to substance abuse by employees within the bargaining unit that would justify the adoption of the policy.
The case was heard before the Alberta Court of Appeal. The Court quashed the arbitration decision, ruling that the board should not have excluded the evidence submitted by the employer solely on the ground that it was not specific to the unionized employees who had filed the grievance. In the Court’s view, the validity of random alcohol and drug tests should be analysed within the context of the broader workplace. The Court emphasized that, under certain circumstances, it might be reasonable to distinguish between certain groups of employees to determine the presence or absence of substance abuse issues, but that, in the present case, it was not appropriate since all the employees worked side-by-side in an integrated workplace.
The Court also added that the decision of the board was unreasonable as it interpreted the Irving decision as imposing a burden to establish the existence of a pervasive problem, rather than meet the lower threshold of demonstrating a general substance abuse problem within the overall work environment.
By dismissing the application for leave to appeal filed by the Union, the Supreme Court of Canada ruled that it was not an appropriate case for intervention of the Court and confirmed the interpretation given by the Alberta Court of Appeal.
Practical advice for employers :
The decision of the Alberta Court of Appeal unequivocally ruled that the Irving test should not receive a more stringent application than that allowed by the Supreme Court of Canada. Thus, it is sufficient for an employer to demonstrate that there exists a general problem of substance abuse in the workplace, and not a problem specific to the employees of a particular bargaining unit, or a pervasive problem of substance abuse.
 Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, hereinafter “Irving”
 Suncor Energy Inc v. Unifor Local 707A, 2017 ABCA 313, dismissal of application for leave to appeal to the Supreme Court of Canada, Unifor Local 707A v. Suncor Energy Inc., 2018 CanLII 53457 (SCC).