View cases - Stewart McKelvey

- 23 -employer’s operation was not as inherently sensitive as those work environments wherethe policy was implemented without the need for evidence of a prior work-place drug oralcohol problem (railroads, mining and forestry), but that the operation in question wasfar enough along the continuum of “safety sensitive operations” that the employer wasentitled to be proactive. Resultantly, it need not prove the potential for catastrophe or theexistence of a substance abuse problem in order to justify testing. Given the employees’use of heavy machinery in the work-place, and given statutory safety obligations imposedon employers under the Occupational Health and Safety Act, S.N.B. 1983, c. O-0.2, ands. 217.1 of the Criminal Code (which expose employers to criminal responsibility forfailing to ensure employee safety by taking reasonable steps to prevent bodily harm), andin light of the contractual commitment contained in the collective agreement, the unionfailed to establish that the employer was acting in a manner inconsistent with thecollective agreement, without justification, or unreasonably when it adopted its SAPP.2011 NBCA 58 (CanLII)[46] It should not be presumed that there are no cases where the employer hasled evidence as to an existing alcohol or drug problem in the workplace with the object ofjustifying the adoption of its testing policy so as to by-pass the argument that theworkplace qualifies as an inherently dangerous operation. Communications, Energy andPaperworkers Union, Local 707 v. Suncor Energy Inc. (Alcohol and Drug PolicyGrievance), [2008] A.G.A.A. No. 55 (QL) is a case in which the employer is the ownerof mining operations in the Athabasca oil sands, located near Fort McMurray. The oilsands mining operation recovers bitumen which is then upgraded by refinery on theSuncor site. Employees work on a 24-hour, seven days a week basis, 365 days a year at aremote site unable to access the amenities available in most communities. The employerwas able to establish easily an existing alcohol and drug problem based on experienceand having regard to a provincial report dealing with substance abuse and gambling in theAlberta workplace.[47] Another decision in which evidence of an existing drug or alcoholproblem in the workplace was used to support the employer’s decision to impose randomalcohol testing is Greater Toronto Airports Authority v. Public Service Alliance of