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Alberta Court of Queen’s Bench to Hear Application for Judicial Review of Random Testing Decision

Oil sands companies and industry stakeholders will be watching closely this week as the issue of random alcohol and drug testing returns to the courts. Suncor Energy Inc. (‘Suncor”) is seeking judicial review of an arbitration board decision that rejected the oil giant’s attempts to randomly test unionized employees at its locations near Fort McMurray. The hearing was scheduled for October 23 and 24.

Two industry groups granted intervener status

The Mining Association of Canada (“MAC”) and Enform Canada – two non-profit groups that promote workplace safety – will attend as interveners. In September, Honourable Chief Justice Neil Wittmann granted MAC and Enform intervener status in the judicial review application, saying he believes they will bring a “fresh perspective” to the issue.

With intervener status, MAC and Enform will be given an opportunity to provide the court with a written submission and present a brief oral argument in favour of random testing. The groups will argue that according to the Irving Pulp & Paper decision (referenced by the arbitration panel in its decision) – it is not necessary to demonstrate a culture of substance abuse of drugs or alcohol in the workplace, nor is it necessary to demonstrate that workplace accidents have been caused by substance abuse in order to justify random testing in a union setting. MAC and Enform are expected to argue the deterrent effect of random testing ought to be considered and that there was evidence before the arbitration panel that was not taken into account.

Random testing as a deterrent

In DriverCheck’s own experience providing mandatory random drug and alcohol testing for the U.S. DOT regulated transportation industry, random alcohol and drug testing has been an effective deterrent. Our statistics show that over a period of 14 years and more than 237,000 tests, positive rates among drivers in the trucking industry dropped by 80 percent. Between 1996 (when random testing became mandatory for drivers travelling to the U.S.) and 2010, the positive rate fell from nearly 2.5 percent to less than 0.5 percent. In the Oil sands, many companies who conduct pre-employment testing see rates that are much higher than this, up to 15 percent in some workplaces. This suggests there is even more opportunity in the oil sands for a significant reduction in positive rates.

The union’s case against Suncor went before a 3-member arbitration board in March. The panel ruled that Suncor’s random testing policy was an unreasonable exercise of the company’s management rights. One of three panel members dissented, stating he had never seen stronger evidence in support of random testing. Suncor says three of seven deaths at its Oil sands operations since 2000 involved workers under the influence of drugs or alcohol.