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already has an agreement with the union that it can test employees after an accident — "post-incident" testing — and it can demand tests if a worker shows up obviously impaired. What is at issue now is random screening for both alcohol and drugs. The problem is testing for drugs does not produce immediate results. It involves a urine sample that can take days to analyze and can only detect evidence of drugs in an individual's system, not necessarily impairment. That means a recreational drug user who shows up for work completely sober can still be subject to discipline for simply having consumed drugs sometime prior to clocking in. The union says that is an intrusion into an employee's private life and is going too far. Suncor's plan to institute random drug and alcohol testing led Local 707 of Unifor, formerly CEP, to file a grievance. The union, now Canada's biggest private-sector union, then sought and obtained a temporary injunction against the tests. That injunction granted by a lower court was upheld by the Alberta Court of Appeal, which found the testing was "a significant breach of workers' rights." The appeal court decided the injunction could stand while the union's grievance went to arbitration. But its decision was not unanimous. In a stiff dissent Justice Jean Coté pointed out "one impaired man caused the Exxon Valdez incident." He went on to observe that "privately giving a urine sample to be tested . . . does not begin to equal death or dismemberment, or widowhood or becoming an orphan, by an accident." Now all eyes are on the Alberta Arbitration Board. The board's hearings have been going on for close to a year in both Calgary and Fort McMurray. Closing arguments were planned for November. The muchanticipated final ruling should come down in the new year. It will be watched very closely throughout the employment law sector. Should Suncor win the arbitration and get the green light on random drug and alcohol testing, other industries will likely start screening as well. A lot of people in the legal community believe whatever the outcome of the arbitration hearing, the question of workplace drug and alcohol testing is not going to end there. In Mitchell's view, "Suncor is headed for the Supreme Court of Canada." He believes the oil field giant "has the data" to get the issue of random testing of workers back before the country's highest court. The issue of random alcohol testing, versus the alcohol and drug testing which Suncor is seeking, was ruled on by the Supreme Court this summer (CEP Local 30 v. Irving Pulp & Paper Ltd.). Canada's highest court upheld a New Brunswick labour arbitration board decision that struck down random alcohol screening. But the court allowed that a testing policy might not be unreasonable if a company could demonstrate "the requisite problems with dangerousness or increased safety concerns . . . that would justify universal random testing." Industry took some solace from those remarks. Ian Howcroft, vice president for the Ontario division of the trade association Canadian Manufacturers and Exporters, an intervener in the case, said: "It's encouraging the judgment did not close the door completely and companies may still be able to do some testing in certain circumstances." Many in the industry believe the Supreme Court has left a crack in the door. It is that "crack" that is focussing so much attention on the Suncor/ Unifor arbitration in Alberta. But both the union and the company are tightlipped at this time. The lawyers for both sides are not prepared to go on the record. Suncor's only comment came from Calgary-head office spokeswoman Sneh Seetal who said it would be "premature for me to comment on the potential steps we may or may not take given the arbitration process is ongoing." But one lawyer close to the arbitration who did not want to be identified said: "Neither side, not the company, not the union, want to see impaired workers on a job site." It is a remark not all that far from the Supreme Court ruling in Irving and it suggests somewhere amid the legal wrangling and the rhetoric there may be common ground. — geoFF eLLWAND writerlaw@gmail.com Ready for lawyers who understand that a partner "Field Law" is a registered trademark of Field LLP. FieldLaw_CL_Nov_13.indd 1 www.CANADIAN L a w ye r m a g . c o m 13-10-24 4:16 PM November/December 2013 11

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