Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people���s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. photo:contributed

Kootnekoff: Ringing in the New Year with Random Testing

The union fought it, vigorously, for years.

The squabble had Suncor and the union in and out of court for a number of years.

Then, late last month, an important agreement was announced.

Suncor and the union (Unifor local 707A) at its oil sands operations have agreed that Suncor will implement random drug and alcohol testing for all safety-sensitive positions in the municipality of Wood Buffalo, Alberta, beginning in the first quarter of 2019.

Contractors working at those sites will also be required to implement random testing.

This is big news.

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Thousands of workers will potentially be affected.

The oil sands industry has for many years already had testing in place in other circumstances. It would not be surprising to see other oil sands players follow suit, in the near future or over time.

Canada’s oil sands industry uses some of the largest and most complex mining and industrial equipment in the world.

Hazards include heavy equipment, high voltage power lines, chemicals, radiation sources, high temperature steam, explosives, high pressure piping and high temperature, flammable liquids and gases.

At any one time, each major oil sands player has thousands of workers on site.

The area is surrounded by environmentally sensitive terrain, as well as the community of Fort McMurray and other smaller settlements.

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The most recent legal skirmish started in 2012, when Suncor announced random testing for employees in safety sensitive positions at its oil sands operations in Northern Alberta.

The union grieved this change.

The matter went to arbitration, before a panel of three arbitrators. The arbitration was lengthy, 23 days, technical and complex. A total of 19 witnesses were called, including various experts.

Suncor and the union accepted what more or less seemed to be the applicable law at that time, that a dangerous workplace does not automatically justify random testing. Rather, it was felt that a balancing of interests was required. They differed on the results of that balancing.

Suffice to say that once we go down this rabbit hole, the evidence needed and legal arguments become complex.

In the end, two arbitrators ruled in favour of the union. One found in favour of Suncor.

Suncor challenged the arbitration ruling in court.

The court threw out the ruling.

There is a whole lot more to it, but essentially, the court held that the arbitrators had set the bar too high for Suncor, and that this was not consistent with previous court decisions. It found that the arbitrators’ analysis of the evidence was unreasonable.

The court returned the matter to arbitration, to be heard by a fresh arbitration panel.

The union then appealed.

The appeal court observed that there is a problem with substance abuse in the workplace. Suncor had presented evidence of more than 2,200 incidents involving drugs or alcohol.

Yes, that’s right folks, thousands of cases, gathered without the benefit of random testing.

This is a problem. A problem that is by no means unique to the oil sands industry, or to Alberta.

This problem also exists in B.C.

To make a long story short, the appellate court dismissed the appeal.

In June the Supreme Court of Canada then refused to hear the case. So, Suncor ultimately prevailed.

The union fought so hard that it had also obtained an injunction prohibiting Suncor from moving forward until the new arbitration panel had heard the matter.

Now, it has agreed to allow Suncor to move forward.

Why the change?

Well, for one thing, there has arguably been a change in tone in court decisions on these issues in recent years.

The union likely realized that a new arbitration hearing would be an uphill battle.

In the past, unions have often fought, and fought hard, to resist employer drug testing programs.

It may be that such efforts will increasingly prove futile, as drug and alcohol testing in safety-sensitive workplaces gains acceptance in the courts.

Agreement from the union is not always required to implement a testing regime. The union had a strong voice in this case, due to the circumstances of this case.

A union that fully supports workplace safety, even if that means agreeing to drug and alcohol testing of its members, absolutely deserves to be applauded.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca. Check out our website, www.inspirelaw.ca.

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