Canada: Random Drug Testing In The Workplace – What Does The Suncor Case Mean For Other Employers?

Last Updated: February 1 2019
Article by Ashton Butler and Janna Young

Starting in the first quarter of this year, Suncor Energy Inc. (Suncor) plans to start randomly testing some of its employees for drugs and alcohol at its northern Alberta worksites. What does this mean for other employers?

History of the Suncor Saga

The dispute between Suncor and Unifor Local 707A (Union) has a long procedural history stemming back to 2012 when Suncor implemented a random drug and alcohol testing program for people holding "safety-sensitive positions." The testing program prompted the Union to file a grievance, alleging testing infringed on workers' privacy rights and human rights.

An arbitration tribunal allowed the grievance, and found the testing to be an unreasonable exercise of management rights. However, the arbitration decision was overturned by the Alberta Court of Queen's Bench, which found that the tribunal made the following three key errors:

  1. The Board applied the wrong legal test to determine whether the threshold concerning the degree of evidence necessary to establish a workplace drug and alcohol problem was met.
  2. The Board misapplied the legal test again when it said that "it could only consider evidence demonstrating an alcohol and drug problem within the bargaining unit". The legal test was to be applied to the "workplace" rather than the "bargaining unit" as long as this does not result in an overbroad analysis.
  3. The Board "ignored or misunderstood the evidence in a manner that affects its decisions."

The Alberta Court of Queen's Bench directed the matter back to a fresh arbitration panel. The Queen's Bench decision was appealed and on appeal, the Alberta Court of Appeal agreed with the lower court, finding that the decision-making process used by the arbitration tribunal was flawed. The Union sought leave to appeal the Alberta Court of Appeal decision to the Supreme Court of Canada.

Before the Supreme Court of Canada made a decision with respect to the leave application, Suncor attempted to implement random drug testing by advising its employees that it would be introducing a new drug and alcohol testing policy. To prevent Suncor from doing so, the Union applied for and obtained a temporary injunction preventing Suncor from implementing the testing program until the matter was heard by a new arbitration panel, or by way of appeal to the Supreme Court of Canada. Suncor appealed the injunction decision and the Alberta Court of Appeal denied the appeal.

In June 2018, the Supreme Court of Canada held that it would not grant the Union leave to appeal. This meant that, until recently, the issue of Suncor's random drug and alcohol testing policy was to be considered by a fresh arbitration panel, and in the interim, the injunction would remain in force.

On November 29, 2018, Suncor and the Union reached an agreement that random drug testing will commence during Suncor's first quarter of 2019, ending an approximately seven year saga between Suncor and the Union.

Implications of the Agreement between Suncor and the Union

Employers should be aware of the judicial history of this matter. The decision by Suncor to implement random drug and alcohol testing in 2019 is not based on a judicial pronouncement that such testing is reasonable and justifiable in the circumstances. Rather, it is based on an agreement between Suncor and the Union.

That being said, the existing concerns with respect to employee privacy rights remain relevant. This agreement between Suncor and the Union does not change an employer's need to weigh safety and employee privacy in deciding whether to conduct random drug testing.

Employers Must Continue to Weigh Competing Interests

Employers have a responsibility to provide a safe work environment, and employees have an important right to privacy and to the related right of security of the person. As stated by the Supreme Court of Canada in Irving Pulp & Paper Ltd. v CEP, Local 30, the invasion on these rights by random alcohol testing involves a bodily intrusion and the surrender of bodily substances. It involves coercion and there can be an element of public embarrassment. Random testing can also effect a loss of liberty and personal autonomy.

With the recent legalization of cannabis in Canada, random drug testing runs the risk of affecting a greater number of employees, which potentially opens up employers to a greater number of complaints. On the other hand, the legalization of cannabis puts employers at a greater risk that employees may come to work impaired and not fit for duty, which may put the safety of other workers and the public at risk.

Suncor's work sites have many hazards, and has previously experienced fatalities and serious injuries where alcohol or drugs were a factor. Despite these tragedies, Suncor states that it has continued to experience problems with employee use of drugs or alcohol. As such, Suncor and the Union came to an agreement that implementing random drug and alcohol testing would be the best way forward to positively affect safety at the work site.

Random drug or alcohol testing may be justifiable if it represents a proportionate response in light of both legitimate safety concerns and privacy interests. For random drug or alcohol testing to be permissible, the employer must justify doing so by having at least some evidence of a problem with drug or alcohol misuse in the workplace sufficient to justify the intrusion into employee privacy rights.


The implementation of Suncor's random drug and alcohol testing program will likely encourage other employers with safety-sensitive workers to commence similar programs. However, the existing case law remains authoritative, and the recent agreement between Suncor and the Union does not change the state of the law. Employers should conduct a careful and thorough analysis of whether random testing is appropriate at their worksites, including gathering evidence showing a problem with alcohol and drug use.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Roper Greyell LLP – Employment and Labour Lawyers
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Roper Greyell LLP – Employment and Labour Lawyers
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions