Canadian Courts Consider Alcohol and Drug Testing in the Workplace

by Bennett Jones LLP

The Supreme Court of Canada (in Irving Pulp & Paper, Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30) and the Alberta Court of Appeal (in Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc.) have recently heard cases concerning random drug and alcohol testing in the workplace1. Both cases involved a union grievance against an employer seeking to implement a random drug and/or alcohol testing policy for safety-sensitive employees.  The cases highlight the uncertainty that exists in the law in this area, and in each instance the final decision remains pending: the Supreme Court has reserved judgment in Irving Pulp & Paper, while in Suncor Energy the Alberta Court of Appeal upheld an interim injunction preventing Suncor from implementing its drug and alcohol policy pending a hearing before an arbitration board to determine its enforceability.

Once decided, these cases should provide guidance regarding the balance between an employers’ right to ensure health and safety in the workplace through random drug and alcohol testing, and an employee’s right to be free from intrusions into their private life by the employer.

Random Drug and Alcohol Testing in Alberta

In June 2012, Suncor informed its employees about the implementation of a random drug and alcohol testing policy.  Under its previous policy, Suncor required a reasonable basis to impose testing.  With the new policy, employees in specified or safety-sensitive positions would be subject to random drug and alcohol testing when selected by a computer program, with a minimum of 50% of qualifying employees being tested each year.  The Communications, Energy and Paperworkers Union (the “Union”) sought an interim injunction to prevent the implementation of this policy until an arbitration board has ruled on its legality.

The Alberta Court of Queen’s Bench considered the Unions’ application for an injunction and applied the standard test for an interim injunction, namely: (i) is there a serious issue to be tried; (ii) will irreparable harm arise if the injunction is not granted; and (iii) does the balance of convenience favour the applicant?  The Court found that each of these factors was satisfied and granted the interim injunction.  In particular, the Court held that the loss of dignity faced by Union employees who would be randomly tested in the interim period prior to the arbitration board’s decision was a stronger consideration than the inconvenience and risk to health and safety faced by Suncor as a result of the delay in implementing its program.

Suncor appealed the injunction to the Alberta Court of Appeal.  In a split decision, the majority of the Court of Appeal concluded there was insufficient evidence to establish any immediate peril or risk of loss from wide ranging drug or alcohol use at the Suncor worksite.  As a result, the majority concluded that Union employees faced irreparable harm if the injunction was not granted pending the arbitrator’s decision, and that the balance of convenience favoured the Union.  “Simply brandishing the concern of an accident, or mention of the word “safety”, even in the context of this mining operation, is not enough to support the conclusion that such balance must favour the immediate implementation of such intrusive testing (on an interlocutory basis prior to the arbitration), on such a large number of Suncor’s employees.”

With the interim injunction in place, the case will now be heard by an arbitration board beginning in January this year, to determine the legality of Suncor’s random testing program.

Random Alcohol Testing in New Brunswick

In Irving Pulp & Paper, the operator of a paper mill in New Brunswick adopted a policy of random alcohol testing for employees in safety-sensitive positions (the question of random drug testing was not at issue in that case).  A grievance was filed by the Union based on a complaint from a Union member that the testing was humiliating and lacked reasonable grounds.

At first instance, the arbitration board hearing the case concluded that a satisfactory reason for this type of policy had not been established by the employer, and that the mill was not “ultra-dangerous”.  As a result, there was no justification for such a significant invasion into employee privacy.  The New Brunswick Court of Queen’s Bench reversed the arbitration board’s decision and dismissed the Union’s grievance, on the basis that the mill was sufficiently dangerous to justify safe work practices including random alcohol testing of safety-sensitive employees, and that the policy was a proportionate response to the danger of impairment from the use of alcohol.

The New Brunswick Court of Appeal agreed with the Queen’s Bench decision, and found that because the mill dealt with chemicals, there was a potential for explosions that made it inherently dangerous.  The Court of Appeal held that once a workplace is found to be “inherently dangerous”, there is no need for the employer to establish the existence of a particular alcohol problem in the workplace in order to require testing of employees in safety-sensitive positions.  The Court of Appeal also disagreed with the “ultra-dangerous” distinction proposed by the arbitrator, and concluded that the only question to be answered is whether the workplace is inherently dangerous.

Leave to appeal to the Supreme Court of Canada was granted and the appeal heard on December 7, 2012, but the decision of the Court has not yet been released.

Competing Interests

These cases involve the balancing of two competing interests: the privacy rights of employees and the rights and responsibilities of employers to ensure adequate health and safety in the workplace.  In determining how this balance should be struck, the questions to be considered include:

  • the degree to which random testing infringes upon human dignity and privacy;
  • whether random drug testing provides proof of impairment on the job;
  • whether random drug and alcohol testing improves workplace safety;
  • whether a workplace is sufficiently dangerous to justify random testing;
  • whether employees in safety-sensitive positions are subject to increased testing; and
  • what positions should be considered safety-sensitive.

Future Implications

The decisions in Irving Pulp & Paper and Suncor Energy could have significant ramifications for employers and employees in Canada.  In particular, the decision in Irving Pulp & Paper will be the first ruling by the Supreme Court of Canada on the legality of random drug or alcohol testing in the workplace, and will provide much needed guidance to employers who are considering establishing or enhancing their drug and alcohol testing policies.  It will be interesting to see if the Supreme Court agrees with the New Brunswick Court of Appeal decision in Irving Pulp & Paper that random alcohol testing of employees in safety-sensitive positions is permissible.

With respect to Suncor Energy, it is important to note that the decision of the Alberta Court of Appeal dealt only with the issue of an interim injunction – the enforceability of Suncor’s random testing policy must still be decided by an arbitration board.  That said, it is significant that a majority of the Court of Appeal considered alcohol and drug testing of Union members on an interim basis (pending the arbitration board’s decision) to constitute irreparable harm, and that the harm was not outweighed by the risk to health and safety of not testing during that period.

1 Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc., 2012 ABCA 373 [Suncor Energy] and Irving Pulp & Paper, Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30, 2011 NCBA 58 [Irving Pulp and Paper]1

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bennett Jones LLP | Attorney Advertising

Written by:

Bennett Jones LLP

Bennett Jones LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.