For the past five years, the mining company that owns a potash operation outside of Saskatoon randomly brought drug-detection dogs to the site. The purpose was to sniff staff employees, contract personnel, and even managers for traces of illegal drugs. If the dog alerted, the company would take the employee to a private backroom for questioning. Employees would have to empty their pockets and any lunch pail or bag.
That practice is on hold now, though, after an arbitrator ruled in January it was akin to a random drug test. “The Employer has failed to justify its unilateral rule implementing the random ‘search/interview’ guardhouse process as a reasonable limit on their fundamental privacy,” wrote arbitrator Ken Norman in United Steelworkers Local 7552 v. Agrium Vanscoy Potash Operations.
The employer is expected to seek judicial review of the decision. And while the ruling isn’t binding on any court in Ontario, lawyers believe it’s one of the first decisions related to drug and alcohol testing of employees that don’t involve direct testing as part of the initial security measure.
“Sniffer dogs are next up” in Ontario, says Michael McCreary, a partner at Watson Jacobs McCreary LLP in Toronto.
Gary Bainbridge, who successfully argued the Saskatchewan case for the union, agrees that other methods of screening employees, such as dogs, are on the upswing.
“We are going to see more of these,” he says. “This was a search” that breached the collective agreement, says Bainbridge, who adds there shouldn’t be canine replacements for the role that human resources should play if a company suspects an employee of drug use.
While the method of testing was different in the Saskatchewan proceeding, the Supreme Court of Canada set out the principles the arbitrator applied in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.
In that case, the Supreme Court ruled against random drug and alcohol testing of employees at a paper mill in New Brunswick. “The fact that a workplace is found to be dangerous does not automatically give the employer the right to impose random testing unilaterally,” wrote Justice Rosalie Abella in the majority decision. The court said there must be evidence of enhanced safety risks or a substance abuse problem at the workplace to justify a unilateral policy.
The Supreme Court ruling focused on random tests at work sites and since then, there have been two major court proceedings on how to apply the Irving decision. In Alberta, a split decision by an arbitration panel last year found there wasn’t sufficient evidence of risk to justify random drug and alcohol testing of oilsands workers at a Suncor Energy Inc. site. That decision is under appeal and is currently on reserve at the Court of Queen’s Bench.
Policies implemented by Suncor have also been an issue in Ontario after it implemented pre-access alcohol and drug testing at a site in Sarnia, Ont. An arbitrator ruled the tests violated the collective agreement and a section of the Ontario Human Rights Code. The Divisional Court upheld the decision late last fall in Mechanical Contractors Association Sarnia v. United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry.
“In our view, pre-access testing is much more akin to random testing than to conduct-based testing,” wrote Justice David Brown for the panel shortly before he joined the Ontario Court of Appeal. The Divisional Court dismissed the application for judicial review based on the breach of the collective agreement and did adjudicate the Human Rights Code issues.
The contractors’ association and Suncor didn’t seek leave to appeal the ruling at the Court of Appeal. Its lawyer, Richard Charney, says the court proceeding was always about ensuring safety in the workplace. “There is mutual respect between the union and the employer” at the Sarnia site, he says.
“One incident, though, is one too many,” adds Charney, global head of employment and labour at Norton Rose Fulbright Canada LLP in Toronto.
The Supreme Court decision in Irving will make it more challenging for companies to implement pre-access testing policies, says Charney, but he doesn’t think it has ruled them out. “For random testing, you need to show a workplace culture that is fraught with abuse. For pre-access, the jury is still out. The test is not as stringent,” says Charney.
At the same time, Charney believes the current state of the law presents difficulties for companies that do want to implement some kind of testing. “I don’t think anything is entirely clear for employers,” he says. “Privacy rights are now more of a direct focus than 20 years ago.”
McCreary, who represented the union side in the Sarnia case, believes the law is now clearer in Ontario in terms of pre-access testing. “I think the Divisional Court has driven a stake through the heart of pre-access testing.”
McCreary agrees with Charney that the courts are now placing greater importance on privacy interests. Sniffer dogs and other ways of trying to find out whether there’s a drug or alcohol abuse problem at work sites without initial drug and alcohol testing are likely the next legal battleground in this area, says McCreary.
“Employers are looking for a way to get around [restrictions] on random drug testing. It is to get indirectly what you can’t get directly,” he says.