Scribd Logo
Загрузить

Добро пожаловать в Scribd!

  • DECISION - Court of Appeal - Suncor Random Drug and Alcohol Appeal

    Загружено:

    CTV Calgary
    981 просмотров15 страниц
    DECISION - Court of Appeal - Suncor Random Drug and Alcohol Appeal

    Авторское право

    © © All Rights Reserved

    Доступные форматы

    PDF или читайте онлайн в Scribd

    Этот документ был вам полезен?

    Это неприемлемый материал?

    Пожаловаться на этот документ
    DECISION - Court of Appeal - Suncor Random Drug and Alcohol Appeal

    Авторское право:

    © All Rights Reserved
    Скачайте в формате PDF или читайте онлайн в Scribd
    Отметить как неприемлемый контент
    981 просмотров15 страниц

    DECISION - Court of Appeal - Suncor Random Drug and Alcohol Appeal

    Загружено:

    CTV Calgary
    DECISION - Court of Appeal - Suncor Random Drug and Alcohol Appeal

    Авторское право:

    © All Rights Reserved
    Скачайте в формате PDF или читайте онлайн в Scribd
    Отметить как неприемлемый контент
    из 15
    ‘Testontnpetes Tar Tale Sra tears cao caer odie September 27,2017 R. Khullar, Q.C./M. Westgzest Chivers Carpenter Pax: 780-439-8543 B. Jolinston, QC. Dentons Canada LLP ax: 403-268-3100 1H. MePhail, QC. McLennan Ross LLP Fax: 780-482-9100 Unifor Local 707A (A) v. Suncor Energy Ine. (R) Mining Association of Canada, (2) and others ‘Anneal No, 1601-0146AC ‘This isto advise thatthe reserved judgment inthe above named case will be released the moring of September 28, 2017. On tat day, between 9:30 a.m. and 10:00 a.m., a copy ofthe judgment will be sent 10 you ds stout above ‘That same day, the judgment wil also be sent othe Canadian Legal Information Institute (CaaL I) 10:00 sm. for publishing tits website, which may occur that same day. Any concers with on-line Judgments shouldbe raised directly with CanL.M- I you have any concerns akout the judgment being sent to you as set out above, please contact cur ‘office as sn as posible to make alternate delivery arrangements mu Quer en Deputy Registrar ee ‘As indicated above, tached is the judgment which was released today. ‘Thankyou. In the Court of Appeal of Alberta Citation: Suneor Energy Ine v Unifor Local 707A, 2017 ABCA 313 Date: 20170928 Between: ‘Suncor Energy Ine Respondent (applicant) ods Unifor Local 707A, Appellant (Respondent) and ~ ‘Mining Association of Canada and Enform Canada Interveners The Courts ‘The Honourable Mr. Justice J.D. Bruce MeDonald ‘The Honourable Madam Justice Barbara Lea Veldhuis ‘The Honourable Madam Justice Frederica Sehutz Appeal from the Judgment by ‘The Honourable Me. Justice D.B, Nixon Dated the 18th day of May, 2016 (2016 ABQB 269, Docket: 1401 03831) ‘Memorandum of Judgment ‘The Court: Introduction [1] Thisis an appeat from a judicial review ofa grievance arbitrstion {2]___ In 2012, the responsent Suncor implemented random drug and aleohol testing for workers in safey-senstive postions at some of is sites inthe Fort MeMurray area Unifor, the appellant, arieved the alleged infringement of unionized workers" privacy rights. The majority of the nitration panel ruled in favour of Unifor, [3] __ Suncor applied for judicial review of the decision. The reviewing justice held thet the ‘majority decision was unreasonable and sent the matter back for reconsideration by a new panel Unifor appeals the decision on judicial review. [4]. The question beforeus is whether the reviewing justice selected the appropriate standard of| review and applied it propei. For the reasons that follow, we hold that he did both. Accordingly, the appeal is dismissed. Background [5] Suncor Energy Ine is one of Canada's largest energy producers, with operations in various parts of Alberts, The present appeal concerns its operation in the Athabasca oil sands region, particularly in the Regional Municipality of Wood Buffalo. {6} _Suncor’s operations in this region take place in two locations: a base plant approximately 30 km north of Fort MeMurray, and in situ operations at MeKay River and Firebug. which are approximately 120 kam nor of Fort McMurray, These sites are near environmentally sensitive areas such as the Athabasca River as well as populated communities. (71 Suncor’s facilites are operational twenty-four hours e day, every day, year round. Employees typically work 12 hour shifts, and use some of the largest and most complex mining and industrial equipment inthe world. The equipment includes heavy haul trucks that ate as large as multi-story buildings anc weigh in excess of 400 tons, as well as cable and hydraulic shovels that can stand 21 metres tal, [8] ‘The site workforce is split between unionized workers, non-union Suncor employees, and Contactor employees. The tribunal heard that at the time of the grievance, there were approximately 10,000 employees at the site at any one time. 3,383 of those employees were Poge:2 ‘represented by Unifor. Suncor also employed 2,963 non-union employees. The remaining workers were employed by contracirs [9]___Both sides agree that proper safety procedures at this site are critical to prevent workplace ‘sccidents that may result in human or environmental disaster, Both sides also agree that sueh procedures include preverting drug and alcohol use at the site, a¢ well as ensuring thet workers ‘who attend the site are not funetionally impaired while on the job. {10] What is contentious is the means by which Suncor sought to prevent drug and aleohol use inthe workplace, [11] Prior to implementing random testing, Suncor had taken extensive measures 10 addcess drug and alcohol concems at its worksites, including employee edueation and taining, “post-incident” and “retum to work testing, an employee assistance program, a treatment program for employees wih substance dependencies, a drug interdiction procedure, sniffer dogs, and an alcohol-free eamp poliey. [12] On June 20, 2012, Suncor announced that, effective October 15, 2012, it would introduce random drug and alcohol testing atthe Regional Municipality of Wood Buffalo sites. Suncor indieated that only employees in saety-sensitive positions would be subject to random testing, as would executive members ofthe Suncor management team who were on site, including the CEO. 103] On July 19, 2012, Unifor grieved Suncor’s implementation of random drug and alcohol testing. 14) Theparties dispute the extentto which drugs and alcoho! were a problem a the site, Suneor Stated that its evidence “dsmonstrates a pervasive problem that ig unparalleled in any case in Canada." Unifor, on the otter hand, maintained that Suncor's evidence was “unparicularized and ‘unefined” and stated thatthe data yas insufficient to demonstrate a pervasive workplace problem that could justify random testing, Decision of the Tribunal [15] _ The initial grievancs was the subject of an arbitration hearing that occurred over 23 days between January and November 2013. The hearing was lengthy, technical and complex. Suncor called 12 witnesses, including three experts. Unifor called seven witnesses, including one exper. During the course of the arbitration the Supreme Court of Canada reieased its decision in Communications, Energy and Paperworkers Union of Canada, Local 30 Irving Pulp & Paper Lid, 2013 SCC 34, [2013] 2SCR 458 [Irving], and bot sides filed submissions on that case and is impact on the arbitration, [16] On March 18, 2014, the board released its decision: Unifor, Local 707A v Suncor Energy ‘ne, Oil Sands, 242 LAC (4th) 1, [2014] AGAA No 6. The majority ruled in favour of Unifar, Page: 3 holding thatthe employer had not demonstrated sulicient safety concems within the bargaining ‘unit to justify random testing. The dissent concluded that there was overwhelining evidence of safety issues within the workpleee, including substance abuse issues, und would have upheld the ‘employer's random testing scheme, [17] There was some common ground between the majority and the dissent. Both sides agreed that dhe Suncor sites were dangerous and that safety was important. They also agreed that random testing was not automatically justified in dangerous workplaces, but had to be a proportional response to safety concern a the specifi site, {18} _ The majority and dissent differed regarding whether the balance tipped in favour of privacy orsafety. The decision of he reviewing justice outlines the majority and dissent postions in dei, and only s brief summary is necessary here, [19] The majority upheld the grievance on the basis that Suncor's evidence was Unperticularized and unrefined, and therefore could not form the basis for a finding that there was ‘a demonstrated workplace roblem with drugs and aleohol, They also held that Suncor bud failed fo show a causal connection between any drug and alcohol use and the documented safety incidents that were put before the panel [20] _ ‘The dissent eiticized the majority decision as being “highly selective” in ts review of the ‘evidence for “filing to consider materia and relevant facts.” The dissenting arbitrator also stated thatthe majority had misupprehended and misapplied the balancing exercise outlined in Irving, that they had narrowed the inquiry into a ceug snd alcohol problem by focusing on the bargaining ‘unit rather than the workolace, and that they had exceeded jurisdition by commenting. on twinalysis asa testing method as well as discussing less intrusive forms of testing on which no submissions had been made, Decision of the Court of Queen's Bench [21] _ Suncor applied for judicial review of the arbitration decision. On May 18, 2015, the arbitration desision was queshed by the reviewing justice, who ordered thatthe matter be sent back fora fresh hearing by a new pane!: Suncor Energy Inc v Unifor Lacal 7074, 2016 ABQB 269, 38 Alta LR (6th) 381 [22] The reviewing justice held that the underlying decision was reviewable on reasonableness standard, bat found the majority's decision to be unreasonable for three main reasons, First, he held thatthe tribunel’s majority misapplied the balancing exercise outlined in rving by imposing more stingent requirements than those contemplated by the Supreme Court of Canada: paras 69-77. Seccnd, he concluded that the majority erred by only considering the ‘evidence that demonstrated substance abuse problems within the bargaining unit, and ignoring the evidence of substance abuse problems within the broader workplace: paras 78-85, Finally, he ‘concluded thatthe majority hd filed to consider all oF the relevant evidence: paras 86.95, Page: 4 [23] _ The reviewing justce concluded that the majority of the board had “pt is thumb on the scales and upset the eazefl balance established inthe arbitral jurisprudence” and “in s0 dang it ‘eame to an unreasonable decision": pera 97, quoting the dissenting jodgment in Irving at para 37 Grounds of Appeal and Standard of Review Issue [24] ‘The role of this Court is to determine whether the appeal judge chose and eppied the appropriate standard of review and, if not, to assess the adminisiaive tribunal's decision in light of the comest standard: Dr Q v College of Physicians and Surgeons of British Columbta, 2003 SCC 19 at para 43, 2003] 1 SCR 226; Lethbridge Regional Police Service v Lethbridge Police Assoclation, 2013 ABCA 47 at paras 25-29, 542 AR 252, Whether the appropriate standard sas Dropesly applied by the reviewing judge is also a question of law, subject to the correctness ‘standard on appesl: CUPE (Local 784) v Board of Trustees (Edmonton School District No 7), 200 ABCA 74, 365 AR 123; Tilecommunications Workers Union v Telus Communications Ine, 2014 ‘ABCA 154 at para 24, 74 Admin LR (Sth) 140, The appeal court “steps into the shoes” of the review court: Agraira v Conada (Publie Safty and Emergency Preparedness), 2013 SCC36 at para 45-46, [2013] 2 SCR #59, [25] The reviewing justice concluded that the tribunal decision was reviewable on a ‘reasonableness standard: pera $6. As the Supreme Court stated in Irving (at pars 7), “it canst be seriously challenged, particularly since Dunsmuir v, New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, that the applicable standard for reviewing the decision” of about arbitetor is reasonableness.” The key question on this appeal, therefore, is whether the reviewing justice properly applied the reasonableness standard when assessing the tribunal devsion 1, Unifor's Position [26] _Unifor argues thatthe reviewing justice propetly identified reasonableness asthe standard of review, but then erred by effectively applying a correctness standard in his reasons. In Particular, it argues that the majority's interpretation of the law arising out of Jrving was reasonable and was entitled to deference. [27] _ Unifor also contends that the majority's evidentiary holdings are reasonable and therefore entitled to deference. It maintains that an arbitcation panel isnot required to painstakingly review the evidence presented befor it in its written reasons, let alone discuss why it accepted or rejected parts ofthat evidence. Sine the panel articulated reasons that were, in its view, justifiable onthe evidence, intelligible, and transparent, the cours should not intervene 28] _Unitor points to the statement of the Supreme Court in Newfoundland and Labrador ‘Murses' Union v Newfoundland and Labradar (Treasury Board), 2011 SCC 62, 2011] 3 SCR 708 [Newfoundland Nurses) as wuthority for adopting a position of deference, In that case, the court Page: 5 ‘eld that tribunal does no: need to make an explicit finding on each constituent element that leads toils final decision. Rather, ll that i roquited ae reasons sufficient to “allow the reviewing court ‘o understand why the tribunal made its decision and permit it to determine whether the conclusion 's within the range of sceeptable outcomes”: para 16. The reasons da not need to be perfect or ‘comprehensive: para 18, [29] _Unifor further argues chat brevity in arbitration decisions is in keeping with the underlying rationele of this dispute setlement mechanism. While a decision must be justifiable, ansperent, ‘and intelligible, arbitratorsdo not write their reasons forth courts, but rather forthe parties. Their focus is on expediency, lower costs for the parties, andthe feclitation of an ongoing working ionshp. This ralionale has been identified numerous times in labour arbitration jurisprudence’ Newfoundland Nurses at puras 23-25 0] _ Finally, Unifor argues that the majority of the tibunal did not neglect or ignore key ‘evidence or expert evidence; rather, they acknowledged all ofthe evidence and indicated tht they ‘had preferred some of i. Such decisions are well within the competence of labour erbitration panels, and do not constitute reviewable errr. 2 Suncor's Position [31] _Suncor’s position is thatthe reviewing justice correctly apprehended the filings of the majority decision in the underlying dispute. {52} _ tn response to Unifor's argument tbl the court should adopt a position of deference Fegarding the majority's reasons, Suncor also refers to the Newfoundland Nurses ease. In Particular, it points out the Supreme Court's holding that while “cours should not substitute their wn reasons... they may, ifthey find it necessary, look to the reeord forthe purpose of assessing ‘he reasonableness of the outcome”: Newfoundland Nurses st para 15 {33} _ Thus, much of Suncor’s argument on appeal was to review the record and highlight what it ‘maintains were unreasonable holdings by the mejority. (G4) _ Inparticular, Suncorargued thatthe majority ofthe arbitration panel made an unreasonable decision by: sposing an ingppropristely high threshold for demonstrating a workplace problem ith drugs and leohol; + failing to identify and weigh relevant factors when balancing workplace safety against privacy rights; iting to adopt an appropriately contexts! approach in pp g the balancing test; Page: 6 ‘+ ignoring or sysematically picking apart key evidence, and in particular, the evidence of Grant MacPhee, Senior Security Advisor at Suncor, and the expert evidence of Dr. Kadebjian, whe specializes in forensic toxicology. Analysis [33] _In the labour context, employers and unions entrust the resolution of their disputes to professional arbitrators becuse they have confidence that this group of individuals heve both the ‘raining and experience “needed to select a fair outcome fiom the pool of possible logical solutions": United Food and Commercial Workers, Lacal 401 » XL Foods Ine (Calgary Beef Plant), 2016 ABCA 31 at para 10, 616 AR 159, Recognizing that combination of Knowledge and experience, courts should tust these panels fo make reasonable decisions and tread lightly when it comes to interfering with thee Bindings and holdings, [36] _ This trustis not blind, however. As the Supreme Court pointed out in Dunsmuir, deference oes not mean a reviewing court must submit to an arbitrator's reasons and conclusions. Deference ‘requires “not submission but a respectful attention tothe reasons offered or which could be offered in support of a decision” D, Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy in M. Taggat, ed, The Province of Administrative Lave (1997) a p 286, cited with approval in Dunsmuir at paca 48, 17] _ This distinction between “submission” to the underlying decision and “respectful attention” o reasons is important, because it means that courts can intervene when necessary to {ensure te arbitration process has lunctioned properly. Even expert decision-mekers sometimes ew ways that compromise the reasonableness of their decision: Unifor Local 7074 v. SMS Equipment inc, 2017 ABCA 81, 47 Alta LR (6th) 28. Courts act as an important check to ensure that panels reeive the necessary guidance to resolve issues properly, and to ensure that the parties continue to have confidense in the institutions that resolve their disputes. The reasonableness standard didnot preclude the reviewing justice from assessing the means by which the majority of the panel resched thei decision, [58] _ In our view, to dispose ofthis appeal, itis only necessary to address the second problem the reviewing justice identified in the decision below: the majority's suggestion that it should only consider evidence demonstating a drug or alcohol problem within the bargaining unit 139] _ In ving, Abella J explained how a dangerous worksite isnot, in itself, enough to justify ‘management imposing random drug or alcohol testing on its unfonized employees. She defined the testi terms of whether thers are special safety risks, and in particular, whether there was evidence of a general problem of substance abuse within a workplace (at para 31, emphasis added): [Tyhe dangerousness ofa workplace — whether described as dangerous, inhereatly dangerous, or highly safety sensitive — is, while clealy and highly relevant, only ‘the beginning ofthe inquiry. Ithas never been found tobe an automate justifieation Page: 7 for the unilateral imposition of unfettered random testing with disciplinary ‘consequences. Wht has been additionally required is evidence of enhanced safety risks, suk of ager with substance oh [40] _ Iman attempt to satisty this tet from /rving, Suncor led extensive evidence shout employee Substance abuse problems at its Fort McMurray operations. Some of this evidence directly implicated its unionized employees. Suncor introduced evidence about positive drug and aleohol {ests that took place after suety incidents or “near misses," with these reeords indicating that over 95% of the positive tests had involved unionized employees. However, much of Suncor’ evidence related to the workplace as a whole, and did not distinguish between unionized employees, ‘nos-unionized employees, nd contractors’ employees, Suncor intgoduced evidence of over 2200 “incidents” at its Fort McMurray operations that involved drugs a aleokl, but did not provide a breakdown of how many ofthese incidents involved wsionized employees versus non-unionized employees or contactor emaloyees, [41] _ Suncor made « public policy argument before the arbitration tribune, noting tht the ‘eibunals decision would influence it relationship with is contractors. Suncor’s position is that if the tribunal allowed random testing of Suneor’s own unionized employees, then Suncor could also equie its contractors to rmdomly test their employees: drbitration Deelsion a paras 177, 260. Suncor argued that such uriversal random testing would bein the public interest, since it would significantly enhance Suncor ability to mitigate workplace hazards, [42] _ The tibunal majorty rejected Suncor’s argument, focusing on what it deseribed as a “jurisdictional” question, ine section ofits decision entitled “The Relevance ofthe Evidence of the Entire Workforce” (Arbitration Decision at paras 264-265, emphasis added): ‘As our jurisdiction derives from the collective agreement, and extends to the [Employer and the torgaining unit members only, and as the impact on privacy rights will be felt by this bargaining unit by virtue of our decision and is binci only on them, it makes logical sense tht this Board consider the costbenefit snalysis as it relates to this bargaining unit, end not its impact vis-a-vis the other ‘wo thirds of workers who are also present at the Oil Sands Operations In our view, in weighing the “grin” to be achieved to this Employer by considering other ‘arangements the Employer may or may not have with other groups of employees ‘or contactors, the Board would be exceeding its jurisdiction, This makes logieal as well as labour relations sense. Taken to its logical conclusion, if in fact such arrangements could dictate the results of proportionality assessment, that term would have no meaning: a group of employees could have their privacy invaded ‘whether or not they pose any sufficient risk oan employer themselves ~in order to gain access to require random testing of another group of employees outside the four comers ofthe collective agreement Page: 8 i Bones opinion, it must this particular group poses ~ and therefore the gain or tic = that frames the inquiry. Tn the end, we find our jurisdiction is simply not broad enovgh to reach the end the Employer argues. We eannot agree that evidence of guns which donot relat to this bargaining unit are relevant 10 a determination of whether members of this bargaining unt should be subject to what the Supreme Court of Canada has termined are higly intrusive random tests on their bodily fluids. I'the Employer hs a problem with ts Contractor Employees ~ and we make no determination on ‘whether this isin fst the ease ~ it must address this problem through other avenues. [43] Later in its reasons the majority confirmed that it had not only rejected Suncor’s policy 'ryument-the majority alse concluded the tribunal was foreclosed from even considering Suncor’s experience with substance abuse problems of non-unionized employees (para 316, emphasis added): ‘The Employer has argued that the evidence before this Board supports this “exceptional circumstance” as an “out of control” drug eultare has taken hol, both in its Workforce and in the greater community of the [Regional Municipality of ‘Wood Buffalo), Imbedded inthis argument isan assumption that we have accepted shat ion \d_enoug the Employer’ in ‘experience of all ofits employees, and not just the experience of this bargaining unit, We have ejected that argument... [44] The majority contuted two issues, and went too fir when it rejected Suncor’s policy !xgument. The fist issue is the tribunal’ jurisdiction to decide only those matters rising under the collective agreement. The recond issue is what evidence is refevant to whether there isa general problem of substance abusein the workplace. These two questions are distinct. Simply because the ‘ribunal lacked jurisdiction to impose or endorse drug and alcohol testing of non-unionized employees does not mean that Suncor’s overall experience with substance abuse in ils F ‘MeMurray operations had ro bearing on the question before the tribunal As the reviewing justice correctly noted, [white itis true that the arbitration decision is binding only upon members ofthe bargaining uni, it does not follow thatthe Board could take account only of evidence ted directly to that bargaining units para 78. It was reasonable forthe tribunal to conchide that Suncor's desire to expand random drug and aleohol testing to contractor employees should not influence how the ‘wibunal balances unionizec employees’ privacy against worksite safety. But the majority went further, and unreasonably concluded that these “jurisdictional” considerations required the ‘cibunal to blind itself to logically relevant evidence. [45]_ Other portions of the majority's decision confirm that Suncor's filure to introduce ‘vidence specific to its unienized employees loomed large in the majority's reasoning, In several key passages, the majority commented critically on Suncor's “unparticularized evidence (craphasis added) Page: 9 ‘+ Relecting Suncor's extensive evidence abou the 2,276 documented on-site drug and ‘alcohol incidens (paras 245, 253-255, 271) “It bears repeating at this stage thatthe evidence offered to this Board relates fo thee types of employees: Union Employees, Contractor Employees, and Non-Represented Employees ... The evidence ftom Suncor's witness is that security was interested in recording incidents, rather than breaking them down by specific employee or contractor group ... While 2.276 inciden's sounds like very large suber, the Union argues the report does’ not delincate whether the incidents listed involved Union Employees, Non-Represented Employees or Contracor Employees... Exhibit 63 dees not distinguish the ypes of Employees involved in its “incidens listed. ... While there are several references of “New Hires" showing up at the gate with aleohol in their possession, the Employer has not distinguisted whether these ‘New Hires’ are Union Employees or Non-Represeatid Employees, or even Contractor Employees. ... In summaty, the ‘evidence in Exbibit 63 is unrefined, unpart and docs n uish between inion fon-Ret os actor Employees.” + Rejecting Suncor's evidence about the approximately 1,250 employees who were ‘banned from the ste for reasons related to drugs or alcoho (para 266): “Likewise, the Employers reference to ‘site bans’ is also unrefined, There is no evidence before this ‘Board of how wany of these site bans olate to Union Employees ...” ‘+ Rejecting Suncor's evidence that the three workplace fatalities linked t alcohol abuse reflected an aleohe! problem (para 267): "With respect to the evidence of fatliiee “linked” to drugs or alcohol, while the evidence docs demonstrate three faites involving alcohal use have occurred, all three fatalies involved Contractor Employees and not bargaining unit employees,” + Rejecting Suncer's evidence about drug paraphernalia and drugs located on-site (para 304): “The dificult forthe Employer with respoct to its paraphernalia and drug find evidence is that the majority of it cannot be a (oan patio employee.” + Rejecting Sumcor's evidence about employees who had been found with devices that could help foo! wrine test (para 306): “The difficulty forthe Employer is there is 20 fc evidens» af the type of e ‘who was en this equipment: were those employers Union Employees, Non-Represented Employees or Contractor Employees? No particularized evidence was offered, Without further particularzation this Board cant determine if this evidence is relevant to the experience of this bargaining unit” Explaining its approach o substance-related aceldents, injuries, and “near misses” (paras 307, 309) "As previously noted, the Employer didnot offer extensive evidence Page: 10 ofits accident, injury and near miss history experience with respect to this bargaining ‘unit... [Wlithout evidence of some connection between drug use at this workplace tnd the accident and near miss history in this workplace and this group of Unionized Employees, an arbitration board cannot determine that random drug testing ofthese ‘employees isa reasonable response tothe rsk they may pose in the workplace.” + Rejecting the same evidence inthe context of drug testing (para 310): “The summary of evidence pertaining to site bans, ftaiies, rate at other Suncor operations dependency assessments, ad the relevance of evidence of the entire workfiare, as we discussed under alcohol testing above, also apply to drag esting, + Rejecting one expert's conclusions abou the site's “endemic problem” with drag and alcokol dependence (pare 318): “It is not clear from this evidence whether these repsesent_Union Emplovess or Non-Represented Finployees, or drug or aleahol eddiction.” 6} _ It was unreasonable for the tribunal majority to insist upon “perticularized” evidence specific to Suncor's unionized employees. This sets the evidentiary bar oo high, ring defined the balancing process in terms of workplace safety and workplace substance abuse problems ~ not ‘bargaining unit safety and bargaining unit substance abuse problems. Zrving cals for a more holistic inquiry into drug and alcohol problems within the workplace generally, insteed of demanding evidence unique to the workers who will be directly affected by the arbitration decision. [47] broader, workplice-focused analysis appears coasistent with how both the Supreme ‘Court and the arbitration panel in Frving approached the balancing process, Inthe Irving arbitration decision, the arbitrator mentioned how some of the evidence did not distinguish between the “groups of employees” involved in alcohol-related incidents, but also specifically considered evidence nbout alcoho testing within the overall workplace, including plant employees outside the bargaining unit: drving Puip and Paper v CEP Lacal 30 (2009), 189 LAC (4th) 218, [2009] NBLAA No 26 at paras 109, 112. Abella J noted these same worksite-wide statistics in the Inajority judgment: drving at'pare 13. Likewise, when considering the Nanticoke arbitration ecision, Abella noted theabsence of “evidence of «substance abuse problem athe oil refinery" ~notthe absence of evidence of a substance abuse problem within the specific bargaining unit at the ol refinery: rving at para 35 (discussing Impertal Oil Lid v CEP Local 900 2006), 187 LAC (th) 225 [Nanuicoka, aff dst 2009 ONCA 420), [48] There may be some workplaces where there is good reason to distinguish between the evidence of substance abuse by unionized and non-unionized employees. But in this arbitration, the uncontradicted evidence was that unionized employees, non-unionized employees, and contractor employees all worked side-by-side, in integrated workforees at integrated jobsites. In four view, this record could not reasonably justify drawing an abiteary distinction between Page: 11 evidence of substance abise problems in the workplace gs.a whole and evidence of substance abuse problems s un ees. As the reviewing justice correctly noted, there was nothing “to suggest tht alcohol and drug use within the bargaining unit differed in some ‘meaningfl wey from tha inthe broader workforce": para 79, [49] "The Bonrd's decision must be considered as a whole, and not parsed nanowly in a Tine-by-line “treasure hunt” for error: Jrving at para 54. This wes nota minor or inconsequential evidentiary misstep, however, thet was unlikely to have any impact on the outcome of the arbitration, The heart of the ving balaneing process i an inquiry into whether there is sufficient “evidence of enhanced safety risks, such as evidence ofa general problem with substance abuse in the workplace”: Jrving at para 31. The key question in this arbitration was whether there Was sufficient evidence ofa sutstance abuse problem in Suncor's Fort MeMurray operations to justify random drug end alcohol testing, given the privacy concems inherent in such random testing Rather then considering whether there was evidence of « problem in the workplace, the majority ‘sked only whether there was evidence of such a problem specific to bargaining unit employees, By unreasonably narrowing the evidence that it considered when deciding this issue, the tribunal majority effectively asked the wrong question, end therefore applied the wrong legal test. Even ‘where the standard of review is reasonableness, a tribunal's failure to apply the proper legal test, Set down in binding Supreme Court authority, may result in an unreasonable decision ‘Saskorchewan (Euman Rights Commission) v Whateott, 2013 SCC 11 at para 194, [2013] 1 SCR 467, Such i the ease here. 50] |The effect of the majority's unseasonable approach to the substance abuse evidence is compounded by how the majority assessed the expert evidence, Four expert witnesses all ‘eminently qualified testified atthe arbitration hearing, giving evidence about the scope and nature of drug and alcohol problems, both generally and at Suneot’s operations. The majority only superficially addressed why it prefered the evidence of Dr. MacDonald, the union's expert, in very situation when his evidence differed withthe evidence of ather experts, The only substantive Feason that the majorly gave for preferring Dr. MacDonald's evidence was that his report provided “the most thorough analysis of the issues": para 126. The brevity of the majority's Teasons does not make its cevision unreasonable: Newfoundland Nurses at peas 18-17. But the majority's filure to explain its choice between the experts" opinions undermines this Court's ability to defer to Use majority's reasoning in the face ofthe other issues we have identified. Given the complexity and the numnces inherent in the experts’ evidence, a blanket pronouncement preferring one expert's testimony overall others merely beeause it was “more thorougi” does not reflect" ‘within the decision-making process": Dunsmuir at para 47 In contrast, appropriately eareful weighing of expert evidence on an issue-by-issue basis ina case involving employee drug testing was clearly demonstrated in Amalgamated Transit Union, Local 4113 Toronto Transit Commission, 2017 ONSC 2078, 275 LAC (4th) 187. Page: 12 Remedy [51] _ We acknowledge thatthe majority provided other reasons for allowing the grievance, and ‘had other concerns about the Suncor testing poly. However, in our view, itis impossible to

    Вам также может понравиться